Date: 20020613
Docket: A-226-01
Neutral citation: 2002 FCA 252
CORAM: ISAAC J.A.
NOËL J.A.
SEXTON J.A.
BETWEEN:
DR. KAZI K. BAKHT
Applicant
and
MINISTER OF HUMAN RESOURCES DEVELOPMENT, CANADA
Respondent
REASONS FOR ORDER
NOËL J. A..
[1] This is an application for judicial review of a judgment of the Tax Court of Canada
whereby Associate Chief Judge Bowman held that the total amount of the applicant's foreign pension was to be included in his income for purposes of computing his Guaranteed Income Supplement (G.I.S.) entitlement under the Old Age Security Act.
[2] At the beginning of the hearing, the applicant pointed out that the respondent's memorandum
of fact and law did not comply with an earlier order of Rothstein J.. By that order Rothstein J. allowed the respondent to correct the style of cause as it appeared on the memorandum by substituting the Queen as respondent for the Minister of Human Resources and Development, Canada. For some reason, this order was not complied with. As a result Counsel was instructed to plead her case without reliance on her memorandum.
[3] The 1998 calender year is the base year for the purpose of determining the applicants
entitlement to the G.I.S. for the payment period in issue (July 1999 to June 2000). The applicant's total income for that year was computed by the Minister to be as follows:
Canada Pension Plan $ 1,777.00
Other [Foreign] Pension $ 3,903.00
Interest $ 91.00
RRSP Income $ 220.00
Total $ 5,991.00
[4] Associate Chief Judge Bowman confirmed that the applicant's entitlement to the G.I.S.
was to be computed by reference to this amount. In so doing, he rejected the applicant's argument that his foreign pension income stood at $ 2,903.00 rather than $ 3,903.00 on account of a deduction to which he was entitled in the computation of income. The applicant claims on appeal that his argument was improperly rejected.
[5] Pursuant to Section 2 of the Old Age Security Act the term "income" is defined inter alia as:
"...the person's income for the year , computed in accordance with the Income Tax Act." Section 56 (1)(C.1) of the Income Tax Act provides in turn for the inclusion in income of a pension payment made under an arrangement established under the laws of a foreign country.
[6] The applicant argued before us as he did before Associate Chief Judge Bowman that his
pension income should be reduced by the amount which he was entitled to deduct pursuant to Subsection 118 (3) of the Income Tax Act. However as pointed out by Associate Chief Judge Bowman this provision does not provide for a deduction in the computation of income. It provides for a deduction from taxes payable, a step that is twice removed from the computation of income.
[7] In my view, Associate Chief Judge Bowman properly construed the Old Age Securities Act
and the Income Tax Act when he held that the deduction provided by subsection 118 (3) of the Income Tax Act is not a deduction made in determining a taxpayer's income and has therefore no application for purposes of computing the Applicant's income as defined under Section 2 of the Old Age Securities Act.
[8] I would dismiss the application for judicial review with costs.
"Marc Noël"
J.A.
" I agree
Julius A. Isaac"
"I agree
Edgar J. Sexton"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-226-01
STYLE OF CAUSE: DR. KAZI K. BAKHT v. MINISTER OF HUMAN RESOURCES DEVELOPMENT, CANADA
PLACE OF HEARING: Fredericton, New Brunswick
DATE OF HEARING: June 10, 2002
REASONS FOR JUDGMENT: Noël, J.A.
DATED: June 13, 2002
APPEARANCES:
Dr. Kazi K. Bakht FOR THE APPLICANT
Ms. Dominique Gallant FOR THE RESPONDENT
SOLICITORS OF RECORD:
Dr. Kazi K. Bakht FOR THE APPLICANT
5 Kennedy Street
Apartment 2
Saint John, NB
E2K 1C3
Department of Justice Canada FOR THE RESPONDENT
Atlantic Regional Office
Suite 1400, Duke Tower
5251 Duke Street
Halifax, NS
B3J 1P3