2018 FCA 2
HER MAJESTY THE
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on
January 8, 2018).
This is an appeal by Kelly-Jean Archibald from a
judgment of the Tax Court of Canada concerning an assessment under the Income
Tax Act, R.S.C. 1985, c. 1 (5th Supp.), which disallowed Ms.
Archibald’s claim for a tuition tax credit (2017 TCC 96). The assessment
relates to the 2014 taxation year.
The Tax Court, in a decision by Justice Boyle,
upheld the assessment on the ground that tuition fees paid by Ms. Archibald to
the University of Liverpool for an on-line MBA program did not qualify for the
credit because Ms. Archibald was not enrolled at the University on a full-time
basis as required by paragraph 118.5(1)(b) of the Act.
As a preliminary matter, a motion by Ms.
Archibald to introduce fresh evidence should be considered. The Crown opposed
this motion. In our view, the evidence should not be admitted. The relevant
test for the admission of fresh evidence is quite strict. The test has not been
satisfied in this case because the evidence could have been introduced at the
Tax Court, and in any event, the evidence is not conclusive of the issue in
I now turn to the substantive issue in the
appeal and begin with the relevant standards of review.
In this case, the Court must apply the standards
of review as described in the case of Housen v. Nikolaisen, 2002 SCC 33,
 2 S.C.R. 235. These principles are well established, and require that
the Tax Court decision be upheld unless the Court made an error in determining
a question of law or made a palpable and overriding error in respect of
questions of fact or questions of mixed fact and law. The terms “palpable” and “overriding”
in this context mean obvious and affecting the heart of the result in the case.
We are satisfied that the Tax Court made no such
reviewable error, and that the appeal should be dismissed.
In particular, there is no reversible error with
the approach of the Tax Court which gave significant weight to the policy of
the University that gives credits for this on-line course at a rate of 30% to
40% of the rate that credits are accumulated for equivalent on-campus studies.
As a result, the on-line course takes three years to complete whereas the equivalent
course attended by students on campus takes just one year.
Accordingly, there is no reviewable error in the
Tax Court’s conclusion that Ms. Archibald did not attend the University on a
Ms. Archibald submits that it is not fair for the
legislation to leave the decision as to the meaning of full-time attendance to
each post-secondary institution. We disagree with this submission partly
because the legislation does not leave the meaning of “full-time
attendance” to the institution. It is a determination to be made by a
court based on all relevant facts.
Ms. Archibald also submits that the benefit of
the doubt in this case should go in her favour because the meaning of the term “full-time attendance” is unclear. If Ms. Archibald
suggests that the term “full-time” should be
given an interpretation which extends to the on-line program that she was
enrolled in, we respectfully disagree. Although there may be cases in which
there is some doubt as to whether the full-time attendance requirement has been
satisfied, this is not one of them. For the reasons given by the Tax Court, Ms.
Archibald clearly did not satisfy the full-time requirement.
Ms. Archibald also suggests that requiring
full-time attendance may result in discrimination against students who pursue
education outside of Canada through the internet. If the legislation results in
unfairness to students such as Ms. Archibald relative to students who attend
institutions in Canada, this is a matter for Parliament, and not the courts, to
address. The full-time requirement is within the prerogative of Parliament to
Ms. Archibald also submits that she is aware of
individuals similarly situated who have been granted the tax credit. This may
be so, but it is not a basis for relief. As pointed out in a decision of
Justice Bowie of the Tax Court, it is “well settled
that a taxpayer does not become entitled to relief simply because another
taxpayer similarly situated was assessed differently” (Roy v. The
Queen, 2011 TCC 299,  6 C.T.C. 2215, at paragraph 15).
Ms. Archibald further submits that she is of the
opinion that on-line learning takes more effort to complete than learning by
attending lectures. Even if this opinion is accepted, it does not establish
that the on-line course attended by Ms. Archibald was the equivalent of
full-time attendance. No reviewable error has been shown in the Tax Court’s
We have concluded that the appeal should be
dismissed, with costs to the Crown fixed at $250, all inclusive.