Date: 20000818
Docket: 2000-181-IT-I
BETWEEN:
MARILYN DALE McCOMBIE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Bell, J.T.C.C.
ISSUE:
[1] The issue is whether the Appellant, within the requirement
of section110.7(1) of the Income Tax Act
("Act") resided, "throughout a period ...
of not less than 6 consecutive months in a prescribed northern
zone" during her 1997 taxation year thereby entitling her to
a deduction specified in that section.
FACTS:
[2] The Appellant travelled by airplane from Edmonton, Alberta
to Cambridge Bay, North West Territories on June 18, 1997 to work
in the Arctic Islands Lodge . She resided there continuously
until her departure for Edmonton on December 9, 1997.
[3] In computing her return of income for the 1997 year, the
Appellant claimed a deduction of $2,670 for residing in a
prescribed northern zone. The Minister of National Revenue
("Minister") disallowed the claim for such amount on
the basis that the Appellant did not reside in a prescribed
northern zone throughout a period of not less than six
consecutive months.
APPELLANT'S SUBMISSION:
[4] Appellant's counsel referred to section 35 of the
Interpretation Act which defines "month" as
follows:
month means a calendar month.
[5] He then said that a calendar month was a named month and
in this case the Appellant had resided in a northern zone[1] in seven different
months, namely, June, July, August, September, October, November
and December and that this constituted seven calendar months
qualifying the Appellant for the deduction.
[6] Counsel stated that any part of a month is a month and
therefore the Appellant resided in Cambridge Bay for seven
months.
RESPONDENT'S SUBMISSIONS:
[7] Respondent's counsel referred to The Dictionary of
English Law published by Sweet & Maxwell Limited in 1959.
He read from page 299 a definition as follows:
Calendar month,
a period of time consisting of thirty days in April, June,
September and November, and of thirty-one days in the remainder
of the months, except February, which consists of twenty-eight
days, except in leap-year, when the intercalary day is added,
making twenty-nine days.
[8] Counsel then referred the Court to Radcliffe v.
Bartholomew, 1892 1 Q.V. 161. In that case an Act for the
Prevention of Cruelty to Animals required that:
(e) every complaint under the provisions of this Act shall be
made within one calendar month after the cause of such complaint
shall arise.
At the hearing before the justices a preliminary objection was
taken on behalf of the Appellant that, as the offence was alleged
to have been committed on May 30 and the information was not laid
until June 30, the complaint had not been made "within one
calendar month" after the cause of complaint had arisen, and
that therefore the justices had no jurisdiction to hear the
case". The justices overruled the objection on the ground
that in computing the calendar month the day on which the cause
of complaint arose ought to be excluded, and that the complaint
had therefore been made in time. ... The question for the opinion
of the court was whether the proper construction of the term
"within one calendar month" had been placed upon it by
the justices.
[9] At page 163 Wills, J. said:
I am of opinion that the decision of the justices was right
... In Hardy v. Ryle ... which was an action against a
justice of trespass and false imprisonment, the plaintiff had
been discharged from custody on December 14, and brought his
action on June 14 following; s. 8 of 24 Geo. 2, c. 44, prescribed
that "no action shall be brought against any justice of the
peace for anything done in the execution of his office unless
commenced with six calendar months after the act committed."
Except as to the difference between one month and six months,
those words are the same as those which we are now interpreting,
and it is impossible to draw any distinction between the language
of the two enactments. In that case the Court held that an action
brought on June 14 in respect of a cause of action which had
arisen on December 14 was in time, because the day on which the
cause of action arose was excluded from the computation of the
six months, while that on which the action was brought was
included in it.
ANALYSIS AND CONCLUSION:
[10] I cannot accept the proposition that a portion of a month
is a calendar month. I accept counsel for the Respondent's
position that the Appellant's residence in Cambridge Bay for
June 18, 1997 to December 9, 1997 did not meet the requirement
that she reside there within the meaning of section 110.7
"throughout a period ... of not less than six consecutive
months".
The appeal is dismissed.
"R.D. Bell"
J.T.C.C.
Email this Content