Tax Court of Canada Judgments

 

Citation:  2009 TCC 204   Docket: 2008-2308(IT)I

BETWEEN:

KEITH SAMPSON,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

CERTIFICATION OF TRANSCRIPT OF

REASONS FOR JUDGMENT

 

 

Let the attached certified transcript of my Reasons for Judgment delivered orally from the Bench at Halifax, Nova Scotia on January 23, 2009, be filed.

 

 

 

 

“Diane Campbell”

Campbell J.

 

Signed in Ottawa, Canada, this 27th day of April 2009.

                                    File No. 2008-2308(IT)I

 

 

 

 

IN THE TAX COURT OF CANADA

IN RE: THE INCOME TAX ACT

 

BETWEEN:

 

 

KEITH SAMPSON

APPELLANT

 

-   and –

 

 

HER MAJESTY THE QUEEN

 

 

RESPONDENT

____________________________________________________________

R E A S O N S   F O R   J U D G M E N T

___________________________________________________________

 

HEARD BEFORE: The Honourable Madam Justice Campbell

 

DATE HEARD:   Thursday, January 22, 2009

 

PLACE HEARD:  Halifax, Nova Scotia

 

APPEARANCES:  Mr.  Keith Sampson

              Self-Represented

                            

               Ms. Devon E. Peavoy

               Solicitor for the Respondent

             

___________________________________________________________

 

THE REGISTRAR:  Mr. Michael Kowalchuk

___________________________________________________________

 

Recorded by:

Drake Recording Services Limited

1592 Oxford Street

Halifax, NS B3H 3Z4

Per: Ms. Shannon Young-Urquhart, Commissioner of Oaths

 

I N D E X   O F   P R O C E E D I N G S

 

 

PAGE NO.

 

 

JUSTICE CAMPBELL - ORAL REASONS..................... 3

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

              Campbell, J. (Orally):  Let the record show that I am delivering Oral Reasons in the Appeal of Keith Sampson, which I heard yesterday.

              Mr. Sampson is a pipe welder, who travelled on four different occasions in the 2006 taxation year to find work in his field in the construction industry. 

              He is a single man, who owns a house in Antigonish and travelled on these four separate occasions to find work in other parts of Canada. These moves were as follows:

1.  February 8, 2006 from Antigonish to Sarnia, Ontario, where he worked for approximately 11 weeks and then returned to Nova Scotia for approximately two weeks. 

2.  Then again on May 8, 2006, he travelled from Antigonish to Fort Saskatchewan where he worked for about six weeks, before he returned once again to Nova Scotia.

3.  On August 12, 2006, he travelled from Antigonish to Fort McMurray, where he worked for approximately six to seven weeks.

4.  And then on September 28, 2006, he travelled from Fort McMurray back to Antigonish, Nova Scotia, where he obtained work at a pulp mill around October 16, 2006.

              Every time the Appellant travels to a place to locate employment, he takes his own car and any personal items, excepting furniture and larger household items, that he will require when he is away from his house in Antigonish. 

              When he travels, he does not have a job waiting for him. He locates work while on the road, and never knows how long his work will last. Generally, he stays in hotels and camps, but stayed for part of the time in an apartment while working in Sarnia. He maintains his Nova Scotia license and health card, as well as his bank account in Nova Scotia. He did not change his mailing address throughout any of the period in 2006.

              The Appellant claimed the moving expenses he incurred for these four work relocations in 2006. The issue is whether he can claim them. 

              The Appellant's position is that due to the nature of the economy he must travel where he can obtain work, and that because of the nature of this work he never knows how long he will have work in any one location. The Appellant believes that he becomes an ordinary resident of the centre that he relocates to, in order to find work.

              The Respondent's position is that the moving expenses are not eligible for deduction, because his travel in 2006 did not qualify as an eligible relocation as defined in subsection 248(1), as he was ordinarily resident throughout all of 2006 in the province of Nova Scotia.

              For me to find in the Appellant's favour and allow this appeal, I would have to conclude that he was ordinarily resident in these different locations. They were all relatively short stays, ranging in duration from six weeks to 11 weeks. I agree with Justice Miller's comments in Calvano v. The Queen, 2004 DTC 2471, that the starting point, in this type of Appeal, must begin with the Supreme Court decision in Thomson v. Minister of National Revenue, [1946] S.C.R. 209, where Justice Estey stated, at pages 231 to 232, the following, and I am going to read the relevant portion into the record.

"A reference to the dictionary and judicial comments upon the meaning of these terms indicates that one is ‘ordinarily resident’ in the place where in the settled routine of his life he regularly, normally or customarily lives. One ‘sojourns’ at a place where he unusually, casually or intermittently visits or stays. In the former the element of permanence; in the latter that of the temporary predominates. The difference cannot be stated in precise and definite terms, but each case must be determined after all of the relevant factors are taken into consideration, but the foregoing indicates in a general way the essential difference.”

Each case must turn on its own set of facts viewed as a whole. What may be relevant in one case, may not be in another. Duration of stay, accommodation, community connections maintained or severed, transfers of mail, licenses, health cards and vehicle registrations are just some of the factors which must be analyzed and considered. Of course, these factors assist the Court in determining the more subjective element of intention of the taxpayer as to whether the move encompasses the taxpayer settling into the trappings of a routine, day-to-day lifestyle in the new location. In light of this, there must be a finding that the residence of the taxpayer has, in fact, changed to be an eligible relocation as defined in subsection 248(1); otherwise, the taxpayer will not be able to bring himself within the ambit of the relevant provisions to make a claim for these moving expenses.

              In Rennie v. M.N.R., 90 DTC 1050, Justice Christie made the following comments, and I am going to read the relevant portion again into the record:

"Subsections 62(1) and (3) of the Act, which permit the deduction of ‘moving expenses’, cannot be interpreted so as to envisage a taxpayer having more than one residence at any given time, since they are intended to apply to the commencement of employment at a place in Canada that precipitates a move by the taxpayer from the place in Canada where he ordinarily resided before the move to a place in Canada where he ordinarily resided after the move. The words 'ordinarily resided', moreover, should be given the connotation ascribed to them by the Supreme Court of Canada in Thomson …."

              Which references the quote that I read into the record just previously.

              The evidence in this Appeal discloses that the Appellant returned to his residence in Antigonish throughout 2006. The durations of the work related stays were shorter in nature, being between six and 11 weeks. He did not change his license, bank account, medical card or mail to any of these new locations. He took only some personal items in the car with him, on each trip, leaving behind all of his furniture at his residence in Antigonish.              In fact, each time the Appellant left Antigonish, he could not at that time have formed a settled intent to relocate to the work location with the purpose of establishing some roots there, as he did not have work when he left Antigonish, and never knew where he would end up or for how long. One of his work situations lasted a mere six weeks, and he testified that the very nature of his work is subject to abrupt shutdowns.

              In addition, for the most part, he stayed in motels and employer campsites. In the case of Persaud v. The Queen, 2007 DTC 1432, Justice Webb concluded that a taxpayer who had relocated to a remote community for more than three months had established a settled, ordinary routine to his life to qualify him as ordinarily resident.

              In Cavalier v. Canada, [2001] T.C.J. No. 719, Justice Bowie, concluded that to be ordinarily resident, a taxpayer need not have formed the intention to remain permanently or for any particular length of time at the new residence. There seems to be more emphasis placed on duration of stay in these cases than I believe is justified. Certainly it is one factor, but only one of many that must be considered in the context of the entire evidence which presents itself in each individual case. If three months qualify, does it mean, for instance, that three months less one week, or less two days will not? The latter period may or may not qualify depending on all of the evidence adduced in a particular appeal. I believe Parliament enacted provision 62 with a view to a relocation that has an element of permanency attached to it, and as referenced in the Supreme Court of Canada decision in Thomson.

              This is apparent, when one looks at the types of expenses contemplated by this very provision including the transportation of household items, cost to cancel a lease or to sell a residence, legal expenses to purchase a new residence at the new location and cost to change resident addresses.

              In addition, it talks of meal costs up to a 15-day transitory period. If Parliament had intended that a taxpayer get the expenses upon moving from A to B with little else, I believe this provision would contain an entirely different wording and there would be no need for it to contain the words "ordinarily resident". 

              In any event, I am not bound by the decisions which hold a different view of this provision, as they are under the informal procedure, and I am not bound by them.

              The Appellant has failed to establish that he moved on any one of these four trips from his residence in Antigonish, where he ordinarily resided, to a new place where it could be said he was ordinarily residing. 

              He could not find employment in Nova Scotia, and as a result he travelled to various locations in Canada, throughout 2006, to locate work. The costs, incurred in doing so, were simply the incidental travel expenses to a new worksite, but did not relate to a change in residence from Antigonish, where he always intended to return. His travel in 2006 involved intermittent work stays only. 

              In accordance with these reasons, the Appeal is therefore dismissed.

 

--- Upon concluding at 8:53 a.m.          

 

 

 

CERTIFICATE OF COURT TRANSCRIBER

 

I, Philomena Drake, Court Transcriber, hereby certify that I have transcribed the foregoing and it is a true and accurate transcript of the evidence given in this matter, KEITH SAMPSON (Appellant) and HER MAJESTY THE QUEEN (Respondent), taken by way of electronic recording.

 

 

 

                       

                        __________________________________

                        Philomena Drake

                        Court Transcriber (Reg. #2006-36)

 

 

Halifax, Nova Scotia

Friday, April 03, 2009

 

 

CITATION:

2009 TCC 204

COURT FILE NO.:

2008-2308(IT)I

STYLE OF CAUSE:

Keith Sampson and Her Majesty the Queen

PLACE OF HEARING:

Halifax, Nova Scotia

DATE OF HEARING:

January 22, 2009

REASONS FOR JUDGMENT BY:

The Honourable Justice Diane Campbell

DATE OF ORAL JUDGMENT:

January 23, 2009

APPEARANCES:

For the Appellant:

The Appellant himself

Counsel for the Respondent:

Devon E. Peavoy

COUNSEL OF RECORD:

For the Appellant:

Name:

Firm:

For the Respondent:

John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Canada