KERWIN,
J.:—The
sole
point
for
determination
in
this
appeal
is
whether,
during
the
year
1940,
the
appellant
was
"‘residing
or
ordinarily
resident
in
Canada’’
within
the
meaning
of
section
9(a)
of
the
Income
War
Tax
Act
as
it
stood
in
1940,
or
whether
he
was
merely
sojourning
there
within
the
meaning
of
section
9(b).
No
question
is
raised
as
to
the
amount
of
the
assessment.
The
relevant
parts
of
section
9
are
as
follows
:—
"‘9.
There
shall
be
assessed,
levied
and
paid
upon
the
income
during
the
preceding
year
of
every
person
(a)
residing
or
ordinarily
resident
in
Canada
during
such
year;
or
(b)
who
sojourns
in
Canada
for
a
period
or
periods
amounting
to
one
hundred
and
eighty-three
days
during
such
year;”
There
is
no
definition
in
the
Act
of
"‘resident’’
or
"‘ordinarily
resident
but
they
should
receive
the
meaning
ascribed
to
them
by
common
usage.
When
one
is
considering
a
Revenue
Act,
it
is
true
to
state,
I
think,
as
it
is
put
in
the
Standard
Dictionary
that
the
words
‘‘reside’’
and
‘
"
residence
”
are
somewhat
stately
and
not
to
be
used
indiscriminately
for
"‘live,
”
‘‘house,’’
or
""home.”
The
Shorter
Oxford
English
Dictionary
gives
the
meaning
of
‘‘reside’’
as
being
""To
dwell
permanently
or
for
a
considerable
time,
to
have
one’s
settled
or
usual
abode,
to
live,
in
or
at
a
particular
place.
’
’
By
the
same
authority
"
ordinarily
‘
’
means
"‘1.
In
conformity
with
rule;
as
a
matter
of
regular
occurrence.
2.
In
most
cases,
usually,
commonly.
3.
To
the
usual
extent.
4.
As
is
normal
or
usual.’’
On
the
other
hand
the
meaning
of
the
word
""sojourn”
is
given
as
""to
make
a
temporary
stay
in
a
place;
to
remain
or
reside
for
a
time.”
The
House
of
Lords
has
adopted
the
everyday
meaning
as
a
test
in
applying
the
terms
resident
’
’
and
ordinarily
resident
’’
in
the
British
Income
Tax
Act.
Levene
v.
Commissioners
of
Inland
Revenue,
[1928]
A.C.
217
;
The
Commissioners
of
Inland
Revenue
v.
Lysaght,
[1928]
A.C.
284.
Under
the
British
Act
that
is
of
particular
importance
where
a
finding
of
the
Commissioners
on
a
question
of
pure
fact
cannot
be
reviewed
by
the
Courts
except
on
the
ground
that
there
was
no
evidence
on
which
they
could
have
arrived
at
their
conclusion.
Under
our
Act,
no
such
question
arises
but
the
remarks
of
the
peers
who
took
part
in
the
two
Judgments
mentioned
are
of
assistance.
Rule
3
of
the
General
Rules
applicable
to
all
the
Schedules
of
that
Income
Tax
Act
may
have
had
an
effect
in
the
result
arrived
at
in
some
of
the
cases.
In
the
Levene
case,
Viscount
Cave,
at
page
224,
points
out
that
if
a
man
sought
to
be
taxed
is
a
British
subject
regard
must
be
had
to
that
rule
‘‘which
provides
that
every
British
subject
whose
ordinary
residence
has
been
in
the
United
Kingdom
shall
be
assessed
and
charged
to
tax
notwithstanding
that
at
the
time
the
assessment
or
charge
is
made
he
may
have
left
the
United
Kingdom,
if
he
has
so
left
the
United
Kingdom
for
the
purpose
only
of
occasional
residence
abroad;”
and
as
a
matter
of
fact,
at
the
foot
of
the
same
page
the
Lord
Chancellor,
after
agreeing
that
it
was
plainly
open
to
the
Commissioners
to
find
that
Mr.
Levene
was
resident
in
the
United
Kingdom,
stated
that
it
was
probable
that
Rule
3
applied
to
him.
Viscount
Sumner
refers,
at
page
227,
to
the
soundness
of
the
Commissioner’s
conclusion
on
Rule
3.
On
the
other
hand,
the
decision
of
the
First
Division
of
the
Court
of
Exchequer
(Scotland)
in
Cooper
v.
Cadwaladar
(1904),
5
Tax
Cas.
101,
was
referred
to
with
apparent
approval
by
Viscount
Cave
at
page
223
of
the
Levene
case
and
by
Viscount
Sumner
at
page
244
of
the
Lysaght
case.
There,
the
person
held
liable
to
tax
was
a
citizen
of
the
United
States,
where
he
resided
and
practiced
his
profession,
but
rented
a
house
and
shooting
rights
in
Scotland
where
he
spent
about
two
months
in
each
year.
I
refer
to
this
decision
because
I
find
it
difficult
to
imagine
that
it
would
be
held
in
Canada
that
a
citizen
of
the
United
States,
residing
in
that
country,
but
owning
a
summer
house
in
Canada
which
he
occupied
for
four
or
five
months
in
each
year,
was,
by
reason
of
the
latter
facts,
a
resident
of
this
country
within
the
meaning
of
our
Act.
However,
that
is
not
the
case
before
us.
No
quarrel
is
found
with
the
statement
of
facts
contained
in
the
reasons
for
judgment
of
the
President
of
the
Exchequer
Court
and
I
do
not,
therefore,
repeat
all
of
them.
The
appellant
was
born
in
St.
John,
New
Brunswick,
and
is
still
a
citizen
of
Canada.
Notwithstanding
the
absence
of
a
provision
corresponding
to
Rule
3
of
the
General
Rules
referred
to
above,
that
is
a
fact
to
be
considered.
I
agree
with
the
President
that
the
appellant’s
motions
in
going
to
Bermuda,
making
an
affidavit
as
to
his
intention,
renting
a
house
which
he
never
used,
and
obtaining
a
passport,
were
a
pure
farce;
that
the
appellant
never
became
a
resident
of
Bermuda;
but
that,
whether
that
be
so
or
not,
he
was
certainly
not
a
resident
of
Bermuda
in
the
year
1940.
The
appellant
had
not
been
there
since
1933
and
his
entry
to
Canada
as
a
tourist
from
Bermuda
was
fictitious.
The
residence
he
built
at
Pinehurst
in
North
Carolina,
presumably
with
his
other
activities
in
the
United
States,
convinced
the
tax
authorities
of
that
country
that
he
was
a
resident
there
for
the
purposes
of
its
Income
Tax
Act.
Assuming
that
to
be
a
fact,
a
man
may
be
a
resident
of
more
than
one
country
for
revenue
purposes.
The
frequency
with
which
he
comes
to
Canada
and
what
the
President
described
as
the
routine
of
his
life
are
important
matters
in
coming
to
a
conclusion,
and
I
agree
with
that
arrived
at
by
the
President.
The
appellant
seeks
to
make
himself
a
sojourner
as
he
care
fully
remained
in
Canada
for
a
period
or
periods
amounting
to
less
than
183
days
during
each
year.
This
attempt
fails.
The
family
ties
of
his
wife,
if
not
of
himself,
the
erection
of
a
substantial
house,
the
retention
of
the
servants,
together
with
all
the
surrounding
circumstances,
make
it
clear
to
me
that
his
occupancy
of
the
house
and
his
activities
in
Canada
comprised
more
than
a
mere
temporary
stay
therein.
The
appellant
developed
an
argument
based
upon
the
words
"during
such
year’’
at
the
end
of
paragraph
(a).
These
words
were
added
by
the
commissioners
charged
with
the
duty
of
the
1927
revision
of
the
statutes
and
were
continued
until
the
amendment
of
1942.
That
amendment
is
in
the
following
terms
:—
"‘9.
(1)
There
shall
be
assessed,
levied
and
paid
upon
the
income
during
the
preceding
year
of
every
person,
other
than
a
corporation
or
joint
stock
company,
(a)
residing
or
ordinarily
resident
in
Canada
at
any
time
in
such
year;
or
(b)
who
sojourns
in
Canada
in
such
year
for
a
period
or
periods
amounting
to
one
hundred
and
eighty-three
days
;
‘
‘
Attention
was
called
to
the
change
from
"‘during’’
to
"‘at
any
time
in.’’
This
amendment
does
not,
of
course,
govern
since
it
is
the
year
1940
in
respect
of
which
the
appellant
is
assessed
but
it
is
argued
that
the
amendment
shows
that
a
change
was
intended
to
be
made.
That
this
is
not
the
case
appears
by
subsections
2
and
3
of
section
21
of
the
Interpretation
Act,
R.S.C.
1927,
chapter
1
:—
‘2.
The
amendment
of
any
Act
shall
not
be
deemed
to
be
or
to
involve
a
declaration
that
the
law
under
such
Act
was,
or
was
considered
by
Parliament
to
have
been,
different
from
the
law
as
it
has
become
under
such
Act
as
so
amended.
3.
The
repeal
or
amendment
of
any
Act
shall
not
be
deemed
to
be
or
to
involve
any
declaration
whatsoever
as
to
the
previous
state
of
the
law.’’
Reliance
was
placed
upon
the
decisions
in
Rex
v.
Anderson,
9
Q.B.
663,
and
Bowes
v.
Shand
(1877),
46
L.J.Q.B.
561,
but
these
decisions
were
concerned
with
entirely
different
matters
and
do
not
affect
what
is
to
be
determined
here.
‘‘During
such
year’’
cannot
certainly
mean
throughout
the
whole
year
as
the
same
phrase
is
used
in
(b).
In
each
case
it
referes
back
to
‘‘the
preceding
year”
in
the
body
of
section
9;
that
is,
the
year
for
which
the
assessment
on
income
is
to
be
made
is
the
same
as
that
in
which
the
residing
or
sojourning
occurs.
The
appeal
should
be
dismissed
with
costs.
TASCHEREAU
J.:—This
is
an
appeal
from
a
judgment
rendered
by
the
Honourable
Mr.
Justice
Thorson,
President
of
the
Exchequer
Court
of
Canada.
It
raises
the
important
and
difficult
question
of
determining
the
true
meaning
of
the
words
“residing
or
ordinarily
resident
in
Canada,”
that
are
found
in
the
Income
War
Tax
Act.
The
facts
that
brought
about
this
litigation
are
the
following
:—
The
appellant
Percy
Walker
Thomson
was
born
in
Saint
John,
N.B.
and
lived
there
until
he
retired
from
business.
He
then
became
a
resident
of
Rothesay,
in
the
County
of
Kings
a
short
distance
from
Saint
John
where
he
lived
in
1923.
During
that
year,
he
had
a
dispute
with
the
tax
assessors,
and
decided
to
leave
Canada
and
establish
his
home
in
a
different
country.
The
evidence
reveals
that
since
moving
from
Canada,
he
spent
most
of
his
time
in
the
United
States,
living
in
Pinehurst,
originally
in
rented
houses
and
later
in
a
house
that
he
built
himself,
at
a
cost
of
nearly
$100,000.
From
1925
to
1931,
he
paid
very
few
visits
to
Canada,
but
from
1932
to
1941
inclusive,
he
spent
the
summers
in
Canada,
first
in
St.
Andrews,
and
from
1935,
in
a
house
that
he
built
at
Riverside,
N.B.
It
was
while
he
was
occupying
that
house
in
1941
that
the
Income
Tax
Department
at
Saint
John,
N.B.
requested
him
to
file
a
return
for
the
year
1940.
The
appellant
denied
his
liability,
stating
that
as
he
understood
the
Canadian
law,
he
was
not
compelled
to
file
any
income
tax
statement
here,
because
he
was
visiting
Canada
only
as
a
tourist.
The
Income
Tax
Department
decided
then
to
issue
an
arbitrary
assessment
against
him
for
the
year
1940,
based
on
a
yearly
income
of
$50,000;
with
this
letter
was
an
official
bill
imposing
a
tax
of
$21,122
with
interest
amounting
to
$480.31,
making
a
grand
total
of
$21,602.31
the
whole
payable
as
of
October
13th,
1941.
The
appellant
gave
notice
of
appeal
pursuant
to
section
58
of
the
Income
War
Tax
Act,
and
on
April
6th,
1942,
the
Minister
of
National
Revenue
issued
his
decision,
affirming
the
said
assessment,
on
the
ground
that
the
facts
disclosed
that
the
appellant
was
‘‘residing
or
ordinarily
resident^
in
Canada
during
the
year
1940,
and
hence
was
subject
to
income
tax
as
provided
by
paragraph
8
of
section
9
of
the
Income
War
Tax
Act.
The
appellant
appealed
to
the
Exchequer
Court
of
Canada
but
his
appeal
was
dismissed
with
costs.
Section
9
reads
in
part
as
follows
:—
"‘There
shall
be
assessed,
levied
and
paid
upon
the
income
during
the
preceding
year
of
every
person
(a)
residing
or
ordinarily
resident
in
Canada
during
such
year;
or
(b)
who
sojourns
in
Canada
for
a
period
or
periods
amounting
to
one
hundred
and
eighty-three
days
during
such
year.
‘
‘
The
learned
President
reached
the
conclusion
that
the
appellant
had
spent
the
following
number
of
days
in
St.
Andrews,
N.B.
since
1935:
1935—156
days,
1936—138
days,
1937—169
days,
1938—145
days,
1939—166
days,
1940—159
days,
1941—
115
days.
He
also
stated
that
the
question
of
whether
a
person
is
ordinarily
resident
in
one
country
or
in
another,
cannot
be
determined
solely
by
the
number
of
days
that
he
spends
in
each,
but
that
he
may
be
ordinarily
resident
in
both,
if
his
stay
in
each
is
substantial
and
habitual
and
in
the
normal
and
ordinary
course
of
his
routine
of
life.
According
to
his
views
the
terms
1
residing
‘
‘
and
‘
"
ordinarily
resident”
found
in
the
Income
War
Tax
Act
have
no
technical
or
special
meaning,
and
the
question
whether
in
any
year,
a
person
was
residing
or
ordinarily
resident
in
Canada
within
the
meaning
of
the
section,
is
a
question
of
fact.
He
finally
came
to
the
conclusion
that
in
1940
the
appellant
was
"‘residing
or
ordinarily
resident’’
in
Canada.
On
this
point
he
says
:—
"There
is
no
substance
in
the
appellant’s
contention
that
when
he
was
at
East
Riverside
he
was
merely
sojourning
there.
There
was
nothing
of
a
transient
character
about
his
stay
there.
He
lived
there
regularly
with
his
wife
and
family
and
his
staff
of
servants.
The
house
at
East
Riverside
was
a
permanent
one.
He
kept
a
housekeeper
and
his
wife
there
throughout
the
year
and
his
house
was
always
available
to
him
as
his
place
of
abode.
The
fact
that
he
chose
to
stay
there
only
while
the
weather
made
it
pleasant
to
play
golf
is
quite
immaterial
and
does
not
affect
the
question.
His
liability
to
income
tax
assessment
based
upon
residence
cannot
be
determined
by
the
fact
that
when
it
was
too
cold
to
play
golf
at
East
Riverside,
he
chose
to
go
to
Pinehurst
to
play
golf
there.
Nor
is
the
question
of
residence
determined
by
the
number
of
days
spent
at
East
Riverside.
The
regular
and
usual
relationship
implied
in
the
term
‘residing’
is
present
in
this
case.
He
stayed
at
East
Riverside
during
a
substantial
part
of
each
year,
and
his
stay
was
habitual.
Moreover
he
resided
at
East
Riverside
in
the
ordinary
course
of
his
life.
There
was
nothing
of
an
unusual
or
casual
character
about
it.
He
lived
and
played
there
as
long
as
it
suited
his
pleasure
to
do
so.
His
residence
at
Hast
Riverside
was
in
the
course
of
the
regular,
normal
and
usual
routine
of
his
life.
In
my
opinion
the
facts
are
conclusive
that
in
1940
the
appellant
was
both
residing
and
ordinarily
resident
in
Canada
within
the
meaning
of
Section
9(a)
of
the
Act
and
I
so
find.
Section
9(b)
has
nothing
to
do
with
the
matter.’’
Many
cases
have
been
cited
by
the
respondent,
but
in
examining
these
cases
which
are
all
British
cases,
it
is
very
important
to
find
out
if
the
law
applicable
is
the
same
as
the
one
which
governs
us,
and
if
the
words
that
have
been
the
subject
of
interpretation
by
the
British
Courts
have
the
same
meaning
as
those
used
in
our
Statute.
The
first
distinction
that
must
be
taken
note
of,
is
that
in
England,
the
finding
of
the
Commissioners
on
a
question
of
fact
is
final;
arid
not
subject
to
review
by
the
higher
courts,
the
jurisdiction
of
which
is
limited
to
questions
of
law.
It
was
held
by
the
House
of
Lords,
that
the
question,
whether
a
person
was
a
resident
of
England
or
not,
was
a
question
of
fact
for
the
sole
determination
of
the
Commissioners.
And
in
many
of
those
cases,
their
Lordships
felt,
that
although
they
would
have
probably
come
to
a
different
conclusion,
had
they
been
the
Commissioners,
they
could
not
possibly
intervene.
The
situation
before
this
Court
is
of
course
entirely
different,
and
it
is
clearly
open
to
us
to
hold
that
certain
facts,
not
contested
by
the
parties,
satisfy
or
not
the
meaning
of
a
particular
word
found
in
the
provisions
of
an
Act
of
Parliament.
Another
distinction
of
paramount
importance
between
the
British
and
the
Canadian
Acts,
is
that
the
words
"‘residing,’’
and
"‘ordinarily
resident,’’
have
not
in
my
judgment,
a
similar
meaning.
In
the
former
case,
they
are
singled
out,
and
have
been
taken
in
their
ordinary
meaning,
while
in
the
Canadian
Statute,
being
grouped
together,
they
have
a
technical
signification,
which
may
not
be
ignored.
As
it
has
already
been
said,
these
words
are
very
flexible
and
elastic.
They
take
colour
in
the
context
in
which
they
are
used,
and
may
have
a
great
variety
of
meanings
according
to
the
subject
matter
and
the
purposes
of
the
Legislature,
and
the
courts
must
consequently
attribute
to
them
a
signification
that
will
give
effect
to
the
legislative
will.
In
Lysaght
v.
Commissioners
of
Inland
Revenue
(
[1928]
Law
Journal,
385),
Lord
Buckmaster
said
at
page
391:
"
‘It
may
be
true
that
the
word
‘resident’
or
‘residence’
in
other
Acts
may
have
special
meaning,
but
in
the
Income
Tax
Act
it
is,
I
think,
used
in
its
common
sense,
etc.”
And
in
Sifton
v.
Sifton,
[1938]
App.
Cas.
656,
Lord
Romer
said
at
page
679
:—
"Their
Lordships’
attention
was
called
during
the
arguments
to
numerous
authorities
in
which
the
court
has
been
called
upon
to
consider
the
meaning
of
the
words
‘reside’
and
‘residence’
and
the
like.
But
these
authorities
give
their
Lordships
no
assistance
in
constructing
the
present
will.
The
meaning
of
such
words
obviously
depend
upon
the
context
in
which
the
words
are
used.
A
condition,
for
instance,
attached
to
the
devise
of
a
house
that
the
devisee
should
reside
in
the
house
for
at
least
six
weeks
in
a
year
can
present
no
difficulty.
In
some
context
the
word
‘resident’
may
clearly
denote
what
is
sometimes
called
‘being
in
residence’
at
a
particular
house.
In
other
contexts
it
may
mean
merely
maintaining
a
house
in
a
fit
state
for
residence.’’
Moreover,
in
the
majority
of
these
cases,
the
taxpayer
was
held
liable,
not
because
his
visits
to
England
were
of
such
a
nature
that
they
were
considered
sufficient
to
qualify
him
as
a
"‘resident,’’
but
for
the
reason
that
he
had
never
ceased
to
be
a
resident
of
England,
and
that
his
occasional
absences
had
never
deprived
him
of
his
status
of
British
resident.
For
instance,
in
the
case
of
Lloyd
v.
Sulley,
2
T.C.
p.
37,
it
was
held
that
the
taxing
provisions
extended
to
a
person
who
is
not
for
a
time
actually
residing
in
the
United
Kingdom,
but
who
has
constructively
his
residence
there,
because
his
ordinary
place
of
abode
and
his
home
is
there,
although
he
is
absent
for
a
time
from
it,
however
long
continued
that
absence
may
be.
It
was
found
that
Lloyd’s
ordinary
residence
was
at
Leghorn,
England,
and
therefore,
he
was
chargeable
under
the
Act.
A
more
striking
example
of
the
application
of
this
principle
may
be
found
in
the
case
of
Levene
v.
Inland
Revenue
Commissioners
(Law
Journal,
[1928]
p.
377).
In
that
case
Viscount
Sumner
said
speaking
of
Mr.
Levene
:—
"‘The
evidence
as
a
whole
disclosed
that
Mr.
Levene
continued
to
go
to
and
fro
during
the
years
in
question,
leaving
at
the
beginning
of
winter
and
coming
back
in
summer,
his
home
thus
remaining
as
before.
He
changed
his
sky
but
not
his
home.
On
this
I
see
no
error
in
law
in
saying
of
each
year
that
his
purpose
in
leaving
the
United
Kingdom
was
occasional
residence
abroad
only.”
But
in
the
case
at
bar,
the
facts
are
entirely
different.
The
appellant
left
Canada
in
1923,
after
having
severed
all
his
business
connections,
and
after
having
made
public
his
intention
of
ceasing
to
be
a
resident
of
Canada.
Since
moving
from
Canada,
he
lived
with
his
family
mostly
in
the
United
States,
as
indicated
by
the
following
figures:
201
days
in
1925;
240
in
1926;
238
in
1927
;
351
in
1928
;
353
in
1929
;
321
in
1930;
319
in
1931
;
199
in
1932;
227
in
1933;
182
in
1934;
209
in
1935;
195
in
1936;
196
in
1937;
220
in
1938;
199
in
1939;
206
in
1940;
250
in
1941.
For
some
years,
he
lived
in
rented
houses
in
Pinehurst,
North
Carolina,
building
a
house
there
in
1930,
and
for
the
years
1930
to
1942,
he
paid
the
United
States
income
taxes,
as
a
resident
of
the
United
States.
From
1925
to
1931
he
spent
the
following
number
of
days
in
Canada
:
102
days
in
1925,
nil
in
1926
;
nil
in
1927
;
2
in
1928
;
12
in
1929
;
44
in
1930
;
2
in
1931.
It
seems
clear
that
since
1925,
he
had
definitely
left
Canada
and
this
fact
was
coupled
with
his
avowed
intentions
of
doing
so
permanently.
In
1928,
when
he
came
back
to
Canada
for
a
period
of
two
days,
it
was
for
the
purpose
of
settling
with
the
proper
authorities
a
balance
of
$180.40
which
he
owed
for
income
tax.
At
that
time,
he
was
told
that
all
his
liability
under
the
Act
up
to
1927,
had
been
discharged,
and
that
he
would
not
become
taxable,
until
his
status
had
changed.
It
was
acknowledged
that
having
left
Canada,
with
a
permanent
purpose,
with
what
has
been
called
the
“animus
manendi’’
in
his
new
settled
abode,
he
had
unquestionably
ceased
to
be
a
resident
of
this
country.
It
is
now
claimed
that
because
from
1932
to
1934,
he
spent
the
summers
at
St.
Andrews,
and
from
1935
to
1941,
at
East
Riverside,
he
falls
within
the
provisions
of
the
Income
Tax
Act,
having
become
a
‘‘resident
or
ordinarily
resident’’
of
Canada.
With
this
view,
I
cannot
agree.
Of
course,
during
that
period
of
time,
Thomson
had
a
dwelling
place
in
Canada,
a
temporary
residence.
But
this
is
far
from
saying
that
he
was
‘‘residing
or
ordinarily
resident
in
Canada.’’
It
is
clear,
I
think,
that
in
the
charging
section
of
the
<Act,
the
words
“ordinarily
resident’’
mean
‘‘in
most
cases,”
“usually,”
“commonly”
and
are
obviously
stronger
than
“temporarily”
which
is
the
qualification
that
may
be
given
to
the
occasional
visits
that
Thomson
made,
when
he
came
to
his
country
house
to
spend
the
summer
in
Canada.
The
context
further
indicates
that
the
words
“ordinarily
resident’’
are
broader
than
the
word
‘‘residing,’’
and
that
the
former
were
used
to
cover
a
field
that
the
latter
did
not
occupy.
The
aim
of
Parliament
was
to
tax,
not
only
the
residents
of
Canada,
those
who
have
here
their
permanent
home,
their
settled
abode,
but
also,
those
who
live
here
most
of
the
time,
even
if
they
are
absent
on
temporary
occasions.
The
first
group
comes
under
the
classification
of
‘‘residents,’’
and
the
second
under
that
of
"
"
ordinarily
residents.
‘
‘
The
fundamental
error
of
the
court
below
has
been,
I
believe,
to
consider
Thomson
as
a
resident
of
Canada,
making
occasional
visits
to
the
United
States,
when
he
should
have
been
classified,
as
a
resident
of
the
United
States,
making
occasional
visits
to
Canada.
The
retaining
of
his
Canadian
citizenship
has
no
bearing
upon
the
matter.
Nationality
is
not
an
ingredient
for
the
purpose
of
the
Act.
Residents
are
taxed,
not
Canadians;
but
residents
within
the
meaning
of
the
Act,
and
not
persons
who
have
left
this
country
since
several
years,
and
who
like
many
citizens
of
the
United
States
and
other
countries,
come
here
as
tourists
to
enjoy
the
climate
of
our
summer
months.
As
Viscount
Sumner
said
in
the
Levene
case:
‘‘They
change
their
sky,
but
not
their
home.’’
The
status
of
‘‘residents
or
ordinarily
residents”
is
not
acquired
by
these
periodical
visits
to
Canada.
I
do
not
think
that
it
has
ever
been
the
intention
of
Parliament
to
say
so,
and
it
would
take
much
clearer
words
than
those
used
in
the
Statute,
to
convince
me
that
the
present
appel-
lant
and
those
who
have
residences
or
lodges
in
Canada,
and
who
elect
to
occupy
them
at
regular
annual
intervals,
are
subject
to
income
tax.
There
are
two
other
cases
with
which
I
would
like
to
deal
before
concluding.
The
first
one
is
the
case
of
Inland
Revenue
Commissioners
v.
Lysaght
(Law
Journal,
[1928]
p.
385),
decided
by
the
House
of
Lords.
I
may
say
that
I
do
not
think
that
this
ease
is
binding.
Lysaght
was
held
liable,
but
their
Lordships
came
to
the
conclusion
that
they
could
not
review
the
finding
of
facts
of
the
Commissioners,
and
some
of
them
expressed
the
view,
that
they
would
not
have
necessarily
reached
the
same
conclusion,
if
their
jurisdiction
had
not
been
limited
to
questions
of
law.
The
case
of
Cooper
v.
Cadwalader
decided
by
the
first
division
of
the
Court
of
Exchequer
(Scotland),
is
the
case
of
an
American
citizen
living
in
the
United
States,
who
owned
shooting
rights
in
Scotland,
where
he
spent
a
fe
months
annually,
and
who
was
held
liable
in
Scotland
for
income
tax.
I
feel
quite
confident
that
no
Canadian
court,
in
similar
circumstances,
would
hold
that
sueh
a
person,
in
view
of
the
provisions
of
our
<Act,
is
a
^resident”
and
therefore
liable.
For
the
above
mentioned
reasons,
I
believe
that
the
appellant
is
not
liable,
and
that
the
appeal
should
be
allowed
with
costs
throughout.
RAND,
J.:—The
appeal
raises
a
question
of
interpretation
of
the
charging
section
of
the
Income
War
Tax
Act.
The
appellant
has
been
assessed
on
income
received
for
the
year
1940
and
his
liability
depends
on
whether
he
is
within
the
following
provisions
of
section
9
:
"‘9.
There
shall
be
assessed,
levied
and
paid
upon
the
income
during
the
preceding
year
of
every
person
(a)
residing
or
ordinarily
resident
in
Canada
during
such
year;
or
(b)
who
sojourns
in
Canada
for
a
period
or
periods
amounting
to
one
hundred
and
eighty-three
days
during
such
year.
‘
‘
He
claims
that
during
1940
he
was
neither
residing
nor
ordinarily
resident
in
Canada,
nor
did
he
sojourn
here
for
the
number
of
days
specified.
The
material
facts
may
be
shortly
stated.
Born
in
Saint
John,
New
Brunswick,
in
1872,
the
appellant
lived
in
that
city
and
later
at
the
Village
of
Rothesay,
a
short
distance
from
it,
until
1923
and
in
that
time
had
become
a
man
of
means.
As
a
result
of
a
dispute
over
assessment
by
.the
village,
he
took
up
arms
against
what
has
become
a
sea
of
taxing
troubles,
sold
his
home,
declared
Bermuda
to
be
his
domicile,
and
proceeded
to
that
island;
and
at
the
end
of
a
week,
armed
with
a
British
passport
obtained
there,
returned
to
the
mainland
to
set
up
residence
in
the
United
States.
This
continued
until
1930
with
his
chief
abode
at
Pinehurst,
North
Carolina.
There
in
that
year
he
built
an
expensive
dwelling
which
ever
since
has
been
kept
in
readiness
for
occupancy.
In
1932,
marking
his
return
to
Canada,
he
rented
a
house
at
St.
Andrews,
New
Brunswick,
where
he
spent
a
summer
season
of
134
days.
This
was
repeated
during
the
next
two
years,
with
134
days
in
1933
and
81
days
in
1934.
In
the
latter
year
he
built
a
house
at
East
Riverside
near
Rothesay
costing,
with
furniture,
close
to
$90,000.
The
reason
given
for
this
was
his
wife
‘s
desire
to
be
near
her
relatives
and
friends
in
New
Brunswick,
but
he
protests
against
harbouring
any
like
sentiment.
Since
then
and
up
to
1942,
between
May
and
October
he
has
spent
there
an
average
of
150
days
each
year.
After
the
season
at
East
Riverside,
his
life
has
centered
around
Pinehurst,
with
a
stay
of
a
month
or
two
at
Belleair,
Florida.
During
that
time,
the
New
Brunswick
house
is
closed
except
the
quarters
of
a
housekeeper
and
wife
which
are
open
the
year
around;
but
it
could
at
any
time
become
a
winter
or
all
year
home
if
desired.
With
him
in
these
mass
movements
are
his
wife
and
only
child,
motor
cars
and
servants,
and
at
all
three
places
he
indulges
himself
as
an
addict
of
golf,
to
which
he
devotes
most
of
his
time
and
a
substantial
part
of
his
money.
His
passport
was
renewed
in
1933
for
a
further
period
of
ten
years
at
a
British
Consulate
in
the
United
States,
and
on
it
his
domicile
was
again
stated
to
be
in
Bermuda.
Apart
from
the
brief
visit
in
1923,
leasing
a
house
for
one
or
two
years
which
he
never
occupied,
a
stay
of
six
days
in
1926
and
eight
in
1938,
that
island
was
stranger
to
him
for
the
twenty
years
after
leaving
Rothesay.
From
1930
to
1941
he
was
taxed
on
income
in
the
United
States
as
a
non-resident;
but
in
1942
he
was
classed
as
a
resident
and
taxed
accordingly.
The
President
of
the’
Exchequer
Court
properly,
I
think,
characterizing
his
motions
in
relation
to
Bermuda
as
"
"
pure
farce,”
found
him
to
be
ordinarily
resident
in
Canada
for
the
year
in
question
and
maintained
the
action;
and
from
that
judgment
this
appeal
is
brought.
The
judgment
treats
as
relevant
a
number
of
authoritative
decisions
on
the
Income
Tax
Act
of
the
United
Kingdom,
including
Cooper
v.
Cadwalader
(1904),
5
T.C.
101,
Levene
v.
Commissioners
of
Inland
Revenue
(1928),
13
T.C.
486,
and
Lysaght
v.
Commissioners
of
Inland
Revenue
(1928),
13
T.C.
511,
as
they
bear
upon
the
interpretation
of
the
words
‘‘residing’’
and
‘‘ordinarily
resident.’’
Mr.
Inches,
in
an
able
argument,
challenges
the
validity
of
that
application
on
the
ground
that
in
the
English
Act
these
expressions,
found
in
schedules,
are
in
all
eases
used
singly
and
in
differing
contexts
and
that
there
was
raised
no
question
of
their
effect
upon
one
another
in
the
collocation
in
which
we
have
them
in
section
9,
and
their
modification
both
by
the
phrase
‘‘during
such
year’’
and
the
word
“sojourns”
in
paragraph
(b).
Before
dealing
with
this
contention,
I
think
it
desirable
to
refer
briefly
to
the
effect
of
those
decisions
upon
the
two
expressions
and,
in
the
connotations
so
found,
to
consider
them
in
the
juxtaposition
in
which
they
appear
in
our
own
Act.
As
interpreted,
the
English
Act
uses
the
word
“residing”
or
the
expression
‘‘ordinarily
resident’’
in
the
sense
of
the
general
acceptation,
without
special
or
technical
meaning;
and
the
Tax
Commissioners
find
first
the
actual
circumstances
of
a
case
and
then
as
fact
whether
they
are
within
that
acceptation.
An
appeal
is
allowed
on
a
point
of
law,
and
where
the
person
charged
is
appealing,
the
question
invariably
is
whether
there
was
any
evidence
to
justify
the
finding.
This
strictly
limited
jurisdiction
prevents
us
from
assuming
that
a
court
sitting
in
appeal
generally
would
have
come
to
the
same
view
of
liability
;
and
there
are
frequent
intimations
by
individual
judges
that
their
own
finding
might
have
been
different.
But
notwithstanding
this
limited
function,
these
decisions
reveal
many
aspects
of
residence
under
modern
conditions
and
the
extreme
scope
of
interpretation
to
which
the
courts
have
felt
themselves
driven
by
the
generality
of
the
terms
used
and
from
the
wide
administrative
jurisdiction
conferred
upon
the
Commissioners.
In
Lysaght
v.
Commissioners,
supra,
‘‘residing’’
was
examined
by
the
House
of
Lords
and
it
must,
I
think,
be
said
that
the
language
of
‘‘plain
men’’
was
stretched
to
the
breaking
point
to
encompass
the
facts
that
had
been
found
by
the
Commissioners
to
be
residence.
The
enquiry
lies
between
the
certainty
of
fixed
and
sole
residence
and
the
uncertain
line
that
separates
it
from
occasional
or
casual
presence,
the
line
of
contrast
with
what
is
understood
by
the
words
‘‘stay’’
or
‘‘visit’’
into
which
residence
can
become
attenuated;
and
the
difference
may
frequently
be
a
matter
of
sensing
than
of
a
clear
differentiation
of
factors.
The
gradation
of
degrees
of
time,
object,
intention,
continuity
and
other
relevant
circumstances,
shows,
I
think,
that
in
common
parlance
"‘residing"’
is
not
a
term
of
invariable
elements,
all
of
which
must
be
satisfied
in
each
instance.
It
is
quite
impossible
to
give
it
a
precise
and
inclusive
definition.
It
is
highly
flexible,
and
its
many
shades
of
meaning
vary
not
only
in
the
contexts
of
different
matters,
but
also
in
different
aspects
of
the
same
matter.
In
one
case
it
is
satisfied
by
certain
elements,
in
another
by
others,
some
common,
some
new.
The
expression
‘‘ordinarily
resident’’
carries
a
restricted
signification,
and
although
the
first
impression
seems
to
be
that
of
preponderance
in
time,
the
decisions
on
the
English
Act
reject
that
view.
It
is
held
to
mean
residence
in
the
course
of
the
customary
mode
of
life
of
the
person
concerned,
and
it
is
contrasted
with
special
or
occasional
or
casual
residence.
The
general
mode
of
life
is,
therefore,
relevant
to
a
question
of
its
application.
For
the
purposes
of
income
tax
legislation,
it
must
be
assumed
that
every
person
has
at
all
times
a
residence.
It
is
not
necessary
to
this
that
he
should
have
a
home
or
a
particular
place
of
abode
or
even
a
shelter.
He
may
sleep
in
the
open.
It
is
important
only
to
ascertain
the
spatial
bounds
within
which
he
spends
his
life
or
to
which
his
ordered
or
customary
living
is
related.
Ordinary
residence
can
best
be
appreciated
by
considering
its
antithesis,
occasional
or
casual
or
deviatory
residence.
The
latter
would
seem
clearly
to
be
not
only
temporary
in
time
and
exceptional
in
circumstance,
but
also
accompanied
by
a
sense
of
transitoriness
and
of
return.
But
in
the
different
situation
of
so-called
‘‘permanent
residence,”
‘‘temporary
residence,’’
"ordinary
residence,’’
"principal
residence”
and
the
like,
the
adjectives
do
not
affect
the
fact
that
there
is
in
all
cases
residence;
and
that
quality
is
chiefly
a
matter
of
the
degree
to
which
a
person
in
mind
and
fact
settles
into
or
maintains
or
centralizes
his
ordinary
mode
of
living
with
its
accessories
in
social
relations,
interests
and
conveniences
at
or
in
the
place
in
question.
It
may
be
limited
in
time
from
the
outset,
or
it
may
be
indefinite,
or
so
far
as
it
is
thought
of,
unlimited.
On
the
lower
level,
the
expression
involving
residence
should
be
distinguished,
as
I
think
they
are
in
ordinary
speech,
from
the
field
of
‘‘stay’’
or
"visit.”
In
that
view,
it
is
scarcely
open
to
doubt
that
if
the
word
"residing”
or
the
expression
‘‘ordinarily
resident’’
had
been
used
as
in
the
English
statute,
it
would
have
been
impossible
not
to
hold
the
appellant
in
the
year
in
question
both
residing
and
ordinarily
resident
at
East
Riverside
for
the
full
160
days
of
living
there.
His
life
is
a
good
example
of
what
Viscount
Sumner
in
the
Lysaght
case
had
in
mind
when
he
spoke
of
the
"fluid
and
restless
character
of
social
habits’’
to
which
modern
life
has
introduced
us.
His
ordinary
residence
throughout
the
year
1940
was
indisputably
within
a
strip
of
North
America
bordering
on
the
Atlantic
and
running
from
Florida
to
New
Brunswick.
In
that
area,
enabling
him
to
keep
pace
with
a
benign
climate,
he
had
at
least
two
and
possibly
three
dwelling
places,
each
of
which
coupled
with
his
presence
for
the
time
being
constituted
so
far
as
he
had
any,
his
home.
When
he
moved
to
East
Riverside,
he
moved
not
only
himself
but
that
home;
ambulatory
over
a
considerable
part
of
the
Continent,
it
became
residence
where
so
set
up.
From
each
radiated
his
living
and
interests
and
from
them
in
turn
he
might
make
occasional
departures
or
visits
or
temporary
stays
amounting
even
to
limited
residence.
Giving
to
"‘residing’’
in
paragraph
(a)
the
fullest
signification
of
which
it
is
capable,
‘‘ordinarily
resident’’
becomes.
superfluous.
Mr.
Inches
contends
for
a
construction
of
both
and
of
“sojourns”
purely
in
terms
of
time:
that
“residing
.
.
during
such
year”
means
a
permanent
residence
throughout
the
year,
without
even
temporary
absence:
:
"
"
ordinarily
resident.
.
.
during
such
year’’
a
predominant
residence
in
Canada
throughout
the
year
but
subject
to
temporary
absences
not
amounting
to
residence
elsewhere:
and
“sojourns”
connoting
temporary
residence.
This
view
is
based
largely
on
the
expression
"
"
during
the
year,
‘
‘
the
legal
meaning
of
which
is
argued
to
be
‘‘throughout
the
year.”
The
case
cited
for
this,
Rex
v.
Anderson,
9
Q.B.
663,
115
E.R.
14
was
a
decision
on
the
Poor
Law,
but
the
statutes
are
not
in
pari
materia.
In
general
the
language
of
a
taxing
statute
is
to
be
taken
in
its
colloquial
or
popular
sense,
and
“during
the
year’’
in
that
acceptation
signified
rather
‘‘within
the
year’’
or
‘‘in
the
course
of
the
year
than
‘‘throughout.’’
Although
consistency
of
language
is
no
longer
a
jewel
in
such
legislation,
yet
the
adoption
of
that
expression
for
the
various
paragraphs
of
the
section
by
the
amendment
in
1927
would
appear
to
intend
the
same
sense
in
all
of
them.
Obviously.
“throughout”
is
in-,
appropriate
to
paragraphs
(&)
and
(e),
and
the
others
would
be
unwarrantably
restricted
in
application
by
such
a
construction.
I
think
the
suggested
meanings
are
quite
artificial
and
that
nothing
in
the
context
of
the
section
or
in
the
Act
requires
us
to
give
them
to
the
expressions
used.
This
makes
it
unneeessary.
to
consider
whether
‘‘ordinary
residence”
must
be
capable
of
being
extended
in
a
fictional
sense
over
the
entire
taxing
year.
I
am
not
greatly
concerned
by
overlapping
or
superfluous
or
even
the
virtual
equivalence
of
terms.
The
language
of
the
two
paragraphs
may
not
be
a
model
of
precision
or
artistry,and
if
redundancy
is
of
such
a
nature
as
might
raise
serious
'doubt
of
the
intention
of
Parliament,
some
interpretative.
modification
should
be
given;
but
when
an
intention
to
guard
against
omissions
fairly
be
drawn
and
there
is
no
inconsistency
or
repugnancy,
would
seem
to
make
an
end
of
the
matter.
If
I
may,
I
would
the
language
of
Lord
Selborne,
L.C.
in
Hough
v.
Windas
(1884),
12
Q.B.D.
224
at
229:
"‘I
adhere
to
an
opinion
expressed
by
myself
in
the
House
Lords
more
than
ten
years
ago
in
Giles
v.
Melson
which,
unless
I
am
much
deceived,
I
have
also
heard
in
substance
expressed
by
great
masters
of
the
law,
that
‘nothing
can
be
more
mischievous
than
the
attempt
to
wrest
words
from
their
proper
and
legal
meaning
only
because
they
are
superfluous
‘
‘
It
is
sufficient
for
the
purpose
of
this
case
that
the
mode
or
nature
of
the
appellant’s
living
in
Canada
brought
him
within
language
of
paragraph
(a)
and
strictly
it
is
unnecessary
deal
further
with
paragraph
(&).
But
in
justice
to
Mr.
Inches’
argument,
I
think
I
should
say
that
I
differentiate
the
circumstances
of
this
case
from
those
contemplated
say
by
rule
2
of
Miscellaneous
Rules
applicable
to
Schedule
D
under
the
English
"‘2.
A
person
shall
not
be
charged
to
tax
under
this
Schedule
as
a
person
residing
in
the
United
Kingdom,
in
respect
of
profits
or
gains
received
in
respect
of
possessions
or
securities
out
of
the
United
Kingdom,
who
is
in
the
United
Kingdom
for
some
temporary
purpose
only,
and
not
with
any
view
or
intent
of
establishing
his
residence
therein,
and
who
has
not
actually
resided
in
the
United
Kingdom
at
one
time
or
several
times
for
a
period
equal
in
the
whole
to
six
months
in
any
year
of
assessment,
but
if
any
such
person
resides
in
the
United
Kingdom
for
the
aforesaid
period
he
shall
be
so
chargeable
for
that
year.”
The
Canadian
Act
taxes
the
person
‘‘residing’’
on
the
whole
of
his
income,
and
provides
only
for
a
deduction
of
the
amount
of
tax
which
the
taxpayer
may
have
been
compelled
to
pay
in
foreign
country
on
the
income
arising
from
sources
there.
English
Act,
on
the
contrary,
there
is
an
elaborate
classification
of
income
with
varying
taxibilities
and
to
hold
a
person
liable
for
income
from
foreign
possessions
beyond
what
was
in
the
United
Kingdom
it
is
necessary
under
Schedule
D
to
find
not
only
that
he
resides
in
the
United
Kingdom
but
he
is
a
British
subject,
that
he
is
both
ordinarily
resident
and
domiciled
there.
These
taxes
are,
in
theory,
justified
protection
to
life
and
property
which
the
laws
of
the
imposing
them
may
give.
They
are
conceived
to
be
to
apply
fairly
and
equally
to
all
persons
and
an
apparent
gross
violation
of
that
assumption
is
relevant
to
the
into
what
Parliament
by
its
general
language
has
intended.
That
a
person
should
be
liable
for
tax
upon
the
whole
of
his
income
even
with
the
deduction
mentioned
merely
because
he
has
spent,
say,
two
months
in
Canada
as
a
temporary
change
of
scene,
whether
or
not
part
of
his
routine
of
life,
is
too
unreasonable
an
intention
to
attribute
to
the
language
of
Parliament
unless
it
is
beyond
doubt.
I
would,
therefore,
treat
the
word
"‘sojourns’’
as
applying
to
presence
in
Canada
where
the
nature
of
the
stay
is
either
outside
the
range
of
residence
or
is
what
is
commonly
understood
as
temporary
residence
or
residence
for
a
temporary
purpose.
But
that
qualified
stay
is
not
the
character
of
the
appellant’s.
Apart
from
any
question
of
domicile
which
would
appear
to
be
still
in
New
Brunswick,
his
living
in
Canada
is
substantially
as
deep
rooted
and
settled
as
in
the
United
States.
In
terms
of
time,
Pinehurst
may
take
precedence
but
at
best
it
is
a
ease
of
primus
inter
pares.
He
is
at
East
Riverside
as
at
his
‘‘home’’;
and
the
mere
limitation
of
time
does
not
qualify
that
fact;
Attorney-General
v.
Coote,
4
Price
183.
That
brings
him
within
the
most
exacting
of
any
reasonable
interpretation
of
^resides’’
or
‘‘ordinarily
resident.”
For
these
reasons
I
would
dismiss
the
appeal
with
costs.
KELLOCK,
J.:—The
facts
have
been
sufficiently
stated
and
it
is
not
necessary
to
repeat
them.
The
question
for
decision
upon
the
facts
is
as
to
whether
or
not
the
appellant
is,
by
reason
of
Sec.
9(1)
(a)
of
the
statute,
liable
to
be
assessed
for
income
tax.
Clauses
(a)
and
(b)
of
Section
9
ss.
(1)
are
as
follows:
"There
shall
be
assessed,
levied
and
paid
upon
the
income
during
the
preceding
year
of
every
person
(a)
residing
or
ordinarily
resident
in
Canada
during
such
year;
or
(b)
who
sojourns
in
Canada
for
a
period
or
periods
amounting
to
one
hundred
and
eighty-three
days
during
such
year
;‘‘
To
"sojourn”
is
defined
in
Murray’s
New
English
Dictionary
as,
to
"make
a
temporary
stay
in
a
place,”
‘‘to
make
stay,”
"to
tarry,’’
"to
delay,”
while
‘‘reside’’
is
defined
as,
‘‘to
take
up
one’s
abode
or
station,”
‘‘to
dwell
permanently
or
for
a
considerable
time,’’
"to
have
one’s
settled
or
usual
abode,”
"to
live
in
or
at
a
particular
place.”
"Ordinarily”
is
defined
as
‘‘in
conformity
with
rule
or
established
custom
or
practice,’’
‘‘as
a
matter
of
regular
practice
or
occurrence,”
‘‘in
the
ordinary
or
usual
course
of
events,”
"usually,”
"commonly,”
‘‘as
is
normal
or
usual.’’
"Sojourn”
in
Clause
(b)
is
to
be
contrasted
with
‘‘resident’’
in
Clause
(a).
A
mere
sojourn
is
not
within
the
section
unless
the
sojourn
continues
beyond
the
stated
period.
In
my
opinion,
the
appellant
is
not
to
be
described
as
a
sojourner
in
respect
of
the
years
in
question
but
as
a
person
residing
in
Canada
within
the
meaning
of
Clause
(a).
There
is
not
the
slightest
difference
between
his
use
of
his
Canadian
home
and
that
of
either
of
his
two
American
homes.
All
three
establishments
are
essentially
of
the
same
nature
and
are
equally
regarded
by
him
as
"
"
homes
‘
‘
in
the
same
sense.
The
appellant’s
residence
in
each
is
in
the
ordinary
and
habitual
course
of
his
life
and
there
is
no
difference
in
the
quality
of
his
occupation
in
any
one
of
them,
although
he
may
and
does
occupy
each
at
different
periods
of
the
year.
With
respect
to
the
collocation
of
the
words
"‘residing''
and
the
phrase
‘‘ordinarily
resident’’
in
clause
(a),
the
phrase
would
seem
to
assume
that
a
person
may
be
resident
in
Canada
without
being
‘‘ordinarily
resident.’’
It
is
not
necessary
to
consider
just
what
the
distinction
may
be
in
any
particular
circumstances.
The
appellant
is
residing
and
is
ordinarily
resident
here
in
respect
of
the
years
in
question.
Even
if
in
no
case
could
any
distinction
be
drawn
between
‘‘residing’’
and
"ordinarily
resident’’
so
that
the
phrase
must
be
treated
as
superfluous,
there
is
in
law
no
objection
to
so
doing
as
has
been
pointed
out
by
my
brother
Rand
in
the
course
of
his
judgment,
citing
Hough
v.
Windus
(1884),
12
Q.B.D.
224,
per
Lord
Selborne
L.C.
at
229.
As
to
the
appellant
‘s
argument
that
the'
phrase
66
during
such
year’’
is
to
be
interpreted
as
meaning
‘‘throughout
the
whole
year,’’
I
do
not
agree.
It
would
not
be
possible
to
apply
the
appellant’s
interpretation
to
the
phrase
as
it
appears
in
Clause
(e),
and
there
is
no
reason
to
suppose
that
it
was
intended
it
should
not
have
the
same
meaning
wherever
it
appears
in
the
sub-section.
The
phrase
is
used
throughout
with
reference
to
the
phrase
‘‘the
preceding
year”
in
the
early
part
of
the
subsection
and
in
my
opinion
means
‘‘in
the
course
of.”
I
would
dismiss
the
appeal
with
costs.
Estey,
J.:—This
is
an
appeal
from
a
judgment
rendered
in
the
Exchequer
Court.
The
learned
President
of
that
Court
has
embodied
in
his
judgment
an
exhaustive
statement
of
the
facts,
and
as
a
consequence
only
a
summary
of
the
more
relevant
facts
will
be
mentioned
here.
The
appellant
resided
at
Saint
John,
New
Brunswick,
where
he
retired
from
business
in
1921.
Thereafter
he
resided
in
Rothesay,
New
Brunswick,
until
1923
when,
following
a
dispute
with
the
taxing
authorities,
he
left
Canada
announcing
that
he
h
intended
to
take
up
residence
in
Bermuda.
He
did
not
remain
in
Bermuda
and
during
the
next
few
years
did
a
good
deal
of
travelling.
Eventually
he
selected
Pinehurst,
North
Carolina,
where
in
1930
he
built
a
residence
which
he
still
occupies.
In
1932
he
spent
the
summer
months
at
St.
Andrews,
New
Brunswick,
and
again
in
1933
and
1934.
In
the
latter
year
he
built
and
furnished
another
residence,
at
a
cost
of
approximately
$90,000
at
East
Riverside
near
Rothesay,
New
Brunswick.
This
residence
at
East
Riverside
was
built
in
order
that
his
wife
might
have
the
opportunity
of
visiting
and
enjoying
the
friendship
of
her
relatives
and
friends
in
Saint
John
and
Rothesay,
and
that
he
himself
might
enjoy
the
golf
course
near
the
residence.
He
employed
a
family
who
occupied
the
servants’
quarters
throughout
the
year,
and
though
the
rest.
of
the
house
was
closed
during
the
appellant’s
absence,
they
looked
after
the
premises.
His
practice
was
to
move
into
this
residence
in
the
spring
and
remain
until
some
time
in
the
fall
of
each
year.
From
1935
to
1941,
inclusive,
he
spent
the
following
number
of
days
in
Canada:
1935
|
156
days
|
1936
|
138
days
|
1937
|
169
days
|
1938
|
145
days
|
1939
_.
|
166
days
|
1940
|
159
days
|
1941
|
115
days.
|
This
residence
at
East
Riverside
was
maintained
in
a
manner
that
made
it
always
at
his
disposal
and
available
at
any
time.
When
there
his
activities
of
life
were
centred
about
that
point.
It
was
to
and
from
there
he
made
his
visits
to
other
places.
He
and
his
family
were
then
living
there.
It
would
appear
that
the
appellant
was
maintaining
more
than
one
residence
to
which
he
could
and
did
come
and
go
as
he
pleased.
In
the
light
of
these
circumstances,
the
officials
of
the
Department
of
National
Revenue
asked
the
appellant
to
file
an
income
tax
return
for
the
year
1940,
and
when
he
did
not
do
so
the
Minister,
by
virtue
of
section
47,
fixed
the
tax
at
$21,122.00.
The
appellant
does
not
question
the
amount
but
takes
the
position
that
he
is
not
liable
for
income
tax
in
Canada.
The
relevant
sections
of
the
Act
are:
"‘9.
There
shall
be
assessed,
levied
and
paid
upon
the
income
during
the
preceding
year
of
every
person
(a)
residing
or
ordinarily
resident
in
Canada
during
such
year;
or
(b)
who
sojourns
in
Canada
for
a
period
or
periods
amounting
to
one
hundred
and
eighty-three
days
during
such
year;
or’’
The
appellant
contends
that
he
is
not
ordinarily
resident
in
Canada
under
section
9(a),
but
that
he
merely
sojourns
in
Canada
for
a
period
less
than
183
days
in
each
year
and
is
therefore
not
taxable
under
9(b).
A
reference
to
the
dictionary
and
judicial
comments
upon
the
meaning
of
these
terms
indicates
that
one
is
"ordinarily
resident’’
in
the
place
where
in
the
settled
routine
of
his
life
he
regularly,
normally
or
customarily
lives.
One
"sojourns’’
at
a
place
where
he
unusually,
casually
or
intermittently
visits
or
stays.
In
the
former
the
element
of
permanence;
in
the
latter
that
of
the
temporary
predominates.
The
difference
cannot
be
stated
in
precise
and
definite
terms,
but
each
case
must
be
determined
after
all
of
the
relevant
factors
are
taken
into
consideration,
but
the
foregoing
indicates
in
a
general
way
the
essential
differences.
It
is
not
the
length
of
the
visit
or
stay
that
determines
the
question.
Even
in
this
statute
under
section
9(b)
the
time
of
183
days
does
not
determine
whether
the
party
sojourns
or
not
but
merely
determines
whether
the
tax
shall
be
payable
or
not
by
one
who
sojourns.
The
words
of
Viscount
Sumner
in
Inland
Revenue
Commissioners
v.
Lysaght,
[1928]
A.C.
234
at
p.
243,
are
indicative:
"‘I
think
the
converse
to
"
ordinarily
‘
‘
is
‘extraordinarily’
and
that
part
of
the
regular
order
of
a
man’s
life,
adopted
voluntarily
and
for
settled
purposes,
is
not
‘extraordinary'.''
Lord
Buckmaster,
with
whom
Lord
Atkinson
concurred,
in
the
same
case,
at
p.
248
:
“.
.
.
if
residence
be
once
established
ordinarily
resident
means
in
my
opinion
no
more
than
that
the
residence
is
not
casual
and
uncertain
but
that
the
person
held
to
reside
does
so
in
the
ordinary
course
of
his
life.''
The
appellant
selected
the
location,
built
and
furnished
the
residence
for
the
purpose
indicated,
and
has
maintained
it
as
one
in
his
station
of
life
is
in
a
position
to
do.
In
successive
years
his
residence
there
was
in
the
regular
routine
of
his
life
acting
entirely
upon
his
own
choice,
and
when
one
take
into
consideration
these
facts,
particularly
the
purpose
and
object
of
his
establishing
that
residence,
the
conclusion
appears
to
be
unavoidable
that
within
the
meaning
of
this
statute
he
is
one
who
is
ordinarily
resident
at
East
Riverside,
New
Brunswick,
and
is
therefore
liable
for
income
tax
under
section
9(a).
It
is
well
established
that
a
person
may
have
more
than
one
residence,
and
therefore
the
fact
of
his
residence
in
Pinehurst
or
Belleair
does
not
assist
or
in
any
way
affect
the
determination
of
this
issue.
The
appellant
then
contends
that
even
if
he
be
properly
described
as
one
ordinarily
resident
in
Canada,
he
is
not
within
the
terms
of
section
9(a)
because
he
is
not
‘‘ordinarily
resident
in
Canada
during
such
year.”
He
submits
that
the
word
‘“during’’
means
throughout.
As
I
understand
his
contention
it
is
that
one
must
be
a
resident
through
the
entire
year
and
that
when
the
appellant
leaves
Canada
to
go
back
to
North
Carolina
or
Florida
he
goes
back
to
his
residence
in
the
United
States,
and
is
not
then
resident
in
Canada,
and
is
therefore
not
resident
in
Canada
throughout
the
year.
In
the
Oxford
Dictionary
‘‘during’’
is
defined
as:
“Through
the
whole
continuance
of;
in
the
course
of.
‘
‘
In
the
Concise
Oxford
Dictionary
it
is
defined
as
:
‘‘Throughout;
at
some
point
in;
the
continuance
of.’’
This
term
‘‘during’’
appears
several
times
throughout
the
Act
and
not
only
does
it
appear
in
subsections
(a)
and
(&)
of
section
9,
the
clauses
with
which
we
are
concerned,
but
also
in
other
subsections
of
this
same
section.
Apart
from
a
specific
provision
or
necessary
implication,
it
would
be
assumed
that
Parliament
intended
these
terms
to
have
the
same
meaning
throughout
these
subsections,
and
indeed
throughout
the
Act.
I
agree
with
the
learned
President
of
the
Exchequer
Court
that
the
word
‘‘during’’
means,
as
used
in
this
statute,
in
the
course
of.
Particularly
in
subsection
(b)
I
do
not
know
how
any
other
meaning
could
be
attributed
thereto.
If
one
sojourns
in
Canada
183
days
or
more
he
is
taxable;
if
less
than
that
time
he
is
not
taxable.
If
he
were
here
for
only
184
days
it
would
not
matter
where
he
was
throughout
the
rest
of
the
year.
He
would
be
in
Canada
a
taxable
period
of
184
days
during
that
year.
Moreover,
that
appears
to
be
the
clear
meaning
of
the
word
in
certain
other
subsections
and
is
the
natural
meaning,
it
seems
to
me,
throughout
the
statute.
The
appellant
submitted
two
cases
in
support
of
his
contention.
Bowes
v.
Shand,
46
L.J.Q.B.
561
(H.L.),
where
the
contract
called
for
the
shipment
of
rice
‘‘during
the
months
of
March
and/or
April.
‘
‘
In
fact
the
rice
was
shipped
in
February.
The
Lord
Chancellor
in
the
course
of
his
judgment:
*
‘
Therefore,
dwelling
merely
on
the
natural
sense
of
the
words,
I
must
without
hesitation
conclude
that
the
meaning
of
the
contract
must
be
one
of
these
two
things,
either
that
the
rice
shall
be
put
on
board
during
the
two
months,
i.e.
not
before
the
1st
of
March
nor
after
the
end
of
April,
or
(and
this
con-
struction
would
require
evidence
of
usage)
the
shipment
must
be
made
in
a
manner
which
has
been
described
as
continuous,
and
be
completed
during
one
of
these
months,
and
that
the
bill
of
lading
should
be
given
for
the
whole
and
complete
shipment
at
that
time.
‘
‘
The
appellant
particularly
relied
upon
the
remark
of
Lord
Hatherly
to
the
effect
that
‘‘during
those
months’’
implied
"‘a
continuous
act
of
shipping.’’
It
is
obvious
from
reading
the
report
that
that
did
not
mean
continuous
throughout
the
entire
period
of
two
months.
It
seems
to
me
that
a
reading
of
the
case
supports
the
view
that
the
word
‘
"
during
‘
‘
should
be
interpreted
as
‘‘in
the
course
of.”
The
other
case,
Rex
v.
Anderson,
9
Q.B.
663,
the
words
are
found
in
a
statute,
and
having
regard
to
the
provision
of
that
statute
Lord
Denman,
C.J.
gave
to
the
word
‘‘during’’
the
meaning
that
the
appellant
here
contends
for,
but
that
is
a
very
different
statute
and
one
which
does
not
assist
in
the
construction
of
the
word
as
it
appears
in
the
Income
War
Tax
Act.
I
agree
with
all
of
the
conclusions
arrived
at
by
the
learned
President
of
the
Exchequer
Court
and
would
therefore
dismiss
this
appeal
with
costs.
Appeal
dismissed.