Beaubier
T.C.J.:
These
appeals
pursuant
to
the
Informal
Procedure
were
heard
together
on
common
evidence
by
consent
of
the
parties
at
London,
Ontario
on
May
21,
1998.
Larry
Bauman
was
the
only
witness.
The
Appellants
have
appealed
assessments
for
their
1995
taxation
year
pursuant
to
section
118.7
of
the
Income
Tax
Act
and
sections
10
and
11
of
the
Canada
Pension
Plan.
In
1995
they
filed
elections
not
to
pay
CPP
premiums
in
respect
to
their
self-employed
earnings.
The
elections
were
denied
on
the
basis
that
they
were
not
members
of
a
religious
sect
or
a
division
of
a
religious
sect
certified
by
the
Minister
pursuant
to
subsection
11(6)
of
the
Canada
Pension
Plan.
Sections
10
and
11
of
the
Canada
Pension
Plan
read:
10.
Every
individual
who
is
resident
in
Canada
for
the
purposes
of
the
Income
Tax
Act
during
a
year
and
who
has
contributory
self-employed
earnings
for
the
year
shall
make
a
contribution
for
the
year
of
an
amount
equal
to
the
product
obtained
when
the
contribution
rate
for
self-employed
persons
for
the
year
is
multiplied
by
the
lesser
of
(a)
the
individual’s
contributory
self-employed
earnings
for
the
year,
minus
the
amount
by
which
the
individual’s
basic
exemption
for
the
year
exceeds
the
aggregate
of
(i)
all
amounts
deducted
as
prescribed
on
account
of
the
individual’s
basic
exemption
for
the
year
whether
by
one
or
more
employers
pursuant
to
section
8,
and
(ii)
all
amounts
deducted
as
prescribed
by
or
under
a
provincial
pension
plan
on
account
of
any
like
exemption
for
the
year
whether
by
one
or
more
employers
pursuant
to
that
plan,
and
(b)
the
individual’s
maximum
contributory
earnings
for
the
year,
minus
the
individual’s
salary
and
wages,
if
any,
on
which
a
contribution
has
been
made
for
the
year
and
such
amount,
if
any,
as
is
determined
in
prescribed
manner
to
be
the
individual’s
salary
and
wages
on
which
a
contribution
has
been
made
for
the
year
by
the
individual
under
a
provincial
pension
plan.
11.
(1)
Subject
to
subsections
(2)
and
(5),
section
10
does
not
apply
with
respect
to
any
year
in
respect
of
any
individual
who,
being
a
member
of
a
religious
sect
or
a
division
of
a
religious
sect
certified
by
the
Minister
pursuant
to
subsection
(6),
elects
not
to
make
a
contribution
with
respect
to
that
year.
(2)
An
election
referred
to
in
subsection
(1)
shall
(a)
be
made
in
such
manner
and
form
as
may
be
prescribed;
(b)
commence
to
have
effect,
if
approved
by
the
Minister,
on
and
from
January
1
of
the
year
in
which
the
election
is
filed
with
the
Minister;
and
(c)
cease
to
have
effect
on
January
1
of
the
year
next
following
the
day
on
which
a
revocation
of
the
election
made
in
prescribed
manner
is
received
by
the
Minister.
(3)
The
Minister
shall
approve
an
election
referred
to
in
subsection
(1)
where
he
is
satisfied
that
(a)
the
person
making
the
election
(i)
is
a
member
of
a
religious
sect
or
a
division
of
a
religious
sect
that
has
been
certified
pursuant
to
subsection
(6),
and
(ii)
has
been
certified
as
such
a
member
by
a
spokesman
for
that
sect
or
division;
and
(b)
the
spokesman
(i)
has
been
authorized
by
the
sect
or
division
to
certify
persons
as
being
members
of
the
sect
or
division,
and
(ii)
has
certified
that
the
sect
or
division
maintains
tenets,
teachings
and
practices
of
kinds
referred
to
in
subparagraphs
(6)(a)(i)
and
(ii).
(4)
Any
contribution
made
by
a
contributor-
with
respect
to
a
year
for
which
he
elects
under
this
section
not
to
make
a
contribution
shall,
on
application,
be
returned
to
him.
(5)
Where
an
individual
who
has
elected
not
to
make
a
contribution
with
respect
to
any
year
revokes
the
election,
he
may
not
make
an
election
under
this
section
with
respect
to
any
subsequent
year.
(6)
The
Minister
shall
certify
a
religious
sect
or
a
division
of
a
religious
sect
for
the
purposes
of
this
section
where
(a)
he
is
satisfied
that
the
religious
sect
(i)
is
a
religious
organization
that
has
established
tenets
and
teachings
that
oppose
the
acceptance
of
benefits
from
any
private
or
public
insurance
that
provides
for
payments
in
the
event
of
death,
disability,
old
age
or
retirement,
(ii)
does,
as
a
practice,
make
provisions
for
the
support
of
dependent
members
that
are
reasonable
in
view
of
their
general
level
of
living,
and
(iii)
was
in
existence
in
Canada
on
January
1,
1966
and
has
been
maintaining
the
tenets,
teachings
and
practices
referred
to
in
subparagraphs
(i)
and
(ii)
since
that
date;
and
(b)
the
religious
sect
or
division
thereof
has
applied
to
him
in
prescribed
form
for
certification.
At
the
opening
of
the
hearing
the
Respondent’s
counsel
moved
to
dismiss
the
appeal
on
the
basis
that
the
Minister
had
not
made
a
determination
pursuant
to
section
118.7
of
the
Income
Tax
Act
and
section
27
of
the
Canada
Pension
Plan.
The
Appellants’
response
was
that
the
Canada
Pension
Plan
is
a
tax,
not
a
pension.
There
is
no
prerequisite
respecting
section
27
of
the
Canada
Pension
Plan
described
in
section
118.7
of
the
Income
Tax
Act.
Section
118.7
deals
with
deductions
of
CPP
contributions
by
self-employed
persons
such
as
the
Appellants.
Section
27
of
the
Canada
Pension
Plan
reads:
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.
(3)
Where
a
question
specified
in
subsection
(1)
is
to
be
determined
by
the
Minister
(a)
pursuant
to
an
application
by
an
employee
or
his
representative,
the
Minister
shall
notify
his
employer,
or
the
representative
of
his
employer,
(b)
pursuant
to
an
application
by
an
employer
or
his
representative,
the
Minister
shall
notify
the
employee
specified
in
the
application
or
his
representative,
(c)
on
his
own
initiative,
the
Minister
shall
notify
the
employer
or
his
representative
and
any
employee
who
may
be
affected
by
the
determination
or
his
representative,
or
(d)
pursuant
to
an
appeal
under
subsection(2),
the
Minister
shall
notify
any
employee
who
may
be
affected
by
the
determination
or
his
representative,
of
his
intention
to
determine
the
question
and
shall
afford
to
the
employer
and
employee
affected
or
either
of
them
or
the
representatives
of
both
or
either
of
them,
as
the
circumstances
require,
an
opportunity
to
furnish
information
and
to
make
representations
to
protect
their
interests.
(4)
An
application
for
the
determination
of
a
question
or
an
appeal
for
reconsideration
of
an
assessment
by
the
Minister
shall
be
addressed
to
the
Chief
of
Appeals
in
a
District
Office
of
the
Department
of
National
Revenue
and
delivered
or
mailed
to
that
office.
(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.
(6)
Unless
an
application
has
been
made
by
an
employee
or
employer
or
the
representative
of
an
employee
or
employer
in
accordance
with
subsection
(1)
with
respect
to
any
year,
where
an
amount
has
been
deducted
from
the
remuneration
of
the
employee
for
the
year
or
has
been
paid
by
the
employer
as
a
contribution
with
respect
to
an
employee
for
the
year,
or
where
no
amount
has
been
so
deducted
or
paid,
after
April
30
in
the
following
year,
the
amount
so
deducted
or
paid
shall
be
deemed
to
have
been
deducted
or
paid
in
accordance
with
this
Act,
or
it
shall
be
deemed
that
no
amount
was
required
to
be
deducted
or
paid
in
accordance
with
this
Act,
as
the
case
may
be,
but
nothing
in
this
subsection
restricts
the
authority
of
the
Minister
to
determine
any
question
on
his
Own
initiative
under
subsection
(1)
or
to
make
any
assessment
under
this
Act
after
that
date.
(7)
Where
the
Minister
is
required
to
notify
an
employee
who
may
be
or
is
affected
by
a
determination
under
this
section,
he
may
cause
the
employee
or
his
representative
to
be
notified,
in
such
manner
as
he
deems
adequate,
of
his
intention
to
make
the
determination
or
of
the
determination,
as
the
case
may
be.
(emphasis
added)
The
only
portions
of
section
27
that
could
apply
to
the
Appellants
have
been
emphasized
in
the
above
quote.
The
Appellants
are
self-employed.
There
is
no
requirement
under
paragraphs
27(1
)(a)
that
a
self-employed
contributor
must
apply
to
the
Minister
to
determine
a
question.
The
Minister
may
on
his
own
initiative
determine
a
question
under
paragraph
27(1
)(è)
respecting
the
Appellants.
The
Minister
assessed
the
Appellants
for
contributions.
Any
right
to
appeal
which
they
have
appears
to
follow
upon
that
assessment.
Section
28
of
the
Canada
Pension
Plan
describes
the
right
of
appeal.
It
reads:
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
A)(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.
Section
28
does
not
provide
contributors
who
are
not
employers
or
employees
with
a
right
of
appeal
to
the
Tax
Court
of
Canada.
The
Canada
Pension
Plan
does
not
grant
the
Tax
Court
of
Canada
jurisdiction
for
their
appeals,
and
this
Court
has
no
inherent
jurisdiction
to
hear
them.
They
have
raised
a
number
of
questions
before
the
Court
which
include:
1.
Is
the
Canada
Pension
Plan
a
tax?
(wherein
contributions
fall
into
the
general
revenues
of
Canada
and
are
not
a
separate
fund)
2.
If
it
is
a
tax,
is
it
constitutional?
3.
If
it
is
not
a
tax
can
the
federal
government
levy
it,
or
is
it
only
within
provincial
powers
as
a
pension
constituting
a
property
or
a
civil
right?
4.
In
any
event
are
the
uses
of
the
contributions
by
the
federal
government
constitutional?
5.
Is
section
11
and
in
particular
subsection
11(6)
or
any
part
of
it
constitutional?
6.
Are
sections
27
and
28
of
the
Canada
Pension
Plan,
which
appear
to
restrict
various
rights
of
self-contributors
constitutional?
Other
questions
also
arise.
Because
section
28
does
not
give
these
Appellants
a
right
of
appeal
to
the
Tax
Court
of
Canada,
the
Appellants
must
have
their
rights
determined
by
bringing
an
action
in
a
superior
court
with
jurisdiction
respecting
the
Canada
Pension
Plan.
For
these
reasons,
the
purported
appeals
are
quashed.
Appeal
quashed.
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