Mahoney, J.A. (Hugessen and MacGuigan, JJ.A. concurring):—This is an appeal against a reported judgment of the Trial Division which allowed the respondent's appeal against the disallowance of her claim for $2,211.47 travelling expenses in her 1980 income tax return. The respondent is a Winnipeg school principal. The expenses claimed were based on the use of her personal automobile to carry out various functions which the learned trial judge found to have been required in the course of her employment. The claim was based on paragraph 8(1)(h) of the Income Tax Act.
8. (1) In computing a taxpayer's income for a taxation year from an office or employment, there may be deducted such of the following amounts as are wholly applicable to that source or such other source or such part of the following amounts as may reasonably be regarded as applicable thereto:
(h) where the taxpayer, in the year,
(i) was ordinarily required to carry on the duties of his employment away from his employer's place of business or in different places,
(ii) under the contract of employment was required to pay the travelling expenses incurred by him in the performance of the duties of his office or employment, and
(iii) was not in receipt of an allowance for travelling expenses that was, by virtue of subparagraph 6(1)(b)(v), (vi) or (vii), not included in computing his income and did not claim any deduction for the year under paragraph (e),
(f) or (g),
amounts ended by him in the year for travelling in the course of his employment;
The findings of fact by the learned trial judge are well supported by the evidence and, with a single exception, I am not persuaded that he erred in applying the law to those facts. The expenses designated as Group "A", involving 608 of a total of 7,026 kilometres travelled, as found by the learned trial judge, relate to meetings held at the respondent's school in the evenings. Travel between home and her school, even though outside regular hours of work, was not in fulfilment of a requirement to carry on her duties "away from her employer's place of business or in different places" as required by paragraph 8(1)(h).
The appeal should be allowed to that extent and otherwise dismissed with costs as between solicitor and client since the amount of tax in controversy is well below the limit fixed by paragraph 178(2)(a) of the Income Tax Act. Pursuant to subparagraph 177(b)(iv), the respondent's 1980 income tax assessment will be referred back to the Minister for reconsideration and reassessment on the basis that the travelling expenses claimed by the respondent, except those in Group “A”, were within the deduction allowed by paragraph 8(1)(h).
Appeal allowed in part.