Date: 19980717
Docket: 96-362-IT-I
BETWEEN:
DAVID FORSTER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for judgment
(Delivered Orally from the Bench at Edmonton, Alberta on
Friday, July 17th, 1998)
HIS HONOUR: This appeal pursuant to the Informal Procedure was
heard at Edmonton, Alberta on July 14, 1998. The Appellant was
the only witness.
In 1993, the Appellant, an Edmonton public school principal,
claimed for employment expenses of $7,558.68 he incurred on
“leave for professional improvement” when he attended
the University of Southern Mississippi in Hattiesburg,
Mississippi from May 17 to August 15. They were disallowed. He
appealed.
Paragraphs 14 and 15 of the Reply to the Notice of Appeal
read:
14. In so reassessing the Appellant, the Minister made the
following assumptions of fact:
(a) the facts admitted and stated above;
(b) throughout the 1993 taxation year the Appellant was a
resident of Canada;
(c) throughout the 1993 year the Appellant was employed by the
School Board as a school principal;
(d) for the period May 17, 1993 to August 25, 1993 the
Appellant was granted leave for professional development by the
School Board;
(e) the Appellant was enrolled in the doctoral program at the
University of Southern Mississippi;
(f) during the period May 17, 1993 to August 17, 1993 the
Appellant drove from Edmonton to Hattiesburg, Mississippi and
return;
(g) the Appellant also travelled to other places while in the
US;
(h) the automobile expenses claimed are expenses incurred
between May 17, 1993 and August 17, 1993;
(i) the Appellant’s spouse and one child accompanied the
Appellant on the trip to and from Hattiesburg, Mississippi;
(j) the expenses claimed are personal expenses of the
Appellant and were not for the purpose of earning income from
employment;
(k) the cost of training is a capital expenditure;
(l) the expenses claimed by the Appellant were expenses
related to pursuing studies and other personal activities while
on leave from his duties;
(m) the Appellant was not ordinarily required to carry out the
duties of his employment away from the School Board’s place
of business or in different places;
(n) under the contract of his employment the Appellant was not
required to pay travelling expenses incurred by him in the
performance of his duties of his office or employment;
(o) under the contract of his employment with the School
Board, the Appellant was not required to pay for the cost of
supplies that were consumed directly in the performance of the
duties of his office or employment and that the Appellant was
required by the contract of employment to supply and pay for;
(p) the expenses claimed in respect of meals, lodging,
parking, supplies and training have not been proven to have been
incurred by the Appellant;
(q) on April 11, 1994, the Appellant received an Unwarranted
Refund in the amount of $3,056.57;
(r) prescribed interest on the Unwarranted Refund from April
30, 1994 to June 8, 1995 amounts to $292.85.
15. On March 27, 1992, the Appellant and the School Board
entered into an agreement titled “Leave for Professional
Improvement” whereby, inter alia”:
(a) the School Board granted the Appellant leave of absence
from duties for the period May 17, 1993 to August 25, 1993;
(b) the purpose of the leave was specified by the Appellant in
a written application for leave for professional improvement,
subject to the terms and conditions contained in clause 13.5.1(c)
of the Teachers’ Agreement;
(c) the remuneration in respect to this leave was to be
calculated on the basis of the Appellant’s grid placement
at the time the leave commenced;
(d) on completion of the leave the Appellant was to provide
the associate superintendent with evidence that all the
conditions of professional improvement leave had been fulfilled;
and
(e) the Appellant was obliged to resume and continue the
performance of duties as an employee of the School Board for the
next three years following the leave.”
Assumptions 14(b), (c), (d), (e), (f), (g), (h), (i) and (l)
are true. Paragraph 15 is true in its entirety.
The introduction and paragraph 1 of the Appellant’s
contract with his employer for “Leave for Professional
Improvement” (Exhibit A-1, page 12) reads:
“W I T N E S S E T H:
1. Subject to the conditions hereinafter contained, the Board
hereby grants to the Employee leave of absence from duties for
the period of May 17, 1993 to August 25, 1993 equivalent to 0.150
F.T.E. during the 1992-93 school year for the purpose specified
by the Employee in the written application for the leave for
professional improvement, subject to the terms and conditions
contained in Clause 13.5.1.(c) of the Teachers’ Agreement
and the conditions contained in this contract. Remuneration in
respect to this leave shall be calculated on the basis of the
Employee’s grid placement at the time the leave commences.
The annual allowance for full term leave or the pro-rated portion
of the partial leave will be paid in equal monthly installments
over the period of the leave commencing on the last day of the
first full calendar month of the leave.”
It is specific. The Appellant received a “leave of
absence from duties”. That refers to his duties of
employment.
For this reason the expenses claimed were not incurred in the
performance of the duties of his office or employment. His leave
was an exception to and a leave from those duties which required
a specific agreement with his employer.
The appeal is therefore dismissed.
I HEREBY CERTIFY THE FOREGOING to be a true and accurate
transcript of the proceedings herein to the best of my skill and
ability.
______________________________
A.B. LANIGAN, CVR
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