Walsh,
J:—This
is
an
appeal
from
a
judgment
dated
October
7,
1977,
of
the
Tax
Review
Board
allowing
in
part
defendant’s
appeal
against
a
reassessment
made
by
the
Minister
of
National
Revenue
which
included
a
stand-by
charge
of
$486
in
the
computation
of
defendant’s
income
for
his
1972
taxation
year
for
personal
use
of
an
automobile
provided
by
his
employer,
which
charge
was
reduced
to
$162
in
the
said
decision.
Defendant
counterclaimed
against
this
decision
of
the
Tax
Review
Board
on
the
basis
that
the
calculation
should
have
been
made
under
another
section
of
the
Act
which
allegedly
would
have
resulted
in
an
even
smaller
addition
to
defendant’s
income.
Although
the
sums
involved
are
small
the
issue
is
an
important
one
as
the
decision
will
affect
a
very
large
number
of
taxpayers
In
a
similar
position
to
defendant
and
it
was
therefore
very
thoroughly
and
fully
argued
both
before
the
Tax
Review
Board
and
in
this
Court.
This,
I
am
given
to
understand
is
the
first
time
the
issue
has
been
raised
since
the
current
Income
Tax
Act
came
into
effect,
in
which
paragraphs
6(1)(e)
and
6(2)(a)
are
new,
not
having
been
in
the
former
Act,
although
a
section
substantially
similar
to
paragraph
6(1
)(a)
was
in
the
old
Act
RSC
1952,
c
148
as
amended,
numbered
as
paragraph
5(1)(a).
It
will
be
convenient
to
quote
the
sections
in
question
which
are
to
be
interpreted
in
the
light
of
the
facts
of
the
present
case:
6.(1)
There
shall
be
included
in
computing
the
income
of
a
taxpayer
for
a
taxation
year
as
income
from
an
office
or
employment
such
of
the
following
amounts
as
are
applicable.
(e)
where
his
employer
made
an
automobile
available
to
him
in
the
year
for
his
personal
use
(whether
for
his
exclusive
personal
use
or
otherwise),
the
amount,
if
any,
by
which
an
amount
that
would
be
a
reasonable
standby
charge
for
the
automobile
for
the
aggregate
number
of
days
in
the
year
during
which
it
was
made
so
available
(whether
or
not
it
was
used
by
the
taxpayer)
exceeds
the
aggregate
of
(i)
the
amount
paid
by
him
in
the
year
to
his
employer
for
the
use
of
the
automobile,
and
(ii)
any
amount
included
in
computing
his
income
for
the
year
by
virtue
of
paragraph
(a)
in
respect
of
the
use
by
him
of
the
automobile
in
the
year.
6.(2)
For
the
purposes
of
paragraph
(1
)(e)
‘‘an
amount
that
would
be
a
reasonable
standby
charge
for
the
automobile”
for
the
aggregate
number
of
days
in
a
taxation
year
during
which
it
was
made
available
by
an
employer
shall
be
deemed
not
to
be
less
than,
(a)
where
the
employer
owned
the
automobile
at
any
time
in
the
year,
an
age
thereof
obtained
when
1%
is
multiplied
by
the
quotient
obtained
when
such
of
the
aggregate
number
of
days
hereinbefore
referred
to
as
were
days
during
which
the
employer
owned
the
automobile
is
divided
by
30
(except
that
if
the
quotient
so
obtained
is
not
a
full
number
it
shall
be
taken
to
be
the
nearest
full
number
or,
if
there
is
no
nearest
full
number,
then
to
the
full
number
next
below
it).
6.(1)
There
shall
be
included
in
computing
the
income
of
a
taxpayer
for
a
taxation
year
as
income
from
an
office
or
employment
such
of
the
following
amounts
as
are
applicable.
(a)
the
value
of
board,
lodging
and
other
benefits
of
any
kind
whatever
(except
the
benefit
he
derives
from
his
employer’s
contributions
to
or
under
a
registered
pension
fund
or
plan,
group
sickness
or
accident
insurance
plan,
private
health
services
plan,
supplementary
unemployment
benefit
plan,
deferred
profit
sharing
plan
or
group
term
life
insurance
policy)
received
or
enjoyed
by
him
in
the
year
in
respect
of,
in
the
course
of,
or
by
virtue
of
an
office
or
employment.
The
facts
are
not
in
dispute.
Defendant,
a
very
frank
and
clear
witness
stated
that
he
was
employed
as
a
travelling
sales
representative
by
Brooke
Bond
Foods
Limited
(hereinafter
called
the
employer)
since
1957
living
in
Peterborough,
Ontario,
and
having
a
sales
area
extending
from
there
to
Bancroft
and
Lake
St
Peter
in
the
North,
east
to
Perth,
south
to
the
outskirts
of
Kingston,
and
from
there
to
Bowmanville
and
northeast
to
Lindsay
and
Haliburton,
an
area
of
10,000
square
miles.
In
order
to
cover
the
territory
he
would
be
away
from
home
two
or
three
nights
a
week.
While
normally
he
worked
a
nine
hour
day
five
days
a
week,
he
might
be
working
longer
than
this
on
days
when
he
was
returning
home
from
a
business
trip
to
an
area
perhaps
two
hours
from
Peterborough.
He
would
also
on
occasion
when
one
of
his
customers,
for
example
a
restaurant,
ran
out
of
coffee
on
a
Saturday
or
Sunday
make
a
special
delivery
to
that
customer
on
one
of
those
days.
The
employer,
a
subsidiary
of
an
English
company
was
in
the
grocery
business,
selling
such
items
as
Black
Diamond
cheese,
Red
Rose
tea
and
an
extensive
line
of
spices.
His
customers
would
be
independent
grocers,
variety
stores,
restaurants
and
hotels.
Initially
a
small
warehouse
was
maintained
in
Peterborough
with
supplies
which
would
be
renewed
from
Toronto
about
once
a
week.
He
would
be
furnished
with
a
delivery
truck
which
he
would
keep
stocked
from
the
warehouse
and
make
his
sales
directly
from
it.
In
recent
years
he
primarily
took
orders
from
his
customers
which
would
then
be
shipped
directly
to
them
from
his
employer.
Eventually
the
employer
instead
of
providing
its
salesmen
with
delivery
trucks
provided
station
wagons
for
this
purpose.
However
the
station
wagon
would
normally
be
loaded
with
a
large
assortment
of
display
items,
including
posters
and
bins.
Cardboard
display
bins
for
Black
Diamond
cheese,
for
example,
would
be
flat
and
opened
up
for
assembly
but
metal
racks
for
the
cheese
and
for
Red
Rose
iced
tea
mix
were
not
collapsible.
In
addition
large
spice
racks
were
provided
for
retail
stores
which
when
assembled
consisted
of
a
series
of
shelves
and
were
about
four
feet
wide
by
six
feet
high.
They
came
in
six
sections
that
had
to
be
assembled
in
the
store.
Samples
of
new
lines
would
also
be
in
the
car
to
show
to
customers
and
he
always
carried
a
supply
of
coffee
as
restaurants
frequently
ran
short
of
it.
Accordingly
the
rear
seat
of
the
station
wagon
was
always
closed
down
to
the
floor
and
the
rear
of
it
was
normally
filled
with
merchandise
of
this
sort.
On
the
passenger
side
of
the
front
seat
he
usually
kept
his
briefcases,
order
forms
and
other
documents
and
did
his
paper
work
in
the
car
except
for
his
weekly
report
on
Friday
which
he
would
do
in
his
home.
In
practice
the
vehicle
was
of
little
use
to
him
as
a
personal
car
as
it
would
take
at
least
a
half
hour
to
unload
it,
assisted
by
some
of
his
children
if
he
wished
to
use
it
for
family
use
when
at
home.
Actually
in
1972,
the
year
with
which
the
assessment
is
concerned,
out
of
a
total
mileage
of
27,780
miles
driven
only
1,230
miles
were
for
personal
use.
He
would
simply
leave
the
car
fully
loaded
in
the
driveway
overnight.
He
did
not
actually
require
it
for
personal
use
in
any
event
as
his
wife
also
had
a
station
wagon.
He
was
required
to
keep
careful
records,
however,
showing
the
mileage
covered
each
week
and
the
expenditure
for
gas,
oil
and
washing
of
the
car
and
any
other
incidental
expenses,
and
distinguishing
personal
mileage
from
business
mileage.
The
employer
allowed
its
salesmen
who
had
had
an
accident
free
record
the
preceding
year,
such
as
defendant,
1000
free
miles
of
personal
use
in
the
following
year;
with
this
exception
a
charge
of
5¢
a
mile
was
made
for
personal
use.
Actually
in
1972
defendant
paid
the
company
$15
for
300
miles
of
personal
use
which
indicates
that
he
paid
slightly
more
than
was
necessary,
but
this
is
a
trivial
matter
and
not
an
issue.
The
company
authorized
its
salesmen
to
purchase
the
cars
from
local
dealers
so
that
they
could
readily
be
serviced
locally,
but
set
out
detailed
specifications
as
to
what
make
of
car
should
be
purchased,
what
options
should
be
on
the
car,
and
so
forth.
After
finding
out
which
local
dealer
would
give
the
best
price,
this
was
then
invoiced
by
the
dealer
to
the
company
and
paid
by
it.
The
company
also
paid
for
all
insurance
and
other
expenses
of
the
car.
There
were
no
restrictions
prohibiting
the
personal
use
of
the
car,
and
provided
the
company
was
advised
permission
could
be
obtained
for
a
salesman’s
wife
or
adult
members
of
his
family
to
drive
it.
It
could
also
be
taken
across
the
border
if
desired
provided
the
company
was
notified
in
advance.
There
was
very
little
limitation
or
control
therefore
by
the
employer
on
the
personal
use
of
the
car
by
the
employee,
but
in
practice
it
would
so
constantly
be
used
for
business
purposes
and
most
of
the
time
filled
with
merchandise
that
it
would
be
inconvenient
to
use
it
for
personal
purposes
even
if
it
were
available
for
such
use
outside
of
the
hours
in
which
it
was
being
used
for
business
purposes.
In
the
case
of
defendant
there
were
only
eight
weeks
during
the
year
in
1972
in
which
any
personal
use
was
made
of
the
car
and
the
chart
shows
that
during
the
weeks
which
he
believes
were
his
holiday
weeks
no
use
was
made
of
it
whatsoever,
so
apparently
if
the
family
went
on
a
trip
during
this
period
it
was
the
wife’s
car
which
was
used.
Defendant’s
evidence
was
corroborated
in
all
material
respect
by
William
McDiarmid
the
finance
director
of
the
employer.
He
testified
that
the
company
has
145
salesmen
about
35
of
whom
would
have
rural
territories
and
that
in
all
cases
whether
the
salesman
had
a
city
or
rural
territory
a
car
is
provided
by
the
company
on
the
same
basis
as
for
defendant.
This
has
been
company
policy
since
the
19403.
The
free
1000
miles
of
personal
use
is
to
encourage
safe
driving
by
employees
and
as
a
reward
for
an
accident
free
record
the
previous
year.
Since
only
5¢
a
mile
is
charged
for
personal
use
in
any
event
this
is
equivalent
only
to
a
bonus
of
$50.
He
stated
that
the
policy
is
somewhat
different
when
senior
executives
of
the
company
such
as
he
himself
are
provided
with
vehicles
for
personal
use,
since
this
is
then
considered
to
be
part
of
their
compensation
and
shown
on
their
T4
slip
in
the
amount
approved
by
the
Income
Tax
Department.
He
would
pay
for
his
own
gas
when
his
car
was
used
for
personal
purposes.
He
stated
that
at
one
time
in
accordance
with
the
policy
of
the
parent
company
in
England
the
logo
of
the
company
appeared
on
the
side
of
the
vans
provided
for
salesmen,
but
that
some
years
ago
this
policy
was
abandoned
as
they
felt
that
the
advertising
value
was
not
great
in
any
event
and
that
the
salesmen
would
appear
to
be
a
more
professional
group
if
they
were
driving
ordinary
station
wagons
which
served
the
purpose
just
as
well
without
any
identification
to
indicate
that
the
wagons
belonged
to
the
company.
The
legal
argument
hinges
on
the
interpretation
to
be
given
to
paragraphs
6(1
)(e)
and
6(2)(a)
and
whether
they
are
properly
applied
as
the
Minister
did
in
this
case,
whether
they
should
be
applied
as
the
decision
of
the
Tax
Review
Board
did
on
the
basis
that
the
car
was
only
available
to
defendant
on
weekends,
annual
holidays
and
on
statutory
holidays,
or
whether
as
defendant
contends
paragraph
6(1)(e)
should
not
have
been
applied
at
all
but
that
the
benefit,
(since
he
concedes
that
there
was
some
benefit)
should
have
been
calculated
pursuant
to
paragraph
6(1)(a),
as
would
have
been
done
under
the
old
Act.
While
the
reassessment
by
the
Minister
in
the
present
case
was
made
on
March
11,
1974,
it
appears
to
be
in
accordance
with
the
policy
later
set
out
in
Interpretation
Bulletin
IT-63R
dated
September
30,
1974,
which
reads
in
part
as
follows:
1.
This
bulletin
deals
with
the
amount
to
be
included
in
an
employee’s
income
for
the
availability
or
use
of
his
employer’s
automobile.
Where
the
employee
actually
uses
the
automobile,
paragraph
6(1
)(a)
requires
the
inclusion
in
his
income
of
the
value
of
the
benefit.
Where
an
employer
makes
an
automobile
available
for
an
employee’s
use,
whether
or
not
he
uses
it,
paragraph
6(1)(e)
requires
the
employee
to
include
in
his
income
a
charge
for
having
the
automobile
on
standby.
Since
paragraph
6(1)(a)
is
still
the
main
charging
section,
the
standby
charge
is
only
included
in
an
employee’s
income
to
the
extent
that
it
exceeds
the
aggregate
of
any
amounts
already
included
in
his
income
by
virtue
of
paragraph
6(1)(a)
and
any
amounts
he
paid
to
his
employer
for
the
use
of
the
automobile.
3.
An
employer
is
considered
to
make
an
automobile
available
for
an
employee’s
personal
use
when
he
gives
the
employee
the
custody
and
control
of
the
automobile
and
he
does
not
impose
strictly
enforced
rules
prohibiting
its
use
by
the
employee
for
his
own
personal
purposes
.
.
.
5.
Normally
the
value
of
a
benefit
under
paragraph
6(1)(a)
arising
from
an
employee’s
personal
use
of
the
employer’s
automobile
is
that
proportion
of
the
total
operating
cost
of
the
automobile
that
his
personal
use
bears
to
its
total
use
for
the
year.
For
this
purpose
“operating
cost”
includes
such
things
as
licences,
insurance,
repairs,
gasoline,
oil,
servicing
charges
..
.
and
capital
cost
allowance
for
an
automobile
owned
by
the
employer
..
.
6.
A
payment
by
an
employee
to
his
employer
for
his
personal
use
of
the
automobile
reduces
the
benefit
added
to
income
under
paragraph
6(1)(a).
7.
For
the
purposes
of
paragraph
6(1)(e),
subsection
6(2)
sets
out
the
rules
for
determining
the
reasonable
standby
charge
for
an
automobile
for
the
aggregate
number
of
days
the
employer
makes
it
available
for
the
personal
use
of
an
employee
during
the
period
in
the
year
that
the
employer
owned
or
leased
it
.
.
.
8.
Paragraph
6(1)(e)
brings
into
the
employee’s
income
the
amount
by
which
the
standby
charge
exceeds
the
total
of
the
amounts
brought
into
income
for
his
use
of
the
automobile
under
paragraph
6(1)(a)
and
the
amounts
he
has
paid
the
employer
for
its
use
.
.
.
Actually
no
calculation
was
made
under
paragraph
6(1)(a),
but
as
the
amounts
added
to
income
under
that
subsection
would
be
deducted
as
a
credit
on
the
amounts
paid
under
paragraph
6(1
)(e),
the
result
is
the
same,
for,
as
defendant
points
out
although
no
actual
calculation
for
the
application
of
paragraph
6(1
)(a)
was
submitted
in
evidence
it
would
appear
that
it
would
be
less
than
the
amount
arrived
at
by
the
application
of
paragraph
6(1)(e)
and
even
with
the
further
deduction
of
the
$15
paid
by
defendant
to
his
employer
for
the
use
of
the
car
in
1972
by
virtue
of
subparagraph
6(1
)(e)(i)
the
total
deductions
would
still
be
less
than
the
amounts
added
to
tax
by
the
application
by
the
Minister
of
paragraph
6(1)(e).
It
goes
without
saying
that
the
Interpretation
Bulletin
is
in
no
way
binding
on
the
Court.
The
question
to
be
decided
is
whether
paragraphs
6(1)(e)
and
6(2)(a)
were
properly
used
by
the
Minister
in
this
case
or
can
properly
be
used
in
similar
cases.
The
Minister
relies
on
the
use
of
the
word
“available”
in
paragraph
6(1)(e),
noting
that
the
word
is
unqualified
by
any
limitation
such
as
“conveniently
available”,
“available
at
all
times’’,
or
any
similar
words.
The
contention
is
that
since
there
were
no
restrictions
imposed
by
the
employer
on
the
car’s
personal
use
by
defendant
it
was
so
available
to
him
at
all
times
during
the
year,
since
even
on
the
days
when
it
was
in
business
use
or
when
defendant
was
away
from
home
with
it
it
was
still
available
for
his
personal
use
outside
of
business
hours,
and
since
a
day
consists
of
24
hours
it
must
be
considered
as
having
been
available
at
least
part
of
every
day
in
the
year
for
personal
use.
Applying
the
fraction
in
paragraph
6(2)(a)
he
reaches
a
figure
of
12%
and
since
the
figure
of
$4,054.96
as
the
capital
cost
of
the
car
is
not
disputed
by
defendant
12%
of
this
works
out
to
$486
the
amount
of
the
assessment.
The
decision
of
the
Tax
Review
Board
takes
the
position
that
since
a
day
consists
of
24
hours
the
car
is
not
available
for
personal
use
on
any
day
which
it
is
not
so
available
for
24
hours
and
hence
working
days
should
be
excluded
even
if
the
car
might
be
available
for
personal
use
in
the
evening.
On
this
basis
the
Board
concluded
that
it
was
available
for
personal
use
on
104
days
on
Saturdays
and
Sundays
to
which
it
adds
another
16
days
for
statutory
holidays
and
annual
leave
fixing
the
availability
at
120
days
which
when
divided
by
30
gives
a
figure
of
4%.
Applying
this
to
the
figure
of
$4,054.96
results
in
the
amount
of
$162.20.
Defendant’s
counsel
in
arguing
that
the
provisions
of
paragraph
6(1)(e)
and
the
interpreting
paragraph
6(2)(a)
should
not
be
applied
at
all
in
the
case
of
someone
in
the
position
of
defendant
contends
that
the
emphasis
should
not
be
on
the
word
“available”
but
on
the
whole
clause
“available
.
.
.
for
his
personal
use”.
The
car
in
question
was
certainly
made
available
to
defendant
primarily
for
business
use,
any
personal
use
permitted
being
Strictly
incidental
thereto.
It
is
his
contention
that
this
subparagraph
should
only
be
applied
to
the
business
executive
who
is
provided
with
a
company
car
for
his
personal
use,
although
he
is
also
expected
to
use
it
in
connection
with
his
business,
but
that
for
someone
in
the
position
of
defendant
it
is
paragraph
6(1)(a)
which
should
be
applied
and
he
should
be
deemed
to
be
receiving
a
benefit
as
a
result
of
being
allowed
to
use
the
car
for
personal
use
when
it
is
not
being
used
for
business
purposes.
In
this
event,
while
other
expenses
in
addition
to
the
capital
cost
of
the
car
are
taken
into
consideration,
including
insurance,
maintenance,
gas
and
oil
and
so
forth,
the
portion
of
these
total
expenses
deemed
to
be
a
benefit
for
an
employee
according
to
defendant
would
be
determined
on
the
basis
of
the
mileage
in
which
the
vehicle
was
used
for
personal
use
as
against
the
total
mileage
of
the
car
in
the
year
in
question.
In
the
present
case
this
would
work
out
to
a
very
low
percentage
of
something
under
5%.
In
support
of
this
argument
defendant
points
out
that
paragraph
6(1)(e)
really
starts
out
by
dealing
with
an
automobile
available
for
personal
use,
and
only
brings
in
possible
business
use
by
the
phrase
in
parenthesis
“whether
for
his
exclusive
personal
use
or
otherwise”.
Defendant
contests
the
suggestion
that
the
word
“otherwise”
means
business
use,
contending
that
it
really
qualifies
the
word
“exclusive”
and
really
applies
to
a
case
where
other
people
are
using
it
than
the
taxpayer
himself,
such
as
members
of
his
family
or
perhaps
other
employees
of
the
company.
Certainly
the
word
“otherwise”
is
a
vague
and
unsatisfactory
term
to
use
in
a
taxing
statute.
In
the
case
of
Edmonton
National
System
of
Baking
Limited
v
MNR
[1947]
CTC
169;
3
DTC
1009,
Angers,
J
commented
unfavourably
on
the
use
of
the
words
“or
otherwise”
in
a
statute
stating
at
188:
Does
it
come
within
the
scope
of
the
very
general
and
indefinite
words
“or
otherwise”
too
often
used
in
statutes
by
legislators
who
have
not
a
clear
and
precise
notion
of
the
subject?
I
fully
agree
with
this
statement.
The
French
version
of
the
Statute
supports
this
argument
the
words
“whether
for
his
exclusive
personal
use
or
otherwise”
being
translated
as
“pour
son
usage
personnel
(a
titre
exclusif
ou
autre)”.
Defendant
goes
further
with
this
reasoning
and
states
that
in
subsection
15(5)
of
the
Act
dealing
with
the
situation
where
an
automobile
is
made
available
to
a
shareholder
the
English
version
is
identical
in
wording
to
the
English
version
of
paragraph
6(1)(e)
but
the
French
translation
now
reads
“pour
son
usage
personnel
(qu’il
s’agisse
ou
non
d’un
usage
personnel
exclusif)”.
Since
a
shareholder
can
never
have
any
business
use
for
the
car
in
his
capacity
as
a
shareholder,
any
such
use
for
company
business
being
as
a
director
or
officer,
it
is
clear
that
this
subsection
which
deals
only
with
shareholders
as
such
cannot
foresee
a
business
use
of
the
car
and
supports
defendant’s
contention
that
the
word
“otherwise”
cannot
mean
business
use.
During
the
course
of
argument
plaintiff’s
counsel
was
prepared
to
concede
to
the
validity
of
this
reasoning,
but
still
contended
that
since
the
car
was
available
for
personal
use
by
defendant
365
days
a
year
paragraphs
6(1)(e)
and
6(2)(a)
should
apply.
If
this
is
so
and
it
is
conceded
that
paragraph
6(1
)(e)
which
nowhere
uses
the
word
“business”
does
not
foresee
business
use
of
the
car
but
merely
deals
with
personal
use
then
it
must
be
said
that
it
is
a
particularly
poorly
drawn
paragraph
and
would
seem
to
have
no
application
to
situations
dealing
with
business
use
of
the
car.
It
must
be
repeated
that
the
word
“personal”
is
what
is
emphasized
in
the
paragraph,
which
would
seem
to
have
no
application
except
to
a
situation
where
the
car
was
provided
for
the
employee
for
such
use
only
during
the
course
of
the
year,
and
not
for
the
entire
year,
in
which
event
it
would
have
some
meaning
to
charge
the
employee
only
with
the
portion
of
the
year
during
which
it
was
available
to
him
for
such
personal
use.
Plaintiff’s
counsel
stated
that
the
purpose
of
paragraph
6(1)(e)
was
to
enable
a
simple
calculation
to
be
made
in
all
cases
where
an
employer
made
an
automobile
available
to
an
employee
whether
exclusively
or
not
for
personal
use
and
avoid
the
more
difficult
calculation
under
paragraph
6(1)(a)
which
was
the
sort
of
calculation
which
had
to
be
made
under
the
corresponding
paragraph
5(1)(a)
of
the
former
Act.
Instead
of
basing
the
charge
on
the
actual
use
of
the
car,
and
the
proportion
of
all
the
expenses
in
connection
therewith,
which
required
also
a
determination
of
the
percentage
of
personal
use
as
compared
with
business
use,
paragraphs
6(1)(e)
and
6(2)(a)
base
the
charge
solely
on
availability
of
the
car
whether
it
is
used
or
not
and
apply
the
percentage
formula
so
calculated
solely
to
capital
cost
of
the
car.
It
is
true
of
course
that
credit
is
given
against
the
resulting
figure
for
any
amount
actually
paid
by
the
employee
for
such
use
and
for
any
amount
included
under
paragraph
6(1)(a)
in
computing
the
taxpayer’s
in-
come
(which
figure
the
assessor
did
not
even
calculate
in
the
present
case).
The
purpose
presumably
is
to
establish
as
a
minimum
figure
what
is
deemed
to
be
‘‘a
reasonable
stand-by
charge”
in
the
event
that
the
arrangement
made
with
the
employer
as
to
the
amount
to
be
paid
by
the
taxpayer
for
the
actual
use
of
the
car
for
personal
purposes
is
so
low,
or
the
employee’s
personal
use
of
the
car
is
so
slight,
that
the
two
when
added
together
are
still
less
than
what
is
deemed
to
be
“a
reasonable
stand-by
charge”.
If
a
calculation
has
to
be
made
under
subparagraph
6(1)(e)(ii)
however
of
the
amount
which
would
have
been
included
in
the
employee’s
income
under
paragraph
6(1)(a),
then
the
whole
argument
that
paragraph
6(1)(e)
is
intended
to
simplify
the
assessment
fails
unless
no
personal
use
of
the
car
whatsoever
was
made
during
the
year
in
which
case
no
calculation
would
have
to
be
made
under
subparagraph
6(1
)(e)(ii).
In
all
other
cases
a
computation
under
paragraph
6(1
)(a)
would
have
to
be
made
and
it
would
be
simpler
and
far
more
equitable
if
a
calculation
has
to
be
made
in
any
event
to
base
the
assessment
on
the
results
of
this
calculation.
Actually,
as
pointed
out,
the
Interpretation
Bulletin
issued
subsequently
foresees
the
necessity
of
this
computation.
If
paragraph
6(1
)(e)
is
only
to
be
applied
in
cases
where
although
the
car
is
available
for
personal
use
no
such
personal
use
is
made,
then
it
must
have
a
very
limited
use.
Moreover
the
interpretation
sought
by
plaintiff
inevitably
leads
to
extraordinary
inequities.
Basing
the
calculation
on
availability
alone
whether
the
car
is
used
or
not
for
personal
purposes
would
mean
that
an
executive
who
is
provided
with
a
company
car
to
use
as
he
chooses
(and
this
is
by
no
means
uncommon
since,
especially
in
the
case
of
small
one
man
companies,
the
personal
car
of
the
owner
is
very
frequently
registered
in
the
company’s
name
and
the
expenses
charged
to
the
company)
would
only
pay
12%
of
the
capital
cost
of
the
car
unless
he
is
assessed
on
the
actual
use
under
paragraph
6(1
)(a),
whereas
an
employee,
such
as
defendant
in
the
present
case,
who
makes
very
limited
or
no
use
of
the
car
for
personal
purposes
would
be
assessed
exactly
the
same
amount
by
the
application
of
paragraphs
6(1)(e)
and
6(2)(a)
if
the
argument
is
accepted
that
it
is
available
to
him
at
all
times
unless
there
is
a
control
or
restriction
on
his
personal
use,
even
if
such
availability
in
practice
is
of
necessity
limited
to
weekends,
holidays,
and
possibly
some
slight
evening
use,
since
it
is
being
fully
used
for
business
purposes
at
all
other
times.
In
fact,
based
on
the
sum
of
5¢
a
mile
charged
to
defendant
in
the
present
case,
after
the
first
1000
miles
which
he
received
free,
we
would
have
a
situation
where,
if
he
had
used
the
car
for
personal
use
for
11,000
miles
in
the
year
1972
he
would
have
been
charged
for
10,000
miles
of
such
use
or
$500
and
would
have
been
subject
to
no
assessment
under
paragraphs
6(1
)(e)
and
6(2)(a),
the
$500
he
would
pay
being
greater
than
the
$486
standby
charge
calculated
on
the
basis
of
alleged
availability
of
the
car
at
all
times
for
personal
use,
whereas
because
he
used
it
for
only
1230
miles
he
would
be
subject
to
the
$486
assessment
less
the
$15
he
actually
paid
for
use
of
the
car
if
these
paragraphs
are
applied
to
him.
In
other
words
the
greater
the
personal
use
the
less
the
assessment
he
would
have
to
pay,
which
is
surely
an
anomaly
which
could
not
have
been
intended.
Plaintiff
relies
on
the
judgment
of
Lord
Donovan
in
the
well
known
case
of
Mangin
v
IRC,
[1971]
AC
739,
where
he
stated
at
746:
First,
the
words
are
to
be
given
their
ordinary
meaning.
They
are
not
to
be
given
some
other
meaning
simply
because
their
object
is
to
frustrate
legitimate
tax
avoidance
devices
.
.
.,
moral
precepts
are
not
applicable
to
the
interpretation
of
revenue
statutes.
Secondly,
.
.
.
one
has
to
look
merely
at
what
is
clearly
said.
There
is
no
room
for
any
intendment.
There
is
no
equity
about
a
tax.
There
is
no
presumption
as
to
tax.
Nothing
is
to
be
read
in,
nothing
is
to
be
implied.
One
can
only
look
fairly
at
the
language
used,
per
Rowlatt
J
in
Cape
Brandy
Syndicate
v
I
R
Comrs.
Thirdly,
the
object
of
the
construction
of
a
statute
being
to
ascertain
the
will
of
the
legislature
it
may
be
presumed
that
neither
injustice
nor
absurdity
was
intended.
If
therefore
a
literal
interpretation
would
produce
such
a
result,
and
the
language
admits
of
an
interpretation
which
would
avoid
it,
then
such
an
interpretation
may
be
adopted.
Fourthly,
the
history
of
an
enactment
and
the
reasons
which
led
to
its
being
passed
may
be
used
as
an
aid
to
construction.
Preference
was
also
made
to
the
judgment
of
Lord
Atkinson
in
Ormond
Investment
Company
v
Betts,
[1928]
AC
143
at
162:
.
.
.
the
words
of
the
statute
must
be
adhered
to,
and
that
so
called
equitable
constructions
of
them
are
not
permissible.
These
and
many
other
cases
have
established
that
equity
has
no
place
in
the
interpretation
of
tax
statutes.
On
the
other
hand
there
is
a
long
line
of
cases
establishing
that
the
imposition
of
a
tax
must
be
clearly
set
out
in
the
statute
and
that
any
ambiguity
or
uncertainty
must
be
interpreted
against
the
taxing
authority.
For
example
in
Ormond
Investment
Company
v
Betts
(supra)
Lord
Buckmaster
in
dealing
with
the
construction
of
a
tax
statute
stated
at
151:
I
have
not
overlooked
the
cardinal
principle
relating
to
Acts
that
impose
taxation
on
the
subject,
a
principle
well
known
to
the
common
law
and
that
has
not
been
and
ought
not
to
be
weakened—namely,
that
the
imposition
of
a
tax
must
be
in
plain
terms.
In
the
words
of
Lord
Blackburn
in
Coltness
Iron
Co
v
Black
(1881)
6
App
Cas
315,330:
“No
tax
can
be
imposed
on
the
subject
without
words
in
an
Act
of
Parliament
clearly
showing
an
intention
to
lay
a
burden
on
him”.
It
is
in
that
respect
kindred
to
the
creation
of
a
penalty
or
the
establishment
of
a
crime.
The
subject
ought
not
to
be
involved
in
these
liabilities
by
an
elaborate
process
of
hairsplitting
arguments”.
In
Canada
in
the
Supreme
Court
case
of
The
Canadian
Northern
Railway
Co
v
The
King,
64
SCR
264
Brodeur,
J
stated
at
275:
A
law
imposing
taxation
shall
always
be
construed
strictly
against
the
taxing
authorities,
since
it
restricts
the
public
in
the
enjoyment
of
its
property.
This
judgment
was
confirmed
in
the
Privy
Council
[1923]
3
DLR
719.
I
conclude
that
in
the
present
case
the
car
was
not
“an
automobile
available
to
him
in
the
year
for
his
personal
use”
in
the
case
of
the
present
taxpayer.
The
wording
of
the
article
is
ambiguous
and
might
perhaps
be
properly
applied
to
an
executive
whose
company
makes
a
car
available
to
him
primarily
for
personal
use,
but
once
it
is
concluded
that
the
word
“otherwise”
(following
the
words
personal
use)
does
not
mean
business
use,
and
I
have
so
concluded,
then
it
is
difficult
to
avoid
the
conclusion
that
this
was
not
an
automobile
made
available
to
the
taxpayer
for
personal
use
but
rather
an
automobile
made
available
to
him
for
business
use,
with
personal
use
being
permitted.
This
would
seem
to
be
a
logical
literal
interpretation
of
the
unfortunate
and
clumsy
wording
of
paragraph
6(1
)(e),
and
since
there
is
at
the
very
least
ambiguity
and
doubt
in
the
interpretation
which
must
be
interpreted
against
the
taxing
authorities
the
action
must
be
decided
against
plaintiff.
Defendant’s
counterclaim
being
maintained
and
defendant’s
1972
tax
assessment
being
referred
back
to
the
Minister
for
reassessment
pursuant
to
the
provisions
of
paragraph
6(1)(a)
of
the
Act.
The
fact
that
is
more
in
accord
with
equity
is
an
added
reason
for
dealing
with
the
matter
in
this
way,
although
the
proceedings
could
not
have
been
decided
on
that
basis
alone.
Since
plaintiff’s
action
has
failed
and
defendant’s
counterclaim
been
maintained
costs
will
be
in
favour
of
defendant
in
any
event,
but
even
if
this
were
not
so,
the
Court
would
by
virtue
of
the
provisions
of
paragraph
178(2)(a)
of
the
Act
direct
that
plaintiff
pay
all
reasonable
and
proper
costs
of
defendant
since
the
amount
in
controversy
does
not
exceed
$2500.