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.
* * *
JACKETT C.J. concurred.
* * *
LE DAIN J. concurred.
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.