Date: 20000911
Docket: 1999-3246-IT-I
BETWEEN:
ROBERT A. MITCHELL,
Appellant,
AND
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Deputy JudgeWatson, R.,
(Delivered orally from the Bench at Vancouver, B.C., on Monday, September 11, 2000)
HIS HONOUR: This appeal deals with the 1997 taxation year in which the Appellant claimed for and was turned down by the Minister of National Revenue for the GST rebate. As I said earlier, each case must be decided on its own facts and its own merits.
As I also mentioned earlier, the burden of proof is on the Appellant. The Appellant must establish on a balance of probabilities -- that means probably, not beyond a reasonable doubt as in some Courts, but on the balance of probabilities -- that the Minister’s decision was ill-founded in fact and in law.
The only question that is before the Court was in 1997, was Mr. Mitchell confined for more than six months in an institution which is similar to a prison. Not a prison, but similar to a prison. There is ample case law from the Canadian Courts, including the Federal Court of Appeal that have said more than once, the law must be given its clear and ordinary meaning of the words used.
And the question is, has the Appellant here established on the balance of probabilities that the forensic psychiatric institute in which he was confined since 1990 was not similar to a prison.
It does appear to be unfair that some do receive the rebate and others don’t, but this would be like taking a bus and putting in your bus fare and finding people getting on by the back door and going up to the driver of the bus and saying, I want a refund of my fare because people have got on at the back without paying. It doesn’t mean that if other people ride the bus and don’t get paid that you are entitled to ride the bus and not pay. And it seems very unfair because they get a free ride and you don’t.
But sometimes we find that life is unfair, there is no doubt about that. But this Court doesn’t deal with fairness, it has no jurisdiction to deal with matter of fairness, of does it make sense or not. This Court has been established under the Parliament of Canada and been given a jurisdiction to apply the plain and ordinary meaning of the law.
Section 122.5, paragraph (2) says:
“Persons not eligible individuals, qualified relations or qualified dependants. Notwithstanding subsection (1), a person shall be deemed not to be an eligible individual for a taxation year or a qualified relation or qualified dependant of an individual for a taxation year where the person...”
paragraph (c),
“is, at the end of the year, confined to a prison or similar institution and has been so confined for a period of, or periods, the total of which in the year was more than, 6 months.”
That’s what the Act says.
Taking into consideration all of the circumstances of this appeal, taking the testimony of the witnesses and the admissions, I am satisfied that the Appellant has not succeeded in his onus of establishing on the balance of probabilities that he was entitled to the GST rebate during the 1997 taxation year. Accordingly, the appeal is dismissed.
I HEREBY CERTIFY THAT THE FOREGOING
is a true and accurate transcript
of the proceedings herein to the best
of my skill and ability.
____________________________________________
B. Bunnett, Certified Verbatim Reporter