Bowie, J.T.C.C.:
1 The Appellant, when filing his income tax return for the taxation year 1994, claimed both a credit for tuition under section 118.5 of the Income Tax Act (the Act), and an education credit under section 118.6. These were disallowed by the Minister of National Revenue on reassessment.
2 Throughout 1994 the Appellant held a full-time job in Alberta. He was also registered as a student at Grantham College of Engineering (Grantham), in a course leading to a degree in computer science. Grantham is in Slidell, Louisiana, in the United States of America. It has no campus, no lectures, and no laboratories of the kind associated with most universities. Its curriculum is offered only through correspondence. Lessons are mailed to the students, who do their assignments and return them to the college by mail for grading. There are no semesters at Grantham. Students may take courses 12 months of the year if they wish. To complete their degree, they are simply required to complete the curriculum, and they may take as long or as short a time to do this as they wish. A course which would take four years at a conventional institution may be completed in about six or seven years, or it may take longer. The Appellant testified that in his case the limiting factor is the ability to pay the required fees, and for that reason, it may take him about 10 years to obtain his degree. He works three and one-half hours per day, five days per week, at his studies, and more on the week-ends.
3 The questions at issue in the appeal is whether or not the Appellant comes within the provisions of paragraph 118.5(1)(b) of the Act with respect to the tuition credit, and within paragraph 118.6(1)(b) with respect to the education amount. Those provisions, so far as they are relevant, read as follows.
118.5(1) For the purpose of computing the tax payable under this Part by an individual for a taxation year, there may be deducted,- (b) where the individual was during the year a student in full-time attendance at a university outside Canada in a course leading to a degree, an amount equal to the product obtained when the appropriate percentage for the year is multiplied by the amount of any fees for the individual's tuition paid in respect of the year to the university, except any such fees
118.6(1) For the purposes of this subdivision, “designated educational institution” means(b) a university outside Canada at which the individual referred to in subsection (2) was enrolled in a course, of not less than 13 consecutive weeks duration, leading to a degree, ...
118.5(1) Les montants suivants sont déductibles dans le calcul de l'impôt payable par un particulier en vertu de la présente partie pour une année d'imposition:- b) si, au cours de l'année, le particulier fréquente comme étudiant à plein temps une université située à l'étranger, où il suit des cours conduisant à un diplôme, le produit de la multiplication du taux de base pour l'année par le total des frais de scolarité payés à l'université pour l'année, à l'exception des frais qui ont été:
118.6(1) Les définitions qui suivent s'appliquent à la présente sous-section. «établissement d'enseignement agréé»
4 The Minister accepts that Grantham is a university, that the course pursued by the Appellant is one which has a continuous duration in excess of 13 consecutive weeks, leading to a degree, and that the Appellant was enrolled in the course and paid the required fees. Consequently, he now accepts that the Appellant meets the requirements of paragraph 118.6(1)(b) of the Act, and is entitled to a credit of the education amount, and he consents to judgment accordingly.
5 The question which remains for me to decide is whether or not the Appellant was “in full-time attendance” at Grantham, and therefore entitled to the tuition credit as well.
6 The Appellant points out, no doubt correctly, that there are many students at conventional universities who are able to fulfill the requirements of full-time courses while holding a full-time job as well. He argues, quite persuasively, that the expression “full-time attendance” must be understood in the context of the particular university at which he is enrolled, and measured by what that university expects of its students. In the case of Grantham, the norm is that the students have full-time jobs, and that they do not physically attend at the university premises to pursue their studies. I am satisfied by the evidence that, to the administration of Grantham, Mr. Hlopina is pursuing his studies on what the university regards as a full-time basis.
7 Counsel for the Crown referred me to the judgment of the Federal Court of Appeal in The R. v. Gaudet,[FN1: <p>[1978] C.T.C. 686 (Fed. C.A.); reversing[1978] 1 F.C. 388 (Fed. T.D.).</p>] in which that Court held that a person taking a night course which involved seven hours of evening classes and 10 hours of study per week was not a student in full-time attendance for the purpose of what was then paragraph 110(1)(h) of the Act. The judgment of the Court is brief, and makes little reference to the facts of the case. However, at pages 687-8 Pratte J., for the Court, said:
...this Court must decide in light of the evidence whether respondent's wife was in fact a “full-time” student. It is a difficult expression and one which it may be impossible to define exactly. In the case at bar, however, that does not make any difference since, with even a vague understanding of the ordinary meaning of the words used by the legislator, it will be seen that there is nothing in the evidence to support the contention that respondent's wife was in full-time attendance at an educational institution.
[translation by QL]
8 Without more, this judgment might leave open the possibility that, in some circumstances, the requirement of full-time attendance could be satisfied in the case of a student at a correspondence school. However, three other judgments, and the language used in the French version of the Act, lead me to conclude otherwise. In Reddam v. Minister of National Revenue,[FN2: <p>(1964), 64 D.T.C. 382 (Can. Tax App. Bd.).</p>] Mr. R.S.W. Fordham, Assistant Chairman of the Tax Appeal Board, concluded that the Appellant, who worked from 8:30 a.m. to 5:00 p.m. for the Department of National Revenue and took a night course at the University of Detroit leading to the degree of Master of Business Administration, could not qualify as a full-time student for the purposes of paragraph 11(1)(qb) of the Act, which was at that time the equivalent section to that in issue here. Mr. Fordham noted that there was a dearth of authority on the point, and reached his conclusion in part on the basis of dictionary definitions, and in part on the basis of the syllabus of the University, which made a distinction between full-time students, who could complete the program in a year, and part-time students, who would require longer.
9 The question also came before Kerr J., of the Exchequer Court, in Levin v. Minister of National Revenue[FN3: <p>(1971), 71 D.T.C. 5047 (Can. Ex. Ct.).</p>] In that case, the deduction was claimed by a dentist in respect of the fees paid by him to attend a post-graduate course in prosthodontics at New York University. He attended classes for two days per week, which was an option permitted by the University, while practicing dentistry for the other three. Kerr J. decided that the Appellant was not entitled to the deduction, because the course did not lead to a degree, but in doing so he said, obiter:[FN4: <p><em>Supra</em>, at 5052.</p>]
...There was the further argument that the appellant was not “a student in full-time attendance” at the university. I express no final opinion on that argument, but I am inclined to think that attendance at what is regarded as a half-time course at a university outside Canada for only two days per week while carrying on the practice of dentistry in Canada the rest of the time hardly constitutes full-time attendance at a university outside Canada within the intent of Parliament expressed in paragraph (qb).
10 Finally, in Minister of National Revenue v. Ritchie,[FN5: <p>(1971), 71 D.T.C. 5503 (Fed. T.D.).</p>] Heald J. had to consider the case of an automotive executive who worked full-time for the Ford Motor Company, while attending night classes at the University of Michigan to obtain a Master of Business Administration degree. He rejected the Appellant's argument that he met the requirement for full-time attendance because he attended all the lectures pertaining to his particular course, and that a certificate from the university attesting that the student was in full-time attendance was all that was required to establish his right to the deduction claimed. He concluded that an individual cannot have a full-time job and also full-time attendance at a university, citing the obiter of Kerr J. in support.
11 There are two decisions of the Tax Appeal Board[FN6: <p><em>Moore (Charles David) v. Minister of National Revenue</em>(1963), 63 D.T.C. 734 (Can. Tax App. Bd.);<em>Carson v. Minister of National Revenue</em>(1966), 66 D.T.C. 424 (Can. Tax App. Bd.).</p>] in which the opposite result was arrived at. In both cases the member of the Board decided the question in favour of the taxpayer, on the basis that the ambiguity should be resolved by a fair, large and liberal interpretation, mandated by section 15 of the Interpretation Act.[FN7: <p>R.S.C. 1952, c. 158, now R.S.C. 1985, c. I-21 s. 12.</p>] In the light of the jurisprudence of the last two decades dealing with the interpretation of statutes, and taxing statutes in particular, these decisions cannot be considered authoritative today.
12 The ambiguity in the English text is resolved by reference to the French version of the Act. The expression “... le particulier fréquente comme étudiant à plein temps une université...” used in paragraph 118.5(1)(b) is in contrast to the expression “...université située à l'étranger, où le particulier ... est inscrit...” used in paragraph 118.6(1)(b). Clearly, the former requires physical presence at the university, while the latter does not. Where, as here, one version of the statute is clear and unambiguous, while the other might bear the same or a different meaning, I am bound to apply the meaning which is common to both versions.[FN8: <p><em>Official Languages Act</em>, R.S.C. 1985 c O-3.01, s.13;<em>R. v. Tupper</em>, [1967] S.C.R. 589 (S.C.C.);<em>Cardinal v. R.</em>, [1980] 2 F.C. 400 (Fed. C.A.); affirmed[1982] 1 S.C.R. 508 (S.C.C.).</p>] While the verb “to attend” in English might connote something other than physical presence, the same cannot be said of the French verb “fréquenter”. I must, therefore, reluctantly conclude that the tuition credit under section 118.5 of the Act is not available to a taxpayer who studies by way of correspondence courses taken at a university outside Canada. I share the sentiment expressed by Heald J. in Ritchie, where he said:[FN9: <p><em>supra</em>, at p.5506.</p>]
I said at the trial that I was sympathetic to the respondent's position. He and others like him are to be commended for their industry, their perseverance and their dedication to self-improvement. It may well be that the respondent and other taxpayers in a similar position should be able to deduct tuition fees in these circumstances. However, it is not the Court's function to legislate — I can only interpret the statute as it presently exists,
13 The appeal is allowed, but only to the extent that the Appellant is entitled to a credit for the education amount claimed by him under section 118.6 of the Act. The reassessment is referred back to the Minister for reconsideration and reassessment on that basis.
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