Tremblay,
T.C.J.
[TRANSLATION]:—This
appeal
was
heard
at
Québec,
Quebec
on
December
3,
1985.
1.
Issue
The
issue
is
whether
the
appellant,
under
contract
with
the
Quebec
National
Assembly
as
a
host
for
the
televised
debates,
is
entitled
to
deduct
the
sum
of
$3,000
as
clothing
expenses
in
computing
his
income
for
the
1982
taxation
year.
A
clause
in
the
contract
requires
such
an
amount
and
I
quote
“for
the
purchase
of
appropriate
suits
for
television”.
The
respondent
disallowed
the
expense,
alleging
that
the
appellant
did
not
purchase
$3,000
worth
of
suits
during
1982
and
that
in
any
event
a
suit
cannot
be
regarded
as
“supplies
.
.
.
consumed"
within
the
meaning
of
subparagraph
8(1)(i)(iii)
of
the
Income
Tax
Act.
2.
Burden
of
Proof
2.01
The
burden
is
on
the
appellant
to
show
that
the
respondent's
assessments
are
incorrect.
This
burden
of
proof
derives
not
from
one
particular
section
of
the
Income
Tax
Act,
but
from
a
number
of
judicial
decisions,
including
the
judgment
delivered
by
the
Supreme
Court
of
Canada
in
Johnston
v.
M.N.R.,
[1948]
S.C.R.
486;
[1948]
C.T.C.
195;
3
D.T.C.
1182.
2.02
The
facts
presumed
by
the
respondent
are
set
out
in
subparagraphs
6(a)
and
(b)
of
the
respondent's
reply
to
the
notice
of
appeal.
Paragraph
6
reads
as
follows:
6.
In
assessing
the
appellant
for
his
1982
taxation
year,
the
respondent,
the
Minister
of
National
Revenue,
relied
on
the
following
presumptions
of
fact,
inter
alia:
(a)
During
the
taxation
year
in
question,
the
appellant
was
employed
by
the
Quebec
National
Assembly
as
a
host
for
the
televised
debates;
(b)
The
appellant
claims
to
have
purchased
$3,000
worth
of
clothing
during
the
1982
taxation
year;
3.
Facts
3.01
Prior
to
1979
the
appellant
was
a
radio
and
television
host.
Since
1979
he
has
been
the
host
for
the
televised
debates
of
the
Quebec
National
Assembly.
3.02
On
October
8,
1981
he
signed
a
written
contract
in
which
the
Speaker
of
the
Quebec
National
Assembly
signed
for
the
other
party.
The
National
Assembly
is
referred
to
as
the
“employer"
and
the
appellant
as
the
“employee".
The
contract
reads
as
follows
(Exhibit
1-1):
1—
OBLIGATIONS
OF
THE
EMPLOYEE:
(a)
The
employee
hereby
undertakes
to
perform
the
duties
of
a
radio
and
television
host
for
the
Quebec
National
Assembly.
(b)
The
employee
must
be
completely
neutral
in
carrying
out
his
duties
and
in
everything
he
says.
(c)
The
employee
undertakes
to
comply
with
the
instructions
of
the
production
chief
in
performing
his
duties
and
to
respect
the
official
hierarchy
as
regards
administrative
matters.
(d)
The
employee
shall
not
acquire
any
copyright
or
other
interests
through
the
performance
of
his
duties.
He
agrees
that
all
his
work
will
become
the
property
of
the
National
Assembly
and
that
consequently
he
cannot
claim
any
benefit
or
profit
other
than
what
he
is
granted
by
the
employer.
(e)
The
employee
undertakes
not
to
put
himself
in
a
situation
that
might
place
him
in
a
conflict
of
interest
with
his
duties
as
host
for
the
National
Assembly.
(f)
The
employee
undertakes
to
respect
the
confidentiality
related
to
his
work
and
consequently
not
to
disclose
anything
in
carrying
out
his
office
without
being
duly
authorized
to
do
so.
(g)
The
employee
undertakes
to
be
available
at
all
times
while
the
proceedings
of
the
National
Assembly
are
being
televised.
Outside
these
periods,
at
the
production
chief’s
request,
the
employee
shall
participate
in
prerecordings
and
the
preparation
of
educational
and
other
material.
2—
OBLIGATIONS
OF
THE
EMPLOYER:
(a)
The
employer
undertakes
to
pay
the
employee
his
salary
every
second
Thursday
calculated
on
an
annual
basis
of
$41,594.00.
The
employee
shall
spend
$3,000
of
this
amount
on
purchasing
suits
appropriate
for
television.
This
salary
includes
regular
remuneration
and
compensation
for
the
lack
of
fringe
benefits
(sick
leave,
insurance,
pension
fund).
If
the
employee
is
absent
without
permission
from
his
surperiors,
a
proportionate
deduction
shall
be
made
from
his
salary
for
each
day
of
absence.
(b)
The
employer
undertakes
to
maintain
the
employee’s
salary
on
holidays
observed
in
the
Public
Service.
(c)
The
employer
undertakes
to
grant
the
employee
20
working
days
of
vacation,
which
the
employee
shall
take
in
separate
days
or
together
with
the
permission
of
his
superiors.
(d)
The
employer
undertakes
to
provide
the
employee
with
work
premises
suitable
for
performing
his
duties.
In
addition,
it
shall
make
available
the
documentation
he
requires
for
his
work.
3—GENERAL:
(a)
The
employer
reserves
the
right
to
terminate
this
contract
in
the
event
of
the
employee’s
death,
incompetence
or
serious
insubordination
on
30
days’
notice.
(b)
The
employee
may
terminate
this
contract
by
giving
the
employer
30
days’
notice
in
writing.
(c)
The
contract
shall
be
valid
for
a
period
of
one
year
commencing
on
September
18,
1981.
If
no
notice
is
given
by
the
employer
or
the
employee
90
days
before
it
expires,
the
contract
shall
be
automatically
renewed
for
a
further
year.
3.03
On
September
18,
1982
a
similar
contract
was
again
signed
between
the
parties
for
six
months,
ending
March
22,
1983.
3.04
The
appellant
maintained
that
he
kept
the
same
schedule
as
the
National
Assembly.
It
often
sits
very
late.
According
to
him
he
had
complete
freedom
of
action
and
no
exclusivity
clause
prevented
him
from
working
elsewhere.
3.05
In
cross-examination
the
appellant
testified
that
he
had
no
receipts
showing
the
amounts
he
had
spent
purchasing
his
suits
or
having
them
cleaned.
4,
Act
—
Case
Law
—
Analysis
4.01
Act
The
principal
provisions
of
the
Income
Tax
Act
involved
in
this
appeal
are
subparagraph
8(1)(i)(iii),
subsections
8(2)
and
9(1)
and
paragraph
18(1)(a).
They
read
as
follows:
8.
(1)
In
computing
a
taxpayer’s
income
for
a
taxation
year
from
an
office
or
employment,
there
may
be
deducted
such
of
the
following
amounts
as
are
wholly
applicable
to
that
source
or
such
part
of
the
following
amounts
as
may
reasonably
be
regarded
as
applicable
thereto:
(i)
amounts
paid
by
the
taxpayer
in
the
year
as
(iii)
the
cost
of
supplies
that
were
consumed
directly
in
the
performance
of
the
duties
of
his
office
or
employment
and
that
the
officer
or
employee
was
required
by
the
contract
of
employment
to
supply
and
pay
for.
(2)
Except
as
permitted
by
this
section,
no
deductions
shall
be
made
in
computing
a
taxpayer’s
income
for
a
taxation
year
from
an
office
or
employment.
9.
(1)
Subject
to
this
Part,
a
taxpayer’s
income
for
a
taxation
year
from
a
business
or
property
is
his
profit
therefrom
for
the
year.
18.
(1)
In
computing
the
income
of
a
taxpayer
from
a
business
or
property
no
deduction
shall
be
made
in
respect
of
(a)
an
outlay
of
expense
except
to
the
extent
that
it
was
made
or
incurred
by
the
taxpayer
for
the
purpose
of
gaining
or
producing
income
from
the
business
or
property;
4.02
Case
law
and
scholarly
opinion
The
Court
was
referred
to
the
following
case
law
and
scholarly
opinion:
A.
Case
law
1.
Brownlee
v.
M.N.R.,
[1978]
C.T.C.
2780;
78
D.T.C.
1571;
2.
Goodwin
v.
M.N.R.,
[1971]
Tax
A.B.C.
42;
71
D.T.C.
67;
3.
Martyn
v.
M.N.R.,
35
Tax
A.B.C.
428;
64
D.T.C.
461;
4.
Luks
v.
M.N.R.,
[1959]
Ex.
C.R.
45;
[1958]
C.T.C.
345;
58
D.T.C.
1194;
5.
Komarniski
v.
M.N.R.,
[1980]
C.T.C.
2170;
80
D.T.C.
1134;
6.
Goodman
v.
M.N.R.,
8
Tax
A.B.C.
320;
53
D.T.C.
225.
B.
Scholarly
opinion
Jean-Louis
Baudoin,
La
Responsabilité
civile
délictuelle,
Montréal,
Les
Editions
Yvon
Blais
Inc,
1985,
pages
251-266
(employer-employee
relationship).
4.03
Analysis
4.03.1
Employee
or
self-employed
worker
The
appellant
maintained
that
he
was
not
an
employee
owing
to
the
facts
alleged
in
his
testimony
(para.
3.04),
but
was
self-employed.
Consequently,
he
was
carrying
on
a
business
within
the
meaning
of
subsection
9(1)
and
was
entitled
to
a
deduction
under
paragraph
18(1)(a).
These
two
provisions
are
cited
above
(para.
4.01).
First
of
all,
the
fact
that
there
is
no
exclusivity
clause
explicitly
set
out
in
the
contract
does
not
mean
that
the
appellant
is
not
an
employee
of
the
Quebec
National
Assembly.
In
addition,
his
long
hours
of
work
and
his
commitment
to
be
available
at
all
times
while
the
National
Assembly
is
sitting
and
even
at
other
times
at
the
request
of
the
production
chief
(clause
1(g)
of
the
contract)
leave
him
fairly
little
time
to
work
elsewhere.
Moreover,
the
lack
of
fringe
benefits
in
the
contract
(sick
leave,
insurance,
pension
fund)
seems
to
militate
in
favour
of
a
function
that
is
not
employment.
However,
when
the
person
paying
for
the
services
gives
compensation
for
the
lack
of
fringe
benefits,
that
seems
to
confirm
that
the
appellant
is
an
employee
(clause
2(a)).
Finally,
the
words
“employer”
and
“employee”
used
throughout
the
contract
confirm
the
substance
of
the
contract.
The
appellant
has
20
working
days
of
vacation
a
year
(clause
2(c))
and
is
also
paid
for
holidays
(clause
2(b)).
Furthermore,
the
contract
is
valid
for
one
year
and
is
automatically
renewed
unless
90
days'
notice
to
the
contrary
is
given.
All
these
factors
are
typical
of
an
employee
and
not
a
self-employed
contractor.
Finally,
the
appellant
himself
constantly
uses
the
words
“employee”
and
“employer”
to
express
the
relationship
between
the
two
parties.
4.03.2
Since
the
appellant
is
an
employee,
the
only
provision
of
the
Act
that
concerns
him
is
subparagraph
8(1
)(i)(iii)
cited
above.
Section
8
is
the
section
which
sets
out
the
deductions
permitted
in
computing
income
from
employment.
Subsection
8(2)
cited
above
says
so
explicitly.
The
key
words
in
subparagraph
8(1)(i)(iii)
are
“supplies
that
were
consumed”.
The
French
version
reads
“fournitures
qui
ont
été
consommées”.
These
terms
are
not
defined
in
the
Act.
Thus
no
particular
meaning
can
be
deduced
from
the
Act
itself.
The
words
must
therefore
be
given
their
ordinary
meaning.
For
this
purpose
it
is
necessary
to
refer
to
dictionaries
to
determine
the
meaning
of
the
words
"supplies
consumed”,
“fournitures
consommées”.
A.
Supplies
1.
According
to
Webster's
Third
New
International
Dictionary:
Supply:
.
.
.
1
.
.
.
ASSISTANCE,
SUCCOR,
AID
2:
something
that
supplies
or
is
supplied
to
a
person
or
thing:
.
.
.
e:
items
or
a
quantity
(as
provisions,
clothing,
arms,
or
raw
material)
available
for
use,
exploitation,
or
development
or
esp
set
aside
to
be
dispensed
at
need:
STORES
..
.
2.
According
to
The
Shorter
Oxford
English
Dictionary,
3rd
edition:
.I.
the
action
of
supplying
or
condition
of
being
supplied
Supply:
1.
assistance,
succor,
support
...
4.
the
provision
or
furnishing
of
a
person
etc
with
necessaries
II.
that
which
is
supplied
.
..
3.
a
quantity
or
amount
of
something
supplied
or
provided
4.
(a
quantity
of)
money
or
provisions
supplied
or
to
be
supplied;
now
chiefly
spec
the
food
and
stores
necessary
for
an
armed
force.
3.
According
to
Le
Grand
Robert
de
la
langue
française,
Paris
Le
Robert,
2nd
edition
1985:
Fourniture:
Action
de
fournir
quelque
chose
à
quelqu’un.
2.
(1596).
Surtout
au
plur.
Ce
qu’on
fournit,
ce
qu’on
livre.
Provision.
Contrebande
de
fournitures
militaires.
Fournitures
de
couchage
complètes,
demi-
fournitures,
à
l’usage
du
soldat.
Fournitures
dues
à
des
soldats.
Prestation.
(1690).
Ce
que
fournissent,
en
dehors
de
la
matière
principale
qui,
elle-même,
leur
est
fournie,
les
artisans
à
façon
(tailleurs,
couturiers,
tapissiers
.
.
.)
Il
m’a
pris
tant
pour
la
façon
et
tant
pour
les
fournitures.
Le
prix
du
tissu
était
avantageux,
mais
la
couturière
m'a
compté
très
cher
les
fournitures.
—
(Fin
XIXe).
Petit
outillage
nécessaire
à
l’exercice
d’un
métier.
Fourniture
pour
dentiste
.
..
3.
(Fin
XIXe).
Fournitures
de
bureau,
fournitures
scolaires:
petit
matériel
de
bureau
ou
d’écolier
(crayons,
gommes,
papier
.
.
.).
2.
According
to
the
Petit
Larousse
illustré
1973:
FOURNITURE
n
f.
Provision
fournie
ou
à
fournir:
Fourniture
de
pain.
Ce
qui
est
fourni
par
certains
artisans,
tels
que
tailleurs,
tapissiers,
etc,
en
confectionnant
un
objet.
B.
Consume
1.
According
to
The
Little
Oxford
Dictionary:
to
consume:
Destroy,
use
up,
eat
or
drink,
waste
away,
be
exhausted.
2.
According
to
Le
Petit
Robert:
II.
(XVI
;
“détruire,
consumer”,
XV
).
1°
Amener
(une
chose)
à
destruction
en
utilisant
sa
substance,
en
faire
un
usage
qui
la
rend
ensuite
inutilisable.
V.
User
(de),
utiliser.
Consommer
ses
provisions.
Consommer
des
aliments.
V.
Absorber,
boire,
manger,
nourrir
(se
nourrir
de).
Consommer
du
conbustible
de
l'électricité.
V.
Brûler,
consumer,
employer.
Absolt.
Des
bouches
inutiles
qui
consomment
sans
produire.
2°
Intrans.
Prendre
une
consommation
au
café.
Consommer
à
la
terrasse,
au
comptoir.
3°
(Choses).
User
(du
combustible,
etc).
Cette
voiture
consomme
trop
d
essence;
absolt
consomme
trop.
consomptible:
Dont
on
ne
peut
se
servir
sans
le
détruire.
Biens,
produits
con-
somptibles
par
le
premier
usage.
2.
According
to
the
Petit
Larousse
illustré:
consommer:
Faire
usage
de
quelque
chose
pour
sa
subsistance:
Consommer
des
aliments.
Employer,
user
pour
son
fonctionnement:
une
voiture
qui
consomme
beaucoup
d'essence.
According
to
the
definition
given
in
Webster,
“supplies”
can
include
“clothing”.
However,
is
it
possible
to
consume
clothing?
It
is
true
that
“consume”
or
“consommer”,
according
to
Le
Petit
Robert
means
“Amener
.
..
à
destruction
en
utilisant
sa
substance,
en
faire
un
usage
qui
la
rend
ensuite
inutilisable”
(destroy
by
using
its
substance,
using
in
such
a
way
as
to
render
it
unusable)
but
all
the
examples
show
that
there
is
destruction
after
the
initial
use:
food,
gasoline.
Moreover,
“consumable”
(“consompti-
ble”)
means:
“which
cannot
be
used
without
being
destroyed”.
Furthermore,
the
case
law
has
always
been
to
this
effect.
An
electrician
was
not
allowed
to
deduct
the
cost
of
tools
because
the
latter
were
not
consumed:
see
Luks
(para.
4.02A(4))
and
Komarniski
(para.
4.02A(5)).
The
cost
of
“uniforms”
has
also
been
disallowed
on
the
same
basis,
namely
that
they
could
not
be
consumed:
see
Goodman
(para.
4.02A(6)),
Luks
(4.02A(4))
and
Brownlee
(para.
4.02A(1)
).
4.03.3
Finally,
even
if
the
points
discussed
above
(para.
4.03.1
and
para.
4.03.2)
had
been
favourable
to
the
appellant,
the
appeal
would
still
have
had
to
be
dismissed
since
the
expenses
for
the
1982
taxation
year
pertaining
to
suits
were
not
proved.
5.
Conclusion
For
these
reasons
the
appeal
is
dismissed.
Appeal
dismissed.
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