Tremblay,
TCJ:—This
case
was
heard
in
Sydney,
Nova
Scotia,
on
August
2,
1983.
1.
The
Point
at
Issue
The
point
at
issue
is
whether
the
appellant,
a
school
teacher,
is
correct
in
deducting
in
the
computation
of
his
income
for
the
1980
taxation
year
the
amount
of
$1,744.89.
This
expense
was
incurred
while
travelling
from
St
Francis
Xavier
University
in
Antigonish
to
Truro,
Sydney
and
New
Glasgow
to
attend
a
post-graduate
course.
The
appellant
contends
this
expense
was
required
to
carry
out
his
duties
away
fom
his
employer’s
place
of
business
pursuant
to
paragraph
8(1
)(h)
of
the
Income
Tax
Act.
The
appellant
applied
for
and
was
granted
by
his
employer
a
sabbatical
leave
to
undertake
post-graduate
studies.
In
attending
this
course
the
appellant
contends
he
was
carrying
out
his
duties.
2.
The
Burden
of
Proof
2.01
The
burden
is
on
the
appellant
to
show
that
the
respondent’s
assessment
is
incorrect.
This
burden
of
proof
results
particularly
from
several
judicial
decisions,
including
the
judgment
delivered
by
the
Supreme
Court
of
Canada
in
Johnston
v
MNR,
[1948]
CTC
195,
3
DTC
1182.
2.02
In
the
same
judgment,
the
Court
decided
that
the
assumed
facts
on
which
the
respondent
based
his
assessment
or
reassessment
are
also
deemed
to
be
correct.
In
the
present
case,
the
assumed
facts
are
described
in
the
reply
to
notice
of
appeal
as
follows:
3.
In
so
reassessing
the
Appellant’s
income
tax
liability
for
his
1980
taxation
year
the
Respondent
relied,
inter
alia,
upon
the
following
assumptions
of
fact:
(a)
The
Appellant
was
a
school
teacher
employed
by
the
Inverness
Municipal
School
Board
and
teaching
at
Mabou
Consolidated
High
School,
Mabou,
Nova
Scotia;
(b)
Article
9
of
the
collective
agreement
between
the
School
Board
and
the
Nova
Scotia
Teachers’
Union,
of
which
the
Appellant
is
a
member,
provided
for
the
granting
of
sabbatical
leave
upon
application
by
a
teacher;
(c)
During
the
1979-1980
taxation
year,
the
Appellant
applied
for,
and
was
granted,
sabbatical
leave
to
undertake
post-graduate
studies
at
St
Francis
Xavier
University
in
Antigonish,
Nova
Scotia;
(d)
During
his
sabbatical
leave,
the
Appellant
was
a
student
in
full-time
attendance
at
St
Francis
Xavier
University
and
did
not
perform
any
of
his
usual
duties
as
a
teacher
at
Mabou
Consolidated
High
School;
(e)
During
his
sabbatical
leave,
the
Appellant’s
employer
paid
him
as
employment
income
the
salary
he
would
have
received
if
he
had
been
an
active
teacher
and
made
deductions
for
income
tax
and
other
necessary
items;
(f)
In
order
to
fulfill
the
requirements
of
his
course
of
study
at
St
Francis
Xavier
University,
the
Appellant
was
required
to
attend
classes
of
instruction
at
Truro,
New
Glasgow
and
Sydney;
(g)
The
Appellant
has
claimed
for
the
1980
taxation
year
expenses
in
the
amount
of
$1,744.89
incurred
in
travelling
from
St
Francis
Xavier
University
in
Antigonish
to
Truro,
Antigonish
and
New
Glasgow
to
attend
classes.
3.
The
Facts
3.01
The
facts
in
substance
are
not
in
dispute.
All
the
assumptions
of
fact
detailed
in
paragraph
2.02
quoted
above
are
admitted
by
the
appellant.
3.02
The
appellant
testified
that
he
was
obliged
to
pay
his
own
expenses
and
that
the
said
studies
during
his
sabbatical
leave
were
in
fact
his
duty.
If
he
had
not
fulfilled
his
part
of
the
sabbatical
leave
agreement
he
would
have
been
obliged
to
return
to
the
Municipal
School
Board
of
Inverness
the
sum
of
money
received
during
the
said
year.
3.03
The
agreement
between
the
said
Board
and
the
Nova
Scotia
Teachers
Union
of
the
Province
of
Nova
Scotia
was
filed
as
Exhibit
A-2.
One
can
read
the
following
provisions:
9.01
Any
teacher
holding
a
Nova
Scotia
Teacher
Certificate
as
issued
by
the
Minister
of
Education
for
the
Province
of
Nova
Scotia
and
who
has
been
in
the
employ
of
the
Board
for
three
(3)
consecutive
years,
including
the
year
of
application,
may
apply
for
Sabbatical
Leave.
9.02
Sabbatical
Leave
shall
be
considered
continuous
service
with
the
Board
and
all
benefits
such
as
salary
increments,
and
cumulative
sick
leave
shall
be
in
effect
during
the
Sabbatical
year.
9.03
Sabbatical
Leave
shall
be
granted
to
a
teacher
for
study
or
other
professional
development.
Such
Sabbatical
Leave
shall
be
related
to
the
work
for
which
the
teacher
is
responsible.
9.04
Sabbatical
Leave
shall
be
granted
for
the
period
of
one
(1)
full
year.
9.05
A
teacher
granted
Sabbatical
Leave
must
agree
to
teach
for
the
Municipal
School
Board
of
Inverness
County
for
a
minimum
of
three
(3)
years
immediately
following
the
year
of
Sabbatical
Leave.
9.06
The
sum
of
all
money
received
during
the
Sabbatical
Leave
shall
be
returned
to
the
Board
in
the
event
that
a
teacher
fails
to
fulfill
his
part
of
the
Sabbatical
Leave
agreement
except
due
to
illness
or
disability.
The
money
shall
be
paid
by
the
teacher
or
a
bonding
organization
retained
by
the
Board.
The
cost
of
bonding
will
be
deducted
from
the
amount
of
the
Sabbatical
Leave.
9.14
Salary
payments
to
teachers
on
Sabbatical
Leave
shall
be
made
on
the
same
regular
bi-monthly
basis,
and
pension,
income
tax,
and
all
other
necessary
deductions
shall
be
made
by
the
Board.
9.15
One
(1)
teacher
shall
receive
Sabbatical
Leave
each
year.
9.16
The
recipient
of
Sabbatical
Leave
shall
be
paid
one
hundred
per
cent
(100%)
of
his
or
her
annual
salary.
9.17
A
teacher
on
return
from
Sabbatical
Leave
shall
be
re-instated
to
the
same
position,
an
equivalent
position
or
a
better
position,
unless
otherwise
agreed
by
both
parties.
9.18
A
teacher
shall
be
eligible
for
more
than
one
(1)
Sabbatical
Leave
in
the
event
that
there
is
no
other
applicant
for
a
specific
year.
3.04
The
travelling
expenses
incurred
by
the
appellant
in
the
amount
of
$1,744.89
do
not
include
expenses
from
and
between
his
two
residences
at
Mabou
and
Antigonish.
The
appellant’s
travelling
was
between
St
Francis
Xavier
University
in
Antigonish
to
Truro,
Sydney
and
New
Glasgow
to
attend
his
course.
In
fact,
counsel
for
the
respondent
admitted
that
the
quantum
of
$1,744.89
was
not
in
dispute.
4.
Law
—
Cases
at
Law
—
Analysis
4.01
Law
The
main
provision
of
the
Income
Tax
Act
involved
in
the
instant
case
is
8(1
)(h).
It
reads
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:
(h)
where
the
taxpayer,
in
the
year,
(i)
was
ordinarily
required
to
carry
on
the
duties
of
his
employment
away
from
his
employer’s
place
of
business
or
in
different
places,
(ii)
under
the
contract
of
employment
was
required
to
pay
the
travelling
expenses
incurred
by
him
in
the
performance
of
the
duties
of
his
office
or
employment,
and
(iii)
was
not
in
receipt
of
an
allowance
for
travelling
expenses
that
was,
by
virtue
of
subparagraph
6(l)(b)(v),
(vi)
or
(vii),
not
included
in
computing
his
income
and
did
not
claim
any
deduction
for
the
year
under
paragraph
(e),
(f)
or
(g),
amounts
expended
by
him
in
the
year
for
travelling
in
the
course
of
his
employment;
4.02
Cases
at
Law
1.
Bolton
P
Bromwich
v
MNR,
23
Tax
ABC
61;
59
DTC
568;
2.
Ben
Stromberg
v
MNR,
9
Tax
ABC
393;
54
DTC
28;
3.
Jacob
Dover
v
MNR,
22
Tax
ABC
467;
59
DTC
515;
4.
Gerald
C
Shangraw
v
MNR,
[1976]
CTC
2415;
76
DTC
1309;
5.
John
T.
Klue
v
MNR,
[1976]
CTC
2401;
76
DTC
1303;
6.
Richard
A
Ronchka
v
MNR,
[1979]
CTC
3071;
79
DTC
854;
7.
Thomas
Healy
v
The
Queen,
[1979]
CTC
44;
79
DTC
5060.
4.03
Analysis
4.03.1
In
reading
the
cases
at
law
and
paragraph
8(l)(h)
of
the
new
Income
Tax
Act,
the
Court
states
that
there
is
an
evolution
in
the
interpretation
of
the
words
“ordinarily”
and
“ordinarily
required”.
Formerly
B
P
Bromwich,
Ben
Stromberg,
Joacob
Dover,
(supra),
etc.
were
interpreted
as
being
essentially
related
to
time.
In
the
most
recent
cases
at
law,
however,
the
Court
gives
to
the
expression:
(a)
the
meaning
of
“normally”
required
as
opposed
to
“rarely”
or
“exceptionally”
in
Ronchka,
(supra);
(b)
“In
my
opinion,
interpreting
those
words
as
being
related
to
the
actual
duties
and
responsibilities
of
the
appellant’s
employment
rather
than
to
the
time
factor
is
also
a
legal
and
valid
interpretation.”
in
Shangraw,
(supra)',
(c)
When
it
is
an
“important
part
of
his
duties”,
in
Klue
(supra)',
(d)
“The
objection
of
section
8(1
)(h)
is
to
enable
employees
who
are
required
by
their
employment
to
work
from
time
to
time
away
from
the
place
at
which
they
usually
work,
to
deduct
their
out-of-pocket
expenses
in
so
doing.”,
in
Healy,
(supra).
4.03.2
There
was
no
dispute
in
the
application
of
subparagraphs
8(l)(h)(ii)
and
(iii);
the
only
provision
in
dispute
is
subparagraph
8(l)(h)(i).
The
main
reason
advanced
by
the
respondent’s
counsel
is
that
sabbatical
leave
is
a
period
of
time
during
which
the
individual
teacher
is
released
from
his
duty
in
order
to
carry
on
studies
of
his
own
personal
choice.
In
such
a
case,
subparagraph
8(l)(h)(i)
has
no
application.
Counsel
for
the
respondent
referred
to
the
definition
of
the
word
“sabbatical”
in
The
Shorter
Oxford
English
Dictionary
on
historical
principles'.
.
.
.
in
American
universities,
a
year
of
absence
from
duty
for
the
purposes
of
study
and
travel,
granted
to
professors
at
certain
intervals.
To
confirm
his
contention,
the
learned
counsel
also
referred
to
provision
9.17
quoted
above
(para.
3.03)
of
the
Agreement
A-2.
According
to
him,
if
‘‘a
teacher
on
return
from
Sabbatical
Leave
shall
be
re-instated
to
the
same
position
..
.“,
it
is
because
he
was
released
from
his
duty,
and
hence
subparagraph
8(l)(h)(i)
cannot
be
applied
in
the
instant
case.
4.03.3
It
is
the
Court’s
opinion
that
provision
9.17
of
the
Agreement
A-2
must
be
read
in
conjunction
with
the
other
provisions,
quoted
above,
of
the
said
agreement.
Considering
the
provisions
of
the
said
agreement
quoted
above,
the
Court
states
that
sabbatical
leave
must
be
“considered
continuous
service”
with
the
Municipal
School
Board
of
Inverness
County
(9.02)
and
“such
Sabbatical
Leave
shall
be
related
to
the
work
for
which
the
teacher
is
responsible”
(9.03).
One
of
the
requirements
is
that
the
teacher
must
agree
to
teach
“for
a
minimum
of
three
(3)
years
immediately
following
the
year
of
Sabbatical
Leave”
(9.05).
Moreover,
if
the
teacher
fails
to
fulfill
his
part
of
the
sabbatical
leave
agreement
“the
sum
of
all
money
received
during
the
Sabbatical
Leave
shall
be
returned
to
the
Board”
(9.06).
4.03.4
Whereas
the
said
agreement
is
the
law
between
the
parties;
whereas
the
appellant’s
work
during
the
sabbatical
leave
must
be
considered
as
the
work
for
his
employer,
the
Municipal
School
Board
of
Inverness
County;
whereas
there
is
no
dispute
about
the
quantum
of
the
travelling
expenses,
the
Court
concludes
that
the
appellant
“was
ordinarily
required
to
carry
on
the
duties
of
his
employment
away
from
his
employer’s
place
of
business
or
in
different
places”
during
the
year
1980;
and,
whereas
the
requirements
of
subparagraphs
8(l)(h)(ii)
and
(iii)
are
also
fulfilled
the
appeal
must
be
allowed.
5.
Conclusion
The
appeal
is
allowed
and
the
matter
referred
back
to
the
respondent
for
reassessment
in
accordance
with
the
above
reasons
for
judgment.
Appeal
allowed.
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