Hall, J (all concur):—This is an appeal from the judgment of the Honourable Mr Justice F A Sheppard, Deputy Judge of the Exchequer Court of Canada, reported [1969] CTC 600. The appellant is an anaesthetist who practices his profession as one of a group. By an agreement dated June 6, 1961 between Royal Jubilee Hospital of Victoria, British Columbia, and this group of anaesthetists, the group agreed to supply at all times all anaesthetic services required by the hospital and they were to have the exclusive right to administer such services. In accordance with the agreement, the appellant restricted his practice to supplying his services at the hospital, and although he did with approval supply anaesthesia for certain dentists outside the hospital that fact is not relevant to this appeal.
The appellant had his home at 2025 Lansdowne Road in Victoria where he lived with his wife and two daughters, a distance of about 1%2 miles from Royal Jubilee Hospital. He also had an office at 1207 Douglas Street in Victoria in common with a group of anaesthetists where they kept their records and had a secretary employed to send out their accounts, receive and record payments. The appellant did not see any patients there nor at his home. In his home, in common with other members of his family, he used a den or study in one area of which he had a desk where he kept stationery, a typewriter and materials for correspondence as well as a supply of anaesthetic record cards and a copy of the fee schedule to which he referred in making out the accounts. Having made out the accounts, he took them to the office on Douglas Street once or twice a week.
In the appeal before this Court the only matter in issue is the amount claimed as a business expense for going from his home to the hospital in the morning and returning home from the hospital in the afternoon five days a week and the capital cost allowance referable thereto. The Minister allowed as a deduction for business use and capital cost allowance the total mileage claimed for emergencies and for trips from the hospital to the office on Douglas Street and also allowed for 299 trips claimed by the appellant as trips made during the evening from his home to the hospital to interview patients to whom he was going to administer an anaesthetic the following day.
The appellant relied principally on the judgment of Thurlow, J in Cumming v MNR, [1968] 1 Ex CR 425; [1967] CTC 462. In that case Thurlow, J held that Dr Cumming, who was an anaesthetist under a contract with the Ottawa Civic Hospital similar to the appellant’s contract with Royal Jubilee Hospital, was entitled to deduct as a business expense the cost of going from his home in Ottawa to the Ottawa Civic Hospital and back each day. The facts in Cumming are somewhat different from those in the present appeal, but even assuming that Cumming was properly decided which is not necessary to do in this appeal, I am of opinion that the appeal must fail. The appellant has been allowed his expenses of going to and from his Douglas Street office and for emergency calls as well as for trips from his home to the hospital in the evenings so that there remains solely his claim to deduct for going to and from the hospital each working day of the week and the proportion of the capital cost allowance claimed in respect of these trips. I am unable to discern any difference between the appellant and the self-employed owner of any business who maintains a home from which he leaves in the morning and returns in the late afternoon as a matter of course. The appellant relied on Randall v MNR, [1967] S.C.R. 484; [1967] CTC 236, and Pook v Owen, [1970] AC 244. Neither of these cases are of any assistance to him. In both the taxpayer was doing business and earning income at two separate localities.
I would, accordingly, dismiss the appeal with costs.
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