Rowe T.C.J. (orally):
1 HIS HONOUR: There was in existence a court decision [ Mercier c. Ministre du Revenu national (1992), 1 C.T.C. 2506 (T.C.C.)] that had held to put in an age limit as it respects, pertains to dependent children, was discriminatory, contrary to the Charter of Rights. That decision went to the Federal Court of Appeal. The Federal Court of Appeal said no, it is not in fact discriminatory and offensive to the Charter of Rights and Freedom. It doesn't violate the quality guaranteed and the distinction is not based on the age of the members of the group mentioned, who are the taxpayers, but rather on the age of the person in respect of whom the credit is being claimed. And accordingly, therefore, the previous decision, which in effect would apply in your favour, was then overturned by the higher court which is the Court of Appeal.
2 We are now left in the position where we are to interpret the section of the Act as it applies to the fact situation without more. Therefore, in order for this to be applicable, that is the credit, you have to be able to establish that the children were under 18; or (b), that notwithstanding the fact that they are over 18, that they are dependent on you by reason of mental or physical infirmity. Accordingly that is why your accountant or your tax preparer put in that claim for that period of time, but now the window has been closed and the girls were at that particular time 19 and 20 in those years, so they are over 18.
3 MS. PAUL: Well that goes along, many years back and interest I believe has accumulated I figure, and I feel that, well it was beyond my control. It was between my accountant and the taxation. I merely was following orders and doing what I was supposed to do.
4 HIS HONOUR: Well having regard to the fact that, you know, it was held in abeyance as a consequence of a decision in effect which would have been in your favour and so on, is this maybe an appropriate case for her to make application to the Minister under the fairness package?
5 MR. PENTON: I would suggest that she should certainly try that. I, of course, have no way of promising that relief will be granted in respect of interest.
6 HIS HONOUR: Where do you get those forms? At the tax office?
7 MR. PENTON: You don't need a form, just a letter.
8 HIS HONOUR: Send a letter in to Revenue Canada, Regina?
9 MR. PENTON: Yes.
10 HIS HONOUR: You know, this is a little complicated in this sense, but if you write a letter to Revenue Canada here in Regina, quote your appeal file number and so on, make sure you identify yourself with your SIN number. And then basically just indicate that the time was running on this because of the fact that the position in effect claimed by you or your tax preparer was valid and you would have won your appeal at that point in time and you would have been correct, except that the Federal Court of Appeal changed the law So I mean in ordinary circumstances if you wait until the court decision, you really are taking your own chances -- if you lose, you lose and you pay the interest, you know, but this circumstance here is a little bit different.
11 Now the Minister will look at it, the Minister's people. I am not saying he is going to decide in your favour but he will look at it, or I guess I should say she will look at it. That is all you can do.
12 With respect to your appeal for the 1992 and 1993 taxation years, you know, the Minister's assumptions of fact being correct as you have indicated to me, there is no longer any ground for appeal because of the decision of the Federal Court of Appeal in the case of Mercier c. Ministre du Revenu national (1996), 97 D.T.C. 5081 (Fed. T.D.). Accordingly, therefore, your appeal for those two taxation years is hereby dismissed. And then write the letter, see what response you get.
13 MS. PAUL: I'm just not sure. Is there any literature that I can have that I can kind of follow to write this letter? Do you have any literature on what I can use?
14 HIS HONOUR: There must be at the office, isn't there, at the Revenue Canada office?
15 MS. PAUL: So that I can follow so that I know what I'm doing?
16 MR. PENTON: There are Bulletins there.
17 HIS HONOUR: Yes, go down to the Revenue Canada office. There has got to be a little booklet, the Fairness Package or there has got to be a little pamphlet or something. I mean I don't expect you to wade through that without some help, but that will tell you kind of how it is done. This is the kind of different situation which I think would cause the Minister to really look at it before a decision is made. Okay? Thank you very much.
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