Words and Phrases - "enjoyment"
Rachfalowski v. The Queen, 2008 DTC 3626, 2008 TCC 258 (Informal Procedure)
The taxpayer, who did not like to golf, was required by his employer to belong to a golf club. He used the facilities only very occasionally. The amount of the annual membership dues paid by his employer was not includable in his income. Bowman C.J. stated (at para. 20) that the principle to be extracted from the Canadian, U.K. and U.S. jurisprudence "is that a 'benefit' is not included in an employee's income if it is primarily for the need or convenience of the employer" and that "this is so even where it represents a material acquisition or something of value". He went on to note (at para. 24) that here "membership in the golf club was clearly primarily for the benefit of the employer" (and, in any event "the benefit, if any, to the appellant of the membership in the golf club was minimal at most".
Bowman C.J. also noted (at para. 8) that "the meaning of 'enjoy' or 'jouir de' in section 6 has the meaning of 'have the use or benefit of' or 'avoir, bénéficier (de) posséder'."
Windrim v. The Queen, 91 DTC 5221 (FCTD)
The taxpayer, who purchased 17.6 acres of land knowing that it could not be subdivided, and who lived on the land for several years in a mobile home, was not entitled to claim the principal residence exemption with respect to more than the two hectares allowed by the Minister, because the mobile home as a supposed "housing unit" "simply had no identifiable subjacent or contiguous land" (p. 5227) given that the mobile home was not required to be affixed to any given portion of the land, and because, unlike the Yates case, when the taxpayer bought the lot he did not wish it to be subdividable, but instead "knowingly and quite intentionally bought a grandiose lot with its little trout-stocked lake, its ridge with a view of the sea, its forest and its forest trails" (p. 5227).
Muldoon J. also noted that "the meaning of 'enjoyment/jouissance' eschews all connotation of 'hedonism or volupté'" (p. 5226).
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Augart v. The Queen, 93 DTC 5205 (FCA)
The taxpayer was entitled to the principal residence exemption on the capital gain arising on the sale, under threat of expropriation, to the local municipality of the full 9 acres on which his rural home was situate because subdivision controls would have precluded him from selling to a normal purchaser any portion of the parcel. It was essentially irrelevant that the minimum lot size under the prevailing by-laws at the time of purchase was 3 acres, given that the subdivision controls would have precluded the taxpayer from selling off the excess 6 acres. Robertson J.A. noted (p. 5209) that the term "enjoyment" included not only the exercise of the right of possession, but also included the right of alienation, and that a disposition of the 9 acres was necessary in order for the taxpayer "to exercise his right of alienation or, to trace the language of the Act, to the 'enjoyment' of his residence".