Campbell J.:
Mr. Bryan C. Imray, now in his thirtieth year of teaching, has for twenty-eight out of the last twenty-nine years attended an annual two-day Teachers’ Convention as required by his employment. It is Mr. Imray’s opinion that expenses incurred for so attending should be tax deductible, and he filed income tax returns accordingly. On an interpretation of s.8(l)(h)(i) of the Income Tax Act, these deductions were denied by the Minister of National Revenue. By that provision, where a taxpayer “was ordinarily required to carry on the duties of his employment away from his employer’s place of business or in different places”, amounts expended in a given tax year for so travelling in the course of his or her employment may be deducted. This appeal is from the Minister’s decision and focuses on the correct interpretation of the word “ordinarily” in s.8(l)(h)(i).
Mrs. Jennifer Imray, also a teacher, essentially claimed the same deductions as her husband, and received the same denials, which she has also appealed. While the decisions respecting Mr. and Mrs. Imray’s claims are separate tax and court files, and, accordingly, came before me as separate appeals, they were heard together as they involve the exact same issues. These reasons, therefore, apply to both Mr. Imray’s action [T-676- 90] and that of Mrs. Imray [T-677-90].
A. Facts
Mr. and Mrs. Imray’s appeals were conducted in two court sessions. When the matter initially came on for hearing, in each action an Agreed Statement of Facts was presented. The statement for Mr. Imray is as follows:
l During the taxation years of 1986, 1987 and 1988 (the “Taxation
Years”), the Plaintiff resided in the Town of Peace River, in the Province of Alberta.
2 During the Taxation Years, the Plaintiff was employed by the Peace
River School Division #10 (the “Employer”) as a principal and teacher at the Peace River High School located at 10001 - 91 Avenue, in the Town of Peace River.
3. During the Taxation Years, the Plaintiffs employment with the Employer was subject to the terms of a written employment agreement (the “Employment Agreement”) attached hereto and marked as Exhibit “A”, which incorporated the provisions of the School Act, S.A. 1988, c. S-3.1 (the ^School Act’).
4. The School Act provides that the annual two-day professional development seminar known as Teachers’ Convention are considered “teaching days”.
5. The School Act also provides that the Employer shall deduct 0.5% of the Plaintiffs annual teacher’s salary for each teaching day that the Plaintiff is absent, unless the absence is approved by the Employer or the Minister of Education or relates to medical illness, disability or treatment.
6. During the Taxation Years, the nearest Teachers’ Convention was held in the City of Grande Prairie, which is approximately 200 kilometres away from the Town of Peace River.
7. In attending Teachers’ Convention during the Taxation Years, the Plain- tiff incurred the following travelling expenses:
| Description | 1986 | 1987 | 1988 |
| Hotel | $ 50.00 | $ 34.00 | $ 38.00 |
| Meals (Alberta | 57.00 | 57.00 | 57.00 |
| Government | |
| Rate) | |
| Description | 1986 | 1987 | 1988 |
| Car (25¢/km) | 50.00 | 50.00 | 50.00 |
| TOTAL | $157.00 | $141.00 | $145.00 |
(hereinafter collectively referred to as the “Expenses”).
8. The Employment Agreement and the School Act do not address the question of who pays for the travelling expenses of a teacher incurred by a teacher in the course of attending Teachers’ [sic] Convention.
9. The meals, the cost of which are included in the Expenses, were consumed by the Plaintiff while he was away for periods of not less than 12 hours from the municipality or metropolitan area wherein the Employer’s establishment to which the Plaintiff ordinarily reported for work was located.
10. The Plaintiff was not in receipt of an allowance for travelling expenses in respect of any of the Taxation Years that was, by virtue of subparagraph 6(l)(b)(v), (vi) (vii) or (vii.l) of the Income Tax Act, R.S.C. 1952,
c. 148, as amended by S.C. 1970-71-72, c. 63, s.1 (the "Ac"), not included in computing his income.
11. The Plaintiff has not been reimbursed for the Expenses and is not entitled to be reimbursed in respect thereof by any term in his Employment Agreement.
12. In completing his returns of income for the Taxation Years, the Plaintiff claimed deductions for the Expenses.
13. During the Taxation Years, the Plaintiff did not claim any deductions under paragraphs 8(1) (e), (f) or (g) of the Act.
14. The Plaintiff filed with his return of income for each of the 1986 and 1987 Taxation Years a prescribed form signed by the Employer purporting to certify that the conditions set out in paragraph 8(1 )(h) of the Act were met in each year by the Plaintiff. The Plaintiff filed with his return of income for the 1988 taxation year a prescribed form signed by the Employer purporting to certify that the conditions set out in paragraph 8(1 )(h) of the Act were not met in the 1988 taxation year of the Plaintiff.
15. On June 13, 1989, the Minister of National Revenue (“the Minister”) issued a Notice of Assessment to the Plaintiff for the 1988 taxation year, wherein the Minister denied a deduction in the amount of $145.00 in respect of the portion of the Expenses incurred in that year (the “Assessment”).
16. On August 8, 1989, the Minister issued Notices of Reassessment to the Plaintiff for the 1986 and 1987 taxation years, wherein the Minister denied deductions in respect of the portion of the Expenses incurred in those years and assessed additional tax and interest in the aggregate amount of $164.37 (the “Reassessments”).
17. On August 28, 1989, the Plaintiff objected to the Assessment and the
Reassessments by filing Notices of Objection in respect thereof.
18. On December 11, 1989, the Minister confirmed the Assessment and the
Reassessments. 1
B. The Issue
During the first court session of the appeals, the Minister took the position that Mr. and Mrs. Imray were not required to attend Teachers’ Conventions in absence of evidence to the contrary. As this issue became a central focus of argument, counsel for the Imrays applied for and was, by consent, granted an adjournment to call evidence to prove that they were required to attend. Therefore, when the appeals resumed, giving evidence on the issue were Mr. Imray and Mr. Dan Garvey, Executive Assistant, Alberta Teachers’ Association. On the basis of this evidence, counsel for the Minister agreed that there was sufficient evidence to support the conclusion that, whether or not enforced, teachers are required to attend Teachers’ Conventions, and both Mr. and Mrs. Imray believed this to be the case.
A second issue initially raised in the appeals which requires mention, only to clear it away, is conformity with the requirements of s.8(10) of the Income Tax Act, which is the point addressed in paragraph 14 of the Agreed Statement of Facts respecting each appeal. For 1988 and subsequent years, pursuant to s.8(10), a deduction cannot be made under s.8(l)(h)(i) unless a taxpayer files a prescribed form, signed by the employer, certifying that the conditions set out in that provision were met for the tax year concerned.
The initial objection raised by the Minister was that the form for 1988 filed by Mr. and Mrs. Imray did not conform with this requirement in that, with respect to the question “was this employee ordinarily (habitually) required to carry out the duties of employment away from your place of busi- ess or in different places?”, the answer box was checked “no” [Ex. P-2]. However, counsel for the Minister conceded at the close of the evidence called that, because the exact same box was checked “yes” for the 1986 and 1987 taxation years, apparently by a different person than the 1988 form [Ex. P-2], on case authority I am entitled to deal with the evidence and am not bound by the documents variously created by a third party.
Therefore, on Mr. Imray’s evidence, I find as a fact that the certificates required under s. 8(10) for both Mr. and Mrs. Imray were completed by their employer as a matter of course in support of their individual applications to deduct expenses and, thus, for the year 1988, there is compliance with this section in both cases.
It is agreed, therefore, that the only issue for determination in these appeals, is the meaning of the word “ordinarily” in s.8(l)(h)(i).
B. The meaning of ordinarily
It is acknowledged that the trial and appeal decisions in Healy v. R. (1978), 78 D.T.C. 6239 (Fed. T.D.) and Healy v. R, (1979), 79 D.T.C. 5060 (Fed. C.A.) are the base precedents on the meaning of “ordinarily” in s.8(l)(h)(i) and s.8(4). Even though both decisions primarily concern an interpretation of s.8(4), the close relationship between “ordinarily” as it is used in that provision, and “ordinarily” as used in s.8(l)(h)(i) is established.
1. The provisions
Section 8(l)(h)(i) and s.8(4) read as follows:
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 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 employers’ place of business or in different places, and...
amounts expended by the taxpayer in the year ... for travelling in the course of the taxpayers’ employment...
8(4) Meals. - An amount expended in respect of a meal consumed by an officer or employee shall not be included in computing the amount of a deduction under paragraph (1)(f) or (h) unless the meal was consumed during a period while he was required by his duties to be away for a period of not less than twelve hours, from the municipality where the employers establishment to which he ordinarily reported for work was located and away from the metropolitan area, if there is one, where it was located.
2. The findings respecting “ordinarily” in Healy
Mr. Healy worked for the Ontario Jockey Club as a money room division head, and in the course of his employment was required to work two- thirds of his time at the Greenwood and Woodbine racetracks in Toronto, and one-third of the time at the Fort Erie racetrack in Fort Erie. Mr. Healy claimed tax expense deductions for his assignments in Fort Erie, since they were not paid by his employer, with the result that his transportation and accommodation claims under s.8(l)(h)(i) were allowed, but his meal expense claim under s.8(4) was denied.
In the trial judgment, Thurlow A.C.J. makes findings about the meaning of “ordinarily” in both s.8(l)(h)(i) and s.8(4). In the outcome, he denied Mr. Healy’s appeal on the principal finding that the three racetracks, including Fort Erie, were “establishments of the Jockey Club to which the defendant ordinarily reported for work” and, therefore, his claim for Fort Erie expenses was denied. However, respecting the use of the term “ordinarily” in s.8(l)(h)(i), at 6241 he said this:
In paragraph 8(1 )(h) the word “ordinarily” modifies “required to carry on the duties of his employment etc.' , and it appears to me to be equivalent to “normally” as opposed to “rarely” or “exceptionally”. The meaning “in most cases” does not fit. That of “as a matter of regular occurrence” does.
In the appeal decision, Urie J. disagreed with Thurlow A.C.J.’s principal finding and allowed the deduction. In doing so, at 5063 he expressed the following view on the interpretation question:
The question thus becomes - does that view of the Appellant’s employment situation in 1973 bring him within section 8(4) for the purpose of deduction of his meal expenses in the computation of his taxable income? I believe that it does. The Shorter Oxford Dictionary defines “Ordinarily”, inter alia, as “in most cases, usually, commonly”.
Substituting, then, the word “ordinarily” for the expressions “commonly” and “usually” which are used in the analysis of the Appellant’s employment situation in the immediately preceding paragraphs, clearly leads to the conclusion that the Appellant qualifies for the meal expense deduction unless the fact that there are two establishments in his base employment municipality affects the result. In my opinion, it ought not to. On any logical view of it, the purpose of the section is to first find the municipality where an employee usually reports for work and then to find whether or nor he is entitled to meal expense deduction for having, in the course of his employment, to be away from that municipality for more than twelve hours.
[Emphasis in original]
Urie J. then goes on to say as follows at 5063:
I think, on the contrary that the expression “reported for work” when used with the word “ordinarily” applying the dictionary meaning of it, refers to the reporting in a larger sense, not a narrower one, namely, “in most cases” or as a general rule. To so interpret the words is consonant with what I think is necessary for the interpretation of section 8(4) which is to read it together with section 8(1)(h).
Implicit in this statement is the very understandable idea that the word “ordinarily” used in s.8(l)(h)(i) and s.8(4), being two closely related parts of the same section of the Income Tax Act, should be interpreted as having the same meaning. Taken together, the reasoning in the Healy decisions provide the following synonyms for use in interpreting “ordinarily”: “normally”, “as a matter of regular occurrence”, “commonly”, and “usually”.
However, used in his attempt to harmonize the two provisions of s.8 under consideration, Urie J.’s following final words found at 5064 have proved to be most persuasive in interpreting the provisions of s.8(l)(h)(i):
The objective of section 8(1)(h) is to enable employees who are required by their employment to work from time to time away from the places at which they usually work, to deduct their out-of-pocket expenses in so doing. Section 8(4) is designed to prevent abuses in the application of section 8(1)(h) but not to prevent the legitimate deduction of expenses properly incurred while working at different places. As I see it, the rather restrictive interpretation adopted by the Trial Judge would unfairly detract from the overall objective of the sections.
In Tremblay c. R. (1997), 223 N.R. 85 (Fed. C.A.) at 86 to 88, Urie J.’s just quoted opinion is accepted and applied as the test to meet in applying s.8(l)(h)(i):
In the case at bar, the applicant has not convinced us that the Tax Court of Canada Judge made an error that warrants this Court’s intervention.
The taxpayer lived in Val Bélair, Quebec when he was hired as a peace officer by the Royal Canadian Mounted Police. His employer immediately sent him to Montréal to take an English course from September 1991 to May 1992, and it deducted $360 a month from his salary for his room and board with a host family during the months he was taking the course. It has been established that Montréal was not his employer’s place of business. When the taxpayer sought to deduct those expenses -- $1,338 for the 1991 taxation year and $3,315 for the 1992 taxation year -- from his employment income, the deductions were disallowed. However, the Tax Court of Canada Judge found that the taxpayer was entitled to deduct those expenses from his employment income since he had been required to carry on the duties of his employment away from the place of business of his employer, since the expenses deducted were not personal expenses and since, in short, he met the requirements of paragraph 8(1)(h) of the Income Tax Act.
The judgment in respect of which judicial review is sought is very terse. It would no doubt have been desirable for the judge to say more about one of the criteria found in subparagraph 8(1)(h)(i) of the Act, namely whether the taxpayer, in the year, was ordinarily required to carry on the duties of his employment away from his employers place of business or in different places. However, the Tax Court of Canada Judges analysis of the evidence shows that he did consider this question, and his conclusion is consistent with the interpretation given by this Court in Healy v. R., [1979] 2 F.C. 49 (Fed. C.A.), at page 55:
The objective of section 8(1)(h) is to enable employees who are required by their employment to work from time to time away from the places at which they usually work, to deduct their out-of-pocket expenses in so doing.
The applicant is relying on an interpretation of that case by a Tax Review Board judge in Ronchka v. Minister of National Revenue (1979), 79 D.T.C. 854 (T.R.B.). That judge found that paragraph 8(1)(h) does not apply where the assignment away from the regular place of business relates only to a single and isolated event, as was the case here.
In our view, that interpretation is incorrect. Even a literal interpretation of subparagraph 8(l)(A)(0 leads to the conclusion that the respondent was ordinarily carrying on the duties of his employment away from his employer’s place of business while he was assigned to Montréal during the 1991 and 1992 taxation years.
[Emphasis added]
It is important to note that, in Tremblay, expenses for one, albeit extended, event were found to qualify for deduction.
C. Application of the test to Mr. and Mrs. Imray’s case
Given the exhaustive interpretative efforts in the Healy decisions as applied in Tremblay, the Imrays’ rather straight forward argument is that they were required to attend annual Teachers’ Conventions, attended “normally”, “as a matter of regular occurrence”, “commonly”, and “usually”, and should, therefore, be allowed the deduction for their expenses.
However in response, the Minister argues for the introduction of the idea that, before a deduction can qualify under s.8(l)(h)(i), a certain level of frequency must occur. In making the frequency argument, the Minister advances the proposition that there is a line to be drawn respecting the degree of regularity with which an event occurs before it can be considered to “or- «dinarily" occur. If this proposition is accepted, the question becomes: where should the line be drawn, and on which side of the line is Mr. and Mrs. Imray’s factual case?
On the authority of Tremblay, I do not agree with the assertion of a linear approach to the interpretation of “ordinarily” in s. 8(l)(h)(i). I do not think it is possible as a general rule, nor advisable, to say that a certain frequency of occurrence complies with the requirements of the provision, since an individual set of circumstances might be far more difficult to analyse fairly than this rather simple approach would allow. Accordingly, adoption of a linear approach would not generate a just result in each case, and rather than generate certainty as precedent, would generate confusion instead.
Therefore, rather than viewing a particular set of facts as occupying a place on a frequency continuum, I find the mandated approach is to consider a particular set of facts as a function of the unique context in which they arise. This latter approach avoids the complication raised in argument by counsel for the Minister that, if I accede to the Imrays’ argument, a dangerous precedent will be set, not only for cases of a like nature, but also for other cases in which the word “ordinarily” is used in different situations within the Income Tax Act. In addition, in response to this argument, I say that this decision is about the interpretation and application of “ordinarily” as used in s.8(l)(h)(i), nothing more.
The requirement of the Imrays’ attendance at Teachers’ Conventions is a function of legal, administrative and ethical expectations which apply to all teachers in Alberta. Within this context, the fact that Teachers’ Conventions occur only once per year is a minor factor. As is the case for Mr. Imray, who has attended every year since being a teacher, save one, when because of a flood in his school he was unable to attend, the evidence establishes that most teachers in Alberta accept this responsibility.
On this basis, I have no hesitation in finding that Teachers’ Convention attendance is “normal”, “a matter of regular occurrence”, “commonly” and “usually” occurs, and is a requirement which takes teachers “from time to time away from the places which they usually work”. Therefore, I find conformity with the synonyms provided in the Healy decisions, and also that the test expressed in Tremblayhas been met.
Accordingly, I allow Mr. and Mrs. Imrays’ appeals and refer these matters back to the Minister for re-assessment and reconsideration to allow the deductions claimed. As they are successful, I also award costs to Mr. and Mrs. Imray in their respective actions.
Appeals allowed.
[1998] 4 C.T.C.
Tax Court Decisions
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