Ernest G. Stickel (Appellant)
v.
Minister of National Revenue (Respondent)
Trial Division, Cattanach J.—Edmonton, Alber-
ta, February 29 and March 1; Ottawa, April 18,
1972.
Income tax—Canada-U.S. Reciprocal Tax Convention,
Article VIII A—U.S. resident teaching in Canada—Whether
exempt from Canadian tax.
Income tax—Assessment—Powers of Minister—Whether
estopped by information bulletin.
Appellant resided in the United States until July 18, 1967,
when he moved to Edmonton to teach at the University of
Alberta. At the end of his teaching contract on June 30,
1969, he remained in Edmonton as a consulting psycholo
gist until March 1970 when he left Canada.
Held, he was not exempt from income tax in Canada on
his income from teaching under Article VIII A of the
Canada-U.S. Reciprocal Tax Convention.
A resident of Canada or the U.S.A. is not qualified for
exemption from tax in the other country under Article VIII
A unless (1) the duration of his visit to such other country
does not exceed two years, and (2) the purpose of the visit
was to teach.
Smith v. M.N.R. 70 DTC 1594, disapproved.
Held also, an information bulletin published by the Minis
ter which mis -stated the effect of Article VIII A did not
create an estoppel against the Minister.
Bowen v. M.N.R. [1972] C.T.C. 2174, disapproved;
Woon v. M.N.R. [1951] Ex.C.R. 18; M.N.R. v. Inland
Industries Ltd. 72 DTC 6113, applied.
INCOME tax appeal.
P. G. C. Ketchum for appellant.
Ian Pitfield for respondent.
CATTANACH J.—These are appeals from the
assessment by the Minister of the appellant to
income tax for his 1967 and 1968 taxation
years whereby the Minister disallowed the
appellant's claims to exemption from payment
of tax in those respective taxation years pursu
ant to Article VIII A of a Canada-U.S. Recipro
cal Tax Convention concluded between the two
states indicated in the title on March 4, 1942
which article reads as follows:
Article VIII A: 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.
This Convention was approved and declared
to have the force of law in Canada by the
Canada-United States of America Tax Conven
tion Act, 1943.
Subsequent amendments to the Convention
were also approved and declared to have the
force of law in Canada by statutes duly enacted
by the Parliament of Canada.
Article VIII A was added and approved by
chapter 27, Statutes of Canada, 1950.
The Convention has a preamble which
declares that the objectives of the two contract
ing states are (1) the promotion of the flow of
commerce between the two countries, (2) the
avoidance of double taxation and (3) the pre
vention of fiscal evasion in the case of income
taxes. Many years ago Lord Coke said that a
preamble is a good means to find out the mean
ing of a statute, and as a key to open the
understanding thereof.
The basic facts which give rise to these
appeals are not in dispute but there is one area
of dispute based upon the proper inference to
be drawn from those facts and that is whether
the appellant ceased to be a resident of the
United States.
The appellant was born in Ohio, one of the
States of the United States of America. There is
no question whatsoever that he is a citizen of
that country and resided there until July 18,
1967.
He completed his early education there and
then attended Case Western Reserve University
in Ohio. He was employed at that University
from 1953 to 1957 and during that period he
was simultaneously working toward his doctor
ate in philosophy which he achieved in 1956.
From 1957 to 1958 he worked as a consultant
in a research institute in Cleveland, Ohio. From
1958 to 1961 he worked as a private consultant
with the Case Institute which was a ' separate
entity technically but closely affiliated with the
University.
The appellant's wife had been born in New-
foundland, Canada, but moved to the United
States prior to their marriage. In 1967 there
were four children to the union, two of whom
were teen-agers.
In 1961 the appellant and his family moved to
Washington, D.C.
From 1961 to 1962 he taught at William &
Mary University in Norfolk, Virginia.
From there he returned to Washington where
he was employed by the Montgomery Board of
Health and the Montgomery Board of Educa
tion. While so employed he bought a house in
Kensington, Maryland which he owned until
1964 when he moved to Wheaton, Maryland
where the family lived in rented accommoda
tion. All these places are in the area of Wash-
ington, D.C.
Both of the appellant's parents are deceased.
If my recollection of the evidence is correct, his
only living relative is a brother who lives in the
United States. The appellant and his brother
were joint owners of a house which was rented
to a third person. The appellant sold his interest
in this property in 1968.
The appellant also bought property in the
States of Florida and New Mexico, neither of
which properties he has ever seen. I suspect
that these properties may have been bought as a
speculation from land developers.
While the appellant was in Washington, D.C.
an employment listing in the University of
Alberta at Edmonton, Alberta came to his atten
tion. He wrote to the Chairman of the appropri
ate department of the University on December
5, 1966. He received a reply from the Chairman
in February 1967. This reply was to the effect
that the Chairman would be in New York and
suggested an interview with the appellant. That
interview took place and formed the basis for
further discussion. That further discussion took
place when the appellant flew to Edmonton for
that purpose. As a result a verbal agreement for
employment was reached. On March 27, 1967 a
contract was received by the appellant from the
University of Alberta while the appellant was
living in Washington, D.C. On March 31, 1967
he signed that contract and returned it to the
University.
In his letter of December 5, 1966 to the
University the appellant indicated his interest in
"re-locating to Canada", that he had been
watching movements and trends in Canada for
some time and that he had noticed differences
that attracted him "personally and professional
ly". In reciting his personal attributes he made
reference to the fact that his wife was a Canadi-
an and that most of his living relatives were in
Canada. He mentioned that the family had
bought a school bus which was converted into a
"prairie schooner" in which the family had
toured extensively in Eastern Canada. He also
mentioned that all members of the family were
camping, fishing and outdoor enthusiasts. He
concluded this by letter stating that the family
felt that "Canada is the new land of promise".
Bearing in mind that this was a letter seeking
employment and that the appellant, as a pros
pective employee, would set out facts and cir
cumstances which he considered might influ
ence the employer in his favour, the letter may
not be of great significance being in the nature
of puffing. However, it is an indication of the
appellant's thoughts and the nomadic way of his
life, no doubt dictated by the appellant's
occupation.
On the other hand, Mrs. Stickel gave evi
dence that the move to Edmonton was dis
cussed at a family conference. She, herself, was
less than enthusiastic. She had no desire to
return to Eastern Canada and she was unfamil
iar with Western Canada. It was the consensus
of the family, including the appellant, that they
should give it a try for two years and remain
open minded about the project.
The contract between the appellant and the
University was for his employment as an
associate professor in the Department of Edu
cational Psychology in the Faculty of Educa-
tion, the effective date of appointment being
July 1, 1967for a probationary period ending
June 30, 1969, which I would point out is for a
period of two years exactly.
The appellant moved to Edmonton, Alberta,
with his family on July 18, 1967 to take up his
duties under this appointment.
Prior to moving to Canada the appellant ter
minated the lease on the premises occupied in
the United States. Certain personal effects,
which could not be conveniently moved to
Canada, were left with his brother. The evi
dence is not conclusive if this was an outright
gift or whether the effects were to be kept for
the appellant.
The appellant had a loan account which he
closed out but continued payments for about
eighteen months to discharge the outstanding
balance. His checking and saving account was
moved to Edmonton.
When the appellant first came to Edmonton
he had difficulty in finding suitable accommo
dation for rent. He eventually found accommo
dation but after occupying it for a period the
property was offered for sale. The appellant
was left with the alternative of buying the prop
erty or moving. The appellant moved. On
March 27, 1968 he entered into a lease for
another property for a period of five years
supplemented by an option agreement, for a
consideration of $2,000, to purchase and with
an agreement for sale annexed, which might be
exercised after February 15, 1973. The lease
expired on March 31, 1973. The appellant's
explanation was that he entered into these
arrangements, i.e. a lease, an option and an
agreement for sale, because his obligations
thereunder could be transferred readily and the
option sold.
At the expiration of his teaching contract
with the University on June 30, 1969, the appel
lant did not renew it. He was dissatisfied with
the changes wrought over the two-year period.
In his view the enrolment had become too great
for satisfactory teaching. He had become disil
lusioned and no longer wished to teach under
those conditions.
The appellant decided to continue in two part
time posts in Edmonton. He was employed as a
consulting psychologist in a private clinic, The
Cold Mountain Institute, and conducted semi
nars in human relations.
From July 18, 1967 until he left Canada on
March 9, 1970 he did not return to the United
States except to attend professional conven
tions and in the fall of 1969 for an interview
about prospective employment in the State of
Alaska. He received an offer of employment in
January 1970 as a result of that interview which
he accepted and left Canada in March 1970.
To recapitulate the salient facts in summary
form, the appellant was a professor, he was a
resident of the United States on July 18, 1967
on which date he came to Canada to teach at
the University of Alberta. He taught at that
University for a period of two years ending
June 30, 1969. From June 30, 1969 to March 9,
1970, a period of slightly more than eight
months, he remained in Canada and engaged in
employment, other than teaching, for which he
received remuneration.
While the appellant was engaged in teaching
at the University of Alberta in the years 1967
and 1968 the administrative officer in charge of
payroll operations deducted income tax and
payments to the Canada Pension Plan, remitted
the amounts so deducted to the Minister of
National Revenue and issued T.4 slips therefor.
During the months of July to December 1967
a total of $1,804.33 was deducted from the
salary of the appellant for income tax together
with a total of $79.20 as Canada Pension Plan
payments, making a total deduction of $1,-
883.53 for the 1967 year.
During the year 1968 income tax deductions
from the appellant's salary totalled $3,819.54
and Canada Pension Plan deductions totalled
$81, making a total of $3,900.54.
I might also add that deductions were also
made from the appellant's salary in these two
years for contributions to a University Pension
Plan.
The bursar's office, particularly the adminis
trative officer in charge of payroll operations,
was not aware of the Canada-U.S. Reciprocal
Tax Convention and did not become aware of it
until the matter was brought to the attention of
the office in June 1968. In that month the
Department of National Revenue, Taxation
Division supplied copies of Information Bulletin
No. 41, dated May 21, 1968 and published in
the Canada Gazette of June 1, 1968, the subject
of which bulletin is the exemption from income
tax in Canada of professors and teachers from
other countries.
It is now the practice of that office to obtain
from a visiting professor a statement of exemp
tion stating (1) the name of his home country,
(2) the date he entered Canada, (3) that he came
to Canada for the express purpose of teaching
in this country, (4) that his intention is to leave
Canada within 24 consecutive months from the
date of his entry and (5) that he has not been
allowed a tax exemption in respect of teaching
income earned in Canada for any period prior to
the date of entry indicated. This statement of
exemption was drafted and designed in accord
ance with the instructions in Bulletin 41.
The appellant did not complete such a state
ment at any time for the very obvious reason
that neither the bursar's office, nor the appel
lant were aware of the tax treaty or Bulletin 41
until June 1968 and the spring of 1969 or poss
ibly the summer of 1968 respectively.
The appellant did file tax returns with the
appropriate authority of the United States in
which he claimed "non-resident" status. He has
paid no income tax to the United States on the
income earned in Canada.
The appellant did not file income tax returns
in Canada for the 1967 and 1968 taxation years
until March 1970. Apparently the appellant
filed two tax returns for each taxation year. The
returns which bear the latter date do not claim
tax exemption under the tax treaty but the
returns which bear the earlier date do.
I do not attach significance to this added
confusion because by notices of assessment
dated April 14, 1970 and April 16, 1970, the
Minister advised the appellant that he did not
qualify for tax exemption "under Article 8A of
the Income Tax Act [sic]" and that he was being
assessed accordingly.
I might also add that while the appellant
claimed tax exemption for all teaching income
earned in Canada in 1967 he only claimed
exemption on the teaching income earned by
him to June 30 in the year 1968.
The appellant forthwith filed notices of
objection. The Minister notified the appellant
that he had been properly assessed under sec
tion 5(1) of the Act and that the provisions of
Article VIII A of the tax convention are not
applicable. Hence the present appeals.
Counsel for the appellant submitted that a
treaty must be interpreted so as to give effect to
the rule of effectiveness and the rule of liberal
interpretation. I fail to follow how the rule of
effectiveness can mean any more than the obvi
ous duty of the Court to give effect to the
treaty. That duty is, as I conceive it, to ascer
tain and give effect to the intention of the
contracting states as expressed in the words
used by them.
Similarly I find little help in the statement
that a treaty shall receive a liberal or extensive
construction rather than a strict one. The con
sensus of all writers is that treaties are to be
construed in the most liberal spirit provided
however that the sense is not wrested from its
plain and obvious meaning.
In my view the duty of the Court is to con
strue a treaty as it would construe any other
instrument public or private, that is to ascertain
the true intent and meaning of the contracting
states collected from the nature of the subject-
matter and from the words employed by them
in their context. In this I am assisted by the
preamble of this particular treaty which states
that two of the overall aims are the avoidance
of double taxation and the prevention of fiscal
evasion in the case of income tax.
The clear and unambiguous language of sub
sections (1) and (2) of section 2 of the Income
Tax Act imposes a tax on the appellant, were it
not for Article VIII A. Subsection (1) imposes a
tax on every person resident in Canada at any
time in the taxation year and subsection (2)
imposes a tax on a person not resident in
Canada on income earned in Canada. Accord
ingly for the appellant to be exempt he must
bring himself precisely within the four corners
of Article VIII A.
The avowed purpose of Article VIII A in so
far as it concerns the present appellant is to
ensure relief from double taxation.
The appellant has not been subjected to tax in
the United States on the remuneration earned
by him for teaching in Canada. The appellant
has filed returns in the United States on the
basis that he was a non-resident of the United
States. The revenue authorities of that State
have categorized the appellant as a non-resident
and he was accordingly informed that no tax
was due to that jurisdiction on the money
earned by him in Canada. This being so I fail to
appreciate how the appellant falls within the
general objective of the treaty which is to avoid
double taxation. The appellant has not, as yet,
been subjected to double taxation but there
remains the possibility that he might be subject
ed to tax in that jurisdiction as well.
Article XVI of the Convention provides that
where a taxpayer shows proof that the action of
the revenue authorities of one of the contract
ing States has resulted in double taxation, then
the taxpayer is entitled to lodge a claim with the
State of which he is a citizen or resident. The
competent authority of that State will then con
sult with the corresponding authority of the
other State to determine if the double taxation
may be avoided.
In the present instance the appellant cannot
resort to this procedure because he has paid no
taxes in the United States on his teaching remu-
neration earned in Canada, nor has the United
States sought to impose a tax on that amount as
yet.
Therefore the condition precedent to the
appellant invoking a determination of the avoid
ance of double taxation does not exist because
as yet there is no double taxation.
It therefore follows that I am obliged to
determine if the appellant is exigible to tax in
Canada and to do so I must determine if the
appellant falls within the exemption contemplat
ed by the language employed by the contracting
parties in Article VIII A.
It was the further submission on behalf of the
appellant that the Minister is estopped from
taxing the appellant.
This contention is based upon Information
Bulletin 41 issued by the Minister, particularly
the text appearing under the heading "Transi-
tional Rules". This is to the effect that where a
teacher remains in Canada after the expiration
of a 24-month period from the date of his
arrival in Canada he will be subject to tax and
to making Canada Pension Plan payments "only
to the extent that such income was earned, after
the end of the month in which the 24 month
period expired."
The effect of this language in Information
Bulletin No. 41 is that a teacher could come to
Canada and teach for two years during which
his remuneration would be tax exempt under
Article VIII A, but if that teacher should remain
in Canada to teach for a period in excess of two
years then the remuneration earned during the
first two years would continue to remain tax
exempt but the remuneration earned by him in
the third and subsequent years will be subject
to tax.
It is the contention on behalf of the Minister
that in order for the appellant to qualify for
exemption under Article VIII A, the term of his
visit to Canada must not endure beyond two
years and the visit must be exclusively for the
purpose of teaching.
The position taken by counsel for the appel
lant is that the Minister is precluded from taking
such stand in the face of the express statements
made in the Information Bulletin.
In support of his position counsel relies on
the decision of the Tax Appeal Board in Smith
v. M.N.R. 70 DTC 1594 and the decision of the
Tax Review Board in Bowen v. M.N.R. [1972]
C.T.C. 2174.
In Smith v. M.N.R. the appellant who was a
professor came to Canada on September 9,
1966 with his family for the purpose of teaching
at the University of Alberta. His teaching con
tract was for a period of four years but evi
dence was adduced and accepted by the Board
that this was in error and the contract was in
fact for two years only. Before the end of the
two-year period, i.e. (September 1968), the
appellant's family returned to England in May
1968. On June 18, 1968 an offer of renewal of
his teaching contract for a further two years
was made to the appellant under more advanta
geous conditions. In July 1968 the appellant
went to England to persuade his wife to return
to Alberta for a further two years. The appel
lant, accompanied by his family, returned to
Canada in September 1968 to continue teaching
for a further two years (a total of four years).
The Board allowed the appeal on acceptance of
the fact that it was the appellant's intention to
teach in Canada for no more than two years.
Obviously the Board based its decision on the
appellant's intention.
If the ratio of this decision is, as it appears to
be, that the professor's intention to teach in
Canada for not more than two years is the
determining factor, then I am forced to the
conclusion that the Smith (supra) case was
wrongly decided. In my view, the intention of a
professor or teacher when he enters Canada has
no relevance in the interpretation and applica
tion of the pertinent articles of the Treaty.
In Bowen v. M.N.R. (supra) the appellant was
an exchange teacher from New Zealand who
taught in Canada for two years. At the end of
that period the appellant had made all necessary
arrangements to return to New Zealand. How-
ever, prior to that time the appellant learned of
an excursion flight to Europe where the appel
lant had relatives, but to take advantage of that
flight, the appellant would be obliged to teach
for a further 10 months beyond the two-year
period. He therefore enquired of the District
Taxation Office and was informed, in accord
ance with the terms of Information Bulletin 41,
that the policy of the Department was that
where a teacher remained in Canada subsequent
to the expiration of the 24-month period the
teacher would not be subject to income tax and
Canada Pension Plans on the income which had
been exempt in the original two years. On the
strength of this representation the appellant
stayed on in his teaching post beyond the two-
year period. He was assessed to income tax for
the prior two-year period on the ground that
Article X of the Canada-New Zealand Tax
Agreement did not apply. The effect of Article
X is similar to that of Article VIII A of the
Canada-U.S. Treaty, although the language dif
fers substantially.
The learned member of the Tax Review
Board stated at page 2182:
... I have come firmly to the conclusion that it is not now
open to the Minister to plead Article X of the Schedule to
the Canada-New Zealand Income Tax Agreement to the
exclusion of and without having due regard to Information
Bulletin No. 41 which undoubtedly supports the appellant's
position herein... .
There is no question that the appellant acted
upon the representation contained in Informa
tion Bulletin 41 and more particularly on the
letter from the District Taxation Office, by
altering his plans and thereby his position leav
ing himself vulnerable to the assessment to
income tax imposed by the Minister.
With due respect to the learned member of
the Tax Review Board I cannot accept his state
ment because, in my view, it is contrary to well
established principles.
First Information Bulletin 41 is precisely
what it is stated to be, and that is an informa
tion bulletin issued by the Deputy Minister of
the Department of National Revenue. The
Deputy Minister does not have the power to
legislate on this subject-matter delegated to
him. In reality, this information bulletin is noth
ing more than the Department's interpretation
of Article VIII A of the Treaty for departmental
purposes. It is also, in effect, a direction to
employers of professors and teachers from
other countries who are expected to work in
Canada at the employer's institution for a
period of two years or less to refrain from
making deductions from the employee's remu
neration for teaching for income tax and pen
sion plan and remitting these deductions to the
Department. Information Bulletin 41 is not a
statute.
On the other hand, the Canada-U.S. Recipro
cal Tax Convention was by statute approved
and declared to have the force of law in
Canada. It is therefore the domestic law of the
land.
The position taken by counsel for the appel
lant to the effect that the Minister is precluded
from relying on the language of Article VIII A
of the convention to the exclusion of and with
out having regard to the interpretation implicit
in Information Bulletin 41, is an invocation of
the doctrine of estoppel.
In Woon v. M.N.R. [1951] Ex.C.R. 18 one of
the grounds of appeal was that the Commission
er had given a "ruling" that if the appellant
followed a certain procedure tax would be
imposed under a particular section of the
Income War Tax Act. That procedure was fol
lowed but the Minister assessed the appellant to
a much greater tax under another section of the
Act which was applicable. It was argued that
the Minister was precluded from alleging that
the particular section under which the assess
ment was made was applicable because of the
prior ruling of the Commissioner.
Mr. Justice Cameron, after a detailed and
analytical review of the leading authorities, held
that the Commissioner had no power to bind the
Minister by a ruling limiting tax action other
than in accordance with the statute; that the
assessment must be made pursuant to the terms
of the statute and it is not open to the appellant
to set up an estoppel to prevent the operation of
the statute.
In M.N.R. v. Inland Industries Ltd. 72 DTC
6013, the respondent sought to deduct contribu
tions made to pension plans in computing its
income. The plans had been submitted to the
department, and were approved and registered
by it. Further, the respondent was advised by
the Minister that contributions made to the
plans with respect to past services of the
employees would be deductible. Mr. Justice
Pigeon, in delivering the unanimous judgment
of the Supreme Court of Canada, held that it
was an express requirement of the pertinent
section of the Income Tax Act that there must
be an obligation of the plan to its employees. To
preclude the Minister from contending and
establishing that such an obligation of the plan
to its employees did not exist would nullify the
provisions of the Act. He added that the
approval of the Minister was not decisive of the
existence of the statutory condition precedent
to approval of the plan.
He effectively disposed of any question of an
estoppel arising by stating (at page 6017):
... However, it seems clear to me that the Minister cannot
be bound by any approval given when the conditions pre
scribed by law were not met.
It therefore follows that if approval and regis
tration given by the Minister to a pension plan
does not give rise to estoppel then a fortiori an
information bulletin cannot either.
In short, estoppel is subject to the one gener
al rule that it cannot override the law of the
land.
Therefore, the Minister is not precluded from
relying on Article VIII A to the exclusion of the
information bulletin.
Accordingly, I reiterate that the question to
be determined is whether the appellant herein
falls within the exemption contemplated by the
language of Article VIII A.
The argument advanced on behalf of the Min
ister was that in order for the appellant to be
eligible for exemption by virtue of Article VIII
A of the tax convention he must comply with
the conditions set out immediately below.
(1) He must have been a resident of the
United States at the time of entering Canada.
In this respect Article VIII A is abundantly
clear. The language is "A professor who is a
resident of one of the Contracting States".
The evidence established beyond doubt that
the appellant was a professor and on the date
he entered Canada he was a resident of the
United States.
(2) He must retain his status as a resident of
the United States throughout the period of his
temporary visit to Canada. That is if the
appellant meets the first qualification above
enumerated that he continues to be a resident
of the United States upon his entry to Canada
but subsequently during the prescribed period
of two years, ceases to be a resident of the
United States then the appellant loses any
right or privilege that he may otherwise have
had to exemption from taxation in Canada by
virtue of the tax convention. It was the fur
ther submission on behalf of the Minister that
on the basis of the objective criteria dis
cussed in Thomson v. M.N.R. [1946] S.C.R.
209 and in Beament v. M.N.R. [1952] 2
S.C.R. 486 to determine if the respective
appellants in those cases fell within the mean
ing of the words, "residing", "resident" and
"ordinarily resident" as used in the pertinent
sections of the Income Tax Act there under
review, it should be found as a fact that the
appellant herein had ceased to be a resident
of the United States. As Mr. Justice Cart-
wright (as he then was) pointed out in the
Beament (supra) case, the decision as to the
place or places in which a person is resident
must turn on the facts of the particular case.
(3) The period of the appellant's "temporary
visit" must not exceed two years and the
temporary visit must be exclusively for teach
ing, in the appellant's case, at a university.
I propose to consider the submissions on
behalf of the Minister in the reverse order to
which they were presented and accordingly I
turn to the third submission.
The key words, which I have emphasized, of
Article VIII A are a professor who is resident
of one of the contracting states "and who tem
porarily visits the other contracting State for the
purpose of teaching, for a period not exceeding
two years," at a university shall be exempted by
the State which he visits from tax on the remu
neration for teaching for such period.
The introduction of commas before and after
the phrase "for a period not exceeding two
years" is a circumstance of importance. The
phrase modifies the language which precedes it
and is not limited to a modification of the words
"for the purpose of teaching". The phrase also
modifies the words "temporarily visits". This
being so, it follows that the temporary visit is
limited to a "period not exceeding two years".
If the phrase "for a period of two years" were
restricted to a modification of the phrase "for
the purpose of teaching", which might be the
case but for the insertion of the commas, then
the word "temporarily" would be redundant
and should be given no meaning. However, it is
a cardinal rule of interpretation that every word
used must be given a meaning where possible.
Had the language been "visits for the purpose
of temporarily teaching", then the duration of
the visit would not be specifically limited. But
such is not the case. The word "temporarily" is
introduced before the word "visits" and modi
fies that word. The words "temporarily visits"
are modified by the words "for a period not
exceeding two years".
Therefore, the temporary visit cannot endure
beyond two years in order for the exemption to
apply.
Then there is the further qualification that the
nature or character of the visit must be "for the
purpose of teaching".
It follows that in order to qualify for exemp
tion by virtue of Article VIII A a professor or
teacher who is resident of one of the contract
ing states to the convention must meet a two
fold test: (1) the duration of the temporary visit
must not be in excess of two years; and (2) the
visit must be for the purpose of teaching.
If a professor or teacher fails in either aspect,
then he is not within the exemption contemplat
ed by Article VIII A.
The undisputed facts in the present appeals
are that the appellant came to Canada for the
purpose of teaching and accordingly meets one
of the two tests. He taught for a period of two
years but he extended his visit beyond that
period, and earned income from employment
other than teaching, so that he failed in the
second aspect of the two-fold test above pro
pounded in that his visit was in excess of two
years.
In view of this conclusion, it is unnecessary
for me to consider the other argument advanced
on behalf of the Minister that the appellant
must retain his status as a resident of the
United States throughout the period of his tem
porary visit to Canada and that, on the Minis
ter's submission, the appellant had not done so.
For the foregoing reasons, the appeals are
dismissed with costs.
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