Docket: 2010-41(CPP)
BETWEEN:
GIFFORD H. TOOLE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
____________________________________________________________________
Appeal heard on January 18, 2012 in Toronto,
Ontario
Before: The Honourable
Justice J.M. Woods
Appearances:
|
Counsel for the Appellant:
|
Nicholas
Derzko
|
|
Counsel for the Respondent:
|
Andrew Kinoshita
Craig Maw
|
____________________________________________________________________
JUDGMENT
The appeal with respect to a decision of the Minister of
National Revenue made under the Canada Pension Plan that no
contributions are required for the 1999, 2000 and 2001 calendar years is
dismissed, and the decision is confirmed.
Signed at Toronto,
Ontario this 13th day of February 2012.
“J. Woods”
Citation: 2012 TCC 50
Date: 20120213
Docket: 2010-41(CPP)
BETWEEN:
GIFFORD H. TOOLE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Woods J.
[1]
Gifford Toole appeals in respect
of a decision of the Minister of National Revenue made under the Canada
Pension Plan (the “Plan”) that no contributions are required for the
1999, 2000 and 2001 calendar years. Mr. Toole seeks to vacate that decision so
that his benefits under the Plan would be increased by approximately
$100 per month.
[2]
The Minister’s decision was made
on the basis that Mr. Toole had been more than four years late in filing a
return of earnings and that the Minister had not assessed CPP contributions
within that time.
[3]
The relevant provisions are
subsections 30(1), (2) and (5) of the Plan. They are reproduced below.
30.
Return to be filed - (1) Where a person is required to make a contribution for a year in
respect of self-employed earnings, a return of the person’s self-employed
earnings for the year shall, without notice or demand for it, be filed with the
Minister in the prescribed form and manner and containing the prescribed
information, by that person (or, if the person is unable for any reason to file
the return, by their representative) on or before the day on or before which
the person’s return of income under Part I of the Income Tax Act is required by that Part to be filed or
would be required by that Part to be filed if tax under that Part were payable
for the year.
(2) Demand for return - Whether
or not he is liable to make a contribution for a year in respect of his
self-employed earnings and whether or not a return has been filed under
subsection (1), every person shall, on demand from the Minister, served
personally or by registered letter, file with the Minister in prescribed form
and containing prescribed information, within such reasonable time as may be
stipulated in the demand, a return of his self-employed earnings for the year
designated therein.
(5)
Where no return filed within four years - The amount of any contribution
required by this Act to be made by a person for a year in respect of their
self-employed earnings for the year is deemed to be zero where
(a) the
return of those earnings required by this section to be filed with the Minister
is not filed with the Minister before the day that is four years after the day
on or before which the return is required by subsection (1) to be filed; and
(b) the
Minister does not assess the contribution before the end of those four years.
[4]
Mr. Toole acknowledges that he did
not file a return of earnings within the four-year period required by
subsection 30(5). In his testimony, he explained that he was going through a
very busy period and that he did not file income tax returns until 2007.
[5]
Mr. Toole also acknowledges that
he did not comply with the requests and demands to file tax returns that were
made by the Canada Revenue Agency. He explained that he did not think there was
any difficulty with this because he had paid the amounts due by the appropriate
deadlines. According to Mr. Toole’s testimony, the CRA demand letters referred
to a penalty for failure to file, but only if tax was owing. He therefore
concluded that there were no adverse consequences in being late to file. He
further testified that he could not find any reference to this requirement in
any CRA publications.
[6]
Mr. Toole acknowledges that the
four-year deadline set out in subsection 30(5) has not been satisfied. His
counsel submits, though, that relief should be granted because the reduction of
CPP benefits that results far outweighs the severity of the default. According
to Mr. Toole’s calculations, the loss of CPP benefits is approximately $20,000
over his statistical life expectancy.
[7]
I sympathize with Mr. Toole’s
circumstances. However, subsection 30(5) of the Plan is clear and there
is no basis on which I can vacate the Minister’s decision.
[8]
In this regard, I refer to a
comment by Rothstein J.A. (as he was then) in Chaya v The Queen, 2004
FCA 327, 2004 DTC 6676.
[4] The applicant says that the law is unfair and he asks the
Court to make an exception for him. However the Court does not have that power.
The Court must take the statute as it finds it. It is not open to the Court to
make exceptions to statutory provisions on the grounds of fairness or equity.
If the applicant considers the law unfair, his remedy is with Parliament, not
with the Court.
[9]
Counsel for Mr. Toole also submits
that the Minister could have, and should have, extended the time for filing a
return. He referred me to subsection 220(3) of the Income Tax Act, which
provides:
(3) Extensions for returns. The Minister may at any time
extend the time for making a return under this Act.
[10]
The problem with this submission
is that the four-year filing deadline starts to run from the time that a return
of income is required under Part I of the Income Tax Act. Subsection
220(3) is under Part XV, not Part I. Accordingly, this provision has no
relevance in determining whether the requirements of section 30 of the Plan have
been satisfied.
[11]
In the notice of
appeal, Mr. Toole raises a further argument that subsection 30(5) discriminates
against self-employed individuals because the provision would not apply to
persons who are employed. It is difficult for me to understand this argument
and it was not pursued by counsel at the hearing.
[12]
In the result, the
appeal must be dismissed. Mr. Toole must
bear some of the blame for the loss of benefits because he ignored the
statutory obligation to file income tax returns on time. Nevertheless, the
circumstances as a whole are sympathetic, and it is with regret that the appeal
will be dismissed.
Signed at Toronto, Ontario this 13th day of February 2012.
“J. Woods”
CITATION: 2012 TCC 50
COURT FILE NO.: 2010-41(CPP)
STYLE OF CAUSE: GIFFORD H. TOOLE and THE MINISTER OF NATIONAL REVENUE
PLACE OF HEARING: Toronto,
Ontario
DATE OF HEARING: January 18, 2012
REASONS FOR JUDGMENT BY: The
Honourable Justice J.M. Woods
DATE OF JUDGMENT: February 13, 2012
APPEARANCES:
|
Counsel for the
Appellant:
|
Nicholas Derzko
|
|
Counsel for the
Respondent:
|
Andrew Kinoshita
Craig Maw
|
COUNSEL OF RECORD:
For the Appellant:
Name: Nicholas Derzko
Firm: Nicholas
Derzko
Toronto, Ontario
For the
Respondent: Myles J. Kirvan
Deputy
Attorney General of Canada
Ottawa, Ontario
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