Craig M. Van De Water v. Minister of National Revenue, 91 DTC 276, [1991] 1 CTC 2200 (TCC)

Dussault, T.C.J.:—This is an appeal against an assessment by the respondent disallowing the tax credit for tuition fees claimed by the appellant for his 1988 taxation year. The reason for disallowing the tax credit is that the appellant did not satisfy the requirements of either paragraph 118.5(1)(b) or (c) of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "Act").

Summary of Facts

The facts in this case are simple and not contested. They may be summarized as follows:

—During his 1988 taxation year, the appellant was residing at Pierrefonds, on the Island of Montréal, Québec.

—Due to the fact that he could not pursue his studies at Vanier College or, as it seems, in any other college (CEGEP) in the Province of Québec, having not accumulated enough credits in the first semester, the appellant decided to register, from January to June, at Mount Assumption Institute in the City of Plattsburg, State of New York in the United States.

—From January 1988 until June 1988, while still residing at Pierrefonds, Québec, the appellant left his home every Sunday night, except during school holidays, to go to Plattsburg, N.Y. in order to attend his courses during the weekdays. He returned to Pierrefonds, Québec, the next Friday afternoon or evening to spend the weekend at home.

—Mount Assumption Institute is described as a post-secondary educational institution which effectively gave the appellant, due to the credits and marks accumulated there, the opportunity to pursue his studies at Concordia University in Montréal the following September.

—From January 1988 to June 1988, the appellant paid $3,168 in tuition fees to Mount Assumption Institute.

Analysis

Paragraphs 118.5(1 )(b) and (c) of the Act set out the conditions which must be fulfilled for 1988 and subsequent taxation years in order to be allowed a tax credit for tuition fees paid to educational institutions outside Canada.

Paragraph 118.5(1)(b) of the Act first requires that" . . . the individual was during the year a student in full-time attendance at a university outside Canada . . .". Mount Assumption Institute in Plattsburg, N.Y. is admittedly not a university. That suffices to conclude that this paragraph is not applicable in the present case.

Paragraph 118.5(1)(c) of the Act provides for a tax credit for tuition fees paid by an individual that" . . . was at any time in the year a student enrolled at an educational institution in the United States that is a university, college or other educational institution providing courses at a post-secondary school level, and he commuted to that educational institution in the United States . . .”. In such a case, the first requirement of paragraph 118.5(1)(c) is that the individual must have" . . . resided throughout the year in Canada near the boundary between Canada and the United States . . .”.

It is easy to conclude that the appellant in this case resided in Canada throughout the year even if he attended school in the United States during the weekdays from January to June 1988. The law on this point is quite settled and need not be commented any further. [1] The second question raised with respect to that particular requirement of paragraph 118.5(1 )(c) concerns the location of the place of residence in that it must be "near . . . the boundary between Canada and the United States . . .”. To put it simply: Is Pierrefonds, Québec some 75 to 80 kilometres from the Canada-U.S. border "near" that boundary?

The adverb "near" is obviously not defined in the Act nor does it seem to have been explained by our courts. We must then resort to its plain and ordinary meaning.

The Oxford English Dictionary, 2nd ed., Volume X at page 267 defines it as:

Denoting Proximity.

1.a To, within, or at, a short distance; to, or in, close proximity.

7 . Closely, in various senses, esp. in respect of pressure or touching, of resemblance, connexion . . .

The Random House Dictionary of the English Language gives the following definition: ”. . . close to a point or place not far away. At, within, or to a short distance."

Resorting to more specialized dictionaries, we find the following in West's Legal Thesaurus/Dictionary at page 512: "Close by or adjacent. Contiguous, abutting, close, touching, proximate, joining, high, within view, next door, bordering, vicinity."

Black's Law Dictionary, 6th ed., at page 1029, is more explanatory in the following terms:

Proximate; close-by; about; adjacent; contiguous; abutting. The word as applied to space is a relative term without positive or precise meaning, depending for its signification on the subject-matter in relation to which it is used and the circumstances under which it becomes necessary to apply it to surrounding objects. Closely akin or related by blood; as, a near relative. Close to one's interests and affections, etc; touching or affecting intimately, as one's near affairs, friends. Not far distant in time, place or degree; not remote; adjoining.

Obviously, words are to be interpreted and given a meaning depending on the subject matter and the context in which they are used. We are dealing here with a specific relief granted by Parliament to individuals living in a border town or a border zone. The relief is granted so that those individuals could have access to educational institutions situated on the other side of the border but perhaps less distant than the ones situated in Canada and this, without being penalized vis-à-vis individuals attending institutions situated in Canada to which relief is granted by paragraph 118.5(1)(a) of the Act. By its very nature, paragraph 118.5(1)(c) is to be seen as an exception.

The adverb "near” should then be construed according to its plain and natural meaning given the context in which it is used. Most of all, it is not to be given a meaning not reasonably compatible with the object sought. Applying it to the particular circumstances of the present case, I am of the opinion that an individual residing some 75 to 80 kilometres from the U.S. border is not residing". . . near the boundary between Canada and the United States. . .”. I do not think that the place of residence of the appellant, namely Pierrefonds, Québec, qualifies as such a place of residence because it lacks the element of proximity, contiguity or vicinity to the border zone that, I feel, was contemplated in enacting that particular provision of the Act.

Having arrived to that conclusion, I can also draw some comfort from the Act read as a whole. I would indicate here that a 40 kilometre test is used to determine if an individual can claim moving expenses under section 62 of the Act. The underlying assumption in that case, I suppose, is that the new place of work is far enough from the old residence as to warrant the deduction of moving expenses to the new residence: or, to put it in another way, is not near enough.

For the above reasons, the appeal is dismissed.

Appeal dismissed.