Joseph Gleddie v. Minister of National Revenue, [1985] 1 CTC 2217, 85 DTC 224

Taylor, TCJ:—These are appeals heard in Calgary, Alberta, on December 19 and 20, 1984 against income tax assessments for the years 1977, 1978, 1979 and 1980, in which the Minister of National Revenue taxed the appellant on the basis that he was an “employee” rather than an “independent contractor”. In general terms the appellant’s plea is the same for each of the years, and the following statement taken from one of the notices of appeal, is typical and puts the issue into perspective, during the period under review when he had a contract with PanCanadian Petroleum Limited (hereinafter referred to as “PanCanadian”):

1. The Appellant has been in business as an independent consulting geologist and has filed income tax returns on that basis since 1971. During this time the Appellant has been engaged by a number of companies to provide consulting services. Both be- fore and after the period during which the Appellant was providing consulting services to PanCanadian he was engaged in providing consulting services to a series of clients and therefore had to maintain an office in his home from which he could carry on his professional consulting business. Except for PanCanadian the Appellant’s clients did not provide office space for him and he was excluded from their usual employee benefits.

2. The Appellant was struck by a severe illness in December 1976 and as a result his physician instructed him to work at home so that his work load could be spread over a greater period of time with frequent rest periods. If the Appellant had not had an office in his home where he could do a significant portion of the work required under his consulting contract with PanCanadian, he would not have been physically capable of fulfilling his obligations under that contract. Accordingly, because of the Appellant’s health problems it was essential for him to have an office in his home in order to be able to gain or produce taxable income. The office was clearly not a mere personal convenience.

3. During the period in which the Appellant was engaged as a consultant by PanCanadian, approximately 30% of his total working time was accomplished at his home office.

4. The letter agreement dated August 18, 1978 under which PanCanadian engaged the Appellant’s services for a one year period, specifically states that the Appellant was engaged as a consultant. The Appellant did not participate in any of the company employee benefit schemes, and was specifically excluded from participating in:

(a) Educational programs;

(b) Holiday pay;

(c) Company Pension Plan;

(d) Club Membership;

(e) Reimbursement for meals while working overtime;

(f) Health and sick leave benefits;

(g) Parking privileges;

(h) Participation in stock purchases.

5. The Appellant was not subject to close supervision or control over the manner in which he performed his obligations under the contract with PanCanadian and was subject to less control and supervision than the geologists employed by PanCanadian.

6. To receive payment for services rendered to PanCanadian, the Appellant submitted a monthly invoice stating the number of days worked. The Appellant received payment for work completed at his home office.

7. PanCanadian did not make any deductions at source for income tax purposes from their monthly payments to the Appellant and did not send him a T-4 slip.

8. In order to fulfil his obligations under the contract with PanCanadian, the Appellant found it necessary to make field trips and trips to Victoria, British Columbia, to the Department of Mines and Resources, and to Edmonton, to the Alberta Research Council to acquire data and reference materials. These trips had to be made at the Appellant’s own expense and he was not reimbursed for these expenses by PanCanadian.

9. Throughout the period in question the Appellant has been listed in the telephone directory as J Gleddie Consulting Geologist and the bills from the telephone company have always been sent to J Gleddie Consulting Geologist.

For the respondent, with reference to the same assertions, the situation appeared:

— With respect to paragraph 1 in the Notice of Appeal, he admits that the Appellant maintained an office in his residence in the said taxation year but states that PanCanadian did not require the Appellant to maintain such an office as a condition of, or in order to earn income from his work as a geologist in the said taxation year, and denies that the Appellant engaged in business on a self- employed basis in the said taxation year.

— With respect to paragraph 2 in the Notice of Appeal, he admits that the Appellant had an illness in his 1976 taxation year but states that the maintenance of an office in his home was not made a condition of, or in order to earn income from his work as a geologist with PanCanadian in the said taxation year, and denies the further allegations as set forth therein.

— He has no knowledge of the allegations as set forth in paragraph 3 of the Notice of Appeal and repeats the statements made in paragraph 3 and 4, (supra).

— With respect to paragraph 4 in the Notice of Appeal, he admits that the said agreement excluded the Appellant from benefit schemes of PanCanadian but states that the said agreement also provided, inter alia:

(a) that the “exclusive services” of the Appellant would be given to PanCanadian;

(b) that the work of the Appellant would be primarily in the Foothills belt of Western Canada;

(c) that PanCanadian was to pay the Appellant $2,625.00 monthly;

(d) that PanCanadian would provide the Appellant with normal working space and equipment that is required for performance of the Appellant’s duties;

(e) that the Appellant was entitled to 20 working days absence during the year with a minimum of 5 working days taken at any one given time

and denies that the said agreement was a contract for services.

— He denies the allegations as set forth in paragraph 5 of the Notice of Appeal and states that, in the said taxation year, PanCanadian assumed control and supervision over the Appellant’s work.

— He admits the allegations as set forth in paragraph 6 of the Notice of Appeal, and states that PanCanadian, by agreement of August 18, 1976, agreed to pay the Appellant $2,625.00 monthly.

— He admits the allegations as set forth in paragraph 7 of the Notice of Appeal but denies that the Appellant was engaged in business on a self-employed basis in the sid taxation year.

— With respect to paragraph 8 of the Notice of Appeal, the Respondent admits that the Appellant took trips to the destinations therein indicated, but states that none of the said trips were required as a condition of, or in order to earn income from, his work as a geologist in the said taxation year and were accordingly not the subject of reimbursement from PanCanadian.

— He has no knowledge of the allegations as set forth in paragraph 9 of the Notice of Appeal and states that such facts are not determinative of the matters here in issue.

To complete the pattern, the 1979 set of financial statements filed is reproduced:

JOSEPH GLEDDIE

STATEMENT OF INCOME For The Year Ended December 31, 1979 (Prepared Without Audit)

(Based On Information Supplied By Client) (For Income Tax Purposes Only)

REVENUE

Professional — Cash Credits	$ 31,302.96
Add: Accounts Receivable at December 31, 1979		2,430.00
Total Revenue		$ 33,732.96
EXPENSES
Accounting and Legal	$	496.00
Advertising and Promotion		1,897.70
Automotive (Business Portion):
Gas and Oil		454.36
Repairs and Maintenance		813.70

Parking							635.50
Insurance							477.00
Capital Cost Allowance (Schedule)							8,179.90
Convention Expenses							1,311.04
Loan Interest and Charges							4,903.77
Office In The House Expenses
(Business Portion):
Office Supplies and Stationery					$1,1,79.24
Telephone						468.50
Utilities						309.85
Mortgage Interest					2,987.91
Property Taxes						441.29
Repairs and Maintenance						43.88
Management Fees						275.39
Insurance						82.00
							5,788.06
Total Expenses								$24,957.03
Net Income For Tax Purposes								18,775.93
CAPITAL COST ALLOWANCE SCHEDULE
			Proceeds
Class	U.C.C.	Cost of	from				C.C.A.	U.C.C.
6	Dec. 31, 78	Additions.	Disposition		Balance	Rate	Current	Dec. 31, 79
8	$ 9,663	$ 1,099.50	$	—	$10,762.50	20%	$2,152.50	$ 8,610
10	14,636	16,990.00	10,000.00		21,626.00	30%	6,488.00	15,138
	$24,299	$18,089.50	$10,000.00		$32,388.50		$8,640.50	$23,748
Less: Personal Portion — Automobile 7.1% of $6,488							460.60
Net C.C.A. Claimed							$8,179.90
Verified And Approved
		Joseph Gleddie

The appellant was born in 1915, and during the years under review had contracts with PanCanadian as follows:

PANCANADIAN PETROLEUM LIMITED

P.O. Box 2850

Calgary, Alberta

T2P 2S5

Exploration — North America

August 18, 1976

Mr J Gleddie

5644 — 60th Street NW

Calgary, Alberta T3A 2A5

Dear Mr Gleddie:

Further to our discussions, I am pleased to advise that PanCanadian would be willing to enter into an arrangement under which your exclusive services as a consulting geologist would be given to PanCanadian for a period of one (1) year from September 15, 1976.

It is anticipated that your work would be related to the Frontier Region of Canada, as a structural geologist, working primarily the Foothills belt of Western Canada, and any other assignments which PanCanadian would expect that you are capable of handling. As you can appreciate, we feel your knowledge would be of value to less experienced geologists in structural interpretation and with your assistance we would wish them to benefit by your supervision in this regard.

This arrangement would, subject to our mutual satisfaction, apply for a one (1) year period as stated. However, it would be agreed the Company or yourself may terminate the relationship on three (3) clear months notice. It is also agreed that you would be entitled to a total of 20 working days absence during the year with a minimum of 5 working days taken at any one given time, with the understanding you would advise the Company of your intentions, at least two (2) weeks prior to the commencement of your intended absence. PanCanadian would not be obliged to pay you during that time nor for any other time of absence howsoever occasioned unless the absence be consented to by the Company. Any amount of reduction in our monthly payment to you, by virtue of absence, would be in proportion that the time of absence is to a twenty- two (22) day period for the month in which any absence occurred.

PanCanadian agrees to pay you Two Thousand, Six Hundred and Twenty-five ($2,625.00) Dollars per month. As a Consultant, you would not participate in any of the Company benefit schemes and the Company would not be under any obligation to you except as required by law. The Company will provide you with normal working space and equipment that is required for the performance of your duties.

In accepting the above arrangements, you agree with PanCanadian that during the time this arrangement is in effect, and for a period of two years following termination of our arrangement, you will keep confidential, all information which you have pertaining to the business of PanCanadian resulting from your activities in connection with its operations.

If the foregoing is agreeable, we would appreciate it if you would sign the two attached copies of this letter for our records.

	Yours truly,
LM:CRVT:mfr	C R V Thomson
	Manager of Exploration
2 Attachments	PanCanadian Petroleum Limited

ACCEPTED AND AGREED TO

this 24 day of August, 1976

J GLEDDIE
2000 One Palliser Square, Calgary, Alberta	Telephone (403) 231-3131, Telex 03-822625

PANCANADIAN PETROLEUM LIMITED

P.O. Box 2850

Calgary, Alberta

T2P 2S5

September 15, 1977

Mr J Gleddie

323 Silver Valley Boulevard NW

Calgary, Alberta

T3B 4B7

Dear Mr Gleddie:

Re: Exploration — North America

We are pleased to advise you that PanCanadian wishes to extend your exclusive services as a consulting geologist for another period of one (1) year from September 15, 1977, on the same terms as referred to in our letter agreement dated August 18, 1976.

In addition, we conclude that your work is of sufficient merit to increase your pay by an additional $200.00 per month to $2825.00 per month, effective September 15, 1977.

Yours truly

PANCANADIAN PETROLEUM LIMITED

L Matwe

LM/rs

xc: N Hellam

P Savage

D Macdonald

2000 One Palliser Square, Calgary, Alberta	Telephone (403) 231-3131, Telex 03-822625
	PANCANADIAN PETROLEUM LIMITED
	P.O. Box 2850
	Calgary, Alberta
	T2P 2S5
CONFIDENTIAL
	1978-08-24
Mr J Gleddie
323 Silver Valley Boulevard NW
Calgary, Alberta
T3B 4B7
Dear Mr Gleddie:

Re: Exploration — Canada

We are pleased to advise you that PanCanadian wishes to extend your exclusive services as a consulting geologist for another period of one (1) year from September 15, 1978 on the same terms as referred to in our letter dated August 18, 1976.

We are satisfied with your work and effective September 15, 1978 will pay you at the rate of $2825.00 per month.

I am forwarding this memo to briefly cover the terms of our joint discussions with reference to your consulting practice for PanCanadian effective September 17, 1979. Also present at this meeting was, Mr N Khouri (Exploration Superintendent — Foothills).

	Yours truly
	PANCANADIAN PETROLEUM LIMITED
LM:mfr	L Matwe
	Chief Geologist — Canada
xc: L W Stevens
C R V Thomson
J W McNinch
D MacDonald
2000 One Palliser Square, Calgary, Alberta	Telephone (403) 231-3131, Telex 03-822625
	PANCANADIAN PETROLEUM LIMITED
	P.O. Box 2850
	Calgary, Alberta
	T2P 2S5
	1979- 09-28
Mr J Gleddie
Consulting Geologist
Suite 14
1901 Varsity Estates Drive NW
Calgary,
Alberta	CONFIDENTIAL
T3A 4T7
Dear Joe:

Firstly, PanCanadian is satisfied with your geological studies in the Foothills of British Columbia, and wish to continue with your services under the following terms:

1. Effective September 17, 1979, the remuneration for consulting services will be $180.00 per day.

2. You will complete a time sheet, on a monthly basis, and have it submitted to Mr Khouri for his approval. As per our conversation, we will not ask you to put in any extra overtime outside of PanCanadian’s normal office hours, nor will PanCanadian pay for any such time.

3. The Exploration Superintendent of the Foothills will assign priorities and work schedules such, that these would normally be completed during routine office hours.

4. Absence from the office; for whatever reason, will not be paid for by the Company, unless permission is granted from your supervisor. Vacations will not be paid for by the Company, as is normal for Consultants. It is our understanding that you may wish to take an extended vacation period of 2 months in the winter, and we have agreed to this.

5. It is also agreed that if you wish to cease consulting to us, or conversely, we wish to terminate your services as a Consultant, a short notice (2 weeks) is quite acceptable. However, confidentiality of information would be for the same length of time, as agreed to previously (2 years).

	Yours truly,
LM:ch	L Matwe
xc: J McNinch
N Khouri
2000 One Palliser Square, Calgary, Alberta	Telephone (403) 231-3131, Telex 03-822625

It was fundamental to the position of Mr Gleddie in these appeals that he establish a need for — indeed a requirement for — a base of operations in his home, otherwise he would simply be going to his place of employment (if employee he was) or utilizing the facilities provided by PanCanadian at that office site (if an independent contractor). Therefore much of the testimony related to this aspect of the matter. During the four years in issue, Mr Gleddie had not entered into any contracts or taken on any work outside of that covered in the PanCanadian contracts (supra). He had severed his connection with PanCanadian within a few months of agreeing to the contract dated 1979-09-28 above. In my view Mr Gleddie himself and Mr Savage, now Exploration Manager of PanCanadian, were the main contributors to the Court’s body of information relative to this matter. During the normal working day, Mr Gleddie was required to be at his office (in PanCanadian) by about 8:30 am, either to receive his assignments or to assist in instructing and aiding other younger geologists. I reject entirely the basis that Mr Gleddie’s illness was a major factor in the utilization of his “home” working space. I am completely satisfied that it was, in many respects, simply more convenient for him, particularly when he held the view so strongly that almost unlimited deductions on account of this working space were his right. I shall summarize what I believe to be the significant points which arose out of the testimony of these two people and my assessment of some of it. I am aware that Mr Savage did not personally prepare the contracts (supra), but I am satisfied that the general basis of his testimony can be useful to the Court, on certain points.

In reviewing the basic question put to the Court in these appeals — employee or independent contractor — I have re-examined the case of Boardman v The Queen, [1979] CTC 159; 79 DTC 5110; Henry Molot VMNR, [1977] CTC 2170; 77 DTC 111; Cork v MNR, [1981] CTC 2367; 81 DTC 346, upheld on appeal in The Queen v Justin Cork, [1984] CTC 479; 84 DTC 6515; R H Woolner v MNR, [1983] CTC 2546; 83 DTC 490. Although the Boardman (supra) appeal was dismissed, the appellant in this appeal found some comfort in certain comments of the learned Justice, therein, and to the degree the instant appeals might differ from Boardman (supra) an argument could be made for a different result. Counsel for the Minister, however, in this matter was of the view that Boardman (supra) (as well as the general line of cases portrayed by the other case law noted above) left this court with clear direction to decide that Mr Gleddie was an employee. As I see the Boardman (supra) case, however, (notwithstanding the fact that it was the intention of both parties therein to create an “independent contractor” relationship and many of the terms of reference in the contract attested to this), there were two facts which mandated that the decision in Boardman (supra) should be unfavourable to that appellant — and I quote from 163 and 5113 respectively:

Income tax will be deducted at source unless the Contractor provides an exemption from from (sic) the Federal Government.

The plaintiff was paid subsistence and travelling allowance at the same rate as employees of the public service.

Neither of these constraints apply to Mr Gleddie and therefore I do not feel obliged to produce the same result on this matter. I believe that Exhibit A-l (the contract dated August 18, 1976 (supra)) could be read as the basis for either an “employee-employer” relationship or an “independent contractor” relationship. Simply put, the words of Exhibit A-l do not clearly exclude either interpretation, in my view. The only clause which comes close to the determinative clauses in Boardman (supra) would be:

. As a Consultant, you would not participate in any of the Company benefit schemes and the Company would not be under any obligation to you except as required by law." [Empahasis mine]

Clearly, if one were to interpret “required by law”, as mandating the deduction of income tax, I would find it difficult to escape the result obtained in Boardman (supra). In this situation, the conduct of the parties interpreting and acting on the agreement must be viewed as a major factor; and neither party operated under the view that the deduction of income tax was required, agreed upon, even desirable or precautionary. Mr Gleddie, in his monthly statement of account to PanCanadian, asked for and received the full complement of his billings, without deduction. While I can understand Mr Gleddie acting in this fashion, and being satisfied with the result, I do not believe it would be out of a desire to accommodate Mr Gleddie only, that PanCanadian would respond in that way. No, I must accept that PanCanadian, in full light of not only its responsibilities but also its obligations, felt completely at ease in treating Mr Gleddie fully as an independent contractor. I am prepared to rule that the status to be accorded Mr Gleddie flowing out of the August 18, 1976 contract, was that of an “independent contractor” and I would rely on the case of Woolner (supra) as judicial support for that view. Mr Gleddie’s status remained unchanged as a result of the September 15, 1977, and the August 24, 1978 renewals of that contract.

However, I do not read the September 28, 1979 contract as preserving that situation. There is no reference in the 1979 agreement to the original 1976 agreement and the restraints and constraints on Mr Gleddie were detailed. While this altered situation may have best suited PanCanadian in 1979, it also carried with it obligations for PanCanadian, which it would appear that company did not take too seriously — at least to the degree, that income tax deductions commenced. It may well have been the desire and intention of PanCanadian to ''continue with your services” [Emphasis mine] but “continue” they did not. As I see it, the key phrase from the 1976 agreement:

. As a Consultant, you would not participate in any of the Company benefit schemes and the Company would not be under any obligation to you except as required by law.

was omitted which provided the basis for the decision above regarding that year. Consequently, the parties can only fall back on the “control” basis for determining the status of Mr Gleddie under the new contract as one would look to in any similar case law. I am unable to see in the 1979 agreement, anything which would clearly and certainly distinguish this situation of Mr Gleddie from that of another employee. Mr Gleddie made much, during the hearing, of the fact that he did not have the usual “employee benefits” and that vacations, etc. were accorded on a different “basis than for employees”. I am not aware of jurisprudence which would mandate that all employees, or for that matter, any employee, must participate in company benefits, or be treated exactly the same in order to be regarded as employees under the law, for income tax purposes. While regularly raised in cases of this type, in my view, it is a specious argument.

Ultimately, therefore, the major question raised in these appeals — “employee or independent contractor” — is determined on the basis that for the 1976, 1977 and 1978 years Mr Gleddie was an independent contractor, but for the year 1979 he was an employee. That leads to certain comments on the genesis of these appeals — the expenses deducted from income by Mr Gleddie in arriving at his “net income”.

I suspect that Mr Gleddie was operating under the distinct impression that if he could establish a requirement or even a use for a “base of operations” during the term of his contract with PanCanadian, then expenses virtually unlimited in amount or nature were properly deductible from the income he earned. This perspective was also evident to some degree in the line of approach taken by the appellant’s counsel, but it was agreed by the parties that in the event the Court held Mr Gleddie to be an independent contractor the matter of expenses would be reviewed and the parties would agree on the precise deductions available to him. The Court points this out, since indeed this judgment will require just such a review, and it must be understood that the Court does not adopt in any way the view of virtually unlimited deductibility apparently held by the appellant and his counsel. Even if an independent contractor, the appellant or any taxpayer, is entitled only to those expenses reasonably attributable to the earning of the income involved — not those which he may simply find convenient or economical to claim.

At PanCanadian Mr Gleddie had reasonable and ordinary facilities, together with the use of library, typing pool, maps, charts, etc. There was no evidence of requirement from PanCanadian for Mr Gleddie to maintain an office, nor to take any field trips, notwithstanding that Mr Gleddie may have found it useful, even beneficial, to do so. I am satisfied that for any required outdoor excursion, (if such they were) Mr Gleddie could have been reimbursed by PanCanadian for direct costs. That he did not receive any such reimbursements during the period under review in my view is a reflection that the decision to travel was his own and would probably have been rejected or discouraged by PanCanadian, had the question arisen, particularly if cost to PanCanadian would have been involved. I respect Mr Gleddie’s testimony that it was part of his way of working and a reflection of his dedication to the contracts that caused him to travel, but in my view that is not sufficient reason to regard the travel expenses as pertaining to the income he earned. As to the “Advertising and Promotion” and the “Convention Expenses”, their current value (during the years in question) is in great doubt — simply put, Mr Gleddie could not take on any outside contracts. It would be a relatively simple task in my view to go down all the expenses claimed during the years in question, and eliminate or seriously question the need for them — in connection with the earning of the income. Viewed in isolation (against the background that Mr Gleddie had a stable contract with PanCanadian, had reasonable working facilities and materials provided, and was required to report for work regularly about 8:30 am, some of the other expenses claimed (supra) are almost preposterous — capital cost allowance $8,179.90; loan interest and charge $4,903.77; office in the house $5,788.06, etc. It is understood that the Minister simply took all the expenses and disallowed them. It would not be totally impossible to reach the same conclusion as did the Minister — to deny Mr Gleddie all the claim. However, two small points would restrain me from so contending. These points arose out of the testimony of Mr Savage from PanCanadian. First, PanCanadian had engaged Mr Gleddie because Mr Gleddie was professionally familiar with the geographical area of particular interest to PanCanadian in 1977, and PanCanadian did not have readily available to it, such “in house” expertise; and second as a result of the years of work Mr Gleddie had put in, around the “Foothills” area, Mr Savage expected he would have not only the expertise and experience noted above, but would also have some physical documents, maps, charts, etc, which PanCanadian then would have at their disposal (through Mr Gleddie) rather than PanCanadian searching these out. It is therefore acknowledged to the degree that Mr Gleddie did maintain such a location for his maps, charts, etc, that he needed a “base of operations”, and in a very minor way, he is entitled to provide storage space for these, and an area in which he could refer to them. In the same way he may be able to establish some need for travelling between his PanCanadian office and his home office during working hours for precise purposes, and for the most limited professional advertising to “keep his name” before future prospective clients. At best these legitimate and reasonable expenses will total a very minimal amount. I have to point out that Mr Savage was direct in noting that the maps, charts, etc, did not constitute “source data” unavailable or unknown to PanCanadian — merely more readily available in his way through Mr Gleddie. Had Mr Gleddie used any of his own “source material” in the preparation of his reports to PanCanadian — there was no doubt that he would have been required to complete PanCanadian source data base to this extent. Simply put, PanCanadian could not be expected to rely on reports prepared by Mr Gleddie whenever Mr Gleddie used some private or personal source data which he would not or could not make available to PanCanadian. It was also clear that Mr Savage and his subordinates who worked with or supervised the work of Mr Gleddie, were considerate of the flexible working arrangements described by Mr Gleddie, and one of these areas of tolerance shown to Mr Gleddie was in permitting him to work at his home when that did not interfere with the progress of his work, including the fact that some of his own maps and charts could be used more readily at his home rather than in bringing them to his PanCanadian office.

I have no difficulty in visualizing an independent contractor operating out of a base of operations (ie his home) making a decision to perform exclusive functions for a particular client — which client provides all needed facilities and thereby the taxpayer reduces perhaps eliminates the normal need and cost of a separate base of operations, at least during the period of the exclusive assignment.

I do not find that view inconsistent with the opinions expressed (and referred to at the hearing) in the case law cited above. In those cases the Minister chose not to seriously challenge the expenses claimed, and accordingly there was no basis for a determination other than that given. In the instant case, the Minister took the position that all expenses claimed should be disallowed (based on the view that the appellant was an employee for all four years). Since the Court disagreed with the Minister on that point and holds the appellant to be an independent contractor for the first three years, a reassessment for those years is required in which the quantum of expenses properly deductible will be the subject of review and examination. Other than these relevant comments the Court did not assume at this hearing the responsibility for that aspect of the matter. Clearly if agreement on that point cannot be reached between the parties, taking into account the views of the Court, then that matter of quantum may itself arise in the future for separate determination by the Court in another appeal.

The appeals are allowed in part in order that for the years 1977, 1978 and 1979, Mr Gleddie shall be considered an independent contractor. The appeal for the year 1980 is dismissed. The entire matter is referred back to the Minister for reconsideration and reassessment. The appellant is entitled to party and party costs.

Appeals allowed in part.