DENIS H. PRONOVOST,
HER MAJESTY THE QUEEN,
REASONS FOR JUDGMENT
 These appeals from assessments for
the appellant's 1999 and 2000 taxation years involve
essentially two issues.
(a) Whether the appellant's
1998 Dodge Ram truck which he purchased in early 1999 is an
"automobile" and a "passenger vehicle" as
defined in section 248 of the Income Tax Act and is
therefore an asset in class 10.1 of Schedule II to the
Income Tax Regulations or is "automotive
equipment" within class 10.
(b) Whether the Minister of National
Revenue was correct in reducing the appellant's claim to
deduct the cost of fuel used in his truck from $5,024.84 to
$2,400 in 1999 and $3,089.65 to $1,600 in 2000.
 There was another minor issue
raised in the reply about the inclusion of $293 and $213 in the
appellant's income for 1999 and 2000 respectively. No
evidence was adduced on this point and I express no
 The other issue identified in the
reply is the amount of rebate to which the appellant is entitled
pursuant to subsection 253(1) of the Excise Tax Act.
The resolution of this issue will depend upon the resolution of
the two principal issues. There is otherwise no issue about the
appellant's entitlement to a deduction under section 8
as employment expense with respect to automobile costs and
capital cost allowance ("CCA").
 The appellant in the years in
question was employed by Norbord Industries Inc. as a compliance
co-ordinator. This is a supervisory position and required that he
train employees both in the office and in the bush as well as
travelling extensively in the bush. To perform these duties he
required a safe four wheel drive vehicle.
 In the spring of 1999 he purchased
a 1998 Dodge Ram truck for $37,054 net of applicable taxes.
Subsequent to the purchase he was promoted to the position of
compliance co-ordinator and he used his truck in performing those
duties although he very fairly admitted that when he bought it,
it was not for the purpose of his work as a compliance
co-ordinator. As it happens, however, it was used for this
purpose from the time of his promotion until about August of 2000
when his employer supplied him with a truck to use in his
 The appellant's truck was used
to carry tools, spill kits, first aid kits and all of the other
paraphernalia that are required for the type of work done by the
appellant for a forestry company.
 The appellant also owns a van
which he and his wife used for personal purposes with their
 Before I come to the narrow point
that must be decided I should describe briefly the statutory
 The appellant claimed CCA on the
truck in the amount of $6,326.02 and $10,214.22 in 1999 and 2000
respectively based on a capital cost of the truck acquired in
1999. The half-year rule was applied to the CCA on the truck in
1999. In both years on the CCA schedule under "class"
he wrote 10.1. This was, I think, inadvertent. If the truck is in
class 10.1 rather than class 10 (i.e. is a
"passenger vehicle" as defined in
subsection 248(1) of the Income Tax Act) the maximum
cost in 1999 that can be claimed for CCA purposes is $26,000 plus
GST and PST.
 Class 10 reads in part
Class 10 - (30 per cent)
Property not included in any other class that is
automotive equipment ...
 Class 10.1 reads
Class 10.1 - (30 per cent)
Property that would otherwise be included in Class 10 that is
a passenger vehicle, the cost of which to the taxpayer exceeds
$20,000 or such other amount as may be prescribed for the
purposes of subsection 13(2) of the Act.
 Subsection 7307(1) of the
Regulations prescribes, for 1999, $26,000 for the purposes
of subsection 13(2).
 Paragraph 13(7)(g) of the
Income Tax Act provides that for the purpose of various
provisions of the Income Tax Act involving the computation
(g) where the
cost to a taxpayer of a passenger vehicle exceeds $20,000 or such
other amount as may be prescribed, the capital cost to the
taxpayer of the vehicle shall be deemed to be $20,000 or that
other prescribed amount, as the case may be.
 Therefore, by this somewhat circuitous
route, I come to the point: is the appellant's 1998 Dodge Ram
four wheel drive truck a passenger vehicle?
 Passenger vehicle and automobile are
defined in section 248 as follows.
"passenger vehicle" means an automobile
acquired after June 17, 1987 (other than an automobile acquired
after that date pursuant to an obligation in writing entered into
before June 18, 1987) and an automobile leased under a lease
entered into, extended or renewed after June 17, 1987.
(a) a motor
vehicle that is designed or adapted primarily to carry
individuals on highways and streets and that has a seating
capacity for not more than the driver and 8 passengers,
but does not include
(c) a motor
vehicle acquired primarily for use as a taxi, a bus used in a
business of transporting passengers or a hearse used in the
course of a business of arranging or managing funerals,
for the purposes of section 6, a motor vehicle acquired to be
sold, rented or leased in the course of carrying on a business of
selling, renting or leasing motor vehicles or a motor vehicle
used for the purpose of transporting passengers in the course of
carrying on a business of arranging or managing funerals, and
(e) a motor
vehicle of a type commonly called a van or pick-up truck or a
(i) that has a
seating capacity for not more than the drive and 2 passengers and
that, in the taxation year in which it is acquired, is used
primarily for the transportation of goods or equipment in the
course of gaining or producing income, or
(ii) the use of
which, in the taxation year in which it is acquired, is all or
substantially all for the transportation of goods, equipment or
passengers in the course of gaining or producing income.
 The appellant's truck has an
extended cab, that is to say, it has a second row of seats which
would allow five or six people to be seated in the truck.
Therefore if it is to be excluded from the definition of
automobile it must fall within the exception in
subparagraph (e)(ii). It is certainly a pick-up truck
or a similar vehicle. It does not meet the criterion in
subparagraph (i) because of its seating capacity for more
than the driver and two passengers.
 Therefore if it is to fall under
subparagraph (ii) its use must be, in 1999, "all or
substantially all for the transportation of goods, equipment or
passengers in the course of gaining or producing
 Certainly in the course of the
appellant's work the truck was used for the transportation of
goods, equipment or passengers in the course of gaining or
producing income. The question is whether that use was "all
or substantially all" of its use.
 In Ruhl (W.) v. Canada,
 G.S.T.C. 4, and in Lim (J.H.) v. Canada,
 G.S.T.C. 1, the meaning of
"substantial" or "substantially all" was
considered. In Ruhl it was observed that they are terms of
some elasticity and that "an unsatisfactory medium for
carrying the idea of some ascertainable proportion of the whole.
They do not require a strictly proportional or quantitative
 The 90% rule used by the CCRA has no
statutory basis although it may be necessary that some sort of
rigid criterion be applied administratively. That does not mean
that the court must follow it. The 90% rule, even if it had some
basis in law, is itself defective because it leaves unanswered
the question "90% of what? time? mileage? number or weight
of passengers or goods carried?"
 Here I have no hesitation in finding
that the truck was used "substantially for the
transportation of goods, equipment or passengers in the course of
earning income". The equipment was kept in the truck at all
times even when the appellant was going to and from work. The
evidence is clear that during the period from the spring of 1999
to August of 2000 the truck was used, for almost nothing else but
the appellant's work. The personal use was minimal. The
appellant and his wife used the van for that purpose.
 There is I think another reason. One of
the assumptions pleaded in the reply to the notice of appeal was
(h) the total
kilometers driven by the Appellant during the 1999 and 2000
taxation years were 12,000 and 8,000 and the kilometers driven
with respect to business use included in the above amounts were
11,490 and 7,082 respectively.
 These figures were taken from the
return except that the figure of 7,082 km for 2000 was a
slight reduction from that declared based on a letter from the
employer. Counsel for the respondent argued that I should not
rely upon the assumption and I should conclude the figure was
high. Perhaps it is a little high, but I cannot say by how much
and in any event it is an assumption and a judicial admission and
it has not been repudiated or demolished by the respondent. The
Crown has benefited for upwards of half a century from the
ability to plead assumptions and countless appellants have come
to grief by their apparent inability to meet "the onus of
demolishing the Minister's assumptions". It may be a
source of some gratification to taxpayers to know that
occasionally they can win a case because the respondent is stuck
with what the Minister assumed.
 The other issue is the gas expenses
incurred by the appellant. He claimed $5,024.84 and $3,089.65 in
each of the years. He was allowed $2,400 and $1,600.
 Counsel said that the appellant
produced no vouchers to the assessor. He produced in court some
samples of weekly statements that he received from Cochrane
Co-Operative TIM-BR Mart where he purchased all the gas for which
he claimed. He said that his claim was based upon the weekly
statements. I suspect his claim is reasonably accurate. His wife
is a bookkeeper and she is the one who submitted the claims and
prepared the income tax returns. I find his evidence on this
point however somewhat incomplete. It was unfortunate that his
wife was unable to testify or that he did not bring in all of the
weekly statements. It is true that in the informal procedure we
have to stretch the rules of evidence somewhat but they are not
 What I am prepared to do is to use the
Crown's own methodology i.e. the number of kilometres driven
in the course of earning his income (11,490 and 7,082 for 1999
and 2000 respectively) multiplied by a reasonable rate per
kilometre. For the purposes of paragraph 18(1)(r) a
prescribed rate is set in paragraph 7306 of the
Regulations. I think we may assume that the roughly
31 ¢ per kilometre prescribed for the purpose of
paragraph 18(1)(r) is the bottom limit of
reasonableness. Indeed in 1999 and 2000 judges (and I presume
public servants) were being paid 38 ¢ and 40 ¢ per
kilometre. I am also aware that the appellant's truck is
driven on gravel roads, in the bush, and sometimes on the
highway. The appellant testified it gets about 12 to 18 miles per
gallon, sometimes as high as 20 on the highway. It is an eight
cylinder four wheel drive gas guzzler.
 I think 36 ¢ per kilometre is
reasonable using the Department's own methodology. Therefore
his gas expense for 1999 and 2000 works out to $4,136 and $2,550
 The rebate under subsection 253(1)
of the Excise Tax Act is a function of the above
calculations and will have to be adjusted accordingly.
 The appeals are there therefore allowed
and the assessments for 1999 and 2000 are referred back to the
Minister of National Revenue for reconsideration and reassessment
on the basis that
(a) the appellant's Dodge
Ram truck is automotive equipment within class 10 of
Schedule II to the Income Tax Regulations and is not
a passenger vehicle within class 10.1 and the
appellant's claim for capital cost allowance on the truck is
not restricted by reason of paragraph 13(7)(g) of the
Income Tax Act;
(b) the appellant is entitled to
deduct in computing income for 1999 and 2000 as part of his
automobile expenses the amounts of $4,136 and $2,550 respectively
in respect of gasoline expenses;
(c) the appellant's claim for a
rebate under subsection 253(1) of the Excise Tax Act
should be recalculated to take into account the above
 The appellant is entitled to his costs,
if any, in accordance with the tariff.
Signed at Ottawa, Canada, this 18th day of March 2003.