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Docket: 2004-3151(IT)I |
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BETWEEN: |
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THELMA FAYLE, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
____________________________________________________________________
Appeal heard on January 13, 2005, at Victoria, British Columbia,
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By: The Honourable Justice E.A. Bowie |
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Appearances: |
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For the Appellant: |
The Appellant herself |
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Counsel for the Respondent: |
Raj Grewal |
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JUDGMENT
The appeal from the reassessment of tax made under the Income Tax Act for the 2002 taxation year is dismissed.
Signed at Ottawa, Canada, this 20th day of January, 2005.
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"E.A. Bowie" |
Bowie J.
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Citation: 2005TCC71 |
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Date: 20050120 |
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Docket: 2004-3151(IT)I |
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BETWEEN: |
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THELMA FAYLE, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
REASONS FOR JUDGMENT
BowieJ.
[1] Following the tragic events of September 11th, 2001, Ms. Fayle decided to enrol in a course titled "International Peace Research" that is given at the University of Oslo in Norway. She now appeals from a reassessment of her income tax liability for the year 2002 whereby the Minister of National Revenue disallowed her claim to a tax credit for the fees that she paid to the University. The entitlement to the tax credit she claims is governed by paragraph 118.5(1)(b) of the Income Tax Act.
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118.5(1) For the purpose of computing the tax payable under this Part by an individual for a taxation year, there may be deducted,
(a) ...
(b) where the individual was during the year a student in full-time attendance at a university outside Canada in a course leading to a degree, an amount equal to the product obtained when the appropriate percentage for the year is multiplied by the amount of any fees for the individual's tuition paid in respect of the year to the university, except any such fees
(i) paid in respect of a course of less than 13 consecutive weeks duration,
(ii) paid on the individual's behalf by the individual's employer to the extent that the amount of the fees is not included in computing the individual's income, or
(iii) paid on the individual's behalf by the employer of the individual's parent, to the extent that the amount of the fees is not included in computing the income of the parent by reason of subparagraph 6(1)(b)(ix); ... |
118.5.(1) Les montants suivants sont déductibles dans le calcul de l'impôt payable par un particulier en vertu de la présente partie pour une année d'imposition : a) [...] b) si, au cours de l'année, le particulier fréquente comme étudiant à plein temps une université située à l'étranger, où il suit des cours conduisant à un diplôme, le produit de la multiplication du taux de base pour l'année par le total des frais de scolarité payés à l'université pour l'année, à l'exception des frais qui ont été :
(i) soit payés pour des cours d'une durée inférieure à 13 semaines consécutives,
(ii) soit payés pour son compte par son employeur, dans la mesure où ils ne sont pas inclus dans le calcul de son revenu,
(iii) soit payés pour son compte par l'employeur de son père ou de sa mère, dans la mesure où ces frais ne sont pas inclus dans le calcul du revenu de son père ou de sa mère par application du sous-alinéa 6(1)b)(ix); [...]
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[2] There is no disagreement about the facts. The course in question has been given by the University of Oslo for more than 50 years. It carries a post-graduate level credit towards a masters degree. More than 100 students from many countries enrolled and took the course at the same time that the Appellant took it. The course is given by the University in two different forms, and that is wherein lies the Appellant's difficulty. In one form the course lasts 13 weeks, with some seven hours per week of classes, for a total of 90 hours. In the other form it lasts for six weeks, with classes held three hours per day, five days per week, for a total of 90 hours. The content of the course is identical in each form. Each form is taught by the same faculty. The same credit towards a post-graduate degree is given for successful completion of each form. The tuition cost for each is the same. There is no question that the Appellant would have been entitled to the tax credit she seeks had she taken the 13-week version of the course. However, the Minister says that she is not entitled to any tax credit because she took the six-week version. The case is governed, he says, by the words:
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... except any such fees paid in respect of a course of less than 13 consecutive weeks duration,
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[...] à l'exception des frais qui ont été [soit] payés pour des cours d'une durée inférieure à 13 semaines consécutives, |
[3] In presenting her case, the Appellant argued that this is a literal but not a wise interpretation of the Act. I could not agree more. However, the mandate of this Court, and the appellate courts as well, is to apply the literal meaning of the words enacted by Parliament, where that meaning is clear. The Courts may interpret legislation that is ambiguous, but they may not, in the name of wisdom or otherwise, stray from the intent of Parliament if it has been expressed in unambiguous terms.[1] Neither the expression "a course of less than 13 consecutive weeks duration" in English, nor "des cours d'une durée inférieure à 13 semaines consécutives" in French, is at all ambiguous.
[4] It is with considerable regret that I must dismiss the appeal. The only avenue for relief open to the Appellant is to seek a remission order under section 23 of the Financial Administration Act, but that is a remedy that is outside my jurisdiction.
Signed at Ottawa, Canada, this 20th day of January, 2005.
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"E.A. Bowie" |
Bowie J.
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CITATION: |
2005TCC71 |
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COURT FILE NO.: |
2004-3151(IT)I |
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STYLE OF CAUSE: |
Thelma Fayle and Her Majesty the Queen |
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PLACE OF HEARING: |
Victoria, British Columbia |
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DATE OF HEARING: |
January 13, 2005 |
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REASONS FOR JUDGMENT BY: |
The Honourable Justice E.A. Bowie |
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DATE OF JUDGMENT: |
January 20, 2005 |
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APPEARANCES: |
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For the Appellant: |
The Appellant herself |
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Counsel for the Respondent: |
Raj Grewal |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
N/A |
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Firm: |
N/A |
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For the Respondent: |
John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Canada |