Docket: 2007‑3142(IT)I
BETWEEN:
NELLY BITUALA‑MAYALA,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
____________________________________________________________________
Appeal
heard on February 27, 2008 at Ottawa, Ontario.
Before: The Honourable Justice Lucie
Lamarre
Appearances:
|
For the Appellant:
|
The Appellant herself
|
|
Counsel for the Respondent:
|
Julian Malone
|
____________________________________________________________________
JUDGMENT
The
appeal from the determination of the Canada Child Tax Benefits for the base
taxation years 2003 and 2004 is dismissed, with costs to the Appellant.
Signed at Ottawa, Canada, this
28th day of February 2008.
"Lucie Lamarre"
Translation certified true
on this 11th day of April 2008.
Brian
McCordick, Translator
Citation: 2008TCC125
Date: 20080228
Docket: 2007‑3142(IT)I
BETWEEN:
NELLY BITUALA‑MAYALA,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Lamarre, J.
[1]
The Minister of
National Revenue ("the Minister") claims from the Appellant the
Canada Child Tax Benefits (CCTB) paid to her as a result of an error in
judgment by an official of the Canada Revenue Agency (CRA) for the base
taxation year 2003 (for the months of July 2004 to June 2005)
and the base taxation year 2004 (for the months of July 2005 to
June 2006). After the discovery of the official's error, an amount of
$7,729 for the base taxation year 2003 and $8,414 for the base taxation
year 2004 is now claimed from the Appellant.
[2]
The Appellant testified
that she arrived in Canada from Congo
with her family, including her three young children, in October 1999. At
that time, she was together with the father of her children and her mother‑in‑law
filed a refugee status application for the entire family. This application was
originally dismissed and this decision was confirmed on appeal. Later on, the Appellant
separated from her husband and on June 23, 2004, obtained a work permit from the Minister
of Citizenship and Immigration Canada, which had to be renewed annually, and
which specified that the Appellant was not granted the status of a temporary
resident (Exhibit I‑1). With this work permit, she was able to find
employment and submit an application to Citizenship and Immigration Canada
based on the provisions relating to humanitarian considerations. This
application was submitted in April 2005 and as of the present date, the Appellant's
file has not yet been reviewed. The Appellant states that her file is still
current.
[3]
When she submitted her
application to the Canadian immigration office, the employee with whom she
dealt suggested that she apply for the CCTB. In her presence, he contacted an
official of the CRA who told her to send her work permit and the birth
certificates of her children, which she did.
[4]
The work permit sent by
the Appellant is the same one that was filed in evidence as Exhibit I‑1,
which clearly indicated that the Appellant did not have the status of a
temporary resident.
[5]
Nevertheless, the CRA official considered that the Appellant was eligible
and the CCTB was paid to her in the above amounts for a period of two years.
[6]
On September 20,
2006, the Minister became aware that the Appellant was not entitled to
receive the CCTB for the 2003 and 2004 base taxation years, and therefore sent
her a notice of determination to the effect that she had received overpayments
of the CCTB in the amounts in issue. The Minister relied on section 122.6
of the Income Tax Act (ITA), which defines an individual eligible for
the CCTB as follows:
"eligible individual" in respect of a qualified dependant at any time means a person who
at that time
(a) resides with the qualified dependant,
(b) is the parent of the qualified dependant who primarily fulfils the
responsibility for the care and upbringing of the qualified dependant,
(c) is resident in Canada or, where the person is the cohabiting
spouse or common‑law partner of a person who is deemed under
subsection 250(1) to be resident in Canada throughout the taxation year
that includes that time, was resident in Canada in any preceding taxation year,
(d) is not described in paragraph 149(1)(a) or 149(1)(b), and
(e) is, or whose cohabiting spouse or common‑law partner is, a
Canadian citizen or a person who
(i) is a permanent resident within the meaning of
subsection 2(1) of the Immigration and Refugee Protection Act,
(ii) is a temporary resident within the meaning of the Immigration
and Refugee Protection Act , who was resident in Canada throughout the 18
month period preceding that time, or
(iii) is a protected person within the meaning of the Immigration
and Refugee Protection Act,
(iv) was
determined before that time to be a member of a class defined in the Humanitarian
Designated Classes Regulations made under the Immigration Act,
and for the purposes of this definition,
(f) where the qualified dependant
resides with the dependant's female parent, the parent who primarily fulfils
the responsibility for the care and upbringing of the qualified dependant is
presumed to be the female parent,
(g) the presumption referred to in
paragraph (f) does not apply in prescribed circumstances, and
(h) prescribed factors shall be
considered in determining what constitutes care and upbringing.
[7]
In fact, during the
period in issue, the Appellant did not meet the conditions of
subsection 122.6 (e) of the ITA. She was neither a permanent
resident within the meaning of the Immigration and Refugee Protection Act (IRPA),
nor a temporary resident, nor a holder of a temporary resident permit pursuant
to section 24 of the IRPA (Exhibit I‑1),
nor a protected person within the meaning of the IRPA, and she did not fall
within a category specified in sections 202 and 206 of the Humanitarian
Designated Classes Regulations ("the Regulations") made under the Immigration Act (she has not yet received a
decision in this regard).
[8]
Therefore the Appellant
was not an eligible individual and was not entitled to the CCTB. In view of the
obvious error made by the CRA official in awarding the CCTB to the Appellant,
who would never have attempted to obtain it without the intervention of the
immigration officer, I am referring this matter back to the Minister so that he
may seriously consider a remission to the Appellant pursuant to section 23
of the Financial Administration Act. Our Court is not empowered to grant
such a remission. However, I do wish to criticize a lack of care on the part of
some CRA officials, whose errors have repercussions for persons who are
unfamiliar with Canadian laws, in this case a single mother with few financial
resources who does not deserve to be treated in this manner.
[9]
I note in conclusion
that this does not seem to be an isolated error. I refer on this subject to Samayoa
v. R., 2006 TCC 469, in which the CRA on another occasion
recognized its error.
[10]
The appeal is dismissed
with costs to the Appellant.
Signed at Ottawa, Canada, this 28th day of February 2008.
"Lucie Lamarre"
Translation
certified true
on this 11th
day of April 2008.
Brian
McCordick, Translator
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