Search - considered

Public Schools Employers Association ("BCPSEA") and the British Columbia Teacher's Federation ("BCTF"); c)          the Appellant is considered an Adult Education Teacher ("AET"); d)          the Appellant taught from Monday to Thursday from 6:30 p.m. to 9:30 p.m. at Princess Margaret School; e)          the Appellant did some substitute work; f)           the Appellant was paid on an hourly basis at the rate of $44.40 per hour and was paid by-weekly; g)          AET's are covered by the Provincial Collective Agreement; [4]      The Appellant originally was represented by a solicitor who was disbarred before the conclusion of this appeal. ... The "time" taken to complete these tasks are required and considered as "paid for out of the hourly rate". [10]     In light of the testimony that was adduced, I accept this letter as factual. Analysis [11]     The Minister based his decision on section 9.1 of the Employment Insurance Regulations (the " Regulations "), which reads: 9.1        Where a person's earnings are paid on an hourly basis, the person is considered to have worked in insurable employment for the number of hours that the person actually worked and for which the person was remunerated. [12]     The Appellant was not paid by the hour in the manner contemplated by the above regulation, but rather the wage for AETs was set to reflect the additional time required in preparation outside the regular instructional hours. [13]     I am satisfied that for all AETs to perform their teaching jobs properly (and that even a 17-year veteran AET such as the Appellant) has to spend at a minimum one and half hours of preparation for every three hours of teaching in the classroom. [14]     My colleague Bonner J., in Franke v. ...

Justice Noël of the Federal Court of Appeal considered an application for judicial review of a decision by Archambault J. of the Tax Court. ... But an expenditure incurred in recovering an amount owing under a pre-existing right is a "current" expense and may therefore be deducted. [18]       Conversely, the expenses incurred by the payer of support (either to prevent it from being established or increased, or to decrease or terminate it) cannot be considered to have been incurred for the purpose of earning income, and the courts have never recognized any right to the deduction of these expenditures (see, for example, Bayer, supra). [13]     Based on the finding of Noël J.A. in Nadeau I have concluded that the legal fees paid by the Appellant to prevent his former common law spouse from obtaining support payments cannot be considered to have been incurred for the purpose of earning income. [14]     I have also concluded that the legal fees paid by the Appellant to settle the division of matrimonial assets and debts were personal and living expenses and are prohibited from deduction by paragraph 18(1)(h) of the Act. [15]     The appeal will be dismissed, without costs. ...

Analysis [5]      As can be seen from the Reply the Minister of National Revenue has allowed each of the Appellants a capital loss in 2001 of $75,000 but has denied that that loss can in any way be considered as an allowable business investment loss (ABIL), because principally the Appellants did not become the owners of a share or a debt of a corporation and consequently could not be considered as owning the share or debt of a small business corporation or Canadian controlled private corporation. [6]      Paragraph 39(1)(c) of the Income Tax Act (the " Act ") defines a business investment loss to be a capital loss realized on a disposition after 1977 of shares or debt of a small business corporation. ... The Appellants were each granted a capital loss of $75,000 but it is clear that the capital loss (and this applies to the actual loss claimed by the Appellants in the total amount of $165,128) cannot be considered an ABIL as it does not meet the conditions of the sections and paragraphs mentioned above, principally because what is involved was not shares or debt of a corporation and therefore clearly not shares or debt of a Canadian- controlled private corporation or of a small business corporation. [10]     Consequently the appeals are dismissed. ...

" Level 4 is the second highest level of qualification granted by the examinations board and it is considered to equate to a first degree. [5]      Emily Andrews made a designation to transfer the tax credit in respect of tuition fees paid to the Academy to her mother pursuant to section 118.81 of the Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1 (the " Act ").Lois Andrews claimed a tax credit of $850 in respect of this transfer pursuant to section 118.9 which was disallowed by the Minister of National Revenue. ... Although the examinations board granted a diploma that was considered to equate to a degree, it was not in fact a degree within the meaning of that term in both Canada and the United Kingdom. Further, even if the diploma granted by the examinations board was considered an actual degree, that would not be sufficient for Ms. ...

The decision, dated November 20, 2002, was established on the 2001 base taxation year for application beginning in September 2002. [2]      To establish and confirm the Canada Child Tax Benefit Notice of Determination, dated November 20, 2002, with respect to the 2001 base taxation year, the Minister of National Revenue ("Minister") specifically relied on the assumptions of fact set out below: (a)         The Appellant is considered by the Minister to be the eligible individual for his daughter Nwiem since September 2001; (b)         The Appellant's daughter, Nwiem, was born on April 17, 1991 and is a Canadian citizen; (c)         The Appellant and his daughter Nwiem went to Tunisia during the summer of 2002, from June to August 2002; (d)         The Appellant's daughter, Nwiem, did not return to Canada in August 2002, since, according to the Appellant, the child is asthmatic and therefore stayed in Tunisia with her mother; (e)         From the end of August 2002, the Appellant's daughter no longer lived with her father; (f)          The Minister considers that, beginning in September 2002, the Appellant was no longer the parent who was primarily responsible for the care and education of his daughter Nwiem. [3]      The question at issue is whether the Minister concluded correctly that the Appellant was not the parent primarily responsible for the care and education of his daughter Nwiem, with respect to the 2001 base taxation year, beginning in September 2002. [4]      The Appellant admitted as accurate all of the assumptions of fact. ... "eligible individual" in respect of a qualified dependant at any time means a person who at that time (a)          resides with the qualified dependant, (b)         is the parent of the qualified dependant who primarily fulfils the responsibility for the care and upbringing of the qualified dependant, (c)         is resident in Canada or, where the person is the cohabiting spouse or common-law partner of a person who is deemed under subsection 250(1) to be resident in Canada throughout the taxation year that includes that time, was resident in Canada in any preceding taxation year, (d)           is not described in paragraph 149(1)(a) or 149(1)(b), and (e)          is, or whose cohabiting spouse or common-law partner is, a Canadian citizen or a person who (i)                   is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, (ii)                 is a temporary resident within the meaning of the Immigration and Refugee Protection Act, who was resident in Canada throughout the 18 month period preceding that time, or (iii)                is a protected person within the meaning of the Immigration and Refugee Protection Act, (iv)               was determined before that time to be a member of a class defined in the Humanitarian Designated Classes Regulations made under the Immigration Act, (v)                 and for the purpose of this definition, (f)         where the qualified dependant resides with the dependant's female parent, the parent who primarily fulfils the responsibility for the care and upbringing of the qualified dependant is presumed to be the female parent, (g)         the presumption referred to in paragraph 122.6 eligible individual (f) does not apply in prescribed circumstances, and (h)         prescribed factors shall be considered in determining what constitutes care and upbringing; "qualified dependant" at any time means a person who at that time (a)          has not attained the age of 18 years, (b)         ... ... For the purposes of paragraph (h) of the definition "eligible individual" in section 122.6 of the Act, the following factors are to be considered in determining what constitutes care and upbringing of a qualified dependant: (a)                the supervision of the daily activities and needs of the qualified dependant; (b)                the maintenance of a secure environment in which the qualified dependant resides; (c)                 the arrangement of, and transportation to, medical care at regular intervals and as required for the qualified dependant; (d)                the arrangement of, participation in, and transportation to, educational, recreational, athletic or similar activities in respect of the qualified dependant; (e)                 the attendance to the needs of the qualified dependant when the qualified dependant is ill or otherwise in need of the attendance of another person; (f)                  the attendance to the hygienic needs of the qualified dependant on a regular basis; (g)                the provision, generally, of guidance and companionship to the qualified dependant; and (h)                the existence of a court order in respect of the qualified dependant that is valid in the jurisdiction in which the qualified dependant resides. [11]     The facts admitted and recognized by the Appellant are as clear as the Act and Regulations. ...

(underlining mine) [8]            In order for the payments of the support amounts claimed by the Appellant to be deductible, they must have been an allowance made on a periodic basis. [9]            The Court has considered the case of McKimmon v. ... Justice Hugessen outlined eight factors that should be considered when determining whether payments are made as periodic payments or lump sum payments. ... Each payment was for an indefinite period until the matrimonial home is not sold; the payments do not bear interest, cannot be accelerated or pre-paid, do not allow for capital accumulation, are not assignable and do not release the Appellant from future obligations to pay maintenance. [10]          The Court has also considered the case of Arsenault v. ...

It is an injury suffered as an incident of the move but it is one of those items that must be considered to be a loss or injury to be suffered if a move is contemplated. ... Unfortunately, that was not the case when the Appellant made his move- his loss in this regard is a loss to be considered before the move was to be made. The Appellant argued further that if his loss did not fall within "moving expenses" then it should be considered as a legal fee – it was a fee required to be paid on his new purchase. ...

On this ground alone, the appellant's appeal should be dismissed. [12]     Parliament defined what is meant by severe and prolonged impairment in subsection 118.4(1) of the Act, as follows: For the purposes of subsection 6(16), sections 118.2 and 118.3 and this subsection, (a)      an impairment is prolonged where it has lasted, or can reasonably be expected to last, for a continuous period of at least 12 months; (b)     an individual's ability to perform a basic activity of daily living is markedly restricted only where all or substantially all of the time, even with therapy and the use of appropriate devices and medication, the individual is blind or is unable (or requires an inordinate amount of time) to perform a basic activity of daily living; (c)     a basic activity of daily living in relation to an individual means (i)          perceiving, thinking and remembering, (ii)         feeding and dressing oneself, (iii)        speaking so as to be understood, in a quiet setting, by another person familiar with the individual, (iv)        hearing so as to understand, in a quiet setting, another person familiar with the individual, (v)         eliminating (bowel or bladder functions), or (vi)        walking; and (d)     for greater certainty, no other activity, including working, housekeeping or a social or recreational activity, shall be considered as a basic activity of daily living. [13]     We see in subparagraph (d) that, although an individual may be disabled for work purposes, this does not necessarily mean that the individual will be considered as such for income tax credit purposes, since working is not considered a basic activity of daily living for the purposes of the income tax credit. [14]     The evidence has shown that the appellant has physical and mental problems but that they are not such that they restrict him in performing, with therapy and the appropriate medication, one or more basic activities of daily living. [15]     The appeal is therefore dismissed. ...

The house should not be considered “Owner-Built” as she did not buy construction materials. ... It reads:             “residential complex” means  (a) that part of a building in which one or more residential units are located, together with  (i) that part of any common areas and other appurtenances to the building and the land immediately contiguous to the building that is reasonably necessary for the use and enjoyment of the building as a place of residence for individuals (emphasis added) [11]         The Appellant’s house would have been considered as purchased from the builder if she had purchased the land and the house from the builder, which she did not. ... Her house is considered owner-built as she engaged Adelaide Custom Homes to build her home on land she owned. ...

., 87 DTC 5025, when dealing with what was considered four tests, namely control, ownership of tools, chance of profit or risk of loss and integration, described the tests "not as a fourfold but as a four-in-one test", with emphasis on "the combined force of the whole scheme of operations". [9] MacGuigan, J.A. said, at page 5030: Of course, the organization test of Lord Denning and others produces entirely acceptable results when properly applied, that is, when the question of organization or integration is approached from the persona of the "employee" and not from that of the "employer," because it is always too easy from the superior perspective of the larger enterprise to assume that every contributing cause is so arranged purely for the convenience of the larger entity. ... The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors, which may be of importance, are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk be taken, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task. ... To formulate a decision then, the overall evidence must be considered taking into account those of the tests which may be applicable and giving to all the evidence the weight which the circumstances may dictate. [12] In regards to the written contract (Exhibit A-1) that the Appellant signed and the general custom in the trade, in this appeal, after considering these facts, I have decided to attach to them some weight. ...