Docket: A-145-96
OTTAWA, ONTARIO, THE 26TH DAY OF NOVEMBER 1997.
CORAM: THE HONOURABLE MR. JUSTICE DENAULT
THE HONOURABLE MADAME JUSTICE DESJARDINS
THE HONOURABLE MR. JUSTICE LÉTOURNEAU
BETWEEN:
ATTORNEY GENERAL OF CANADA,
Applicant,
- and -
ALAIN TREMBLAY,
Respondent.
JUDGMENT
The application for judicial review is dismissed.
Pierre Denault
J.F.C.
Certified true translation
Christiane Delon
Date: 19971128
Docket: A-145-96
CORAM: DENAULT J.A.
DESJARDINS J.A.
LÉTOURNEAU J.A.
Between: ATTORNEY GENERAL OF CANADA,
Applicant,
-and-
ALAIN TREMBLAY,
Respondent.
Hearing held at Ottawa on Wednesday, November 26, 1997
Judgment delivered from the bench at Ottawa on Wednesday, November 26, 1997
REASONS FOR JUDGMENT BY: DENAULT J.A.
Date: 19971128
Docket: A-145-96
Coram: DENAULT J.A.
DESJARDINS J.A.
LÉTOURNEAU J.A.
Between: ATTORNEY GENERAL OF CANADA,
Applicant,
-and-
ALAIN TREMBLAY,
Respondent.
REASONS FOR JUDGMENT OF THE COURT
DENAULT J.A.
[1] In the case at bar, the applicant has not convinced us that the Tax Court of Canada Judge made an error that warrants this Court"s intervention.
[2] The taxpayer lived in Val Bélair, Quebec when he was hired as a peace officer by the Royal Canadian Mounted Police. His employer immediately sent him to Montréal to take an English course from September 1991 to May 1992, and it deducted $360 a month from his salary for his room and board with a host family during the months he was taking the course. It has been established that Montréal was not his employer"s place of business. When the taxpayer sought to deduct those expenses " $1,338 for the 1991 taxation year and $3,315 for the 1992 taxation year " from his employment income, the deductions were disallowed. However, the Tax Court of Canada Judge found that the taxpayer was entitled to deduct those expenses from his employment income since he had been required to carry on the duties of his employment away from the place of business of his employer, since the expenses deducted were not personal expenses and since, in short, he met the requirements of paragraph 8(1)(h) of the Income Tax Act. That paragraph reads as follows:
| 8. (1) In computing a taxpayer"s income for a taxation year from an office or employment, there may be deducted such of the following amounts as are wholly applicable to that source or such part of the following amounts as may reasonably be regarded as applicable thereto: |
| (h) where the taxpayer, in the year, |
| (i) was ordinarily required to carry on the duties of his employment away from his employer"s place of business or in different places, and |
| (ii) under the contract of employment was required to pay travelling expenses incurred by him in the performance of the duties of his office or employment, |
| amounts expended by the taxpayer in the year . . . for travelling in the course of the taxpayer"s employment. . . . |
[3] The judgment in respect of which judicial review is sought is very terse. It would no doubt have been desirable for the Judge to say more about one of the criteria found in subparagraph 8(1)(h)(i) of the Act, namely whether the taxpayer, in the year, was ordinarily required to carry on the duties of his employment away from his employer"s place of business or in different places. However, the Tax Court of Canada Judge"s analysis of the evidence shows that he did consider this question, and his conclusion is consistent with the interpretation given by this Court in Healy v. The Queen , [1979] 2 F.C. 49, at page 55:
| The objective of section 8(1)(h) is to enable employees who are required by their employment to work from time to time away from the places at which they usually work, to deduct their out-of-pocket expenses in so doing. |
[4] The applicant is relying on an interpretation of that case by a Tax Review Board judge in Ronchka v. MNR (79 DTC 854). That judge found that paragraph 8(1)(h) does not apply where the assignment away from the regular place of business relates only to a single and isolated event, as was the case here.
[5] In our view, that interpretation is incorrect. Even a literal interpretation of subparagraph 8(1)(h)(i) leads to the conclusion that the respondent was ordinarily carrying on the duties of his employment away from his employer"s place of business while he was assigned to Montréal during the 1991 and 1992 taxation years.
[6] The application for judicial review should be dismissed.
PIERRE DENAULT
J.F.C.
Certified true translation
Christiane Delon
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: Attorney General of Canada |
v. Alain Tremblay
| PLACE OF HEARING: Ottawa, Ontario (via teleconference) |
| DATE OF HEARING: November 26, 1997 |
REASONS FOR JUDGMENT OF THE COURT (Denault, Desjardins & Létourneau JJ.A.)
| DELIVERED FROM THE BENCH BY: Denault J.A. |
APPEARANCES:
Gérald Chartier FOR THE APPLICANT
Alain Tremblay FOR HIMSELF
SOLICITORS OF RECORD:
George Thomson
Deputy Attorney General
of Canada
Ottawa, Ontario FOR THE APPLICANT
Alain Tremblay
Bas-Caraquet, N.B. FOR HIMSELF
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