Date: 20020611
Docket: A-34-00
Neutral citation: 2002FCA 253
CORAM: ISAAC 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)
[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