Martin,
J.:—This
matter
came
on
for
hearing
at
Halifax,
Nova
Scotia,
on
the
11th
day
of
June
1986
by
way
of
appeal
by
the
plaintiff
from
a
decision
of
the
Tax
Court
of
Canada
dated
February
23,
1984
determining
that
the
defendant
was
ordinarily
required
to
carry
on
the
duties
of
its
[s/c]employ-
ment
away
from
his
employer's
place
of
business
or
in
different
places
during
the
year
1980,
that
the
defendant
had
also
satisfied
the
requirements
of
subparagraphs
8(1
)(h)(ii)
and
(iii)
of
the
Income
Tax
Act
and
accordingly
was
entitled
to
deduct
from
his
taxable
income
certain
travelling
expenses
which
had
been
disallowed
by
the
Minister
of
National
Revenue
in
his
notice
of
reassessment
dated
November
26,
1981.
The
plaintiff
submits
that
the
defendant
is
not
entitled
to
deduct
any
amount
for
travelling
expenses
during
the
taxation
year
in
question
as
the
amount
claimed
was
not
for
travelling
in
the
course
of
his
employment
and
as
he
did
not
meet
the
conditions
specified
in
subparagraphs
8(1
)(h)(i),
(ii)
and
(iii)
of
the
Act.
The
defendant
claims
that
he
is
entitled
to
deduct
the
travelling
expenses
on
the
grounds
that
during
the
period
in
question
he
was
required
to
carry
on
the
duties
of
his
employment
away
from
his
employer's
place
of
business,
that
he
was
required
to
travel
in
order
to
do
so
and
that
he
did
not
receive
any
allowance
from
his
employer
for
such
travel.
At
the
commencement
of
the
hearing
counsel
agreed
that
travelling
expenses
were
incurred
and
that
they
amounted
to
$637.57
for
the
defendant's
1980
taxation
year.
Prior
to
and
for
a
part
of
1979
the
defendant
was
employed
by
the
Municipal
School
Board
of
Inverness
County
(the
Board)
as
a
teacher
at
the
Mabou
Consolidated
Elementary
High
School
in
Mabcu,
Nova
Scotia,
where
the
defendant
and
his
family
resided.
The
Board
had
an
agreement
with
the
Nova
Scotia
Teachers
Union,
of
which
the
defendant
was
a
member,
which
provided
for
a
year’s
sabbatical
leave
to
be
granted
on
application
by
qualified
teachers
with
three
years'
employment
with
the
Board.
The
relevant
portions
of
the
collective
agreement
relating
to
sabbatical
leave
are
contained
in
article
9
and
are
as
follows:
9.02
Sabbatical
Leave
shall
be
considered
continuous
service
with
the
Board
and
all
benefits
such
as
salary
increments,
and
cumulative
sick
leave
shall
be
in
effect
during
the
Sabbatical
year.
9.03
Sabbatical
Leave
shall
be
granted
to
a
teacher
for
study
or
other
professional
development.
Such
Sabbatical
Leave
shall
be
related
to
the
work
for
which
the
teacher
is
responsible.
9.04
Sabbatical
Leave
shall
be
granted
for
the
period
of
one
(1)
full
year.
9.05
A
teacher
granted
Sabbatical
Leave
must
agree
to
teach
for
the
Municipal
School
Board
of
Inverness
County
for
a
minimum
of
three
(3)
years
immediately
following
the
year
of
Sabbatical
Leave.
9.06
The
sum
of
all
money
received
during
the
Sabbatical
Leave
shall
be
returned
to
the
Board
in
the
event
that
a
teacher
fails
to
fulfill
his
part
of
the
Sabbatical
Leave
agreement
except
due
to
illness
or
disability.
The
money
shall
be
paid
by
the
teacher
or
a
bonding
organization
retained
by
the
Board.
The
cost
of
bonding
will
be
deducted
from
the
amount
of
the
Sabbatical
Leave.
9.14
Salary
payments
to
teachers
on
Sabbatical
Leave
shall
be
made
on
the
same
regular
bi-monthly
basis,
and
pension,
income
tax,
and
all
other
necessary
deductions
shall
be
made
by
the
Board.
9.15
One
(1)
teacher
shall
receive
Sabbatical
Leave
each
year.
9.16
The
recipient
of
Sabbatical
Leave
shall
be
paid
one
hundred
percent
(100%)
of
his
or
her
annual
salary.
9.17
A
teacher
on
return
from
Sabbatical
Leave
shall
be
re-instated
to
the
same
position,
an
equivalent
position
or
a
better
position,
unless
otherwise
agreed
by
both
parties.
The
defendant
applied
for
sabbatical
leave
for
the
period
from
August
1,1979
to
July
31,
1980.
He
proposed
that
he
attend
St.
Francis
Xavier
University
and
take
courses
in
education-related
fields
which
would
qualify
him
for
his
master's
degree
in
education.
The
courses
which
he
proposed
were
available
at
Antigonish,
New
Glasgow
and
Sydney
and,
if
he
wished
to
pursue
them
it
would
be
necessary
for
him
to
travel
to
these
centres
as
the
courses
were
not
available
at
any
single
location.
The
Board
considered
several
applications
and
decided
to
accept
the
defendant's.
During
the
relevant
period
the
defendant
took
up
residence
in
Antigonish
for
the
purpose
of
his
studies
and,
when
necessary,
he
travelled
at
his
own
expense,
to
New
Glasgow
and
Sydney
to
attend
the
courses
offered
at
those
locations.
The
expenses
claimed
in
this
matter
relate
to
the
costs
of
travelling
from
Antigonish
to
New
Glasgow
and
Sydney
and
not
to
any
travelling
costs
between
Antigonish
and
Mabou.
The
defendant
successfully
completed
his
studies,
received
his
master’s
degree
in
due
course,
returned
to
Mabou
High
School,
served
his
three
years
with
the
Board
in
accordance
with
the
terms
of
the
sabbatical
agreement
and
was
made
principal
of
the
school
in
1982,
which
position
he
continues
to
occupy.
Paragraph
8(1)(h)
of
the
Act
provides
that
a
taxpayer
may
deduct
from
his
income
from
employment
amounts
expended
by
him
for
travelling
in
the
course
of
his
employment
if
he:
(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
(8).
It
is
not
disputed
that
the
travelling
was
necessary
in
order
for
the
defendant
to
attend
the
courses
offered,
nor
is
it
disputed
that
the
Board
did
not
pay
any
of
the
expenses
associated
with
the
travel.
The
plaintiff
says,
however,
that
during
the
relevant
period
the
defendant
was
not
"employed",
had
no
duties
of
employment
and,
in
any
event,
had
no
contractual
obligation
to
pay
travelling
expenses.
When
hearing
this
matter,
it
appeared
to
me
that
the
defendant
was
in
much
the
same
position
as
an
employee
who
is
instructed
by
his
employer
to
embark
upon
a
course
of
study
or
self-improvement
in
the
course
of
which
the
employee
might
have
to
incur
travelling
expenses.
Using
that
analogy
I
had
tentatively
concluded
that
the
defendant
in
this
action
continued
to
be
employed
by
the
Board,
not
as
a
teacher,
but
as
a
student.
Since
the
hearing
I
have
reviewed
the
collective
agreement
entered
in
evidence
and
have
considered
the
cases
submitted
by
counsel
and
have
come
to
the
conclusion
that
the
defendant,
during
the
period
relevant
to
the
consideration
of
this
matter,
was
not
employed
by
the
Board
and
accordingly
was
not
required
to
carry
out
any
duties
of
employment.
It
was
not
his
contract
of
employment
which
required
him
to
take
the
courses
leading
to
his
master's
degree.
The
contract
of
employment
permitted,
not
required,
him
to
apply
for
and,
if
successful,
to
be
relieved
from
the
duties
of
his
employment
for
a
period
of
one
year
for
study
or
other
professional
development
related
to
his
teaching
responsibilities.
Although
during
the
year’s
leave
from
his
employment
he
retained
all
the
benefits
which
would
accrue
to
an
employee
and
was
paid
an
amount
equal
to
what
he
would
have
been
paid
by
way
of
salary
had
he
remained
in
the
employ
of
the
Board
during
the
year,
these
were
benefits
which
he
received
on
account
of
his
previous
employment
under
his
contract
of
employment
but
were
not
in
payment
for
any
duties
which
he
performed
for
the
Board
during
the
year
in
which
he
enjoyed
the
benefit
of
sabbatical
leave.
Had
the
defendant
elected
to
travel
during
his
sabbatical
year
so
as
to
broaden
his
mind
and
thus,
presumably,
to
become
a
better
teacher,
and
had
the
Board
approved
the
proposal
as
one
of
professional
development,
he
would
be
in
the
same
position.
It
would
not
be
his
contract
of
employment
which
required
him
to
travel
but
it
would
have
permitted
it.
The
defendant's
travelling
expenses
in
this
matter
were
not
incurred
in
the
discharge
of
the
duties
of
his
employment.
They
were
incurred
in
the
course
of
pursuing
his
studies
while
he
was
on
leave
from
his
duties.
It
follows,
of
course,
that
it
was
not
his
contract
of
employment
which
required
him
to
pay
the
travelling
expenses
which
he
claims
as
a
deduction
but
his
course
of
studies
which,
as
already
indicated,
was
not
required
by
his
contract
of
employment
but
only
permitted.
Counsel
for
the
defendant
cited
Mr.
Justice
Strayer's
decision
in
Rozen
v.
The
Queen,
[1986]
1
C.T.C.
50
at
52;
85
D.T.C.
5611
at
5613,
as
authority
for
bringing
his
client
within
the
provisions
of
subparagraph
8(1)(h)(ii)
of
the
Act.
In
my
view
that
decision
has
no
application
to
this
matter
as
the
defendant,
during
the
relevant
period,
was
not
working
for
the
Board
but
was
on
paid
leave
from
all
of
his
duties
of
employment.
Accordingly
the
appeal
will
be
allowed.
Appeal
allowed.
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