Section 8

The taxpayer worked as a provisional judge for the Montreal Municipal Court up until 2005, and then served as a full-time judge up until 2012, at which time he was forced to resign as he had attained the age of 70 – which meant that he was 23 months short of the requisite years of full-time service required to generate a full pension. He then incurred legal expenses in an unsuccessful court action to obtain a judgment declaring that (1) he was entitled to continue to exercise his office as a judge of the Montreal Municipal Court after the age of 70, thereby accumulating credits for obtaining a full pension, or (2), alternatively, requiring that the three years during which he acted as a provisional judge be taken into account in the calculating his pension.

In finding that such expenses did not qualify for deduction under s. 8(1)(b), Lafleur J stated (at para. 28, TaxInterpretations translation) respecting the first ground of his action noted above:

[I]t did not seek to recover any amount that would have been due in consideration of Mr. Clément's holding office as a judge of the Montreal Municipal Court until the age of 70, since what Mr. Clément was instead seeking was the right to hold his office beyond the age of 70 and to be reinstated in his office so that he could accumulate credits for his pension. …

Respecting the second ground, she stated (at para. 29):

If Mr. Clement had received such an additional amount in respect of his pension, that amount would not have been included in his income under subdivision a (sections 5 to 8), but rather would have been included in his income under section 56, which is found in subdivision d, "Other Sources of Income", of Division B of Part I of the Act.

The taxpayer (Mr. Kurnik), who had been the CFO for a school uniform supplier, sued a successor to his employer (“RJM56”) for reneging on its agreement to pay him a $1.5 million closing bonus on the sale of the supplier to a venture capitalist. RJM56 then responded by suing Mr. Kurnik and the trustee (Mr. Kurnik) and the beneficiaries of a family trust respecting the receipt and distribution of bonuses paid to Mr. Kurnik during his employment. All such litigation was ultimately settled with Mr. Kurnik receiving a full release and a cheque paid to him for $1.5 million - out of which Mr. Kurnik paid $364,442.00 in legal fees, including $55,552 in legal fees of trust counsel. The Minister denied the deduction of the $55,552.

After stating (art para. 11) that “as directed by … Fenwick, the question remains: what is the essential nature of the claim involving the taxpayer?”, Bocock J allowed the appeal, finding (at paras. 16 and 18):

Factually, there is no question that the initial lawsuit spawned the subsequent one. … The primary issue within that second lawsuit is the entitlement and quantum of remuneration payable by the employer to the employee. This falls squarely within the wording of paragraph 8(1)(b) of the Act and within the category of expenses incurred in defending a right to retain compensation ... .

The policy based integrity of paragraph 8(1)(b) is protected. … The initial lawsuit logically and expressly cascaded into the second.

The taxpayers were two siblings (Norman and Miriam) and Miriam’s spouse (Richard). Richard and Norman were senior executives of a family holding company (Tatra) for various operating companies. Two other siblings launched an action alleging that their father’s transfer of the majority of Tatra shares to Miriam in 2004, and sought an order for an accounting and disgorging and equitable tracing of all remuneration (in excess of a reasonable amount for services rendered), dividends and other monies subsequently paid by Tatra to the taxpayers. Each of the individuals (the herein appellants) since the 2004 transfer. In confirming the disallowance of the taxpayers’ deduction under s. 8(1)(b) for one of their taxation years, Russell J first noted (without apparently being aware of the extended definition of “salary or wages” in s. 248(1)) that the amendment of s. 8(1)(b) to replace “salary or wages” by "subdivision a" income “has some effect” (para. 18), but then concluded a discussion of the many parallels between this case and Fenwick with the statement (at para. 27):

…[T]he FCA …found that it was reasonably open … [to deny] relief to the taxpayer on the basis that the claim he was defending against extended beyond the basis of the employee/employer relationship. Likewise …, the claims the appellants are defending against arise quite differently - from allegations of unjust enrichment and breach of fiduciary obligations.

He also stated (at paras. 21-22):

[T]he FCA justice did accept … that the provision should be applicable not just for a taxpayer seeking payment of salary or wages from an employer or former employer, but as well in situations where the employer or former employer was seeking return of such income.

Now that is a bit of a different proposition in the context of the present wording where “employer or former employer” is not specified. I am not ready to say that this provision now can mean that a third party to the employment or office holding relationship, seeking from the appellants, as in the appeals at bar, disgorgement of their income from office or employment likewise comes under the paragraph 8(1)(b) umbrella.

The taxpayer had been a pharmacist since 1990 in Sydney, Nova Scotia. The Nova Scotia College of Pharmacists held a discipline hearing with respect to some complaints and reached a settlement agreement with the taxpayer which among other things required the taxpayer to take a university ethics course. The taxpayer deducted related fees for exams, travel, urine tests and legal counsel, on the basis that the expenses were legal expenses incurred as a result of the complaints under the Pharmacy Act, and were incurred to preserve the taxpayer’s ability to earn an income.

V.A. Miller J concluded (following Blagdon) that none of the amounts claimed were deductible pursuant to s. 8(1)(b), stating (at paras 10 and 12):

Paragraph 8(1)(b) has a narrow scope. It is intended to apply where an employee has incurred legal expenses in attempting to collect unpaid salary or wages, or in attempting to settle a dispute with an employer or former employer with respect to the amount of salary to which the employee is entitled: Fenwick...at paragraph 7. …

It is clear that the...$4,989.73 was not incurred by the Appellant to collect or establish a right to salary or wages. It was incurred to allow her to preserve a future right to work as a pharmacist.

The taxpayer and his brother ran an illegal escort business through two corporations. The taxpayer incurred $48,164 in legal fees while unsuccessfully defending against charges for living on the avails of prostitution, which he deducted as employment expenses. Pizzitelli J denied the deduction of those amounts, as the taxpayer could not establish that the fees were incurred to establish a right to salary or wages. He stated (at para. 28):

The Appellant's argument is more remote [than in Wilson]. He is in fact saying that it was essential to resolve the criminal matter in order to enable him to preserve his dignity and reputation to continue work.

Webb J. found that the taxpayer, a professional hockey player, could not deduct under s. 8(1)(b) the fees he paid to a sports agent corporation ("MFIVE SPORTS") to conduct salary negotiations. First, MFIVE SPORTS was not authorized to practise law and, second, it did not practise law. Furthermore, a salary negotiation cannot establish a right to a salary, as there is no such right until the negotiations conclude and a contract is formed.

The taxpayer was an employee and majority shareholder of a corporation. Lamarre J. found that legal fees he incurred were not deductible from his employment income, because they were incurred in his capacity as a shareholder (seeking remedy against another shareholder for misuse of corporate funds) and not to collect or establish a right to salary or wages.

The taxpayer, a former president of a corporation, sought to deduct legal fees arising from his successful defence to an action, in which the corporation's shareholders attempted to recover the value of stock options that the taxpayer had accepted while allegedly knowing about a planned takeover bid for the corporation.

After noting (at para. 17) the question as to whether the action against the taxpayer sought to reclaim compensation paid or was a broader claim relating to alleged wrongdoing (insider trading), Boyle J. found that taxpayer's legal fees were spent to establish a right to salary or wages, and therefore deductible under s. 8(1)(b): "the claim against him related to the very issuance of the options to him upon his appointment as president and CEO."

The taxpayer, a police officer, was dismissed following a criminal charge for dangerous driving. He was convicted. He argued that he could deduct the $14,420 in legal fees because, had the defence been successful, he would then be entitled to recover damages for wrongful dismissal. Therefore, the legal fees were incurred pursuant to s. 8(1)(b) to recover salary and wages. Woods J. disallowed the deduction because, under s. 248(1), "retiring allowance" includes wrongful dismissal damages and "salary and wages" excludes any retiring allowance.

Legal fees incurred by the taxpayer in an action against his employer for termination of his employment were in respect of the establishing of an entitlement to retiring allowances rather than salaries or wages, and, accordingly, were non-deductible.

Legal fees incurred by the taxpayer in defending both at the departmental level and at the level of the Dean of the Ontario Veterinary College a complaint of a very serious nature made against him by some of his graduate students were not deductible.

Legal expenses incurred by the taxpayer, who was a doctor employed by a hospital, in an action against fellow doctors at the hospital in respect of alleged defamation did not qualify as being in respect of a claim to establish a right to salary from the hospital.

Legal fees incurred by the taxpayer in enforcing the payment to her of disability benefits by her former employer were deductible. The disability benefits received by her constituted "salary or wages", and it was appropriate to treat these amounts as being owing by her former employer notwithstanding they were paid by the insurer.

Legal fees paid by the taxpayer in his unsuccessful defence against changes of dangerous driving, with his conviction at trial resulting in suspension without pay from his position of police officer, were not deductible. However, legal fees paid by him for a successful appeal which resulted in an order for a new trial and in a retroactive reinstatement of his pay for the period of his suspension were deductible. S. 8(1)(b) covered not only enforcing an existing right to salary owing but also bringing into existence a right to salary which thereupon became owing to the taxpayer - and here such litigation resulted in the reinstatement of the taxpayer's salary.

Legal expenses incurred by the taxpayer in a wrongful dismissal suit against his former employer were non-deductible given that the definition of "salary or wages" excluded retiring allowances. Legal expenses incurred by the taxpayer to defend himself at a Transport Canada inquiry into allegations of his incompetence as the master of a tanker also were not deductible given that such expenses could not realistically be said to be incurred to collect or establish a right to salary or wages owed to him by his employer or former employer.

Legal expenses incurred by the taxpayer, who had been appointed for an indefinite term as a member of a municipal assessment tribunal, in seeking to reverse a government decision to make his appointment subject to a fixed term, were non-deductible.

Legal expenses incurred in order to obtain an amount as damages for wrongful dismissal were not deductible because the amount received was a retiring allowance rather than salary or wages, notwithstanding that the retiring allowance was calculated by reference to salary which would have been earned during a reasonable notice period.

The taxpayers were ordained rabbis who taught Judaic studies curriculum to children attending the Vancouver Hebrew Academy (the “VHA”). In denying their claims for the clergy residence deduction, on the basis that they were not in charge of or ministering to a congregation, Campbell J stated (at para. 124):

[I]n Fitch, Bowman J. narrowed the scope of “ministering” by specifically carving out an exception pertaining to teachers of religious studies [stating;]

[T]eaching may well - and frequently does - form a component of ministering, but teaching in itself is not ministering … . Nor do I think that a group of students can be said to be a congregation in the sense of an assemblage or gathering of persons to whom a minister provides spiritual counselling, advice, illumination and inspiration. … (Emphasis added)

Campbell J further found (at para 167, before again quoting Fitch, and at 199):

Even if I had been persuaded that the Appellants’ activities and duties at the VHA constituted “ministering”, I could not conclude that a class of elementary school students gathered for Jewish religious education and instruction would be a “congregation” within the meaning of paragraph 8(1)(c)(ii) of the Act. …

…[T]he VHA, as an elementary day school, cannot be categorized as a “place of worship”, nor can its students be viewed as gathering there for the purposes of religious worship. Even though the Appellants led students in prayer services … [t]he primary character of the VHA is that of a school that conforms to the requirements of the British Columbia Ministry of Education.

The taxpayer's husband was a clergyman, who collected payments under the Canada Pension Plan and a long-term disability plan. He also claimed the clergy residence deduction, with the result that his taxable income was $1,239. The taxpayer claimed a spousal amount and a federal disability amount transferred from her husband. The Minister reassessed the taxpayer on the basis that her husband was not entitled to the clergy residence deduction.

Paris J dismissed the taxpayer's appeal. The CPP and LDP amounts were not remuneration from the husband's employer. CPP amounts are paid under a statutory scheme rather than an employment relationship (para. 26), and the LDP premiums were paid by the husband himself (para. 27). Neither of these came within the broad interpretation of remuneration in Shaw.

The taxpayer was a member of the Toronto International Celebration Church ("TICC"), an evangelical church of over 2000 members with no formal hierarchy. In finding that the taxpayer was a member of the clergy, V.A. Miller J. referred to the "spiritual leader" requirement in Kraft, and stated (at paras. 22-24):

I take it that a spiritual leader is one who is aimed not so much at directing people or organizing people but is aimed at changing people. It is someone who not only prays with those in need but offers them spiritual guidance.

It was [the head pastor's] evidence that the Appellant "did everything that he did except give sermons on Sundays." ...

The Appellant oversaw the leaders in the TICC. I find that she was a spiritual leader in the TICC and she was recognized as such by the congregation and the senior pastor of TICC.

The taxpayer also "ministered" to the congregation.

The taxpayer, a chaplain at a correctional centre, received payment under her employer's wage replacement plan during her extended sick leave. Woods J. found that these payments were "remuneration for the year from the office or employment" for the purpose of determining the maximum clergy residence deduction in s. 8(1)(c). She stated (at para. 14):

The narrow focus of paragraph 8(1)(c) is the clergy. The apparent object of the provision is to provide this group with tax assistance related to housing. It seems unlikely that Parliament would wish to provide such assistance to clergy who are healthy, and yet deny the assistance to clergy who are ill.

The taxpayer was a facilities manager at a Pentecostal church who, in addition to his regular functions, was allowed to perform some duties normally performed by a minister such as performing baptisms, serving communion or praying and counselling when called upon.

The deduction was not available to him given that he was not a member of the clergy (there was no evidence that showed any formal recognition (akin to ordination) had taken place), he was not a regular minister (he was selected due to his occupational background and competence rather than any spiritual criteria other than his supporting the general principles and beliefs of the church), and he was not a member of a religious order (there being no evidence of self-sacrifice and dedication to the goals of the organization to the detriment of it own material well-being, or that his spiritual and moral discipline and regime was markedly stricter than that to which lay members of the church were expected to adhere).

In finding that The Navigators were not a religious order, Bowman TCJ. noted (at p. 709) that "unlike the members of the other organizations [e.g., Youth For Christ, Christian Horizons], the members of The Navigators earned comfortable incomes, can set their own level of targeted income, devote a significant part of their time to raising funds for their own support, and are free to earn income from other sources".

The taxpayer, who was a credentialed, but not ordained, minister of a large Pentecostal church in Winnipeg who devoted most of his time to musical matters, was found to be a "regular minister". Bowman TCJ. noted that as 50% of every service in the Pentecostal church is devoted to music, in the Pentecostal church a person who provided the musical aspects of the service was indeed ministering to the congregation's spiritual needs in a significant way as was a minister who preached the sermons.

Christian Horizons, which operated 115 group homes throughout Ontario attending to the needs of 850 developmentally challenged adults and children and which described itself as a "trans-denominational evangelical ministry serving people with exceptional needs", was found to be a religious order notwithstanding that it used a structured pay scale for employees rather than paying them only enough to satisfy their basic needs.

There was a sufficient degree of control by the Seventh-Day Adventist Church in Canada of the Canadian Union College, and by the Western Christian College Society of the Western Christian College for the president of each such college to qualify as being appointed by a religious denomination.

However, a professor of religious knowledge at the Canadian Union College did not qualify for the deduction as it could not be said that his students represented a congregation. Bowman TCJ. stated (at p. 727):

"Nor do I think that a group of students can be said to be a congregation in the sense of an assemblage or gathering of persons to whom a minister provides spiritual counselling, advice, illumination and inspiration."

In finding that the Canadian Baptist Overseas Mission Board and the Society of International Ministries were religious orders, Bowman TCJ. suggested the following characteristics would be indicative of a religious order: its purpose should be primarily religious; its members must agree to adhere to a strict regime of dedication to its goals to the detriment of their own material well-being; the members' commitment should be full-time and of a long-term nature; the spiritual and moral discipline under which they live must be markedly stricter than that to which lay members are expected to adhere; admission to it must be in accordance with strict standards; and there should generally be a sense of communality.

Bowman TCJ. went on to find that one taxpayer was 'ministering' to a 'congregation' by performing a wide range of services to the Somali community in Toronto (stating at p. 705 that "'to minister' means merely 'to serve', or 'to attend to the needs of'" and that the when Jesus travelled throughout the Holy Land dealing with people from all backgrounds and places it could not "reasonably be said that He was not ministering to a congregation." A second taxpayer was found to be engaged in full-time work in administering on behalf of CBOMB, a major social program in Bolivia, notwithstanding that she engaged as well in pastoral work (noting at p. 706 that "'full-time' is used in contra distinction to 'part-time'".

In finding that two Commended Workers of the Plymouth Brethren were "clergy", Bowman TCJ. stated that membership of the clergy "requires a formal act of recognition whereby that person is set apart from the other members of the church as a spiritual leader" and "requires a formal, serious and long-term commitment to the Ministry". He declined to follow the finding in Small v. MNR, 89 DTC 663 that to be a member of the clergy an individual must go through a ritual called "ordination" by the particular denomination.

Another taxpayer was found to be eligible for the deduction notwithstanding that he served multiple congregations, and yet another taxpayer was eligible for the deduction notwithstanding that he ministered to a custodial facility for young offenders who thus, in a sense, represented a captive audience who were not denominationally homogenous.

In finding that the Christian Service Brigade of Canada was not a religious order, Dussault TCJ. noted that members were not required to adhere to compelling and specific rules and went on to state (at p. 1753):

"When the principal purpose of an organization is education, assistance to needy persons or personal development through the conduct of sports, recreational or outdoor activities, as in the instant case, it cannot be characterized as a religious order, even if the religious or spiritual aspect of the activities is present and may be of fairly great importance."

A priest, who served as a chaplain to the RCMP, and who practised as psychologist at the Community Health Services Association (the "Clinic") in Regina (a co-operative venture funded by the provincial Ministry of Health) was able to take an s. 8(1)(c) deduction in respect of his employment income from the former, but not the latter. With respect to the application of the requirement that he be ministering to a "congregation" with respect to his work at the Clinic, Rowe TCJ. stated (at p. 708) that

"... when administering a sacrament at the Clinic, in the course of his employment as a counsellor with special qualifications as a psychologist, he was not ministering to any person or persons who had assembled there within the context of being part of a congregation. A person may have been a member of a parish within the Diocese of Regina but was not attending at the Clinic in the course of a gathering for a shared religious purpose recognized by the Church."

A half-time staff associate at the Wesley United Church of Regina who was responsible for conducting Christian eduction including Sunday school, youth programs and attendances upon Sunday school teachers and who also assisted in worship was found to be a "regular minister".

The taxpayer's bonuses were not "commissions" for the purposes of s. 8. Christie J. stated (at para. 5):

To my mind the result is that in order for expenses to be deductible under that paragraph the remuneration pertaining thereto must be fixed by reference to the volume of the sales made or the contracts negotiated by the taxpayer claiming those deductions. Twenty per cent of the pre-tax gross profits of an employer with a number of employees is not synonymous with remuneration so fixed.

The taxpayer worked in sales, and sought to deduct approximately $44,000 in entertainment and meal expenses in respect of two years. Favreau J disallowed the deduction, as there was nothing in the employment contract indicating that the taxpayer was required to pay those expenses - in fact, the employer generally reimbursed such amounts, but apparently considered the $44,000 in question to be unreasonable.

The taxpayer sold videos on commission and worked from an office in his home, and claimed deductions for home office expenses and for travel to and from his house for work. Paris J found that it was inconsistent for the Minister to allow the office deductions (i.e. to accept that there is a home office) and disallow the travel expense deductions (i.e. to reject that there is a home office), and therefore allowed the travel expenses.

The taxpayer's deduction of a travel allowance from his employer and loan payments on his car were disallowed pursuant to s. 8(1)(f)(v).

Lamarre J. denied the taxpayer's deduction of employment-related expenses. At para. 32: "[given that] the employer reimbursed all reasonable business expenses, there was no need to require the employee to incur other expenses for business purposes."

Paris J. at paras. 13-14:

While the task of proving expenses is made more difficult where a taxpayer has not kept any records or receipts, it is still open to him or her to provide oral evidence relating to those expenses. ...

In my view, some degree of precision regarding the type and amount of the expenditures claimed is required, along with the [taxpayer's] sales activities. The evidence provided by the [taxpayer] falls far short of this standard. In her testimony, she provided almost no information relating to the specific expenses that were claimed except for certain referral fees and gifts. For the most part, she simply asks the Court to accept her word that she made the expenditures and that she did so to earn income.

Damages and legal fees that the taxpayer, who was a commission salesman at an investment dealer, became liable to pay to that investment dealer as a result of his leaving the investment dealer without notice to commence at a competitor, were not capital expenditures.

Sums totalling $11,125 which the taxpayer was required to pay to his former employer (BMO Nesbitt) pursuant to settlement of an action brought against him by BMO Nesbitt based on a clause in his employment agreement that required him to reimburse BMO Nesbitt for $25,000 in training costs upon the taxpayer shifting employment to a competing investment dealer within specified periods of time, were deductible by him under s. 8(1)(f). Training costs incurred to maintain, update or upgrade an already existing skill or qualification (including trading on the BMO Nesbitt software, training in relation to the investment products available and training on portfolio and management techniques) were not capital in nature; and given that the Crown had not made any assumptions of fact as to what portion of the reimbursement amounts were on account of capital, and had not lead any evidence on such allocation, the Crown had failed to satisfy the onus of proof on it and the deduction of the amounts could not be denied on this basis.

Furthermore, in finding the settlement amounts (together with related legal fees) satisfied the test of being expended to earn commission income from the successor employer (TD Waterhouse), Webb J. stated (at para. 22):

"He could not have earned the commission income with TD Waterhouse unless he left the employment of BMO Nesbitt Burns and since leaving the employment of BMO Nesbitt Burns resulted in the obligation to reimburse BMO Nesbitt Burns for the training costs under the Agreement, these amounts paid under the Agreement were made for the purpose of earning the commission income that the Appellant earned from TD Waterhouse. The legal fees that were incurred were directly related to this expenditure and were incurred to presumably reduce the amount that the Appellant would have to pay under the Agreement and therefore were also made for the purpose of earning the commission income from TD Waterhouse."

The taxpayer, who was a security salesman earning substantial commission income, was entitled to deduct substantial losses (in the range of $37,000 to $51,000 a year) incurred by him in his thoroughbred racehorse operation on the basis of his evidence that those activities were carried on for the purpose of developing client contacts; and the fact that he had a personal interest in these activities was not a basis for denying deduction.

A lawyer employed by a law firm was found not to be employed in connection with the selling of property or negotiating of contracts for his employer when he engaged in the wining and dining of potential clients or other promotional activities.

The taxpayer, who was "a highly successful and aggressive business person whose principal stock-in-trade [was] her reputation, her expertise and her relationship with her clientele" (p. 1523) and who was employed by a brokerage firm, was able to deduct reimbursement payments she made to clients who lost money on securities bought by her on their behalf, notwithstanding that two of the clients were family members, some were neighbours and in two cases payments were made to persons who arguably lost money because of her husband.

The taxpayer, who was the vice-president of a corporation and was paid a fixed salary plus a percentage of the corporation's profits, was not entitled to the deduction in respect of expenses of his car, Christmas gifts and business entertainment. The word "commission" was not broad enough to embrace a share of the employer's profits.

Campbell J. found that, although Crawford provides that an employee must have meal and lodging expenses in order to qualify for a s. 8(1)(g) deduction (i.e. the two requirements must be "read conjunctively"), there is no requirement that the meal and lodging expenses be connected to each other. This did not assist the taxpayer in the present case, however, because he was unable to prove that his claimed meal expenses were incurred away from his municipality.

Campbell J. also remarked that the distinction drawn in Information Circular IC73-21R9 between a "meal" prepared in a restaurant or other business and a "lunch" prepared by the employee is "simply incorrect" (para. 17). There is nothing in s. 8(1)(g) to suggest that lunches prepared at home are not "meals."

The taxpayers were a husband and wife truck-driving team who were on the road generally for two weeks at a time during which they slept in a bunk in the tractor but paid for the use of shower facilities at truck stops, and paid for restaurant meals without keep a log. After noting (at para. 9) that the Act does not require that there be a claim for an amount expended on lodging before there can be a claim for meals expense for the same days (whereas on the facts of the case the taxpayers on rare occasions would pay for motel lodging), that it would produce a nonsensical result for the statute not to allow a deduction for a shower for a trucker who sleeps in the tractor while permitting a full deduction if the trucker chose to stop for a motel the night, and before noting that he was sure that the taxpayers would have been entitled to deduct larger amounts if they had gone to the trouble of keeping receipts and a log of their expenditures, Bowie J. allowed them a deduction (multiplied by 50% in light of s. 67.1(1)) of Cdn.$40 per day for meals for each day on the road in Canada, and U.S.$40 per day for each day for each on the road in the United States, together with allowing them a further deduction for the estimated cost of using showers.

Bowie J. also noted that the test of reasonable expenses was a test of "whether any reasonable trucker would have paid that amount", rather than a question of what "would be a reasonable amount for a trucker to pay for meals each day" (p. 850).

The taxpayers, who purchased their meals while operating ferries, but who returned to their homes each evening, were not entitled to the deduction, because they were required to make disbursements only for meals, and not for "meals and lodging". Bowie T.C.J. stated (at para. 11):

"The words 'and' in its plain meaning is clearly conjunctive. In cases of ambiguity it has been interpreted otherwise, in order to achieve the object of the legislation ... . The deduction for meals is not intended to be available to workers who return to their homes each night as a matter of course."

In finding that the municipalities of Maple Ridge and Langley were part of the metropolitan area of Vancouver, Rip TCJ. noted that there were roadways integrating these communities with the City of Vancouver.

The taxpayer flew on a close to weekly basis back and forth between his Ottawa home and the Regina (or Moose Jaw) office of his employer (ATI). After noting (at para. 36) that

there was no evidence that [his] intermittent work at home, consisting of, “conference calls, project meetings, reviews, skype meetings, administrative duties” was a condition of his ATI employment, as opposed to the Appellant simply choosing to arrange his schedule “a number of times” to spend a weekend-linked workday at home in Ottawa rather than in Saskatchewan

and also noting that there was no evidence that the mention in the taxpayer’s employment letter of ATI opening up an office in Ottawa materialized, Russell J stated (at para. 41):

The airfare expenses incurred by the Appellant in his commuting between Ottawa and Regina are personal expenses, the same as would have been [for] his motor vehicle expenses had he lived in suburban Regina and commuted daily by personal vehicle between that residence and his employer's downtown Regina workplace. Where a taxpayer lives is that taxpayer's personal decision, and the expenses of commuting from wherever he/she lives to his/her employer's place of business and return are personal and hence not deductible as expenses of employment.

A taxpayer who resided in Calgary regularly piloted flights between Los Angeles and Hong Kong. C Miller J found that the taxpayer could not deduct the cost of travel between Calgary and LA, given that "the law is well settled that commuting expenses, the expense of getting to and from work, are not deductible" and that "regardless of the reason for the expense, to be deductible [paragraph 8(1)(h)] clearly requires that the expenses be incurred by the employee while performing his duties" (para. 6).

When the taxpayer resigned from his employment as an investment advisor at RBC, he took a job at TD Waterhouse in Ottawa. Not wanting to move his family until the end of the school year, he traveled back and forth between cities. Hogan J. (at para. 21) cited Blackburn for the proposition that "if an individual who lives in one city takes a job in another city that is very far from his or her home, he or she cannot deduct the costs incurred by the choice not to move." Therefore, the taxpayer could only deduct moving expenses and not the transportation, meal and lodging expenses for time spent in Ottawa while his family was still in Toronto.

The taxpayer, who maintained a family home in Newfoundland, spent 2006 working as a journeyman lineman on projects in Virginia and California.

In rejecting the Crown's submission that the taxpayer was not required to be away from the employer's place of business because that place of business was the site trailer that he reported to daily, Pizzitelli, J. noted that the trailer was progressively moved through a larger geographical area, and that the US employer maintained various offices in the US, none of which was located at any of the projects.

Jorré J. at para. 42:

If an individual who lives in one city takes a job in another city that is very far from his or her home, he or she cannot deduct the costs incurred by the choice not to move. That includes not only transportation, but also food and lodging. However, the Act provides for the deduction of moving expenses.

The taxpayer was a longshoreman employed by the Maritime Employers' Association. Because each of the docks of the Port of Montreal at which he worked was operated independently by separate companies, each dock constituted a separate place of business or a "different place". However, the taxpayer was not ordinarily required to carry on his duties at different docks in the course of a shift and his contract of employment did not stipulate that he must pay his travel expenses. Accordingly, travel expenses incurred in driving between docks, or between his home and docks, were not deductible.

The taxpayer was hired as a fire chief for the fire department for the City of Salaberry and was required for one week out of every three to be on call 24 hours a day within the city limits. Rather than move to Salaberry from the family home 30-40 kilometres away, the taxpayer rented a small apartment in the City for use during the weeks he was on 24-hour duty.

In finding that the rentals for this apartment were a deductible travel expense, Paris J. noted

1. that the taxpayer ordinarily was required to carry on his duties of employment away from the fire station, e.g., responding to emergency calls, conducting inspections and taking part in fire prevention programs, and
2. his "duties" (i.e., "all of the tasks, activities, or actions that an employer may require an employee to perform" (p. 1746)) required him to remain in the City one week out of every three, and in appropriate circumstances rent could be considered to be a travel expense, including here where he stayed in the City for the benefit of his employer and as required by it.

The taxpayer, who was a U.S. resident, and was employed as a football player by the Toronto Argonauts and the Calgary stampeders, sought to deduct his hotel and other living expenses incurred while living in the same city as the football club for which he worked. These expenses were not deductible as they were not incurred away from his ordinary place of work.

The taxpayer, who worked as a provincial tax auditor, would travel directly from her home to the site of the business being audited by her rather than first going to the office, and under her collective agreement was entitled to an allowance based on the shorter of the distance from the office of her employer to the audit site and the distance from her home to the audit site.

The taxpayer was entitled to treat the expenses of travelling to an audit site that were not covered by this kilometre allowance (i.e., in situations where the audit site was further from her home than from the office of her employer) as being of a non-personal nature given that it would be inefficient for her to go to the office and then to the audit site, and no element of the distance covered when she went from her home directly to an audit site should be considered to be of a personal nature.

The taxpayer was a substitute teacher for two school boards, and would be called from time to time to work at the school boards' various locations. D'Auray J. found that the taxpayer was ineligible for deductions under s. 8(1)(h.1) because, inter alia, the taxpayer was not working away from the employers' places of business (his place of employment was the school where he was assigned to teach), and the school board refused to issue the required certificate under s. 8(10) (T2200).

The taxpayer argued that, in exceptional circumstances, a T2200 certificate should not be required - for example, where an employer wrongly refuses to issue the certificate (see Brochu, 2010 TCC 274). D'Auray J. did not address this argument directly, but appears to have addressed it indirectly when he noted that the taxpayer "[had] not established that [the school board] acted unreasonably or in bad faith in not providing him with a T2200 form" (para. 76).

The taxpayer, a bulldozer operator, used his vehicle to transport and store tools which were essential for bulldozer maintenance. Sheridan J. found that the taxpayer's motor vehicle expenses for driving to and from his construction site and to various other of his employer's sites were deductible, given that, as a practical matter, carrying the tools around with him was a job requirement. However, he disallowed a portion of the deductions in respect of the expenses the taxpayer would have incurred in driving to and from the employer's place of business at the start and end of his workday, had he actually done so.

The taxpayer, who was employed as a forestry equipment operator, was required to travel to various remote logging sites with a forestry vehicle. His employer paid an allowance, but disallowed the first 50 kilometers of each trip on the basis that the taxpayer was assumed to head to the employer's office first (a personal expense), and from there to the logging site. Woods J. found at paras. 16-18 that no portion of the drive to the site was a personal expense. The general principle, that travel from home to work is a personal expense, is typically confined to cases where the taxpayer's destination is a regular place of business.

Woods J. found at paras. 20-22 that the allowance could not be excluded from income under s. 6(1)(b)(vii.1), because it was not a "reasonable allowance." The allowance was not calculated solely on the basis of kilometers but included other factors such as which equipment was being transported. Moreover, the allowance was not intended to reimburse all employment-related costs, but only to provide some assistance. However, because the allowance was not reasonable, s. 8(1)(h.1)(iii) did not apply and the taxpayer was entitled to deduct his motor vehicle travel expenses.

The taxpayer worked throughout the year at a construction site 50 kilometers away from his home, for which his employer gave him a transportation allowance of $8,467. The Minister argued that the allowance was taxable income. Paragraph 8(1)(h.1) only applies to expenses for travel to places other than the employer's place of business. Because the taxpayer worked at the same site throughout the year, the Minister argued, the construction site was the employer's place of business.

Woods J. found that this allowance was not a taxable benefit. The employer's presence on the site was not in the nature of a permanent establishment, so it was not the employer's place of business (paras. 18-22). Paragraph 8(1)(h.1) also requires that the expenses be incurred in the course of the office or employment. Woods J. stated at para. 25: "The appellant worked at temporary construction sites, often away from the municipality in which he lived and that in which his employer was based. From a common sense point of view, and in the context of s. 8(1)(h.1), traveling to and from these sites is not a personal activity but is part of the duties of employment."

The cost to the taxpayer incurred in driving from Ottawa (where he was employed by the army) to Cobalt, Ontario to visit with his family were not deductible,. Bowman C.J. noted that a long line of cases had established the costs of travelling from one's home to one's place of work are personal expenses.

The taxpayer, who was responsible for the safety and security of employees of the City of Ottawa at its numerous properties, was required to use his automobile in travelling from his regular office at City Hall to various City-owned sites, or on an emergency basis, directly to a site from his home. He received a per-kilometre allowance for travel between the office and such sites, but not for travel for him between his home and City Hall. In reassessing him, Revenue accepted the principle that he was entitled to deduct his automobile expenses for travel between his home and a work site that was not City Hall but denied the claim for automobile costs incurred for travel between his home and City Hall.

In affirming this reassessment, Rip T.C.J. noted (at p. 2414) that "the words '... incurred in the performance of ... employment' refer to automobile expenses incurred by the employee while providing services under the employment contract" and that a person could not be deemed to be "travelling in the course of the office or employment" unless the travel actually involved the performance of some service as compared to simply getting oneself to the place of work. Finally, there was no evidence that cast any doubt that the allowance paid was not reasonable.

The taxpayer (a professor of music) claimed capital cost allowance under s. 8(1)(p) for the capital cost of a Macintosh computer he used to simulate the orchestral sound that could be produced from musical compositions.

Lamarre Proulx J. stated (at p. 2019):

"My conclusion is that for the person who is employed as a musician and as a term of his employment is required to provide a computer for teaching musical subjects such as composition and orchestration, a computer is within the meaning of a musical instrument."