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Maja Scipion seeks the judicial review of the decision rendered by the Refugee Appeal Division (RAD) on February 15, 2019, rejecting her appeal and confirming the determination by the Refugee Protection Decision (RPD) that she is not a Convention refugee nor a person in need of protection within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act]. [2]   For reasons set out below, this judicial review will be dismissed. ... In Luc v Canada (Citizenship and Immigration), 2010 FC 826, Justice Boivin recognized, at paragraph 25, that “a finding of generality does not prohibit a finding of persecution on the basis of one of the Convention grounds”, but nevertheless held in the case before him, at paragraph 28, that the refugee claimant failed to present sufficient evidence in support of her alleged fear of persecution. ...

In this regard the Minister relied on the words of exception found in paragraph 81 (1)(a) of the Act which provision reads: 81(1) There shall not be included in computing the income of a taxpayer for a taxation year, (a) an amount that is declared to be exempt from income tax by any other enactment of the Parliament of Canada, other than an amount received or receivable by an individual that is exempt by virtue of a provision contained in a tax convention or agreement with another country that has the force of law in Canada; The Minister considered that the deduction in the computation of taxable income authorized by paragraph 110(1)(f) of the Act constituted sufficient compliance with the treaty. That provision reads: 110(1) For the purpose of computing the taxable income of a taxpayer for a taxation year, there may be deducted such of the following amounts as are applicable: (f) any amount that is (i) an amount exempt from income tax in Canada by virtue of a provision contained in a tax convention or agreement with another country that has the force of law in Canada..-.. ...

The definition of “eligible individual” in section 122.6 of the Act is as follows: “eligible individual” in respect of a qualified dependant at any time means a person who at that time (a) resides with the qualified dependant, (b) is the parent of the qualified dependant who primarily fulfils the responsibility for the care and upbringing of the qualified dependant, (c) is resident in Canada, (d) is not described in paragraph 149(1)(a) or (b), and (e) is, or whose cohabiting spouse is, a Canadian citizen or a person who (i) is a permanent resident (within the meaning assigned by the Immigration Act), (ii) is a visitor in Canada or the holder of a permit in Canada (within the meanings assigned by the Immigration Act) who was resident in Canada throughout the 18 month period preceding that time, or (iii) was determined before that time by the Convention Refugee Determination Division of the Immigration and Refugee Board to be a Convention refugee, and for the purposes of this definition, (f) where the qualified dependant resides with the dependant’s female parent, the parent who primarily fulfils the responsibility for the care and upbringing of the qualified dependant is presumed to be the female parent, (g) the presumption referred to in paragraph (f) does not apply in circumstances set out in regulations made by the Governor in Council on the recommendation of the Minister of Human Resources Development, and (h) factors to be considered in determining what constitutes care and upbringing may be set out in regulations made by the Governor in Council on the recommendations of the Minister of Human Resources Development. ...

At the hearing learned counsel for the appellant argued that the said sum of $200,000 payable at the rate of $40,000 a year, was a pension within the meaning of Article VIA of the Canada-United States Tax Convention, and therefore tax exempt. ... Article VIA of the Canada-United States Tax Convention reads: ARTICLE VIA Pensions (including Government pensions) and life annuities derived from within one of the contracting States by a resident of the other contracting State shall be exempt from taxation in the former State. ...

According to him we have the counterpart in the new Act at sections 104 to 108 inclusive and he explains: That principle may be expressed by saying that to the extent that trust income is payable to a beneficiary in a taxation year under the terms of a trust, whether it in fact is paid or not, to such extent the amount so payable is deductible from the trust income for such taxation year and the trustees are not required to include same in taxable income and pay tax thereon (subsections (6) and (21) of section 104). 8 He also stated that, according to Article VIII of the Canada-US Tax Convention, a non-resident does not have to pay tax on capital gains, and that the Minister, by taxing the trust in his reassessments, is trying to do indirectly what he is forbidden to do directly. 9 He admitted that a trust is taxed as an individual and that no deductions may be taken under section 109 or paragraph 110(1)(d), but he also maintained that once a trust designates the beneficiaries under subsection 104(21), this provision preserves and applies the “conduit” principle to capital gains received by a trust, a principle otherwise preserved for ordinary trust income by subsection 104(6). ... If the capital gains are deemed those of the US residents, then Article VIII of the Canada- US Tax Convention applies, which article reads as follows: Gains derived in one of the contracting States from the sale or exchange of capital assets by a resident or a corporation or other entity of the other contracting State shall be exempt from taxation in the former State, provided such resident or corporation or other entity has no permanent establishment in the former State. 10 On the other hand, counsel for respondent argued that, notwithstanding the fact that the trust has made a designation pursuant to subsection 104(21), it must nevertheless, in order to remove the equivalent amount from its income, be eligible to make a deduction in computing its income pursuant to subsection 104(6) of the Act. ...

Puis la convention, se précisant davantage, indiquait: “Il est entendu que ce montant de sept mille dollars ($7,000.00) ne devra pas être considéré comme étant le prix de cette cession ainsi consentie par M. ... Il s’agit de décider si nous sommes en présence d’une obligation équivalant à prix de vente, ou plutôt d’une convention secondaire, astreignante toutes choses étant égales, mais aussi, le cas échéant, soumise à de significatives fluctuations. ...

The facts of this appeal are well spelled out at paragraph 5 of the Reply to the Notice of Appeal, which reads as follows: In assessing the Appellant for his 1975 taxation year the Respondent relied, inter alia, on the following assumptions of facts: (a) During 1975, the Appellant was separated from his wife; (b) On July 21, 1975, a judgment on provisional measures ordered the Appellant to pay to his wife an alimentary pension of $50.00 per week; (c) The Respondent allowed an amount of $600.00 which represents the payments made by the Appellant to his wife pursuant to the said judgment (July 21, 1975 to October 3, 1975, 12 weeks X $50.00); (d) On October 3, 1975, a Decree Nisi of Divorce was rendered by the Superior Court; (e) The said Decree Nisi provided inter alia: “LA COUR DONNE ACTE aux parties de la convention qu’elles ont souscrite le 3 octobre 1975, laquelle convention, produite comme pièce P-4, se lit comme suit: “1- Petitioner will pay Respondent the sum of ($2,500.00) Two Thousand Five Hundred Dollars in full of all claims for alimentary pension past, present and future, payable at rate of $833.33 per month, commencing October 1975;” (f) On October, November and December 1975, the Appellant paid to his wife $833.33 each month pursuant to the said Decree Nisi; (f) By notice of reassessment, dated November 9, 1979, the Respondent denied the deduction of the amounts referred to in paragraph 5 (f); At the hearing, the representative of the appellant referred the Board to the decision in MNR v William Albert Hansen, [1967] CTC 440; 67 DTC 5293, in which case Mr Justice Jackett decided in favour of the appellant and I quote the following: The paragraph in question provided exclusively for the wife’s maintenance and for nothing else. ...

Appeal allowed. 1 'The relevant portions of the provisions of the Act referred to in this paragraph read thus: 56(1) Without restricting the generality of section 3, there shall be included in computing the income of a taxpayer for a taxation year, (a) any amount received by the taxpayer in the year as, on account or in lieu of payment of, or in satisfaction of, (i) a superannuation or pension benefit including, without limiting the generality of the foregoing, (A) the amount of any pension, supplement or spouse’s allowance under the Old Age Security Act and the amount of any similar payment under a law of a province, (B) the amount of any benefit under the Canada Pension Plan or a provincial pension plan as defined in section 3 of that Act, and (C) the amount of any payment out of or under a prescribed provincial pension plan, but not including (D) the portion of a benefit received out of or under an employee benefit plan that is required by paragraph 6(1)(g) to be included in computing his income for the year, or would oe required to be so included if that paragraph were read without reference to subparagraph (ii) thereof, and (E) the portion of an amount received out of or under a retirement compensa tion arrangement that is required by paragraph (x) or (z) to be included in computing his income for the year, (ii) a retiring allowance, other than an amount received out of or under an employee benefit plan, a retirement compensation arrangement or a salary deferral arrangement, (iii) a death benefit, (iv) a benefit under the Unemployment Insurance Act, 1971, (v) a benefit under regulations made under an Appropriations Act providing for a scheme of transitional assistance benefits to persons employed in the production of products to which the Canada-United States Agreement on Automotive Prod ucts, signed on January 16, 1965, applies, or (vi) a benefit under the Labour Adjustment Benefits Act, 81(1) There shall not be included in computing the income of a taxpayer for a taxation year, (a) an amount that is declared to be exempt from income tax by any other enactment of the Parliament of Canada, other than an amount received or receivable by an individual that is exempt by virtue of a provision contained in a tax convention or agreement with another country that has the force of law in Canada.... 110(1) For the purpose of computing the taxable income of a taxpayer for a taxation year, there may be deducted such of the following amounts as are applicable: (f) any amount that is (i) an amount exempt from income tax in Canada by virtue of a provision contained in a tax convention or agreement with another country that has the 2 Which provided as follows: 60 There may be deducted in computing 2 taxpayer's income for a taxation year such of the following amounts as are applicable: (w) the amount of the taxpayer's tax payable under Part 1.2 for the year. ...

The 1958 Geneva Convention was drafted so as to do no more than was necessary to achieve this result. Thus the Convention does not grant “sovereignty” over the continental shelf but rather “sovereign rights to explore and exploit”. ... Furthermore, several of the early State claims exceeded that which international law subsequently recognized in the 1958 Geneva Convention. ...

The agreements were based on a mutual agreement reached by the Canadian and United States taxing authorities under Articles IX and XXVI of the Canada-United States Tax Convention (1980) that determined the transfer price of the rock salt. ... That provision reads as follows: 115.1 (1) Notwithstanding any other provision of this Act, where the Minister and another person have, under a provision contained in a tax convention or agreement with another country that has the force of law in Canada, entered into an agreement with respect to the taxation of the other person, all determinations made in accordance with the terms and conditions of the agreement shall be deemed to be in accordance with this Act. 115.1 (1) Malgré les autres dispositions de la présente loi, les montants déterminés et les décisions prises en conformité avec une convention qui est conclue entre le ministre et une autre personne, en conformité avec une disposition de quelque convention ou accord fiscal entre le Canada et un autre pays qui a force de loi au Canada, et qui vise l’imposition de l’autre personne, sont réputés conformes à la présente loi. [11]            The record contains no explanation for the Minister’s decision to reassess as she did, and no explanation for the imposition of the penalties in the face of the accepted voluntary disclosure. ... The same would be true if the Tax Court determines that the reassessments are not valid in so far as they fail to respect the settlement agreement or the agreement reached by the Canadian and United States taxing authorities under Articles IX and XXVI of the Canada-United States Tax Convention (1980) that determined the transfer price of the rock salt. [23]            However, it is equally clear that the Tax Court does not have the jurisdiction to determine whether the Minister properly exercised his or her discretion under subsection 220(3.1) of the Income Tax Act when deciding whether or not to waive or cancel a penalty. ...