Kempo,
T.C.J.:—This
appeal
concerns
the
appellant's
1987
taxation
year
and
is
from
the
respondent's
disallowance
of
expenses
claimed
as
deductions
from
income
in
respect
of
an
alleged
office
in
the
appellant's
home.
The
respondent's
assessing
position
is
reflected
in
the
reply
to
notice
of
appeal
thusly:
3.
In
so
reassessing
the
appellant's
taxation
liability,
the
respondent
relied
upon
the
following
assumptions
of
fact
with
respect
to
the
matters
in
issue:
(a)
The
appellant
was
employed
as
a
Barrister
and
Solicitor
with
a
law
firm
whose
office
was
located
at
#307,
8625—112
Street,
in
Edmonton,
Alberta.
(b)
The
appellant
resided
at
#14,
10160—119
Street,
Edmonton,
Alberta.
(c)
With
regards
to
an
office,
her
employer
indicated
she
had
office
space
available
at
her
employer's
premises,
and
was
not
required
to
maintain
an
office
in
her
home.
(d)
Employment
expenses
as
follows
were
claimed:
|
Automobile
expenses
|
$3,371.65
(allowed
in
full)
|
|
Office
in
home
expenses
|
1,555.49
|
|
$4,927.14
|
(e)
The
office
in
home
expenses
were
calculated
as
follows:
|
Rent
|
$8,940.00
|
|
Utilities
|
392.95
|
|
$9,332.95
|
|
Personal
use
5/6
|
7,777.46
|
|
Deductible
portion
|
$1,555.49
|
(f)
The
amounts
claimed
by
the
appellant
in
the
year
were
not
cost
of
supplies
that
were
consumed
directly
in
the
performance
of
the
duties
of
her
office
or
employment
and
that
the
appellant
was
not
required
by
the
contract
of
employment
to
supply
and
pay
for.
(g)
The
appellant
has
an
office
space
available
at
her
employer's
place
of
business
and
is
not
required
to
maintain
an
office
in
her
home.
(h)
One
or
more
rooms
were
not
set
aside
from
the
living
quarters
and
used
solely
for
the
purpose
of
earning
income.
(i)
The
appellant's
employer
had
an
office
within
a
reasonable
distance
from
the
employee's
home.
4.
The
respondent
relies,
inter
alia,
upon
paragraph
8(1)(i)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148,
as
amended
by
S.C.
1970-71-72,
c.
63,
s.
1,
and
subsequently,
applicable
to
the
1987
taxation
year
of
the
appellant.
5.
The
amounts
claimed
by
the
appellant
in
the
year
were
not
cost
of
supplies
that
were
consumed
directly
in
the
performance
of
the
duties
of
her
office
or
employment
and
that
the
appellant
was
required
by
the
contract
of
employment
to
supply
and
pay
for,
and
were
accordingly
correctly
disallowed
as
not
meeting
the
requirements
of
paragraph
8(1)(i)
of
the
Act.
The
appellant's
letter
of
appeal
reads:
I
will
summarize
the
arguments
briefly.
The
Federal
Government
has
passed
three
Acts
which
the
Appeal
Division
decision
renders
inconsistent
with
each
other.
1.
Criminal
Code
2.
Charter
of
Rights
and
Freedoms
3.
Income
Tax
Act
A
person
charged
under
the
Criminal
Code
is
granted
defined
rights
under
the
Charter.
The
Income
Tax
Act
must
therefore,
recognize
and
allow
the
home
office
expenses
of
the
lawyers
who
are
associated
with
securing
the
rights
so
granted.
Crimes
are
not
usually
committed
during
the
regular
office
hours.
Criminal
lawyers
accept
this
fact.
As
the
firm
employing
me
does
so
specifically
because
I
practice
in
the
criminal
and
litigation
field,
it
is
a
term
and
condition
of
my
employment
that
I
be
available
24
hours
per
day.
If
I
declined
to
do
so,
they
would
not
have
work
for
me.
Because
of
the
vagueness
of
the
appellant's
pleading
and
its
want
of
particularization
delineating
which
Charter
right
or
rights
were
being
denied
or
infringed
and
the
specific
remedies
being
sought,
the
Court
heard
the
evidentiary
basis
of
the
matter
after
directing
that
written
submissions
were
to
be
filed
with
respect
to
the
Charter
matters
and
the
facts
of
the
case.
Facts
The
evidence
of
the
appellant
was
that
she
had
been
hired
by
her
law
firm
on
the
distinct
understanding
that
she
would
be
available
to
take
criminally
related
calls
on
a
24-hour
basis,
that
the
after-hours
telephone
advice
rendered
on
these
matters
formed
a
large
portion
of
her
business,
and
that
it
was
a
source
of
a
large
amount
of
fees
to
her
law
firm.
The
way
it
worked
was
described
thusly
by
the
appellant:
As
a
result
of
initial
contact
over
the
telephone
as
I’ve
established,
I
have
an
ongoing
relationship
with
clients
who
then
refer
other
clients
to
me
and
who
return
to
me
for
their
next
legal
matter.
In
addition
to
that,
the
telephone
that
I
utilize
as
a
tool
of
my
trade
ensures
that
the
criminal
justice
system
works
smoothly
and
properly
as
the
Parliament
of
Canada
and
the
Supreme
Court
of
Canada
have
deemed
that
it
ought
to,
and
for
that
reason
it’s
an
essential
part
of
my
profession.
I
don't
do
this
by
choice.
This
is
not
something
I
elect
to
do
or
can
decide
not
to
do.
This
is
an
essential.
I
have
a
job
specifically
because
of
the
kind
of
law
I
do.
Mr.
McGuire
will
give
evidence,
I
believe,
of
the
contract
of
employment
he
and
I
entered
into,
where
it
was
specifically
because
of
the
kind
of
law
1
do,
the
clientele
I
attract,
the
work
I
brought
into
the
office.
A
short
review
of
the
Yellow
Pages
of
Edmonton
will
reveal
the
numbers
of
lawyers
who
have
24-hour
lines
and
the
necessity
for
having
this
if
you
intend
to
conduct
a
serious
criminal
practice.
My
criminal
practice,
depending
on
the
work
I
get,
comprises
between
40
per
cent
and
up
to
90
per
cent
of
my
practice
at
any
particular
time,
depending
on
how
the
work
comes
in.
Not
only
do
the
matrimonial
clients
bring
me
their
criminal
work,
but
my
criminal
clients
also
bring
me
their
matrimonial
and
civil
work.
The
answering
service
patches
the
call
through
to
my
home.
They
take
the
call
by
lifting
up
the
telephone—or
by
intercepting
the
call
going
into
my
office,
determining
that
it
is
a
call
that
requires
immediate
attention,
and
then
patching
it
through
to
my
home.
So
that
they
intercede
and
they
are
the
ones
who
put
the
call
through.
They
are
an
initial
screening.
They
are
the
ones
who
weed
out
the
calls
that
are
not
for
me.
[But]
the
calls
that
are
put
through
to
me
are
all
emergencies.
They
are
part
of
what
greases
the
wheels
of
the
criminal
justice
system,
and
certainly
keeps
my
practice
going.
I
must
have
that
kind
of
contact
with
my
clients
on
an
ongoing
basis.
It
happens,
not
every
time,
but
often
enough
that
I’m
concerned
about
it;
it
happens
that
after
my
client
has
been
arrested,
charged
and
released
or
just
released,
the
police
will
go
back,
either
with
a
search
warrant
or
without,
after
perhaps
a
trial
date
has
been
set
or
the
client
has
already
contacted
me,
the
police
are
suddenly
at
his
door
with
a
search
warrant
looking
for
more
information.
It's
imperative
he
be
able
to
contact
me
at
that
time,
because
he
has
an
emergency
to
be
dealt
with.
Again,
Your
Honour,
this
is
not
during
regular
office
hours.
I
don't
believe
that
there
are
any
statistics
I
need
to
cite,
it’s
a
matter
of
common
sense,
that
crime
doesn't
have
office
hours.
It’s
with
us
all
the
time,
24
hours
a
day.
The
criminal
element
certainly
works
weekends.
It
happens
that
I
make
the
determination
that
I
must
go
down
to
the
police
station,
and
I
have
done
this
on
more
than
one
occasion
as
a
result
of
calls
coming
through
to
my
home,
where
I
make
a
decision
that
this
individual
is
in
such
a
bad
way
that
I
must
get
out
of
bed,
get
dressed
and
go
down
to
the
police
station,
and
I
have
done
that
on
more
than
one
occasion.
And
again,
that
arises
as
a
result
of
their
being
able
to
contact
me
over
the
telephone.
Because
of
the
essential
nature
of
the
office
that
I
have
in
my
home
to
my
practice,
that
is
the
reason
that
I
take
the
position
that
it
is
a
legitimate
expense
and
a
deduction
from
my
income
tax.
[T.
17-21]
The
appellant
testified
that
under
her
contract
of
employment,
while
she
was
required
to
have
the
24-hour
telephone
line
in
her
home,
she
was
not
required
to
have
an
office
per
se
in
her
home.
She
did
use
a
second
bedroom
in
her
premises
solely
for
after-hours
professional
work
in
respect
of
her
general
litigation
practice.
In
it
was
a
desk
and
some
legal
texts.
Her
employer
paid
for
all
the
telephone
expenses
and
all
of
the
aforedescribed
night
calls
were
taken
at
her
bedside
telephone.
The
appellant
was
the
sole
occupant
of
her
apartment,
there
was
only
one
telephone
and
its
number
was
unlisted.
The
deduction
claimed
was
premised
on
one-sixth
of
the
total
expenses
as
being
representative
of
the
square
footage
of
the
second
bedroom
as
to
total
square
footage
of
the
whole
premises.
On
cross-examination
the
appellant
readily
conceded
that
the
second
bedroom
(which
she
had
claimed
as
an
office)
had
nothing
to
do
with
the
subject
24-hour
telephone
service
line
and
that
she
was
not
required
to
perform
her
general
litigation
work
at
home.
When
asked
if
she
was
required
to
have
an
office
in
her
home
in
1987,
her
response
was
that
it
was
an
"off-shoot"
of
having
a
home
line
to
take
the
after-hours
calls
from
individuals
in
detention.
Mr.
Barry
McGuire,
the
appellant's
employer,
testified
and
essentially
confirmed
the
aforementioned
conditions
of
employment.
He
was
not
interested
in
taking
any
night
calls
himself
and
confirmed
there
were
no
obligations
or
expectations,
express
or
implied,
that
the
appellant's
24-hour
telephone
line
had
to
be
in
a
separate
space
or
that
she
was
to
have
had
a
separate
space
in
her
home
to
be
used
as
an
office
for
this
purpose.
An
employee
of
the
telephone
answering
service
did
not
appear
at
the
appropriate
time
to
testify
due
to
a
misunderstanding
on
her
own
part.
The
following
forms
part
of
the
factual
evidence
of
the
case:
Ms.
Sword:
Your
Honour,
I'm
indebted
to
counsel
for
the
respondent,
who
has
agreed
to
consent
to
these
facts
being
read
in
and
to
admit
them
as
evidence.
I
telephoned
Darlene
Wood,
who
was
the
witness
I
had
subpoenaed.
I
spoke
to
her
at
her
home.
She
advised
me
of
the
following
facts.
She
was
employed
by
Allied
Communications
and
she
had
instructions
from
an
agreement
between
McGuire
&
Koehli
and
Allied
Communications
to
intercept
calls.
The
calls
that
she
intercepted
were
from
people
in
custody.
They
were
adamant
that
they
had
to
speak
to
someone
right
away.
They
waited
on
the
telephone
line
while
she
found
someone,
and
the
individual
she
found
was
namely
myself,
Deborah
Sword.
She
stated
that
the
operators
learned
that
I
was
always
home,
and
that
I
would
accept
these
calls.
There
was
another
lawyer's
name
they
had
as
back-up,
but
the
operators
determined
that
he
was
rarely
available
and
therefore
they
tried
myself.
She
estimated
that
on
average
they
put
through
two
to
three
calls
per
night,
and
she
related
that
they
were
concerned,
the
operators
amongst
themselves,
that
I
would
not
get
any
sleep.
She
indicated
that
these
calls
were
sometimes
very
lengthy.
She
could
tell
that
because
she
would
see
a
disconnect
on
the
switchboard
when
the
call
ended.
In
addition,
they
did
a
line
check,
which
she
explained
to
me
was
that
after
10
or
15
minutes
if
the
call
was
still
showing
as
connected
on
their
switchboard,
they
did
a
line
check
to
ensure
that
someone
was
still
talking.
So
she
would
confirm
that
some
of
these
calls
were
quite
lengthy.
She
estimated
that
in
addition
to
the
two
to
three
calls
per
night
which
were
emergency
calls
from
people
at
the
police
station
in
custody
who
needed
to
speak
to
counsel
right
away,
they
also
intercepted
three
to
four
calls
per
night
which
were
not
urgent
and
in
that
case
Allied
operators
simply
took
a
message
for
the
call
to
be
returned
by
the
appropriate
lawyer.
She
indicated
that
weekends
especially
calls
come
in
and
she
found,
in
her
experience,
that
Saturday
night
was
especially
heavy
and
it
was
their
experience
that
I
was
always
available
to
take
these
calls.
And
that
would
be
basically
her
evidence.
Her
Honour:
Do
you
agree
that's
an
accurate
representation
of
what
the
testimony
would
have
been?
Ms.
Goldstein:
Yes
I
do,
Your
Honour.
[T.
60-62]
In
paragraph
1
of
her
written
submissions,
counsel
for
the
respondent
admitted
those
facts
stated
in
paragraphs
1-6
inclusive
of
the
written
submis-
sions
of
the
appellant.
One
such
admitted
set
of
facts,
as
reflected
in
the
appellant's
paragraphs
2,
3
and
6,
read:
2.
I
have
a
twenty-four,
seven
day
per
week
telephone
line
patched
through
to
my
home
for
emergency
calls
when
people
in
custody
assert
their
rights
as
granted
to
them
under
Section
10(b)
of
the
Canadian
Charter
of
Rights
and
Freedoms
which
states,
"Everyone
has
the
right
on
arrest
or
detention
to
retain
and
instruct
counsel
without
delay
and
to
be
informed
of
that
right.
3.
If
criminal
lawyers
do
not
take
these
calls,
the
investigative
work
of
the
police
is
stymied.
They
would
be
unable
to
interrogate
suspects
in
contravention
of
the
10(b)
rights.
6.
Mr.
Barry
McGuire
gave
evidence
that
it
was
a
term
and
condition
of
my
employment
that
I
take
these
calls.
The
Position
Taken
by
the
Parties
Statements
of
the
Appellant
The
Income
Tax
Act
does
not
recognize
the
Charter
requirement
for
criminal
lawyers
to
be
available
on
a
twenty-four
hour
basis.
The
Minister
of
National
Revenue
cannot
expect
that
lawyers
will
sit
in
their
offices
twenty-four
hours
a
day,
seven
days
per
week,
yet
when
I
am
taking
these
calls
in
my
home,
I
am
working
and
it
is
a
term
and
condition
of
my
employment
that
I
do
so.
The
twenty-four
hour
number
and
the
answering
service
are
an
expense
to
the
firm
which
is
paid
in
recognition
of
the
necessity
for
providing
this
service
in
order
to
ensure
the
smooth
functioning
of
the
criminal
justice
system.
If
the
Income
Tax
Act
does
not
recognize
this
work
and
the
need
for
my
utilizing
my
home
as
an
office
all
of
those
hours
that
I
am
not
at
my
office,
then
under
the
terms
of
the
Canadian
Charter
of
Rights
and
Freedoms,
the
Income
Tax
Act
cannot
prevail.
The
Canadian
Charter
of
Rights
and
Freedoms
is
the
supreme
law
of
Canada
and
by
granting
a
suspect
or
an
accused
person
who
has
been
detained
the
rights
to
a
lawyer
on
a
twenty-four
hour
basis,
the
Income
Tax
Act
must
contemplate
that
reality
and
if
it
does
not,
it
is
within
the
jurisdiction
of
this
Honourable
Court
to
overturn,
expand
upon
or
read
down
the
Income
Tax
Act
insofar
as
is
necessary
to
reflect
the
provision
of
the
Canadian
Charter
of
Rights
and
Freedoms,
all
of
which
is
respectfully
submitted.
Statements
of
the
Respondent
The
respondent
submits
that
the
appellant
has
not
established
that
there
has
been
a
violation
of
section
10
of
the
Canadian
Charter
of
Rights
and
Freedoms
(the
"Charter"),
for
which
this
Court
should
grant
relief
and
that
this
Court
is
without
jurisdiction
to
provide
the
relief
sought
by
the
appellant.
The
respondent
further
submits
that
the
appellant
is
not
entitled
to
deduct
the
expenses
claimed
pursuant
to
subparagraph
8(1)(i)(ii)
of
the
Income
Tax
Act
(the
"Act")
and
that
this
Court
is
without
jurisdiction
to
expand
that
subparagraph
so
as
to
provide
any
relief
to
the
appellant.
The
Applicable
Law
The
Income
Tax
Act
(the
"ITA")
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:
(i)
amounts
paid
by
the
taxpayer
in
the
year
as
(i)
(not
applicable)
(ii)
office
rent,
or
salary
to
an
assistant
or
substitute,
the
payment
of
which
by
the
officer
or
employee
was
required
by
the
contract
of
employment,
(iii)
the
cost
of
supplies
that
were
consumed
directly
in
the
performance
of
the
duties
of
his
office
or
employment
and
that
the
officer
or
employee
was
required
by
the
contract
of
employment
to
supply
and
pay
for,
to
the
extent
that
he
has
not
been
reimbursed,
and
is
not
entitled
to
be
reimbursed
in
respect
thereof;
(2)
Except
as
permitted
by
this
section,
no
deductions
shall
be
made
in
computing
a
taxpayer's
income
for
a
taxation
year
from
an
office
or
employment.
The
Charter
10.
Everyone
has
the
right
on
arrest
or
detention
(b)
to
retain
and
instruct
counsel
without
delay
and
to
be
informed
of
that
right;
24.(1)
Anyone
whose
rights
or
freedoms,
as
guaranteed
by
this
Charter,
have
been
infringed
or
denied
may
apply
to
a
court
of
competent
jurisdiction
to
obtain
such
remedy
as
the
court
considers
appropriate
and
just
in
the
circumstances.
52.(1)
The
Constitution
of
Canada
is
the
supreme
law
of
Canada,
and
any
law
that
is
inconsistent
with
the
provisions
of
the
Constitution
is,
to
the
extent
of
the
inconsistency,
of
no
force
or
effect.
Analysis
The
Fiscal
Aspect
By
virtue
of
subsection
8(2)
of
the
Income
Tax
Act
the
appellant,
an
employee,
is
restricted
to
those
deductions
(of
relevance
to
this
appeal)
as
above
set
out.
The
fiscal
aspect
of
her
position,
if
I
understand
it
correctly,
was
that
some
spatial
three-dimensional
area
surrounding
the
bedside
telephone
to
encompass
the
answering,
advising
and
record
keeping
functions
was
essential
to
the
proper
professional
performance
of
those
functions
and
thereby
it
may
realistically
bear
the
appellation
"office"
that
she
was,
by
compelling
implication,
required
to
provide
at
her
own
cost.
In
my
view
full
recognition
should
be
accorded
the
reality
that
a
very
essential
legal
service
was
being
delivered
mandating
an
after
normal
business
hours
mode
of
delivery,
and
that
therefore
a
common
sense
interpretative
approach
should
be
employed
with
respect
to
the
meaning
of
the
word
“office”
appearing
in
paragraph
8(1)(i)(ii)
of
the
Income
Tax
Act.
It
would
be
patently
absurd
to
expect
that
the
kind
of
legal
services
described
here
must
or
should
be
delivered
out
of
a
lawyer's
law
office
or
physical
premises
normally
described,
in
its
classic
sense,
as
a
place
for
the
regular
transaction
of
business.
The
distinguishing
and
unique
aspect
of
this
particular
case
is
that
the
very
nature,
and
quantity,
of
the
services
actually
provided
mandated
a
base
of
operation
outside
that
of
the
regular
place
of
business.
That
place,
realistically
and
reasonably,
could
only
have
been
in
the
appellant's
home
with
no
particular
need
or
expectation
for
the
telephone
to
be
within
an
exclusively
occupied
three-dimensional
space.
The
appellant
was
the
sole
occupant
of
the
apartment
for
which
she
paid
rent.
The
only
telephone
in
her
home
was
the
subject
One,
and
it
had
an
unlisted
number.
I
accept
the
appellant's
evidence
that
its
use
for
personal
purposes
was
secondary
and
minute.
This
case
is
factually
distinguishable
from
those
in
which
a
taxpayer,
more
as
a
matter
of
convenience
than
necessity,
had
maintained
a
separate
and
exclusive
space
at
their
place
of
residence
in
or
from
which
they
did
some
work
or
transacted
some
business
in
an
ancillary
fashion.
Also,
a
nexus
or
connection
to
the
appellant's
employment
income
can
be
strongly
inferred
as
the
actual
and
frequent
delivery
of
the
subject
legal
services
bore
a
rational
and
direct
connection
to
the
remuneration
earned
and
received
by
her.
If
the
above
findings
were
sufficient
to
fully
dispose
of
the
appeal,
I
would
have
so
decided.
However
the
manner
in
which
the
appellant,
selfrepresented,
had
presented
her
own
case
precludes
the
Court,
at
this
time,
from
determining
any
specific
monetary
allocation
to
her
general
claim
of
a
deduction
for
an
"office"
pursuant
to
paragraph
8(1)(i)(ii)
of
the
Income
Tax
Act
with
respect
to
the
subject
situation.
This
matter
requires
a
determination,
which
must
necessarily
exclude
all
personal
and
all
non-criminally
related
after-hours
telephone
use
made
of
the
self
same
space.
I
suspect
that
when
the
whole
matter
is
reviewed,
with
all
the
above
considerations
taken
into
account,
some
modicum
amount
is
reasonably
attributable
to
the
true
situation.
For
the
reasons
given,
the
appeal
is
allowed
in
part,
with
costs,
and
the
matter
referred
back
to
the
Minister
of
National
Revenue
for
reconsideration
and
reassessment
on
the
basis
set
out
in
the
next
preceding
paragraph
hereof.
Such
reconsideration
and
reassessment
should
be
made
only
after
affording
the
appellant
areasonable
opportunity
to
make
proper
representations
as
to
the
proper
apportionment
and
the
monetary
amount
reasonably
applicable
thereto.
In
my
view
the
above
is
sufficient
to
dispose
of
this
appeal,
and
therefore
the
alleged
Charter
aspects
raised
by
the
appellant
need
not
be
considered.
Appeal
allowed
in
part.
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