McGillis,
J.:—The
appellant
Jocelyn
Ghent
Mallett
appeals
from
a
decision
of
the
Tax
Court
of
Canada
dismissing
her
appeal
concerning
the
deductibility
of
moving
expenses
claimed
by
her
in
the
1985
taxation
year.
Facts
The
appeal
proceeded
on
the
basis
of
an
agreed
statement
of
facts.
At
all
material
times,
Mrs.
Mallett
was
an
employee
of
the
government
of
Canada.
From
1982
to
November
30,
1985,
Mrs.
Mallett
was
on
secondment
from
the
Ministry
of
State
for
Science
and
Technology
to
External
Affairs
as
the
counsellor
for
European
Space
Affairs.
She
worked
weekdays
at
the
offices
of
the
Canadian
Embassy
in
Paris,
France
and,
until
August
28,
1985,
had
an
apartment
in
that
city.
During
this
period,
she
was
ordinarily
resident
in
her
Paris
apartment
on
ordinary
working
days.
In
the
spring
of
1985,
Mrs.
Mallett
was
informed
that
she
was
to
be
appointed
to
a
position
in
Ottawa,
Ontario.
In
July
1985,
she
entered
into
an
agreement
to
purchase
a
home
in
Ottawa.
In
the
month
of
August
1985,
Mrs.
Mallett
married
a
man
who
maintained
a
home
in
England.
Beginning
in
August,
1985,
she
commuted
regularly,
but
not
always,
to
the
house
in
England.
She
gave
up
her
apartment
in
Paris
on
August
28,
1985
and
her
household
goods
and
personal
effects
were
removed
from
that
apartment,
shipped
to
Canada
and
placed
in
storage.
On
October
18,
1985,
her
household
goods
and
personal
effects
were
moved
into
her
new
home
in
Ottawa.
Mrs.
Mallett
was
fully
reimbursed
by
her
employer
for
the
cost
of
moving
her
household
goods
and
personal
effects
from
Paris
to
Ottawa.
From
September
to
November
30,
1985,
Mrs.
Mallett
remained
an
employee
of
External
Affairs
in
Paris,
either
working
in
the
Embassy
or
outside
Paris
on
temporary
duty
or
taking
annual
and
foreign
service
leave
in
the
United
Kingdom.
When
she
was
working
in
Paris
during
this
period,
she
lived
in
noncommercial
temporary
accommodation
and
was
ordinarily
resident
there
on
ordinary
working
days.
She
spent
most
of
the
month
of
November
1985
on
leave
at
the
house
in
England
maintained
by
her
husband.
Mrs.
Mallett
never
had
the
intention
to
live
on
a
permanent
basis
in
England.
Immediately
prior
to
her
move
to
Ottawa,
some
of
the
personal
effects
of
Mrs.
Mallett
were
divided
between
Paris
and
London.
In
December,
1985,
Mrs.
Mallett
began
working
at
her
new
position
in
Ottawa
with
the
Ministry
of
State
for
Science
and
Technology.
In
her
income
tax
return
for
the
1985
taxation
year,
Mrs.
Mallett
sought
to
deduct
from
her
total
income
the
sum
of
$20,024.62
as
moving
expenses.
These
expenses
represented
the
cost
of
moving
the
personal
effects
of
Mrs.
Mallett
and
her
husband
from
the
house
in
England
to
Ottawa.
Included
in
this
amount
was
the
sum
of
$4,332.69
for
the
cost
of
moving
two
antique
automobiles
owned
by
the
husband
of
Mrs.
Mallett.
The
income
of
Mrs.
Mallett
for
the
1985
taxation
year
from
her
employment
at
her
new
position
in
Ottawa
was
$5,116.50.
By
notice
of
assessment
dated
June
27,
1986,
the
Minister
of
National
Revenue
disallowed
the
deduction
of
$20,024.62
claimed
for
moving
expenses.
Mrs.
Mallett
objected
to
the
assessment,
but
the
Minister
of
National
Revenue
confirmed
the
assessment
by
notification
of
confirmation
dated
December
16,
1986.
Mrs.
Mallett
unsuccessfully
appealed
the
disallowance
of
the
deductions
to
the
Tax
Court
of
Canada.
Issue
The
sole
issue
to
be
determined
is
whether
Mrs.
Mallett
is
entitled
under
section
62
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act")
to
claim
as
a
deduction
from
income
the
expenses
incurred
for
the
move
from
the
home
in
England
to
Ottawa.
Position
of
plaintiff
Mallett
Mrs.
Mallett
submits
that
she
was
ordinarily
resident
in
both
Paris
and
London
before
moving
to
Canada
and,
as
such,
is
entitled
to
claim
expenses
for
the
move
from
the
house
in
England
as
a
deduction
under
section
62
of
the
Income
Tax
Act.
Alternatively,
if
the
costs
incurred
in
moving
the
effects
from
the
house
in
England
may
be
construed
as
being
amounts
on
account
of
moving
within
the
meaning
of
section
62
of
the
Income
Tax
Act,
the
expenses
may
properly
be
claimed
as
a
deduction.
Position
of
defendant
Her
Majesty
The
Queen
Counsel
for
the
Attorney
General
of
Canada
submits
that
Mrs.
Mallett
neither
established
a
residence
nor
was
ordinarily
resident
in
England
before
her
move
to
Canada
in
the
fall
of
1985.
As
such,
she
is
not
entitled
under
section
62
of
the
Income
Tax
Act
to
claim
the
moving
expenses
as
a
deduction
from
income.
Alternatively,
if
Mrs.
Mallett
is
entitled
to
claim
the
moving
expenses
as
a
deduction,
that
deduction
must
be
limited
to
the
portion
of
her
income
earned
in
the
1985
taxation
year
at
her
new
work
location
and
any
remaining
amount
carried
forward
to
the
next
taxation
year.
Analysis
At
the
outset
of
the
proceedings,
counsel
for
the
Attorney
General
of
Canada
conceded
that
the
learned
judge
from
the
Tax
Court
of
Canada
erred
in
dismissing
the
appeal
of
Mrs.
Mallett
on
the
basis
that
she
was
not
moving
from
one
location
to
another
within
Canada
and
therefore
did
not
meet
the
requirements
of
section
62
of
the
Act.
In
so
ruling,
the
learned
judge
neglected
to
apply
the
provisions
of
sections
250
and
63.1
of
the
Act
which,
when
read
together,
would
permit
a
public
servant
serving
overseas
to
claim
moving
expenses
in
certain
prescribed
circumstances.
I
agree
with
the
submission
made
by
counsel
that
the
learned
judge
from
the
Tax
Court
of
Canada
mis-
directed
himself
on
the
interpretation
of
section
62
of
the
Act
and
failed
to
apply
sections
63.1
and
250
of
the
Act.
An
appeal
from
the
Tax
Court
of
Canada
to
the
Federal
Court
of
Canada
is
a
trial
de
novo
in
which
the
assessment
under
consideration
is
presumed
to
be
valid
until
the
taxpayer
establishes
otherwise.
(See
M.N.R.
v.
Lehndorff
Realty
Devs.
Ltd.,
[1987]
1
C.T.C.
42,
86
D.T.C.
6610
(F.C.T.D.)
(sub.
nom.
R.
v.
Lehndorff
Realty
Devs.
Ltd.);
Midwest
Oil
Prod.
Ltd.
v.
The
Queen,
[1982]
C.T.C.
107,
82
D.T.C.
6092
(F.C.T.D.).)
In
order
to
determine
whether
Mrs.
Mallett
has
discharged
the
burden
of
establishing
that
the
assessment
is
invalid,
the
relevant
statutory
provisions
must
be
considered.
Subsection
62(1)
of
the
Act
permits
a
taxpayer
in
prescribed
circumstances
to
deduct
from
income
amounts
paid
as
or
on
account
of
moving
expenses
incurred
while
moving
from
the
residence
where
he
ordinarily
resided
in
Canada
to
his
new
ordinary
residence
in
Canada.
Moving
expenses
are
defined
in
paragraph
62(3)(b)
of
the
Act
as
including
any
expense
incurred
as
or
on
account
of
the
cost
of
transporting
or
storing
household
effects
in
the
course
of
moving
from
the
residence
where
he
ordinarily
resided
to
his
new
ordinary
residence.
Although
subsection
62(1)
of
the
Act
would
not
appear
on
its
face
to
apply
to
Mrs.
Mallett
as
she
was
not
moving
from
one
residence
to
another
in
Canada,
subsection
250(1)
provides
an
extended
meaning
of
resident
and
deems
a
servant
of
Canada
who
was
resident
in
Canada
immediately
prior
to
appointment
abroad
to
have
been
resident
in
Canada
throughout
a
taxation
year.
Section
63.1
of
the
Act
states
that,
where
a
taxpayer
is
deemed
by
section
250
to
be
resident
in
Canada
throughout
or
for
part
of
a
taxation
year,
subsection
62(1)
shall
be
read
without
reference
to
the
words
"in
Canada".
Accordingly,
since
Mrs.
Mallett
is
deemed
by
subsection
250(1)
of
the
Act
to
be
resident
in
Canada
throughout
the
taxation
year,
section
63.1
of
the
Act
operates
so
as
to
eliminate
the
requirement
in
subsection
62(1)
that
her
move
occur
from
one
residence
to
another
in
Canada.
Mrs.
Mallett
may
therefore
claim
as
a
deduction
amounts
paid
on
or
account
of
moving
expenses
if
she
meets
the
requirements
in
subsection
62(1)
of
the
Act.
In
the
circumstances
of
Mrs.
Mallett,
the
only
question
to
be
determined
in
assessing
whether
she
meets
the
requirements
of
subsection
62(1)
of
the
Act
is
whether
she
was
ordinarily
resident
in
England
before
moving
to
Canada.
In
the
decision
Thomson
v.
M.N.R.,
[1946]
S.C.R.
209,
[1946]
C.T.C.
51,
2
D.T.C.
812,
the
concept
of
ordinary
residence
was
discussed.
It
appears
from
a
reading
of
the
several
judgments
in
this
case
that,
although
a
person
may
have
more
than
one
residence,
the
term“
ordinary
residence”
has
a
more
restricted
meaning
at
law.
As
stated
by
Rand,
J.
at
page
224
(C.T.C.
64;
D.T.C.
816)
of
the
judgment,
ordinary
residence
means
”.
.
.
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
concept
inherent
in
this
statement
is
echoed,
albeit
in
different
words,
in
the
other
concurring
judgments
in
the
case.
Recent
jurisprudence
has
concluded,
based
on
the
analysis
in
Thomson
v.
M.N.R.,
supra,
that
a
person
cannot
have
two
ordinary
residences
at
the
same
time.
(See
Rennie
v.
M.N.R.,
[1990]
1
C.T.C.
2141,
90
D.T.C.
1050
(T.C.C.).)
The
facts
of
this
case
establish
unequivocally
that
Mrs.
Mallett
was
not
ordinarily
resident
in
England
prior
to
her
move
to
Ottawa.
To
the
extent
that
she
spent
time
at
the
home
in
England,
she
only
resided
there
casually
until
her
move
to
her
new
home
in
Ottawa.
Accordingly,
even
assuming
that
a
taxpayer
may
have
two
ordinary
residences
at
the
same
time
(a
proposition
with
which
I
do
not
agree),
Mrs.
Mallett
has
not
convinced
me
that
she
was
ordinarily
resident
in
both
Paris
and
England
prior
to
her
move
to
Ottawa.
Since
she
was
not
ordinarily
resident
in
England
prior
to
moving
to
Ottawa,
her
alternative
argument
that
the
costs
incurred
in
moving
the
effects
from
the
house
in
England
may
be
construed
as
being
amounts“
on
account
of"
moving
fails
on
a
plain
reading
of
subsections
62(1)
and
(3)
of
the
Act.
Mrs.
Mallett
has
failed
to
discharge
the
burden
of
establishing
that
the
assessment
is
invalid
and
is
therefore
not
entitled
to
claim
as
a
deduction
the
$20,024.62
in
expenses
incurred
for
the
move
from
the
home
in
England
maintained
by
her
husband
to
their
new
home
in
Ottawa.
The
appeal
is
dismissed
with
costs.
Appeal
dismissed.