Date: 20031114
Docket: A-416-00
Citation: 2003 FCA 430
CORAM: THE CHIEF JUSTICE
LÉTOURNEAUJ.A.
NADONJ.A.
BETWEEN:
ROBERT BÉRIAULT
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Hearing held at Toronto, Ontario, November 10, 2003.
Judgment delivered at Ottawa, Ontario, November 14, 2003.
REASONS FOR JUDGMENT: LÉTOURNEAU J.A.
CONCURRED IN BY: THE CHIEF JUSTICE
NADON J.A.
[2] Associate Chief Justice Bowman retained one of the two arguments advanced by the respondent after reviewing the evidence: the amount of $65,120 received by the appellant was an allowance within the meaning of paragraph 6(1)(b) of the Income Tax Act, R.S.C. 1985, ch. 1 (5th Supp.). In view of this conclusion he had reached, the Associate Chief Justice did not determine whether this sum was a benefit within the meaning of paragraph 6(1)(a) as the respondent had also submitted.
[3] I am persuaded that the amount received by the appellant from his employer, the Canadian National Railway Company (CN), as a result of the fact that his job was transferred from Montréal to Toronto, satisfies the three tests laid down by this Court in MacDonald v. Canada, 94 D.T.C. 6262 (F.C.A.), at page 6264.
[4] First, the amount allocated for the transfer was arbitrary in that it did not correspond to the amount of the expense or the loss incurred. It could have been received even in the absence of a loss: see appellant's testimony, Appeal Book, pages 144-145. In fact, the amount was predetermined in an agreement between CN and the union, the CAW, and by a letter of agreement between the same parties, which appears in the Appeal Book at pages 71, 89, 107 and 108. Further, the agreement itself stipulated that the lump sum paid was taxable: see Appeal Book, page 90, note 1.
[5] The appellant indicated that, in order to benefit from the allocated amount, he had to prove to his employer that he had sold his house in Montréal and that he had relocated to a permanent address at his new place of employment. The sale and relocation were two conditions of eligibility for the relocation assistance program that had to be satisfied but that did not change the nature or the quality of the amount paid.
[6] Second, the allocated amount was for a specific purpose - in this case to compensate employees who were transferred from one place of work to another.
[7] Finally, the recipients of the allowance could use it at their discretion, which the appellant contested unsuccessfully. The record shows that he had no obligation to account to his employer for his costs or actual expenses.
[8] For these reasons I would dismiss the appeal without costs under the circumstances.
"Gilles Létourneau"
J.A.
"I concur
J. Richard C.J."
"I concur
M. Nadon J.A."
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-416-00
STYLE OF CAUSE: ROBERT BÉRIAULT v. HER MAJESTY THE QUEEN
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 10, 2003
REASONS FOR JUDGMENT: LÉTOURNEAU J.A.
CONCURRED IN BY: THE CHIEF JUSTICE
NADON J.A.
DATE OF REASONS: November 14, 2003
APPEARANCES:
Robert Bériault FOR THE APPELLANT
Catherine Letellier de St. Just FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General
of Canada
Toronto, Ontario
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