File No. 2008-2308(IT)I
IN THE TAX COURT OF CANADA
IN RE: THE INCOME TAX ACT
BETWEEN:
KEITH SAMPSON
APPELLANT
- and –
HER MAJESTY THE QUEEN
RESPONDENT
____________________________________________________________
R E A S O N S F O R J U D G M E N T
___________________________________________________________
HEARD BEFORE: The Honourable Madam Justice Campbell
DATE HEARD: Thursday, January 22, 2009
PLACE HEARD: Halifax,
Nova Scotia
APPEARANCES: Mr. Keith Sampson
Self-Represented
Ms.
Devon E. Peavoy
Solicitor
for the Respondent
___________________________________________________________
THE REGISTRAR: Mr. Michael Kowalchuk
___________________________________________________________
Recorded by:
Drake Recording Services Limited
1592 Oxford Street
Halifax, NS B3H 3Z4
Per: Ms. Shannon Young-Urquhart, Commissioner
of Oaths
I N D E X O F P R O C E E D I N G S
PAGE NO.
JUSTICE CAMPBELL
- ORAL REASONS..................... 3
Campbell, J. (Orally): Let the record show that I am delivering
Oral Reasons in the Appeal of Keith Sampson, which I heard yesterday.
Mr. Sampson is a pipe welder,
who travelled on four different occasions in the 2006 taxation year to find
work in his field in the construction industry.
He is a single man, who owns a
house in Antigonish and travelled on these four separate occasions to find work
in other parts of Canada. These moves were as follows:
1. February 8, 2006 from
Antigonish to Sarnia, Ontario, where he worked for approximately 11 weeks and
then returned to Nova Scotia for approximately two weeks.
2. Then again on May 8, 2006, he
travelled from Antigonish to Fort Saskatchewan where he worked for about
six weeks, before he returned once again to Nova Scotia.
3. On August 12, 2006, he travelled
from Antigonish to Fort McMurray, where he worked for approximately six to
seven weeks.
4. And then on September 28, 2006,
he travelled from Fort McMurray back to Antigonish, Nova Scotia, where he
obtained work at a pulp mill around October 16, 2006.
Every time the Appellant
travels to a place to locate employment, he takes his own car and any personal
items, excepting furniture and larger household items, that he will require
when he is away from his house in Antigonish.
When he travels, he does not
have a job waiting for him. He locates work while on the road, and never knows
how long his work will last. Generally, he stays in hotels and camps, but
stayed for part of the time in an apartment while working in Sarnia. He
maintains his Nova Scotia license and health card, as well as his bank account
in Nova Scotia. He did not change his mailing address throughout any of the
period in 2006.
The Appellant claimed the moving
expenses he incurred for these four work relocations in 2006. The issue is
whether he can claim them.
The Appellant's position is
that due to the nature of the economy he must travel where he can obtain work,
and that because of the nature of this work he never knows how long he will
have work in any one location. The Appellant believes that he becomes an
ordinary resident of the centre that he relocates to, in order to find work.
The Respondent's position is
that the moving expenses are not eligible for deduction, because his travel in
2006 did not qualify as an eligible relocation as defined in subsection 248(1),
as he was ordinarily resident throughout all of 2006 in the province of Nova
Scotia.
For me to find in the
Appellant's favour and allow this appeal, I would have to conclude that he was
ordinarily resident in these different locations. They were all relatively
short stays, ranging in duration from six weeks to 11 weeks. I agree with Justice
Miller's comments in Calvano v. The Queen, 2004 DTC 2471, that the
starting point, in this type of Appeal, must begin with the Supreme Court
decision in Thomson v. Minister of National Revenue, [1946] S.C.R. 209,
where Justice Estey stated, at pages 231 to 232, the following, and I am going
to read the relevant portion into the record.
"A reference to the
dictionary and judicial comments upon the meaning of these terms indicates that
one is ‘ordinarily resident’ in the place where in the settled routine of his
life he regularly, normally or customarily lives. One ‘sojourns’ at a place
where he unusually, casually or intermittently visits or stays. In the former
the element of permanence; in the latter that of the temporary predominates.
The difference cannot be stated in precise and definite terms, but each case
must be determined after all of the relevant factors are taken into
consideration, but the foregoing indicates in a general way the essential
difference.”
Each case must turn on its own
set of facts viewed as a whole. What may be relevant in one case, may not be in
another. Duration of stay, accommodation, community connections maintained or
severed, transfers of mail, licenses, health cards and vehicle registrations
are just some of the factors which must be analyzed and considered. Of course,
these factors assist the Court in determining the more subjective element of
intention of the taxpayer as to whether the move encompasses the taxpayer
settling into the trappings of a routine, day-to-day lifestyle in the new
location. In light of this, there must be a finding that the residence of the
taxpayer has, in fact, changed to be an eligible relocation as defined in subsection
248(1); otherwise, the taxpayer will not be able to bring himself within the
ambit of the relevant provisions to make a claim for these moving expenses.
In Rennie v. M.N.R., 90
DTC 1050, Justice Christie made the following comments, and I am going to
read the relevant portion again into the record:
"Subsections 62(1) and (3)
of the Act, which permit the deduction of ‘moving expenses’,
cannot be interpreted so as to envisage a taxpayer having more than one
residence at any given time, since they are intended to apply to the
commencement of employment at a place in Canada that precipitates a move by the
taxpayer from the place in Canada where he ordinarily resided before the move
to a place in Canada where he ordinarily resided after the move. The words
'ordinarily resided', moreover, should be given the connotation ascribed to
them by the Supreme Court of Canada in Thomson …."
Which references the quote that
I read into the record just previously.
The evidence in this Appeal
discloses that the Appellant returned to his residence in Antigonish throughout
2006. The durations of the work related stays were shorter in nature, being
between six and 11 weeks. He did not change his license, bank account, medical
card or mail to any of these new locations. He took only some personal items in
the car with him, on each trip, leaving behind all of his furniture at his
residence in Antigonish. In fact, each time the Appellant left
Antigonish, he could not at that time have formed a settled intent to relocate
to the work location with the purpose of establishing some roots there, as he
did not have work when he left Antigonish, and never knew where he would end up
or for how long. One of his work situations lasted a mere six weeks, and he
testified that the very nature of his work is subject to abrupt shutdowns.
In addition, for the most part,
he stayed in motels and employer campsites. In the case of Persaud v. The
Queen, 2007 DTC 1432, Justice Webb concluded that a taxpayer who had
relocated to a remote community for more than three months had established a
settled, ordinary routine to his life to qualify him as ordinarily resident.
In Cavalier v. Canada,
[2001] T.C.J. No. 719, Justice Bowie, concluded that to be ordinarily
resident, a taxpayer need not have formed the intention to remain permanently
or for any particular length of time at the new residence. There seems to be
more emphasis placed on duration of stay in these cases than I believe is
justified. Certainly it is one factor, but only one of many that must be
considered in the context of the entire evidence which presents itself in each
individual case. If three months qualify, does it mean, for instance, that
three months less one week, or less two days will not? The latter period may or
may not qualify depending on all of the evidence adduced in a particular appeal.
I believe Parliament enacted provision 62 with a view to a relocation that has
an element of permanency attached to it, and as referenced in the Supreme Court
of Canada decision in Thomson.
This is apparent, when one
looks at the types of expenses contemplated by this very provision including
the transportation of household items, cost to cancel a lease or to sell a
residence, legal expenses to purchase a new residence at the new location and
cost to change resident addresses.
In addition, it talks of meal
costs up to a 15-day transitory period. If Parliament had intended that a
taxpayer get the expenses upon moving from A to B with little else, I believe
this provision would contain an entirely different wording and there would be
no need for it to contain the words "ordinarily resident".
In any event, I am not bound by
the decisions which hold a different view of this provision, as they are under
the informal procedure, and I am not bound by them.
The Appellant has failed to
establish that he moved on any one of these four trips from his residence in
Antigonish, where he ordinarily resided, to a new place where it could be said
he was ordinarily residing.
He could not find employment in
Nova Scotia, and as a result he travelled to various locations in Canada, throughout 2006, to locate work. The costs, incurred in doing so, were simply the
incidental travel expenses to a new worksite, but did not relate to a change in
residence from Antigonish, where he always intended to return. His travel in
2006 involved intermittent work stays only.
In accordance with these
reasons, the Appeal is therefore dismissed.
--- Upon concluding at 8:53 a.m.
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