Agpro Services Inc. v. M.N.R., docket 96-136-CPP

Date: 19971107

Docket: 96-136-CPP

BETWEEN:

AGPRO SERVICES INC.,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for Order

Garon, J.T.C.C.

[1] This is a motion for an Order dismissing the Appellant’s appeal on the basis that the Court cannot grant the relief sought by the Appellant “in that the appeal is not from a determination of the Minister of National Revenue made pursuant to section 27 of the Canada Pension Plan”.

[2] The Notice of Appeal dated December 15, 1996 filed by the Appellant and received by this Court on December 20, 1996 reads as follows:

AGPRO SERVICES INC

PO BOX 55,

CRAPAUD PEI COA 1J0

(902) 658 2068

December 15, 1996

TAX COURT OF CANADA

200 Kent Street

4th Floor

Ottawa ON K1A 0M1

The Registry of Appeals

RE; APPEAL CPP ASSESSMENT

I RESPECTFULLY SUBMIT THAT YOU HEAR MY APPEAL OF A DECISION OF SEPTEMBER 20, 1996 - WHEN REVENUE CANADA, Chief, Appeals Division Charlottetown PEI that my request of March 1995 for refund of overpayment of CPP contribution (to St.John’s, Nfld) which was actually the submission that we overcontributed 44.68% more than our employees (extra $3084.60) over a number of years. This, I submit is not “...make a contribution for the year ... amount equal to ...”.

This problem results from the forced use of remittance tables which function correctly when applied only to full year consistently paid employees. All others are required to remit a controverted contribution. Employees are adjusted and refunded. Employers are not!

Sec. 8 & 9 of the act require both employers and employees contribute equally and nothing in the act takes away from this requirement. Sec. 38 allows an employer refund.

Application and enforcement of the CPP contribution tables is contrary to the CPP legislation.

THE CPP ACT REQUIRES EMPLOYEES AND EMPLOYERS TO BE CONTRIBUTORILY EQUAL.

THE CHARTER OF RIGHTS GUARANTEES EQUALITY.

WE HAVE NOT BEEN DEALT WITH FAIRLY.

For these reasons, I ASK THAT YOU GRANT THE HEARING OF MY APPEAL.

sincerely

(signature)

Anthony E. MILLER

[3] The first paragraph of the Notice of Appeal deals with matters of substance which require to be analysed further. The second paragraph of the Notice of Appeal sets out, in the Appellant’s view, the source of the problem. As for the third, fourth and fifth paragraphs they are more in the nature of a gloss or commentary on the Canada Pension Plan and certain provisions thereof. The remaining paragraphs contain comments of a general nature.

[4] Adverting again to the first paragraph of the Notice of Appeal, two points are reasonably clear:

A) The Appellant is appealing a Revenue Canada decision of September 20, 1996;

B) reference is made to a request “for refund of overpayment of C.P.P. contribution”.

[5] The decision of the Chief, Appeals Division of Revenue Canada of September 20, 1996, referred to in the Notice of Appeal and as Exhibit “D” in the Affidavit attached to the Motion, was formulated in these terms:

This letter concerns the appeal of an assessment June 6, 1995 for Canada Pension Plan purposes, for 1991--$1.19; 1992--$0.98; 1992 -- $2.69; 1992 -- $1.14 for a total of $6.00, plus interest based on a request for a refund of overpayment of premiums for Canada Pension Plan.

It has been decided that this assessment was correctly assessed in accordance with Canada Pension Plan Sections 9; 19 and 21; Subsections 8(1) and 8(2) and Canada Pension Plan Regulations; Part 1; Paragraph 5(2)(b) and 5(5).

If you disagree with this decision, you may appeal to the Tax Court of Canada within 90 days of the mailing date of this letter. Details on how to initiate an appeal can be found in the enclosed form entitled “How to Appeal to the Tax Court of Canada”.

[6] By this letter, the Chief, Appeals Division of Revenue Canada, confirms an assessment dated June 6, 1995. The assessment in question was not referred to in the Affidavit filed in support of the Respondent’s Motion nor was it filed at the hearing.

[7] Regarding the matter of the assessment, I should mention at this juncture that Counsel for the Respondent in his submission to the Court on the hearing of this motion seems to suggest that no assessment had been issued by the Minister of National Revenue in the present case. Counsel for the Respondent expressed himself as follows on this question:

... The problem is, though, is that it would appear that there has been an error in the way this case has been handled in the sense that a letter was sent out on July 6 by the Respondent that this was in reply to his request for a refund. So this was not an assessment of any sort. This is just simply a reply to his refund, and it indicates how much money he’s getting back. [Page 5, lines 3 to 10 of the transcript.]

[8] In support of his contention regarding the non-existence of the assessment, Counsel for the Respondent referred to a document dated July 6, 1995 which is Exhibit “B” to the Affidavit filed in support of the present Motion. He properly characterized this document as not being an assessment but as a letter dealing with a request for refund. However, the document referred to in the letter of September 20, 1996 quoted above confirming the assessment is not a document dated July 6, 1995 but a document dated June 6, 1995 which is described as an assessment. There is no evidence before me establishing that the reference to a document dated June 6, 1995 in the letter of September 20, 1996 was made in error and that there was no document in existence bearing the date of June 6, 1995. In the absence of evidence on the question of the non-existence of the assessment in question and on the basis of the record as constituted, I am compelled to conclude that there is a document dated June 6, 1995 and that this document is an assessment.

[9] Reverting to the first paragraph of the Notice of Appeal, it must be noted that it deals with two specific matters, namely, one relating to the Revenue Canada decision of September 20, 1996 confirming the assessment of June 6, 1995 and the other matter pertaining to a request for a refund for overpayment of C.P.P. contributions.

[10] Since the Respondent’s motion is founded upon the basis that this Court cannot grant the relief sought in the Notice of Appeal, I am required to examine the limits of the authority vested in this Court to adjudicate matters relating to the Canada Pension Plan.

[11] The jurisdiction of this Court regarding matters dealt with in Part I of the Canada Pension Plan entitled “Contributions” is set out in section 28 of the Canada Pension Plan, which reads thus:

28.(1) An employee or employer affected by a determination by or a decision on an appeal to the Minister under section 27, or the representative of either of them, may, within ninety days after the determination or decision is communicated to that employee or employer, or within such longer time as the Tax Court of Canada on application made to it within those ninety days may allow, appeal from the determination or decision to that Court by sending a notice of appeal in prescribed form by registered mail to the Registry of that Court.

(1.1) For the purpose of subsection (1), the determination of the time at which a decision on an appeal to, or a determination by, the Minister under section 27 is communicated to an employee or employer shall be made in accordance with the rule, if any, made under paragraph 20(1.1)(h.1) of the Tax Court of Canada Act.

(2) On an appeal under this section, the Tax Court of Canada may reverse, affirm or vary the determination, may vacate, confirm or vary the assessment, or may refer the matter back to the Minister for reconsideration and reassessment and shall thereupon in writing notify the parties to the appeal of its decision and of its reasons therefor.

[12] Section 28 in express terms makes reference to a determination or to a decision on an appeal to the Minister of National Revenue that are mentioned in section 27. For our purposes, it is sufficient to refer to the subsections 1, 2 and 5 of section 27, which are hereafter reproduced:

27.(1) Where any question arises under this Act as to whether a person is required to make a contribution as an employee for a year, or as an employer with respect to an employee for a year, or as to the amount of any such contribution,

(a) the employee, the employer or the representative of the employee or employer may, on or before April 30 in the immediately following year, apply to the Minister to determine the question; or

(b) the Minister on his own initiative may at any time determine the question.

(2) Where the Minister has assessed an employer for an amount payable by him under this Act, the employer or his representative may appeal to the Minister for a reconsideration of the assessment, either as to whether any amount should be assessed as payable or as to the amount so assessed, within ninety days of the day of mailing of the notice of assessment.

...

(5) On an application or an appeal under this section, the Minister shall, with all due dispatch, determine the question raised by the application or vacate, confirm or vary the assessment, or re-assess, and he shall thereupon notify any employee affected or his representative and the employer or his representative.

[13] In the present case, we have a situation where the Appellant, a company which was an employer at the relevant times, is appealing to this Court from a decision of the Minister of National Revenue. This decision is in the form of a letter dated September 20, 1996 from the Chief, Appeals Division of Revenue Canada, confirming an assessment of June 6, 1995 under Part I of the Canada Pension Plan. The three step process set out in sections 27 and 28 of the Canada Pension Plan, that is, a) the appeal to the Minister of National Revenue referred to in subsection 27(2), b) the decision of the Minister of National Revenue on the appeal to the latter for the reconsideration of his assessment contemplated by subsection 27(5) and c) the appeal to this Court under subsection 28(1) has been strictly followed in the present case. In support of this conclusion, I am referring to the letter from the Chief, Appeals Division of Revenue Canada of September 20, 1996 which begins with the words “This letter concerns the appeal of an assessment June 6, 1995”; this letter thus refers to the appeal from an assessment to the Minister of National Revenue, being step no. 1. The decision of the Minister of National Revenue, being step no. 2, is evidenced by the statement in the second paragraph of the letter of September 20, 1996 “It has been decided that this assessment was correctly assessed in accordance with the Canada Pension Plan”. Finally, the appeal to this Court pursuant to subsection 28(1), being step no. 3, is found in the Notice of Appeal filed with this Court.

[14] Therefore, the remedy relied on by the Appellant in the present case is the appropriate one. In this connection, I would like to point out that the Notice of Motion refers only to subsection 27(1) of the Canada Pension Plan, what I call the “determination” avenue and overlooks the point that the Minister of National Revenue may avail himself of a second procedural avenue, which is the Minister’s decision on an appeal to him for the reconsideration of his assessment, which could be called for the sake of brevity as the “assessment” avenue referred to in subsection 27(2) of the Canada Pension Plan. Incidentally, the power to assess given to the Minister of National Revenue is found in section 22 of the Canada Pension Plan. In such a situation, the remedy given to an employer is an appeal to this Court from a decision of the Minister of National Revenue following the reconsideration of his assessment.

[15] I am therefore of the opinion that the remedy to which the Appellant resorted in its Notice of Appeal was clearly contemplated by the relevant provisions of sections 27 and 28 of the Canada Pension Plan.

[16] It is true, as stressed by Counsel for the Respondent, that the Appellant seems to seek the relief consisting of a refund of overpayments of C.P.P. contributions although this is not altogether too clear. The second sentence in the first paragraph of the Notice of Appeal is repeated here for the sake of convenience:

... WHEN REVENUE CANADA , Chief, Appeals Division Charlottetown PEI that my request of March 1995 for refund of overpayment of CPP contribution (to St.John’s, Nfld) which was actually the submission that we overcontributed 44.68% more than our employees (extra $3084.60) over a number of years.

(Emphasis is mine.)

In the excerpt from the Notice of Appeal which I have just quoted, there is no verb in what should be the principal proposition preceding the word “that”, which I have underlined.

[17] I should also say that I am of the view that the reference to a refund of C.P.P. contributions in an appeal to this Court from an assessment under Part I of the Canada Pension Plan does not affect the validity of an appeal to this Court which should be dealt with informally by virtue of paragraph 18.29(1)(a) in view of the close link between an assessment under Part I of the Canada Pension Plan and an overpayment of C.P.P. contributions. It must be understood however, that the central issue in an appeal from an assessment under Part I of the Canada Pension Plan must be the validity of the assessment. As pointed out by Counsel for the Respondent, this Court does not have jurisdiction to decide claims relating to a refund of contributions. The jurisdiction of this Court, being a statutory body, is limited under Part I of the Canada Pension Plan to matters referred to in section 28 of the Canada Pension Plan.

[18] Concerning the matter of relief sought in a notice of appeal filed under Part I of the Canada Pension Plan, I would point out that subsection 5(3) of the Tax Court of Canada Rules of Procedure respecting the Canada Pension Plan provides that “an appeal shall be made in writing and shall set out, in general terms, the reasons for an appeal and the relevant facts”. As well, subsection 5(4) of these Rules specifies that “an appeal shall be instituted by sending a notice of appeal in a form set out in Schedule 5. The form in Schedule 5 to the Rules provides for three distinct parts. The first part is entitled “Statement of Facts”, the second one being “The Reasons which the Appellant Intends to Submit” and the third part “Address for Service”. There is no requirement for a description of the relief sought in a notice of appeal. In this regard, this Schedule 5 form, to the extent that it does not require any mention of the relief sought, is to be contrasted with the Form 21(1)(a) found in Schedule I to the Tax Court of Canada Rules (General Procedure) which lists, as the second last subject, for a notice of appeal, the following: “Indicate the relief sought”. This omission concerning the relief in the form prescribed for a notice of appeal under Part I of the Canada Pension Plan should not surprise anyone in view of the fact that subsection (4) of section 18.15 of the Tax Court of Canada Act provides that appeals shall be dealt by this Court “as informally and expeditiously as the circumstances and considerations of fairness permit”. Section 18.15, which relates to income tax appeals governed by the informal procedure, applies as well to appeals under Part I of the Canada Pension Plan by virtue of the reference made in paragraph 18.29(1)(a) of the Tax Court of Canada Act.

[19] I am therefore of the opinion that the Appellant properly instituted its appeal.

[20] I should add that I had come to a different conclusion when I delivered oral reasons on August 13, 1997 at the conclusion of the hearing of this motion. I now believe that I was in error at the time as I had not fully appreciated the significance of the first sentence in the first paragraph of the Notice of Appeal. In view of the decision of the Federal Court of Appeal in the case of Shairp v. The Queen, 88 DTC 6484, I am entitled to arrive at a conclusion different from that at the hearing. The Federal Court of Appeal in the Shairp case held in substance that a judge of this Court was not functus officio and has jurisdiction to amend his decision until judgment or an order has been filed and entered.

[21] For these reasons, the Respondent’s motion herein is dismissed.

"Alban Garon"

J.T.C.C.