Date: 20051116
Docket: A-80-05
Citation: 2005 FCA 388
CORAM: NOËL J.A.
SHARLOW J.A.
PELLETIER J.A.
BETWEEN:
NORMAN GAUDREAU
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Ottawa, Ontario, on November 16, 2005.
Judgment delivered from the Bench at Ottawa, Ontario, on November 16, 2005.
REASONS FOR JUDGMENT OF THE COURT BY: NOËL J.A.
Date: 20051116
Docket: A-80-05
Citation: 2005 FCA 388
CORAM: NOËL J.A.
SHARLOW J.A.
PELLETIER J.A.
BETWEEN:
NORMAN GAUDREAU
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on November 16, 2005)
NOËL J.A.
[1] The principal argument raised in support of this appeal is that the Tax Court Judge considered the appellant's intention to return to Canada after the expiration of his four-year contract in Egypt as the overriding consideration in the determination that he was resident in Canada during this four-year period.
[2] We do not read the reasons of the Tax Court Judge as the appellant does. She considered the appellant's intention to return amongst a variety of other relevant factors. In the end, she concluded that this intention − coupled with the fact that the appellant, through his wife, maintained a home available to him at all times during that period, as well as maintaining numerous other ties − was such that he never ceased to reside in Canada despite his foreign assignment.
[3] That is a conclusion that was open to the Tax Court Judge on the facts of this case, and we can identify no error in this regard.
[4] We should point out that the Tax Court Judge's description of the appellant's stay in Egypt as a "sojourn" (in paragraph 34 of her reasons) is inconsistent with the respondent's concession that the appellant was a dual resident during the relevant period. However, nothing turns on this as the Tax Court Judge acknowledged that the appellant was a dual resident and proceeded to render judgment on that basis.
[5] The appellant's second argument is that the Judge incorrectly applied the first tie-breaker rule (centre of vital interests) in the Canada-Egypt Income Tax Convention Act, 1984, being Part IV of S.C. 1984, c. 35.
[6] The appellant submits that the Judge took into account economic considerations, but failed to take into account personal considerations. Again, we do not read the Judge's reasons as the appellant does. We refer in this respect to paragraphs 38 and 39 of the Judge's reasons.
[7] We see no error in her application of the tie-breaker rule.
[8] The appeal will be dismissed with costs.
"Marc Noël"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-80-05
STYLE OF CAUSE: Norman Gaudreau v. Her Majesty the
Queen
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 16, 2005
REASONS FOR JUDGMENT OF THE COURT BY: Noël, Sharlow and Pelletier JJ.A.
DELIVERED FROM THE BENCH BY: Noël J.A.
APPEARANCES:
Roger Taylor FOR THE APPELLANT
Al-Nawaz Nanji
Steven Leckie FOR THE RESPONDENT
Justine Malone
SOLICITORS OF RECORD:
Couzin Taylor LLP FOR THE APPELLANT
Ottawa, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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