Judson,
J
(all
concur):—The
question
to
be
determined
in
this
appeal
is
whether
the
respondent
Ernest
G
Stickel
qualifies
for
exemption
from
Canadian
income
tax
on
his
teaching
income
earned
in
Canada
beginning
July
1,
1967,
and
ending
June
30,
1969.
The
exemption
is
claimed
under
Article
VIIIA
of
the
Canada-United
States
of
America
Tax
Convention,
which,
by
statute,
has
the
force
of
law
in
Canada.
This
particular
Article
came
into
force
in
1950.
It
reads
as
follows:
A
Professor
or
teacher
who
is
a
resident
of
one
of
the
contracting
states
who
temporarily
visits
the
other
contracting
state
for
the
purpose
of
teaching,
for
a
period
not
exceeding
two
years,
at
a
university,
college,
school
or
other
educational
institution
in
such
other
state,
shall
be
exempted
by
such
other
state
from
tax
on
his
remuneration
for
such
teaching
for
such
period.
The
respondent
was
born
in
the
United
States
and
lived
and
worked
there
for
the
whole
of
his
life
before
entering
Canada
in
July
1967
to
begin
a
two-year
teaching
contract
with
the
University
of
Alberta.
This
teaching
period
ended
June
30,
1969,
but
he
did
not
return
to
reside
in
the
United
States
until
March
9,
1970.
During
this
period
he
held
two
other
non-teaching
jobs.
I
agree
with
the
summary
of
the
evidence
made
by
the
Federal
Court
of
Appeal
in
the
following
paragraph:
In
our
view,
the
balance
of
probability
on
the
evidence
is
that
the
appellant,
who
was
resident
in
the
United
States,
had
given
some
thought
to
the
possibility
of
moving
to
Canada
before
he
obtained
an
opportunity
to
take
a
two-year
term
appointment
at
the
University
of
Alberta,
that
he
discussed
the
project
with
his
family,
who
were
not
enthusiastic
about
the
prospect
of
a
permanent
move
to
Canada,
and
that
they
reached
a
joint
decision
to
go
to
Canada
for
the
two-year
appointment
only
but
on
the
understanding
that
during
that
two-year
period
they
might
reconsider
the
possibility
of
making
their
permanent
home
in
Canada.
On
those
facts,
having
regard
to
the
necessity
of
interpreting
the
words
“temporarily
visits”
as
including
visiting
for
the
purpose
of
teaching
for
a
period
as
long
as
two
years,
we
are
agreed
that
the
appellant
was
a
person
who
temporarily
visited
Canada
for
the
purpose
of
teaching
at
a
university
for
a
period
not
exceeding
two
years.
In
the
Federal
Court
the
judge
of
first
instance
decided
that
the
respondent
failed
to
qualify
for
exemption
under
Article
VIIIA
because
his
visit
to
Canada
exceeded
“a
period
not
exceeding
two
years”.
The
Federal
Court
of
Appeal
held
the
contrary
opinion,
namely,
that
he
did
qualify
as
a
person
who
temporarily
visited
Canada
for
the
purpose
of
teaching
at
a
university
for
a
period
not
exceeding
two
years.
With
this
view
I
agree.
The
judge
of
first
instance
found
it
unnecessary
to
determine
whether
the
respondent
was
at
the
time
he
entered
Canada
a
resident
of
the
United
States.
The
Federal
Court
of
Appeal
found
that
he
was
and
that
he
remained
a
resident
of
his
native
land
notwithstanding
the
fact
that
he
brought
his
family
with
him,
closed
his
house
in
the
United
States
and
dispersed
some
of
his
belongings.
I
am
not
overlooking
the
fact
that
the
respondent
paid
no
tax
in
the
United
States
on
the
income
in
question
here.
There
is
evidence
that
the
United
States
tax
authority
has
treated
him
as
a
non-resident
in
respect
of
this
income.
Although
the
evidence
is
scanty,
I
am
prepared
to
infer
that
this
must
have
been
as
a
result
of
some
representation
made
by
the
respondent
to
the
United
States
tax
authority.
Our
problem
is
whether
he
comes
within
the
treaty
giving
him
exemp-
ion
for
Canadian
tax
on
his
Canadian
income,
and
on
this
issue
I
agree
with
the
Federal
Court
of
Appeal
that
he
does
and
on
both
the
grounds
given
by
that
Court.
I
would
dismiss
the
appeal
with
costs.
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