O’Connor,
J.—These
are
appeals
under
the
Income
War
Tax
Act,
R.S.C.,
1927,
c.
97,
from
assessments
for
the
years
1943,
1944
and
1945.
The
issue
in
these
appeals
is
whether
the
appellant
is
wholly
exempt
from
taxation
in
respect
to
pay
and
allowances
received
while
overseas.
The
assessment
was
made
in
respect
to
such
pay
and
allowances
on
the
basis
that
the
appellant
was
an
Auxiliary
Service
Supervisor
of
the
Y.M.C.A.
and
therefore
entitled
only
to
the
exemption
granted
by
Order
in
Council
P.C.
1087
as
amended
by
P.C.
3254,
which
is
that
one-fifth
of
the
pay,
including
dependents’
allowances,
is
not
subject
to
taxation.
The
appellant
gave
Notice
of
Appeal
on
the
following
grounds
:
1.
That
he
was
during
the
period
in
question
a
member
of
the
Canadian
Military
Forces
while
in
the
Canadian
Active
Service
Forces
and
overseas
in
the
strength
of
an
overseas
unit
outside
of
the
Western
Hemisphere,
and
therefore
not
liable
to
taxation
in
respect
of
service
pay
and
allowances
by
reason
of
section
4(t)
(1).
2.
That
he
did
not
reside,
or
was
not
ordinarily
resident,
in
Canada
at
any
time
during
the
period
in
question
and
was
not
within
section
9(1)
(a)
of
the
Act.
The
Minister
affirmed
the
assessments
on
the
grounds
that
the
appellant
had
been
allowed
all
proper
exemptions
as
an
Auxiliary
Service
Officer
and
that
he,
during
the
period
of
service
outside
the
Western
Hemisphere,
was
ordinarily
resident
in
Canada.
The
appellant
gave
Notice
of
Dissatisfaction
and
the
reply
of
the
Minister
affirmed
the
assessment.
The
appeals
were
heard
together.
On
the
hearing
of
the
appeals,
the
appellant
applied
for
leave
to
raise
a
third
ground
:
3.
In
the
alternative
that
if
the
appellant
was
not
a
member
of
the
Forces
while
overseas,
he
was
a
servant
of
the
Government
of
Canada
within
the
meaning
of
section
9
(1)(f)
and
was
not
liable
for
taxation
in
respect
to
pay
and
allowances
which
were
income
received
by
way
of
salary
from
the
said
Government.
The
facts
here
are
not
in
dispute
and
the
question
is
whether
on
these
facts
the
appellant
comes
within
this
subsection.
In
the
circumstances,
the
amendment
will
be
allowed.
The
facts
are
set
out
in
the
evidence
of
the
appellant
who
stated
that
:
He
resided
at
4014
West
34th
Street
in
the
City
of
Vancouver,
in
the
Province
of
British
Columbia,
and
that
during
his
absence
overseas
his
wife
and
children
continued
to
reside
there,
and
on
his
return
to’Canada
he
lived
at
that
address.
Until
the
4th
June,
1943,
he
was
employed
by
the
Y.M.C.A.
in
War
Service
work
in
Canada.
He
was
selected
as
an
Auxiliary
Service
Officer
after
a
medical
examination
by
the
Army
Medical
Corps,
and
after
passing
certain
tests
required
of
Army
personnel
had
an
interview
with
the
General
Officer
Commanding
the
Military
District.
He
did
not
take
the
Militiamen’s
Oath
set
out
in
section
21
of
the
Militia
Act,
R.S.C.,
1927,
c.
132.
He
was
issued
an
officer
type
battle
dress
without
the
officer’s
insignia
of
rank.
There
was
issued
to
him
an
officer’s
Record
of
Service
which
shows
the
unit
to
which
he
was
attached
and
other
information
as
to
his
service.
He
embarked
for
overseas
on
the
2oth
June,
1943,
with
Army
personnel.
He
was
posted
to
a
number
of
units
in
England
and
then
to
the
5th
Canadian
Anti-tank
Corps
and
he
was
with
that
unit
both
in
England
and
on
the
continent
until
he
was
returned
to
Canada.
He
was
the
Welfare
Officer
responsible
for
the
sports
and
entertainment
of
the
men
in
the
unit.
He
received
his
instructions
from
the
Officer
Commanding
through
the
Adjutant.
He
received
leave
from
time
to
time
from
the
Officer
Commanding
in
the
same
way
as
the
others
in
the
unit.
On
occasions
he
was
posted
for
relief
as
Orderly
Officer.
He
was
billeted
with
the
officers
and
a
member
of
their
Mess.
He
was
assisted
in
his
work
by
men
chosen
by
the
Adjutant
from
the
ranks
of
the
unit.
It
is
admitted
that
throughout
the
whole
period
the
appellant
was
under
military
discipline.
He
was
paid
in
the
same
manner
as
the
officers
of
the
unit
by
the
Department
of
National
Defence.
His
wife
received
his
assigned
pay
in
the
same
manner
as
the
wives
of
the
officers
of
the
unit.
He
was
wounded
and
it
was
admitted
that
he
served
with
distinction.
He
had
to
have
the
required
number
of
points
on
the
same
basis
as
the
other
Army
personnel
in
order
to
return
to
Canada.
On
his
return
to
Canada
he
received
a
War
Service
gratuity
at
the
same
rate
as
a
Captain.
He
is
entitled
to
wear
War
Service
Badge,
General
Service
class,
the
Defence
Medal
and
the
France
Medal.
He
received
a
letter
from
the
Officer
Commanding,
11th
Military
District,
statine
that
he
had
served
on
Active
Service
from
10th
June,
1948,
to
21st
February,
1946,
and
was
struck
off
strength
on
21st
February,
1946.
He
also
received
a
certificate
from
Field
Marshall
Montgomery
that
he
had
performed
outstanding
good
service
and
shown
great
devotion
to
duty.
The
relevant
Orders
in
Council
are
as
follows:
Order
in
Council,
P.C.
16/1391
(Exhibit
A),
10th
April,
1940,
sets
out
the
report
and
recommendation
of
the
Minister
of
National
Defence
as
follows:
~
"That
in
order
to
provide
certain
facilities
and
comforts
for
the
Active
Militia
on
Active
Service
the
Department
of
National
Defence
has
created
a
Directorate
of
Auxiliary
Services,
whose
duties
are
to
co-ordinate
the
efforts
of
the
National
Organizations
in
Canada
and
to
insure
that
the
efforts
of
these
Organizations
are
put
to
the
best
possible
use.
That
in
order
to
enable
them
to
provide
a
maximum
of
facilities
for
the
personnel
of
the
Canadian
Active
Service
Force
Overseas,
these
Organizations
have
requested
the
Department
of
National
Defence
to
pay
a
limited
number
of
the
personnel
of
such
Organizations
who
are
employed
outside
of
Canada.
That
in
the
opinion
of
the
undersigned,
while
it
is
not
necessary
that
such
personnel
be
appointed
to
the
Active
Militia,
nevertheless
the
exigencies
of
the
Service
require
that
they
wear
some
distinctive
uniform
and
be
deemed
to
be
persons
accompanying
a
Force
on
active
service
under
the
provisions
of
sub-section
(8)
of
Section
175
of
the
Army
Act.
Accordingly,
the
undersigned
has
the
honour
to
recommend
that
pay
and
allowances,
transportation,
rations,
accommodation,
medical
treatment
and
hospitalization
be
provided
by
the
Department
of
National
Defence
for
personnel
of
the
four
major
Organizations
working
in
conjunction
with
the
Department
in
such
numbers
as
the
Minister
of
National
Defense
may
from
time
to
time
determine,
namely—
Canadian
Legion
War
Services,
Ine.
Young
Men’s
Christian
Association
Salvation
Army
Knights
of
Columbus
;
at
the
same
rates
as
are
prescribed
for
a
Captain
in
Financial
Regulations
and
Instructions
for
the
Canadian
Active
Service
Force
Overseas,
save
and
except,
Dependents’
Allowance
and
Outfit
Allowance.
The
undersigned
has
the
honour
further
to
recommend
that
the
personnel
aforesaid
shall
not
be
deemed
to
be
members
of
the
Naval,
Military
or
Air
Forces
of
Canada
on
active
service,
and
that,
in
consequence,
the
provisions
of
the
Pension
Act,
to
the
extent
that
they
are
made
applicable
to
said
members
of
the
Naval,
Military
or
Air
Forces
of
Canada,
shall
not
apply
to
the
personnel
in
question.
The
undersigned
has
the
honour
further
to
recommend
that
the
provisions
of
this
Order
apply
to
each
of
said
personnel
as
of
and
from
the
date
he
embarks
for
service
outside
of
Canada’’.
The
report
and
recommendation
was
approved
by
His
Excel-
ency,
the
Administrator
in
Council.
Routine
Order
215
of
the
Canadian
Active
Service
Force,
(Overseas)
(Exhibit
5)
set
out
the
provisions
of
P.C.
16/1391
(Exhibit
A).
Routine
Order
3660,
part
of
Exhibit
5,
authorized
the
appellant
to
receive
the
pay
and
allowances
and
transportation
set
out
in
Overseas
Routine
Order
215.
P.C.
37/6070
(Exhibit
G),
dated
30th
October,
1940,
provided
that:
‘‘The
Board
recommend
that
Order
in
Council
of
April
10th,
1940,
P.C.
16/1391
be
amended
to
include
authorization
for
payment
or
rail
transportation
by
the
Department
of
National
Defence
from
station
to
point
of
embarkation
for
personnel
of
Canadian
Legion
War
Services
Inc.,
Young
Men’s
Christian
Association,
Salvation
Army
and
Knights
of
Columbus,
who
have
already
proceeded
abroad
or
who
may
be
detailed
by
the
Minister
of
National
Defence
to
proceed
abroad
for
duty
in
conjunction
with
the
Department
of
National
Defence.”
P.C.
1087
(Exhibit
B),
dated
21st
February,
1944,
is
in
part
as
follows:
"WHEREAS
the
Minister
of
Finance
reports
that
the
Auxiliary
Service
Supervisors
of
the
Department
of
National
Defence,
Adjutant
General’s
Branch,
are
persons
engaged
in
such
like
organizations
as
the
Y.M.C.A.,
the
Red
Cross,
the
Salvation
Army,
the
Knights
of
Columbus,
and
other
organizations
;
"
"
That
in
all
there
are
something
over
three
hundred
such
persons
engaged
in
the
Auxiliary
Service
serving
in
non-
combatant
capacities,
with
the
Canadian
Active
Service
Forces
outside
the
Western
Hemisphere
;
That
the
members
of
the
said
Auxiliary
Service
are
subject
to
Canadian
Income
Tax
in
respect
of
their
pay
and
allowances,
throughout
the
period
of
their
service
overseas;
That
having
regard
to
the
character
of
their
activities
in
conjunction
with
the
Army,
Navy
and
Air
Forces
abroad,
it
is
deemed
fair
and
expedient
that
they
should
not
be
required
to
pay
income
tax
on
the
same
basis
as
civilians,
that
is,
be
liable
to
tax
on
their
total
income
from
all
sources,
but
rather
that
they
should
be
dealt
with
in
a
manner
more
approximate
to
the
exemption
granted
to
members
of
the
Armed
Forces
overseas,
but,
inasmuch
as
they
are
not
members
of
the
Canadian
Armed
Forces,
that
they
should
not
receive
complete
exemption
in
respect
ot
their
pay
for
such
services;
THEREFORE
His
Excellency
the
Governor
General
in
Council,
on
the
recommendation
of
the
Minister
of
Finance
and
under
and
by
virtue
of
the
War
Measures
Act,
Chapter
206,
Revised
Statutes
of
Canada,
1927,
is
pleased
to
order
and
doth
hereby
order
that
the
folowing
exemptions
be
provided
under
the
Income
War
Tax
Act,
to
be
effective
as
and
from
the
first
day
of
January
1943;
1.
One-fifth
of
the
pay
of
such
Auxiliary
Service
Supervisors
be
deemed
not
subject
to
taxation
under
the
Income
War
War
Tax
Act;
2.
All
subsistence
allowances
received
by
such
Auxiliary
Service
Supervisors
relative
to
their
duties
overseas
shall
not
be
subject
to
taxation
under
the
said
Act
;
3.
The
Portion
of
the
"‘taxes
otherwise
payable”
as
referred
to
in
Section
7A
of
the
Income
War
Tax
Act,
sometimes
referred
to
as
the
Refundable
Portion,
shall
not
be
payable
in
the
case
of
such
Supervisors.
’’
P.C.
3254,
2nd
May,
1944,
(Exhibit
C),
amended,
P.C.
1087
(Exhibit
B),
is:
‘A.
The
first
paragraph
of
the
preamble
is
amended
to
read
as
follows:
‘Whereas
the
Minister
of
Finance
reports
that
the
Auxiliary
Service
Supervisors
are
personnel
of
such
organizations
as
Canadian
Legion
War
Services,
Ine.,
the
National
Council
of
the
Y.M.C.A.,
Knights
of
Columbus
Canadian
Army
Huts,
Salvation
Army
Canadian
War
Services,
who
have
been
selected
by
the
Royal
Canadian
Navy,
the
Army
and
the
Royal
Canadian
Air
Force
for
service
with
the
said
forces;’
B.
Paragraph
numbered
1
is
amended
to
read
as
follows:
1.
One-fifth
of
the
pay,
including
dependents’
allowances,
of
such
Auxiliary
Service
Supervisors
be
deemed
not
subject
to
taxation
under
the
Income
War
Tax
Act.’’
P.
C.
44/1555,
dated
8th
March,
1944
(Exhibit
D),
cancelled
prior
Orders
In
Council
and
authorized
an
Order
effective
January
1st,
1944,
which
provided
in
part
:
""
1.
(b)
‘Supervisor'
means
an
authorized
field
representative
of
Canadian
Legion
War
Services,
Inc.,
The
National
Council
of
the
Y.M.C.A.,
Knights
of
Columbus
Canadian
Army
Huts,
Salvation
Army
Canadian
War
Services,
who
directly
provides
services
and
recreational
equipment
to
the
forces
and
who
is
appointed
as
hereinafter
provided.”
2.
The
provisions
of
the
Income
War
Tax
Act,
Revised
Statutes
of
Canada,
1927,
Chapter
97,
as
from
time
to
time
amended,
and
the
schedules
appended
thereto,
shall
apply
to
Auxiliary
Service
personnel
in
such
manner
and
to
such
extent
as
may
be
from
time
to
time
determined
by
the
Governor-
in-Council.”
PART
I
"4.
Supervisors
attached
to
the
Royal
Canadian
Navy
shall
be
selected
and
approved
by
the
Chief
of
Naval
Personnel.
Supervisors
attached
to
the
active
units
and
formations
of
the
Canadian
Army
shall
be
selected
and
approved
by
the
Adjutant-General.
Supervisors
attached
to
the
Royal
Canadian
Air
Force
shall
be
selected
and
approved
by
the
Air
Member
for
Personnel.’’
6.
Supervisors
serving
with
active
units
and
formations
of
the
Canadian
Army
shall
be
deemed
to
be
members
of
the
military
forces
of
Canada
on
Active
Service
for
all
purposes
except
engaging
in
combat
with
the
enemy
and
be
subject
to
the
military
law
in
all
respects
as
though
they
were
officers
holding
the
rank
of
Captain,
and
shall
be
entitled
to
the
pay
and
allowances,
pensions
and
all
other
benefits
(except
income
tax
benefits)
applicable
or
pertaining
to
such
rank
as
and
from
the
date
they
embark
for
service
outside
of
Canada,
until
their
services
are
terminated
by
the
Adjutant-General.’’
9.
Supervisors
will
wear
an
officer
type
uniform
with
the
insignia
of
their
organization,
of
such
pattern
as
may
be
designated
from
time
to
time
by
the
appropriate
Minister,
but
will
not
wear
badges
of
rank.’’
P.C.
3228,
dated
3rd
May,
1945
(Exhibit
L),
set
out:
‘
4
Whereas
the
Minister
of
Veterans
Affairs
reports
that
Auxiliary
Services
Supervisors
serving
with
the
Armed
Forces
overseas
undertake
to
serve
for
the
duration
of
the
war
and,
although
non-combatant,
are
required,
in
the
performance
of
their
duty,
to
accompany
the
Forces
wherever
they
may
go
in
active
theatres
of
war
and
are
subject
to
Military,
Naval
or
Air
Force
Law
as
the
case
may
be;
That
such
Supervisors
are
paid,
while
serving,
pay
and
allowances
and
granted
certain
other
benefits
applicable
or
pertaining
to
officers
holding
the
rank
of
Lieutenant
in
the
Navy,
or
of
Captain
in
the
Army,
or
of
Flght-Lieutenant,
non-fiving
list,
in
the
Air
Force
with
respect
to
the
period
of
their
service
overseas
;
That
such
Supervisors
are
now
entitled
to
rehabilitation
grant,
civilian
clothing
allowance
and
transportation
home
on
ceasing
to
serve
and
are
eligible
for
pension,
in
respect
of
disability
or
death,
on
the
same
terms
as
a
member
of
the
Forces,
and
hospitalization
and
treatment
for
a
pensionable
disability
and
That,
while
it
is
considered
that
no
group
or
class
of
persons
serving
as
civilians
could,
in
fairness
to
the
members
of
the
Armed
Forces,
be
gramted
benefits
on
the
scale
provided
such
members
of
the
Armed
Forces,
it
is
believed
justifiable
and
advisable,
in
view
of
the
conditions
of
service,
terms
of
engagement
and
basis
of
remuneration
of
Auxiliary
Services
Supervisors,
which
are
in
many
respects
similar
to
those
of
members
of
the
Armed
Forces,
to
make
available
to
them
certain
additional
benefits
on
termination
of
their
services.’’
And
ordered
(inter
alia)
:
(1.
This
Order
may
be
cited
as
the
‘Auxiliary
Services
Supervisors
War
Service
Order.’
2.
In
this
Order
unless
the
context
otherwise
requires—
(a)
‘discharge,’
with
reference
to
a
Supervisor,
means
ceasing
to
serve
as
a
Supervisor
and
‘discharged’
shall
have
a
corresponding
meaning.
(b)
‘Supervisor’
means
an
authorized
field
representative
of—
Canadian
Legion
War
Services
Ine.
The
National
Council
of
the
Y.M.C.A.
Knights
of
Columbus
Canadian
Army
Huts,
or
Salvation
Army
Canadian
War
Services
who
has
been
appointed
to
serve
and
has
served
pursuant
to
the
provisions
of
Part
I
of
Order
in
Council,
P.C.
44/1555,
of
the
8th
day
of
March,
1944.
"
And
the
Order
then
provided
that
every
Supervisor
shall
upon
discharge
be
entitled
to
gratuities
and
to
benefits
under
the
Veterans’
Insurance
Act,
the
Civil
Employment
Act,
1942,
the
Veterans’
Land
Act,
1942,
and
under
the
Post
Discharge
Re-
Establishment
Order.
The
first
contention
of
the
appellant
is
that
during
the
period
in
question
he
was
a
member
of
the
Forces
and
therefore
not
liable
to
taxation
in
respect
of
service
pay
and
allowances
by
reason
of
section
4(t)
(i)
on
the
following
grounds:
(a)
That
having
been
attached
to
a
unit
and
having
served
with
that
unit
in
the
circumstances
and
to
the
extent
disclosed
by
his
evidence
that
he
was
in
fact
a
member
of
the
Forces.
It
is
clear
from
the
evidence
of
the
appellant
and
P.C.
16/1391,
and
Routine
Orders
215
and
3660,
that
the
appellant
was
one
of
the
"personnel’’
of
the
Y.M.C.A.
mentioned
in
P.C.
16/1591.
The
Y.M.C.A.
requested
the
Department
of
National
Defence
to
pay
and
furnish
transportation
for
the
appellant.
It
could
not
be
otherwise.
He
was
with
the
Y.M.C.A.
in
Canada.
Then
Routine
Order
3660,
based
on
P.C.
16/1391
as
amended,
and
Routine
Order
215
authorized
his
pay
and
allowances
and
transportation
from
Vancouver
to
the
point
of
embarkation
and
from
there
to
England,
as
one
of
the
"‘personnel’’
described
in
P.C.
16/1391.
The
medical
examination
and
tests
were
made
by
the
Army
for
the
purpose
of
ensuring
that
he
could
do
the
work
required,
i.e.,
to
provide
certain
facilities
and
comforts
for
the
personnel
of
the
Forces
overseas.
Then,
by
P.C.
44/1555,
a
Supervisor
was
defined
to
mean
‘‘an
authorized
field
representative
of
the
Y.M.C.A.’’
or
the
other
organizations.
If
he
had
not
been
one
of
the
‘‘personnel’’
or
‘‘an
authorized
field
representative”
of
the
Y.M.C.A.,
he
would
not
have
been
sent
overseas.
It
was
in
that
capacity
that
he
was
attached
to
and
served
with
a
unit
of
the
Forces.
He
wore
a
uniform
and
was
under
military
discipline
because
the
exigencies
of
the
Service
required
this.
His
service
as
stated
in
his
evidence
did
not,
in
my
opinion,
make
him
a
member
of
the
Forces.
P.C.
16/1391
provided
that
such
personnel
shall
not
be
deemed
to
be
members
of
the
Military
Forces
of
Canada.
In
addition,
he
did
not
take
the
oath
required
by
section
21
of
the
Militia
Act,
R.S.C.,
1927,
e.
132.
"21.
The
following
oath
shall
be
taken
and
subscribed
before
one
of
such
commissioned
officers
of
the
Militia
as
are
authorized
for
that
purpose
by
any
general
order
or
by
regulation,
or
before
a
justice
of
the
peace,
by
every
person
upon
engaging
to
serve
in
the
Active
Militia
:
"
I,
A.
B.,
do
sincerely
promise
and
swear
(or
solemnly
declare)
that
I
will
be
faithful
and
bear
true
allegiance
to
His
Majesty.
‘
2.
Such
oath
shall
have
the
effect
of
a
written
engagement
with
the
King,
binding
the
person
subscribing
it
to
serve
in
the
Militia
until
he
is
legally
discharged,
dismissed
or
removed,
or
until
his
resignation
is
accepted.
‘
‘
And
by
section
2(e)
^Militia”
is
defined:
"2(e)
‘Militia’
means
all
the
military
forces
of
Canada.’’
There
was,
therefore,
no
written
engagement
with
the
King,
binding
him
to
serve
in
the
Military
Forces
of
Canada
and
he
was
not,
therefore,
in
my
opinion,
a
member
of
the
Military
Forces
of
Canada.
(b)
That
he
was
"‘in
pay
as
an
officer’’
within
the
definition
of
officer
set
out
in
section
190(4)
of
the
Army
Act,
in
force
in
Canada
by
virtue
of
section
69
of
the
Militia
Act,
R.S.C.,
1927,
chap.
152
:
4
‘190(4).
The
expression
‘officer’
means
an
officer
commissioned
or
in
pay
as
an
officer
in
His
Majesty’s
forces,
or
any
arm,
branch,
or
part
thereof
.
.
.”?
Nor
was
the
appellant
an
officer
within
the
meaning
of
section
190(4)
of
the
Army
Act.
He
was
not
‘‘in
pay
as
an
officer.”
He
was
‘‘in
pay”
as
one
of
the
personnel
or
as
an
authorized
field
representative
of
the
Y.M.C.A.
at
the
‘‘same
rates
as
are
prescribed
for
a
Captain
.
.
.’’
under
P.C.
16/1391,
or
“entitled
to
the
pay
and
allowances
.
.
.
applicable
or
pertaining
to
such
(Captain)
rank
.
.
.’’?
under
P.C.
44/1555.
(c)
That
by
section
6
of
P.C.
44/1555
(Exhibit
D)
:
“6.
Supervisors
serving
with
active
units
and
formations
of
the
Canadian
Army
shall
be
deemed
to
be
members
of
the
military
forces
of
Canada
on
Active
Service
for
all
purposes
except
engaging
in
combat
with
the
enemy
and
be
subject
to
the
military
law
in
all
respects
as
though
they
were
officers
holding
the
rank
of
Captain,
and
shall
be
entitled
to
the
pay
and
allowances,
pensions
and
all
other
benefits
(except
income
tax
benefits)
applicable
or
pertaining
to
such
rank
as
and
from
the
date
they
embark
for
service
outside
of
Canada,
until
their
services
are
terminated
by
the
Adjutant-General.’’
he
was
deemed
to
be
a
member
of
the
Military
Forces
of
Canada
on
Active
Service
for
all
purposes
except
engaging
in
conflict
with
the
enemy
and
is,
therefore,
entitled
to
the
exemption
from
taxation
as
to
pay
and
allowances
provided
for
such
members
by
section
4(t)
of
the
Act.
And
that
the
subsequent
exception
"‘without
income
tax
benefits’’
in
the
provision
for
"pay
and
allowances,
pensions
and
all
other
benefits’?
is
an
attempt
to
impose
taxation
by
removing
an
exemption
to
which
all
members
were
entitled.
And
that
to
the
extent
the
Order
in
Council
purports
to
do
so,
it
is
ultra
vires.
Counsel
for
the
respondent
informed
the
Court
that
the
respondent
was
not
contending
that
there
was
power
to
impose
taxation
by
Orders
in
Council
under
the
War
Measures
Act,
or
to
do
so
by
the
removal
of
an
exemption
to
which
such
members
of
the
Forces
were
entitled.
The
question,
then,
is
this.
Does
section
6
deem
him
a
member
for
all
purposes
which
would
include
a
member
within
section
4(t)
of
the
Act
and
would
exempt
his
pay
and
allowances
for
taxation
and
then,
by
the
subsequent
exception,
‘‘
without
income
tax
benefits,’’
remove
that
exemption
or;
is
the
effect
of
the
whole
section
to
deem
him
to
be
a
member
without
income
tax
benefits.
That
the
intention
was
to
deem
them
members
without
income
tax
benefits
is
clear
from
an
examination
of
the
Orders
P.C.
1087
(Exhibit
B)
and
P.C.
3228
(Exhibit
L).
P.C.
1087
sets
out
in
the
preamble
that
having
regard
to
the
character
of
the
activities
of
the
supervisors,
it
is
deemed
fair
and
expedient
that
they
should
not
pay
income
tax
in
the
same
basis
as
civilians,
but
should
be
dealt
with
in
a
manner
more
approximate
to
the
exemptions
granted
to
members
of
the
Armed
Forces
overseas;
but,
inasmuch
as
they
are
not
members,
they
should
not
receive
complete
exemption
in
respect
of
their
pay
for
such
services.
It
then
provides
that
one-fifth
of
the
pay
be
deemed
not
subject
to
taxation.
P.C.
1087
was
made
on
the
21st
February,
1944,
and
approximately
only
two
weeks
after
the
Order
in
question,
P.C.
44/1555,
was
made
(8th
March,
1944)
with
the
provisions
already
quoted,
‘‘except
income
tax
benefits.’’
In
addition,
P.C.
1087
was
amended
on
2nd
May,
1944,
approximately
two
months
after
P.C.
44/1555
by
P.C.
3254
(Exhibit
C),
to
increase
the
exemption
for
supervisors
so
that
one-fifth
of
the
pay,
including
dependents’
allowances,
be
not
subject
to
taxation.
Then
P.C.
3228,
made
on
3rd
May,
1945
(Exhibit
L),
sets
out
in
the
preamble,
“That,
while
it
is
considered
that
no
group
or
class
of
persons
serving
as
civilians
could,
in
fairness
to
the
members
of
the
Armed
Forces,
be
granted
benefits
on
the
scale
provided
such
members
of
the
Armed
Forces
.
.
.’’?
and
then,
after
defining
‘‘Supervisors’’
as
meaning
an
authorized
field
representative
of
the
Y.M.C.A.
and
other
like
organizations,
orders
they
then
be
entitled
to
certain
gratuities
and
benefits.
The
intention,
however,
must
be
ascertained
from
the
language
used
in
the
section.
The
section
should
not
be
divided
into
two
parts,
but
its
meaning
should
be
ascertained
by
reading
it
in
its
entirety.
When
so
read
the
intention,
in
my
opinion,
is
to
deem
the
supervisors
members
of
the
Armed
Forces
without
income
tax
benefits.
For
these
reasons,
I
am
of
the
opinion
that
the
appellant
is
not
entitled
to
the
exemption
provided
by
section
4(t)
(1).
The
next
question
to
be
determined
is
whether
the
appellant.
was
a
person
residing
or
ordinarily
resident
within
section
9(1)
(a):
“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.
‘
‘
There
is
no
definition
of
these
terms
in
the
Act.
The
Concise
Oxford
Dictionary
gives
the
meanings
of
“reside”
as:
“Reside—(Of
persons)
have
one’s
home,
dwell
permanently,
at,
in,
abroad,
etc.;
(of
officials)
be
in
residence:
(of
power,
rights
ete.,)
rest
or
be
vested
in
person
etc.;
(of
qualities)
be
present
or
inherent
in.^
The
question
is
a
question
of
fact
and
not
a
question
of
law.
(Lysaght
v.
The
Commissioners
of
Inland
Revenue,
(1928),
13.
T.C.
511).
The
cases,
therefore,
are,
as
Thorson,
P.
said
in
Thomson
v.
The
Minister
of
National
Revenue,
[1945]
C.T.C.
63,
but
useful
illustrations
of
the
circumstances
under
which
a
person
may
be
considered
as
residing
or
ordinarily
resident
in
a
place
or
country.
No
cases
were
cited
which
had
been
decided:
on
facts
that
were
in
any
way
comparable
to
the
facts
here.
In
this
case
the
appellant
established
a
home
where
he
resided
with
his
family.
He
describes
it
in
his
Officer’s
Service
Record
(Exhibit
1)
as
his
"permanent
home
address.’’
While
he
was
never
in
Canada
during
the
period
in
question,
yet
his
wife
and
children
remained
in
this
home
during
his
absence
and
on
his
return
to
Canada
he
returned
there.
While
he
was
in
England
and
in
the
countries
on
the
continent
he
was
not
residing
or
ordinarily
resident
in
those
countries.
His
residence
there
was
casual.
Or,
if
he
resided
in
any
of
them,
then
he
had
two
residences.
On
the
facts
here
I
am
of
the
opinion
that
the
appellant
was
residing
or
ordinarily
resident
in
Canada
during
the
period
in
question.
The
last
contention
of
the
appellant
is
that
in
the
alternative,
if
the
appellant
was
not
a
member
of
the
Forces
while
overseas,
he
was
in
the
circumstances
a
servant
or
employee
of
the
Government
of
Canada
within
the
meaning
of
section
9(1)
(f)
:
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,
(f)
who,
before
his
appointment
was
a
resident
of
Canada
and
is
now
or
hereafter
becomes
a
Minister,
High
Commissioner,
officer,
servant
or
employee
of
the
Government
of
Canada,
or
an
agent
general
for
any
of
the
provinces
of
Canada,
or
any
officer,
servant
or
employee
thereof,
resident
outside
of
Canada,
except
upon
income
received
by
way
of
salary
from
the
said
government.”
The
contention
is
based
on
the
facts
already
set
out
that
the
appellant
was
paid
by
the
Department
of
National
Defence
and
sent
overseas
at
the
request
of
the
Y.M.C.A.
as
set
out
in
the
preamble
in
P.C.
16/1391.
That
he
was
attached
to
the
Forces
to
carry
out
the
duties
of
a
supervisor,
i.e.,
look
after
the
welfare
and
recreational
activities
of
the
members
of
the
Forces.
He
wore
a
uniform,
was
under
military
discipline,
and
he
took
his
orders
from
the
Officer
commanding
the
unit.
But
all
that
did
not
alter
the
fact
that
he
was
at
all
times
one
of
the
‘‘
personnel’’
or
an
‘‘authorized
field
representative’’
of
the
Y.M.C.A.
In
my
opinion,
the
appellant
in
these
circumstances
was
not
a
servant
or
employee
of
the
Government
of
Canada
within
the
meaning
of
section
9(1)
(f).
Counsel
for
the
appellant
did
not
contend,
in
view
of
the
decision
in
McArthur
v.
The
King,
[1943]
Ex.
C.R.
77,
that
a
member
of
the
Forces
was
a
servant
within
section
9(1)
(f).
For
the
reasons
given
the
appeal
will
be
dismissed,
but
in
the
circumstances
without
costs.
Judgment
accordingly.
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