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A-595-77
The Queen (Appellant)
v.
Alain G. L. Gaudet (Respondent)
Court of Appeal, Jackett C.J., Pratte and Le Dain JJ.—Ottawa, September 6, 1978.
Income tax — Income calculation — Deductions — Educa tional deduction claimed under s. 110(1)(h) by husband sup porting his wife who had taken certain courses at designated educational institution — Whether or not respondent's wife attended the institution 'full time" — Income Tax Act, S.C. 1970-71-72, c. 63, s. 110(1)(h), (9)(b).
INCOME tax appeal. COUNSEL:
Jean-Paul Fortin, Q.C. for appellant. Pauline Gaudet for respondent.
SOLICITORS:
Deputy Attorney General of Canada for appellant.
Clinique juridique de Hull, Hull, for respond ent.
The following is the English version of the reasons for judgment delivered orally by
PRATTE J.: This is an appeal from a judgment of the Trial Division [[1978] 1 F.C. 388] which held that respondent was entitled, in calculating his taxable income for the taxation year 1973, to the deduction which he claimed under section 110(1)(h) of the Income Tax Act, S.C. 1970-71- 72, c. 63, by virtue of the fact that his wife, whom he was supporting, had attended an educational institution.
Section 110(1)(h)—which, in the opinion of the Trial Judge, authorizes the deduction claimed by respondent—reads as follows:
110. (1) For the purpose of computing the taxable income of a taxpayer for a taxation year, there may be deducted from his income for the year such of the following amounts as are applicable:
(h) where the taxpayer was the supporting individual for the year in respect of a student who was in full-time attendance at a designated educational institution and enrolled in a
qualifying educational program at that institution, the amount by which
(i) $50 multiplied by the number of months in the year during which the student was so in attendance and was so enrolled
exceeds
(ii) the amount, if any, of the taxable income for the year of the student computed before making any deduction under paragraph (g).
It is also important to note that section 110(9)(b) defines the expression "qualifying edu cational program" thus:
110... .
(9) For the purposes of paragraphs (1)(g) and (h),
(b) "qualifying educational program" means a program of not less than 3 consecutive weeks duration that provides that each student taking the program spend not less than 10 hours per week on courses or work in the program, but, in relation to any particular student, does not include any such program
The only question raised by this appeal is wheth er respondent's wife, who had taken certain courses at a designated educational institution in 1973, attended that institution "full time". The Trial Judge answered this question in the affirma tive, because he considered that the definition of "qualifying educational program" in section 110(9)(b) provided a standard by which it could be determined whether a person was attending an educational institution "full time". In other words, the Trial Judge concluded that respondent's wife was a "full-time" student merely by virtue of the fact that she was enrolled in a qualifying educa tional program meeting the requirements of sec tion 110(9)(b). In doing so, in my opinion, the Trial Judge committed an error of law. Section 110(1)(h) requires that several separate conditions be met for the taxpayer to be entitled to a deduc tion. To say, as did the Trial Judge, that if one of these conditions is met another of the same condi tions is also met is to ignore the terms of the section.
As the Trial Judge's decision was based on this error, this Court must decide in light of the evi dence whether respondent's wife was in fact a "full-time" student. It is a difficult expression and one which it may be impossible to define exactly. In the case at bar, however, that does not make any difference since, with even a vague under-
standing of the ordinary meaning of the words used by the legislator, it will be seen that there is nothing in the evidence to support the contention that respondent's wife was in full-time attendance at an educational institution.
For these reasons, I would allow the appeal, reverse the decision of the Trial Judge and restore the assessment made by the Minister of National Revenue.
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JACKETT C.J. concurred.
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LE DAIN J. concurred.
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