St-Onge T.C.J.: (L4/R4354/T0/BT0) test_marked_paragraph_end (568) 1.032 0205_7587_7755

The appeal of Claude Gaudreault was heard in the City of Chicoutimi, province of Quebec, on June 13, 1998. The question is whether the Minister was entitled to add certain amounts to the appellant’s income for her 1993, 1994 and 1995 taxation years.

In his Reply to the Notice of Appeal the Minister alleged the following.

[TRANSLATION]

Bonner 17.C.J.:

The Appellant appeals from assessments under the Income Tax Actfor her 1991, 1992 and 1993 taxation years. The first issue relates to the taxability of child support payments made by the Appellant’s former spouse. The payments in question were included in income under paragraph 56(1)(b) of the Act. That provision required the inclusion in income of:

Prothonotary Morneau:

Pursuant to the notice of status review dated August 13, 1998, and pursuant to the written representations filed by the plaintiff on September 14, 1998, the parties are notified that the Court does not intend to grant the plaintiff additional time in which to obtain any expert’s report.

Strayer J.A.:

The appellant’s position essentially is that a change to the Income Tax Act in 1988 replacing a former system of deduction of personal exemptions from personal income by a system of tax credits, is a violation of section 15 of the Canadian Charter of Rights and Freedoms. He says that this change has had the effect of discriminating against those whose marginal rate of income tax is in excess of 17%, because the rate of tax credit is limited to 17% regardless of the income of the taxpayer.

Létourneau J.A.:

We are of the view that this appeal against an order of Bowman J. of the Tax Court of Canada striking out a paragraph of the appellant’s Notice of Appeal before the Tax Court ought to be dismissed for the following reasons.

Muldoon J.:

This proceeding is an appeal by the plaintiff from the Associate Senior Prothonotary’s decision striking out the statement of claim, “as disclosing no cause of action within the jurisdiction of the Court and because the plaintiff Harris is not entitled to standing”. (Doc. 24, p. 23, filed January 2, 1998.) The defendants had moved for such a conclusion. The appeal came on for hearing in Winnipeg, on July 8, 9 and 10, 1998.

Per curiam*.

The appeal is allowed with costs throughout for the reasons given by Justice Strayer of the Federal Court of Appeal. The judgment of the Court of Appeal is set aside and the trial judgment is restored. The constitutional questions are answered as follows:

I. Does s. 231.4 of the Income Tax Act, R.S.C. 1952, c. 148 as amended restrict rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms?

The answer is no.

Wetston J.:

Robert E. White appeared, without counsel, as the executor of the estate of his wife, the late Jean White, in respect of the income tax assessment of Jean White’s 1979 taxation year. A Notice of Reassessment dated June 25th, 1986 was sent to the plaintiff and Jean White was reassessed to include in her terminal return of income the deemed dispositions of:

a) 1080 King Street West, Hamilton, generating a capital gain of $9,200.00;

Strayer J.A.:

Strayer J.A.:

These two appeals were heard together on November 19, 1998 in Vancouver.

We have considered carefully the lengthy written and oral submissions of the appellants but are unable to conclude that the learned Tax Court Judge erred in his determination of the issues correctly identified by him as being before that Court.