Judgments

Decision Information

Decision Content

Ernest G. Stickel (Appellant)
v.
Minister of National Revenue (Respondent)
Court of Appeal, Jackett C.J., Sheppard and Bastin D.JJ.—Edmonton, March 15, 1973.
Income tax—Canada-U.S. Reciprocal Tax Convention, Article VIII A—U.S. resident teaching in Canada for two years but remaining afterward—Whether exempt from Canadian tax—"Resident", meaning.
Appellant, a resident of the United States, came to Canada with his family in 1967 for the purpose of teaching at the University of Alberta under a two-year contract. At the expiration of the two-year term, he ceased teaching but stayed in Canada for several months longer doing other work. He claimed an exemption from Canadian income tax for 1967 and 1968 under Article VIII A of the Canada-U.S. Reciprocal Tax Convention.
Held (reversing Cattanach J.), he was entitled to the exemption.
Appellant fell within the language of Article VIII A of the Convention. He was "a professor ... resident [of the United States] ... who temporarily visits [Canada] for the purpose of teaching, for a period not exceeding two years, at a university"... .
The word "resident" in Article VIII A cannot be so narrowly construed as to exclude appellant because he brought his family with him during his absence from the United States.
Article VIII A is not limited in application to visits not exceeding two years.
APPEAL from Cattanach J. [1972] F.C. 672. COUNSEL:
P. G. C. Ketchum for appellant.
G. W. Ainslie, Q.C. for respondent.
SOLICITORS:
Crockett, Hattersley, Ketchum and Niziol, Edmonton, for appellant.
Deputy Attorney General of Canada for respondent.
Judgment of the Court was delivered by
JACKETT C.J. (orally)—This is an appeal from a judgment of the Trial Division dismissing the appellant's appeals from his assessments under
Part I of the Income Tax Act for the 1967 and 1968 taxation years.
The appeals were brought to have decided the question whether the appellant was exempt from income tax during those taxation years on his remuneration as an Associate Professor at the University of Alberta. The exemption was claimed under an article in the Canada-United States of America Tax Convention, which has the force of law by virtue of chapter 21 of the Statutes of Canada, 1943-44, and chapter 27 of the Statutes of Canada 1950.' The article is Article VIII A of the Tax Convention as amend ed and reads as follows:
A professor or teacher who is a resident of one of the contracting States and who temporarily visits the other contracting State for the purpose of teaching, for a period not exceeding two years, at a university, college, school or other educational institution in such other State, shall be exempted by such other State from tax on his remuneration for such teaching for such period.
Two questions arise on this appeal. The first is whether the appellant was a person who fell within the words "A professor ... who is a resident of" the United States. The second is whether the appellant was a person who fell within the words "A professor ... who tem porarily visits" Canada "for the purpose of teaching, for a period not exceeding two years, at a university ...".
The learned trial judge decided the second question against the appellant and did not find it necessary therefore to decide the first question. We, therefore, consider the second question first.
The appellant came to Canada to teach at the University of Alberta under a two year term contract. At the expiration of that two year term of employment, the appellant did cease to teach but he stayed in Canada for several months longer doing other work. On these facts, the learned trial judge held that Article VIII A did not apply because he interpreted Article VIII A as not applying where the duration of the visit
was, in fact, in excess of two years. We do not so read Article VIII A.
The question of interpretation turns on whether the words "for a period not exceeding two years" modify the word "visits" or are an integral portion of the expression "for the pur pose of teaching ... at a university ...".
Once it is appreciated that the words that constitute the second condition precedent to the application of Article VIII A are
who temporarily visits the other contracting State for the purpose of teaching, for a period not exceeding two years, at a university .. .
and not merely
who temporarily visits the other contracting State for the purpose of teaching, for a period not exceeding two years,
we are all agreed that the words "for a period not exceeding two years" are an integral part of the expression "for the purpose of teaching .. . at a university ..." and do not relate to the period of the visit as revealed by the actual events.
On that view of the matter it becomes a question of fact as to whether the appellant was a person who was at the relevant time a "resi- dent" of the United States and was a person who temporarily visited Canada for the purpose of teaching at a university for a period not exceeding two years.
We do not think that it is necessary to review the evidence at length. It has been carefully reviewed by the learned trial judge although he did not find it necessary to make any findings on the questions that become relevant on the view that we have taken as to the meaning of the Article.
In our view, the balance of probability on the evidence is that the appellant, who was resident in the United States, had given some thought to the possibility of moving to Canada before he obtained an opportunity to take a two year term appointment at the University of Alberta, that he discussed the project with his family, who were not enthusiastic about the prospect of a permanent move to Canada, and that they
reached a joint decision to go to Canada for the two year appointment only but on the under standing that during that two year period they might reconsider the possibility of making their permanent home in Canada. On those facts, having regard to the necessity of interpreting the words "temporarily visits" as including visiting for the purpose of teaching for a period as long as two years, we are agreed that the appellant was a person who temporarily visited Canada for the purpose of teaching at a univer sity for a period not exceeding two years.
A more difficult question is whether the appellant was "a resident" of the United States at the time contemplated by Article VIII A. The respondent's position is that this contemplates residence in the sense given to that word when it is a basis for liability to income tax and that it is a condition of the Article that a person must have been so resident throughout the period of the exemption. If that be so, it is difficult to envisage what tax relief is accorded by Article VIII A in the case of professors and teachers that would not otherwise be available in the case of all taxpayers by virtue of the foreign tax credit provisions which are, it is believed, also contemplated by the Tax Convention in question.
We do not find it expedient to attempt to formulate any definition of what is implied by the words "is a resident" in their context in Article VIII A. No matter how narrowly the expression is construed, it would certainly embrace the appellant if he had been sufficient ly affluent and hard hearted to have left his family in a family home in the United States for the two year period and to have continued to incur the expense of maintaining his community and social relationships there during the period of his two years' absence. This would be so in the case of a mariner or soldier who had to absent himself from his home for such a period and the work performed while away does not constitute a relevant distinction. If that would have been so in the case of a person who could afford to maintain his family in the United States while away, and was willing to do, we are of the view that a person who is on a two year
"temporary" visit to teach in a foreign universi ty was equally a "resident" of his native land for the purposes of Article VIII A even though he took his family with him and did not continue to incur the expense of maintaining his com munity and social relationships in his native land.
The appeal will, therefore, be allowed with costs and the assessments will be referred back for re-assessment.
' Article VIII A is printed in Schedule A to chapter 27 of the Statutes of 1950.
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.