Agpro Services v. Canada (Minister of National Revenue), 2002 FCA 253

Date: 20020611

Docket: A-34-00

Neutral citation: 2002FCA 253

CORAM:        ISAAC J.A.

NOËL J.A.

SEXTON J.A.

BETWEEN:

                                                                 AGPRO SERVICES

                                                                                                                                                       Applicant

                                                                                 and

                                          THE MINISTER OF NATIONAL REVENUE

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

                               (Delivered from the Bench at Fredericton, NB on June 11, 2002)

NOËL J. A.                                                                                                                                      

[1]         This is a judicial review application with respect to a judgment of the Tax Court of Canada

dismissing an appeal from a decision of the Minister of National Revenue refusing to refund a portion of the contributions made by the Applicant as an employer pursuant to the Canada Pension Plan (herein the CPP or the Plan)

[2]         Although the jurisdiction of the Tax Court to deal with the appeal was in issue before the

Tax Court Judge, the Respondent now concedes that the Tax Court did possess the jurisdiction to hear and dispose of the appeal.

[3]         By virtue of Sections 8 and 9 of the CPP, an employer's and an employee's contribution to

the Plan for any given year are the same since they are computed by reference to the same formula applied to the same amounts. Furthermore, by virtue of Section 7 of the CPP Regulations, an employer's contribution in respect of renumeration paid by him to an employee is an amount equal to the employee's contribution.

[4]         It is common ground that the Applicant's employees overpaid contributions for the period

in issue by amounts which have since been identified and refunded. Having regard to Section 38(3) of the CPP, we see no basis for refusing the employer's claim for a refund of the equal amounts.

[5]         The Tax Court Judge was obviously led to believe that the Minister retains an unwritten

power to pro-rate the basic exemption in the computation of an employer's contribution thereby limiting the employer's entitlement to a refund. However, the only pro-ration that can take place under the Act is the one provided for in Subsection 5(5) of the Canada Pension Plan Regulations, and the pro-ration thereby authorized applies equally to the computation of an employer's and an employee's contribution.

[6]         No other ground was suggested by the Respondent to justify a conclusion that the amount

of the employer's overpayment of contributions in this case was not equal to the overpayment computed by the Minister with respect to the employees.

[7]         We would therefore allow the Judicial Review Application, set aside the decision of the Tax

Court Judge and rendering the decision which he ought to have rendered, we would remit the matter to the Minister so that a refund be made to the Applicant, in conformity with these reasons. The Applicant should have its disbursements here and below.

             "Marc Noël"                

                       J.A.

FEDERAL COURT OF APPEAL

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                              A-34-00

STYLE OF CAUSE:             AGPRO SERVICES v. THE MINISTER OF

NATIONAL REVENUE

PLACE OF HEARING:                      Fredericton, New Brunswick

DATE OF HEARING:                        June 11, 2002

REASONS FOR ORDER:                 Noël, J.A.

DATED:                                                 June 11, 2002

APPEARANCES:

Mr. Anthony Miller                                                                                      FOR THE APPLICANT

Ms. Dominique Gallant                                                                  FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. Anthony Miller                                                                                      FOR THE APPLICANT

c/o Agpro Services

P. O. Box 55

Crapaud, Prince Edward Island

COA 1JO

Department of Justice                                                                     FOR THE RESPONDENT

Suite 1400, Duke Tower

5251 Duke Street

Halifax, Nova Scotia

B3J 1P3