Collier,
J:—The
Plaintiff
for
the
1975
taxation
year,
filed
a
return
in
which
he
computed
his
income
in
accordance
with
section
114
of
the
Income
Tax
Act,
RSC
1952,
c
148,
as
amended
by
SC
1970-71-72,
c
63
and
further
amendments
up
to
and
including
1975.
This
is
the
so-called
“New
Act’’.
The
Minister
of
National
Revenue
took
the
view
that
the
plaintiff
did
not
come
within
that
section.
He
was
re-assessed
accordingly.
In
the
Notification
of
Confirmation,
dated
January
26,
1977,
the
Minister
stated
as
follows:
.
.
.
the
taxpayer
was
deemed
to
be
a
resident
of
Canada
according
to
the
provisions
of
paragraph
250(1
)(a)
of
the
Act;
the
taxpayer
did
not
qualify
to
be
taxed
under
the
provisions
of
Section
114
of
the
Act,
p
373.
The
plaintiff
appealed.
The
defendant,
in
the
defence
in
this
action,
adopted
the
same
position
as
that
taken
by
the
Minister.
Counsel
for
the
defendant,
at
the
end
of
the
evidence
before
me
and
during
argument
on
behalf
of
the
plaintiff,
commendably
stated
the
defendant
no
longer
relied
on
paragraph
250(1
)(a)
of
the
Statute.
The
paragraph
deems
someone
who
“sojourns’’
in
Canada
for
more
than
183
days
in
a
taxation
year
to
have
been
a
resident
of
Canada
for
that
year.
The
defendant,
however,
maintained
the
position
that
the
plaintiff
had
not
ceased
to
be
a
resident
in
Canada
as
of
November
2,
1975,
as
asserted
by
the
plaintiff.
I
do
not
think
by
abandoning
reliance
on
paragraph
250(1
)(a)
the
Minister
must
be
taken
to
have
somehow
then
conceded
section
114
is
applicable.
The
onus
is
still
on
the
plaintiff
to
show
that
section
114
is,
in
all
the
circumstances,
applicable.
I
quote
the
relevant
portion
of
section
114:
114.
Where
an
individual
was
resident
in
Canada
during
part
of
a
taxation
year,
and
during
some
other
part
of
the
year
was
not
employed
in
Canada
and
was
not
carrying
on
business
in
Canada,
for
the
purpose
of
this
Part
his
taxable
income
for
the
taxation
year
is
the
aggregate
of
.
.
.
It
is
common
ground
in
this
case
the
plaintiff
was
resident
in
Canada
until
November
2,
1975.
The
sole
issue
is:
For
the
remaining
part
of
the
year
was
the
plaintiff
“not
resident’’
in
Canada?
That
question
is
essentially
one
of
fact.
In
Beament
v
MNR,
(1952)
2
SCR
486;
[1952]
CTC
327;
6
DTC
1183,
Cartwright,
J
said
at
page
494:
It
has
frequently
been
pointed
out
that
the
decision
as
to
the
place
or
places
in
which
a
person
is
resident
must
turn
on
the
facts
of
the
particular
case.
I
therefore
turn
to
the
evidence.
The
plaintiff
is
now
59
years
old.
He
is
a
Canadian
by
birth.
He
is
still
a
Canadian
citizen.
He
is
married.
His
wife
is
almost
66
years
old.
He
and
his
wife
have
lived
apart
since
the
end
of
October,
1975.
He
has
two
sons,
aged
31
and
29.
They
are
married
and
have
children.
One
lives
in
Toronto
and
one
in
Montreal.
His
university
education
was
at
the
University
of
Toronto
and
the
University
of
Bonn,
in
now
West
Germany.
His
fields
were
English
and
History.
He
finished
his
dies
shortly
before
World
War
II.
After
graduation
he
did,
for
a
while,
freelance
writing.
Then
he
joined
the
Canadian
Broadcasting
Corporation.
He
remained
with
that
organization
until
1957.
He
continued
to
write,
in
a
professional
sense,
while
he
was
there.
From
1949,
until
leaving,
he
was
a
senior
person
in
respect
of
its
television
operations
in
Toronto.
He
and
his
family
lived
in
that
city.
From
1957
to
1961
he
was
employed
by
a
television
network
in
England.
He
returned
to
Canada
in
1961.
He
lived
in
Ottawa.
He
became
active
in
Bushnell
Broadcasting,
the
predecessor
of
Bushnell
Communications
Limited.
He
was,
in
its
early
years,
the
general
manager.
Bushnell
was
granted
a
commercial
television
licence
in
Ottawa.
It
was
turned
down
in
Toronto.
That
was
the
start
of
what
is
now
known
as
CTV.
By
1975
he
was
the
president
and
chief
executive
officer
of
Bushnell.
He
and
his
wife
have
lived
in
four
different
dwellings
in
Ottawa.
They
have
always
been
owned
by
his
wife.
The
first
house
was
a
modest
one.
He
contributed
to
its
purchase.
Another
house
was
bought.
On
its
sale,
they
moved
to
a
townhouse.
That
was
sold.
In
1975
they
were
living
in.
another
townhouse.
In
all
cases
the
plaintiff
provided
his
wife
with
funds
for
upkeep,
charges
and
maintenance.
That
included
taxes
and
insurance
charges
whether
paid
directly
or
through
condominiumstyle
assessments.
In
1974,
there
were
attempts
by
others
to
acquire
control
of
Bushnell
The
third
attempt
was
by
Standard
Broadcasting.
It
was
successful
and
won
approval
of
the
CRTC.
The
takeover
was
completed
by
July
of
1975.
The
plaintiff
had,
with
his
previous
employer,
an
employment
contract,
terminable
but
renewable,
on
his
60th
birthday.
It
also
had
retirement
annuity
provisions.
The
new
owners
wanted
a
change
of
management.
As
a
result,
the
plaintiff’s
contract
was
terminated
effective
October
15,
1975.
A
settlement
in
respect
of
what
amounted
to
early
retirement
was
reached.
The
funds
were
paid
into
a
Canadian
registered
retirement
savings
plan.
The
plaintiff
had
actually
ceased
working
for
the
television
company
before
October
of
1975.
I
turn,
for
the
moment,
to
another
matter.
The
plaintiff
has
had,
for
many
years,
a
passion
for
sailing.
When
he
lived
in
Toronto
and
in
England
he
indulged
that
activity.
When
he
came
to
Ottawa
in
1961
he
joined
the
Britannia
Yacht
Club.
Over
the
years
he
has’
owned
several
sailboats,
not
at
the
same
time.
He
has
built
three.
His
physical
home
or
dwelling,
since
November
2,
1975,
has
been
a
40-foot
ocean-going
ketch,
the
Vo/ante.
He
ordered
the
hull
for
this
vessel
in
1970.
He
built,
in
his
free
time,
the
rest
of
her
himself,
except
for
specialized
work
such
as
welding.
She
was
finished
in
1975.
The
total
cost
he
estimates
at
approximately
$35,000.
He
tried
to
put
in
on
her
construction,
over
the
four
years,
an
average
of
forty
hours
a
week.
From
1961
the
plaintiff
took
winter
vacations
from
Ottawa.
At
first
he
went
to
several
places
in
the
Caribbean.
In
1969
he
went
to
the
island
of
Tortola
in
the
British
Virgin
Islands.
He
‘described
it
as
“idyllic”
with
the
particular
area
offering
the
best
sailing
in
the
Caribbean.
When
the
plaintiff
began
building
the
Volante
he
had
in
mind
his
retirement
years.
He
planned
to
live
on
the
vessel.
He
had
fixed
on
Tortola
as
the
place.
His
wife
and
he
had
discussed
their
respective
plans.
She
hated
sailing.
Her
interests
lay
in
other
directions.
It
had
been
accepted,
but
amicably,
that
when
retirement
arrived
they
would
go
their
respective
ways
and
pursue
their
respective
interests.
After
his
severance
from
Bushnell,
the
plaintiff
proceeded
with
his
plans.
He
had
made
the
ketch
suitable
for
ocean
sailing.
She
had
been
earlier
tested
in
Ottawa
waters
when
she
was
completed
in
the
summer
of
1975.
He
arranged
for
the
vessel
to
be
land-transported
to
Annapolis,
Maryland
for
the
voyage
to
Tortola.
In
October,
1975
his
wife
sold
the
Ottawa
townhouse.
The
new
occupants
moved
in
at
the
end
of
November.
The
plaintiff’s
wife
purchased
a
smaller
apartment
in
a
Toronto
condominium.
She
moved
there.
She
still
had
a
surplus
of
funds
left
from
the
sale
of
the
Ottawa
property,
after
paying
for
the
Toronto
property.
The
plaintiff
accompanied
his
vessel
to
Annapolis.
He
made
what
arrangements
for
the
voyage
were
necessary
there.
He
had
given
away
a
great
deal
of
his
clothes,
including
all
his
winter
clothes.
He
had
sold
three
valuable
paintings
by
well
known
artists.
He
had
sold,
as
well,
a
valuable
sculpture.
The
plaintiff
left
Canada
on
November
2,
1975.
He
sailed
from
Annapolis.
He
arrived
on
the
island
of
Tortola
on
January
12,
1976.
He
had
friends
there.
He
had
written
them
about
his
proposed
trip.
Since
arrival
he
has
lived
on
his
vessel
at
a
marina
in
Roadtown,
Tortola.
He
also
has
had
a
hurricane-proof
mooring
built
in
a
sheltered
bay.
He
has
a
mailing
address
at
the
marina.
He
has
set
up
marine
telephone
facilities.
He
has
a
bank
account
of
approximately
$15,000.
A
large
part
of
his
time
since
he
went
to
the
Caribbean
has
been
spent
in
British
Virgin
Islands
territorial
waters.
His
time
is
not
all
spent
sailing.
The
vessel
demands
constant
care
and
upkeep.
He
reads
a
good
deal.
He
is
writing
a
novel.
Because
of
its
Canadian
background
he
ultimately
hopes
to
have
it
published
by
a
Canadian
publisher.
Before
the
plaintiff
left
Canada
he
resigned
from
a
private
social
and
dining
club
he
had
belonged
to,
Le
Cercle
Universitaire.
He
tendered
his
resignation
to
the
yacht
club,
but
was
persuaded
to
take
a
non-resident
status.
In
November
of
1975
the
plaintiff
had
financial
assets
in
Canada.
They
are
set
out
in
Exhibit
5.
By
far
the
largest
was
the
Registered
Retirement
Savings
Plan
with
the
Montreal
Trust
Company,
$184,000.
Slightly
under
$20,000
remains
with
an
investment
dealer.
Bank
accounts
came
to
about
$11,000.
Bank
certificates
maturing
in
1979
had
a
value
of
about
$35,000.
They
are
held
by
creditors
to
secure
a
debt.
He
has
certain
pension
and
insurance
benefits
in
Canadian
sources.
None
of
these
assets
were
taken
to
Tortola.
The
defendant
places
great
reliance
on
that
in
contending
the
plaintiff
was
in
1975,
and
still
is,
resident
in
Canada.
I
do
not
attach
any
major
importance
to
that
fact.
I
see
nothing
incompatible
with
a
severance
of
residence,
but
the
keeping
of
investments,
in
this
country.
The
plaintiff
has
been
back
in
Canada
four
times
since
1975.
He
has
known
Judy
LaMarsh
for
some
time.
She
was,
among
other
things,
Chairman
of
an
Ontario
Royal
Commission
investigating
the
impact
of
violence
depicted
in
television
programming.
After
the
Commission
was
well
under
way
she
requested
the
plaintiff,
at
Tortola,
to
do
some
research
in
respect
of
the
organization
of
television
broadcasting.
She
knew
of
his
experience
in
the
field.
The
plaintiff
came
to
Toronto
for
three
or
four
days
to
discuss
the
project.
He
agreed
to
do
it.
He
did
the
actual
work
and
writing
in
Tortola.
The
Commission’s
report
was
released
in
early
1977.
The
plaintiff
returned,
again
for
only
a
few
days,
to
Toronto
for
press
release
purposes.
While
there,
he
was
requested
by
the
Minister
of
Communications,
Mme
Jeanne
Sauvé,
to
consider
doing
a
particular
study
for
her
department.
He
went
to
Ottawa
to
discuss
it.
He
had
known
Mme
Sauvé
for
some
years.
He
agreed
to
do
the
work.
It
required
a
short
visit
to
European
television
operators
for
research.
He
wrote
the
study
in
Tortola.
He
returned
to
Ottawa
‘briefly
in
September,
1977
to
de-
liver
and
discuss
the
study.
The
plaintiff
charged
fees
for
the
LaMarsh
and
Sauve
work.
His
last
visit
to
Canada,
other
than
for
this
trial,
was
for
Examination
for
Discovery
in
this
case.
The
plaintiff
ended
his
testimony
in
chief
by
stating,
in
answer
to
a
question,
that
he
does
not
intend
to
"come
back"
to
Canada.
I
took
that
to
mean
he
does
not
intend
to
return
to
Canada
to
tive
or
reside
there.
He
considers
his
living
place
to
be
Roadtown,
Tortola,
British
Virgin
Islands.
In
determining
the
issue
before
me,
the
stated
intention
of
the
taxpayer
can
only
be
a
minor
factor.
It
is,
of
course,
in
the
interests
of
the
plaintiff
to
avow
he
has
severed
his
residential
relationship
with
this
country.
That
stated
intention
must
be
carefully
and
objectively
weighed
against
all
the
surrounding
facts.
I
have
done
so.
The
plaintiff
impressed
me
as
candid
and
trustworthy.
I
am
satisfied,
after
considering
all
the
facts,
he
has
indeed,
since
November
2,
1975,
not
been
"resident
in
Canada".
For
the
defendant,
the
following
facts
are
relied
upon
in
support
of
an
opposite
conclusion:
(a)
the
keeping
of
fairly
substantial
assets
in
Canada.
I
have
already
commented
on
that.
(b)
the
absence
of
any
"legal’’
that
is,,
court
endorsed,
separation
from
his
wife.
(c)
a
so-called
matrimonial
residence
in
Canada.
(d)
the
undertaking
of
two
separate
projects,
for
reward,
from
Canadian
sources.
(e)
the
registration
of
the
Volante
in
Canada,
and
the
continuance
of
insurance
coverage
through
an
Ottawa
agent.
(f)
the
intention
to
interest
a
Canadian
publisher
in
his
projected
novel.
Those
factors
taken
cumulatively,
do
not,
as
I
see
it,
outweigh
the
other
convincing
evidence
that
the
plaintiff
on
November
2,
1975,
effectively
and
permanently
(to
date
at
least)
put
an
end
to
his
former
Canadian
residence.
There
is
no
magic,
these
days,
in
a
"legal"
separation.
It
has
no
more
effect
on
residence
or
non-residence
than
the
kind
of
amicable
oral
understanding
reached
by
the
plaintiff
and
his
wife.
The
matrimonial
dwelling
is
not,
on
the
evidence,
a
joint
one.
It
is
for
the
wife
alone.
The
plaintiff
stayed
there
for
one
night
on
one
of
the
trips
to
Canada.
That,
to
me,
indicates
the
lack
of
rancor
in
the
separation.
The
undertaking
of
the
projects
for
the
LaMarsh
Commission
and
for
the
Ministry
of
Communications
is,
I
think,
a
relatively
unimportant
factor.
The
plaintiff
did
not
seek
out
either
project.
He
was
sought
out.
I
again
see
nothing
incompatible
with
non-residence
and
doing
work
for
reward
for
Canadian
sources.
The
Canadian
registration
of
the
vessel
is
insignificant.
Official
registration
is
not
available
in
the
British
Virgin
Islands.
I,
once
more,
see
nothing
incompatible
with
residence
elsewhere
and
dealing
with
the
same
company
and
agent.
The
hope
of
successfully
publishing
a
novel,
but
doing
it
in
Canada,
was
satisfactorily
explained
by
the
plaintiff.
I
need
not
set
that
out
again.
i"
The
evidence
here,
in
my
view,
clearly
and
persuasively
establishes
the
issue
in
favour
of
the
plaintiff.
The
appeal
is
allowed.
The
assessment
is:
referred
back
to
the
Minister
with
a
direction
that
the
plaintiff’s
taxable
income
for
1975
is
to
be
computed
in
accordance
with
section
114
of
the
Statute.
The
plaintiff
is
entitled
to
his
costs.