T-1687-77
The Queen (Plaintiff)
v.
Robert B. Swingle (Defendant)
Trial Division, Collier J.—Vancouver, June 21 and
August 12, 1977.
Income tax — Income Calculation — Deductions — Annual
professional membership dues — Defendant member of
learned societies to keep abreast of developments in his field
— Whether or not dues paid these societies "necessary to
maintain a professional status recognized by statute"
Income Tax Act, R.S.C. 1952, c. 148 as amended, S.C. 1970-
71-72, c. 63, s. 8(1)(i)(i).
The defendant, a chemist employed as a manager of a
laboratory, deducted annual dues of a number of learned
societies that he belonged to in order to keep abreast with
rapidly changing developments in his field. The Minister of
National Revenue disallowed four such deductions claimed by
the defendant. The nub of the dispute in this appeal from the
Tax Review Board which allowed the deductions is whether the
payment of these dues was "necessary to maintain a profession
al status recognized by statute."
Held, the appeal is allowed. The defendant has not proved
one essential matter, quite necessary before the main issue can
be met. If he is considered a "chemist", it has not been shown
on the evidence that the professional status of a chemist is one
"recognized by statute", even though the defendant has
"professional" status in his particular field. If the defendant is
viewed merely as an "analyst", the evidence does not indicate
that an analyst has a "professional status recognized by stat
ute." The statutes referred to do not define "analyst" or
describe the occupation in any way from which professional
status can be inferred. The use of the term "professional" in
subparagraph 8(1)(i)(i) of the Income Tax Act seems to imply
special skills, abilities or qualifications. The statutes relied on
by the defendant are silent as to those matters. The defendant
has not brought his claim clearly within the terms of this
subparagraph.
Bond v. M.N.R. [1946] Ex.C.R. 577, considered. Cooper
v. M.N.R. [1949] Ex.C.R. 275, considered. Martel v.
M.N.R. [1970] Ex.C.R. 68, considered. M.N.R. v. Mont-
gomery [1970] C.T.C. 115, considered. Morley v. M.N.R.
[1949] Tax A.B.C. 81, considered. Rutherford v. M.N.R.
[1946] C.T.C. 293, considered.
INCOME tax appeal.
COUNSEL:
W. A. Ruskin for plaintiff.
Craig C. Sturrock for defendant.
SOLICITORS:
Deputy Attorney General of Canada for
plaintiff.
Birnie & Sturrock, Vancouver, for defendant.
The following are the reasons for judgment
rendered in English by
COLLIER J.: This is an appeal by the plaintiff,
through the Minister of National Revenue, from a
decision of the Tax Review Board.
The defendant is a chemist. He holds a doctor
ate degree in applied science. He also has a post-
doctorate degree. Since February 1, 1971, he has
been employed in the Public Service of Canada.
Until December 1973, he was with the Royal
Canadian Mounted Police crime detection labora
tory. He worked as a forensic chemist evaluating
physical evidence for prosecutions contemplated or
carried out.
He then went to the Department of Transport.
Again his employment was in the field of chemis
try and analysis. He was designated as an analyst
pursuant to subsection 731(1) of the Canada
Shipping Act, R.S.C. 1970, c. S-9. That was in the
area of pollution and pollution prevention. Under
the relevant legislation a certificate of an analyst is
admissible in evidence in any prosecution and, in
the absence of any evidence to the contrary, is
proof of the statements contained in the certifi
cate.
The defendant is presently manager of laborato
ry services (Pacific Region), Department of Fish
eries and Environment, Environmental Protection
Services. He has seventeen persons working under
him. He is responsible for the quality of the work
coming out of the laboratory.
He is, as well, a designated analyst pursuant to
the Northern Inland Waters Act, R.S.C. 1970 (1st
Supp.), c. 28, the Arctic Waters Pollution Preven
tion Act, R.S.C. 1970 (1st Supp.), c. 2, and the
Clean Air Act, S.C. 1970-71-72, c. 47. He retains
his designation as an analyst pursuant to the
Canada Shipping Act. In his present employment
he has prepared reports in regard to matters such
as oil spills. He has, of course, issued certificates of
analysis. They have similar evidentiary character
istics as those authorized by the Canada Shipping
Act. Since his employment with the Public Service
he has given and still gives expert evidence in
courts. His educational and professional creden
tials have been accepted.
He, practically and realistically, has to keep up
with most modern technical developments in
chemistry. This is necessary in order to remain up
to date in his present position as manager. It is
equally necessary in order to make himself avail
able for promotion, or for employment elsewhere,
including the private sector.
In competitions in the Public Service, member
ship in so-called professional societies is considered
a desirable qualification. This is perhaps even
more so in the private sector.
All of the above facts were testified to by the
defendant. His evidence was uncontradicted.
The appeal earlier referred to arises this way.
The defendant to keep abreast of rapidly changing
developments in chemistry, has taken membership
in a reasonable selection of chemical and allied
societies. These organizations publish learned jour
nals. They provide valuable technical information
and knowledge. The defendant has, himself, pub
lished papers in some of the journals.
He is a member of the Forensic Society. That is
a well-known organization in the United Kingdom.
Its members are chemists, and other professionals.
He also belongs to and receives literature from the
Chemical Society of Britain. The Royal Institute
of Chemistry is amalgamated, in part, with that
society. The United Kingdom Food and Drugs
Act, (1955) requires a chemist giving evidence
under that Act, to have membership in the Royal
Institute. The defendant is a member as well of the
American Chemical Society. Lastly, he has mem
bership in the Canadian Institute of Chemistry.
All these organizations require payment of
annual dues. In his 1974 tax return, the defendant
claimed as deductions the sum of $193.15. That
amount was made up as follows:
(a) The Professional Institute
of the Public Service
of Canada $ 72.00
(b) The Forensic Society 15.00
(c) The American Chemical
Society 51.00
(d) The Chemical Society of
Britain 20.70
(e) The Canadian Institute of
Chemistry 34.45
Total $193.15
The Minister of National Revenue allowed the
deduction of $72 paid to the Professional Institute
of the Public Service of Canada.' The balance of
$121.15 was disallowed. The assessment increased
the defendant's tax liability by $38.
The dispute as to the permissibility of the
deductions arises from subparagraph 8(1)(î)(i) of
the Income Tax Act. 2 For purposes of reference, I
set out the whole of paragraph (i):
8. (1) In computing a taxpayer's income for a taxation year
from an office or employment, there may be deducted such of
the following amounts as are wholly applicable to that source or
such part of the following amounts as may reasonably be
regarded as applicable thereto:
(i) amounts paid by the taxpayer in the year as
(i) annual professional membership dues the payment of
which was necessary to maintain a professional status
recognized by statute,
(ii) office rent, or salary to an assistant or substitute, the
payment of which by the officer or employee was required
by the contract of employment,
(iii) the cost of supplies that were consumed directly in the
performance of the duties of his office or employment and
that the officer or employee was required by the contract
of employment to supply and pay for,
(iv) annual dues to maintain membership in a trade union
as defined
(A) by section 3 of the Canada Labour Code, or
(B) in any provincial statute providing for the investi
gation, conciliation or settlement of industrial disputes,
' I assume this was authorized by subparagraph 8(1)(i)(iv)
post.
2 R.S.C. 1952, c. 148, as amended up to and including 1974
(The so-called "new" Act). The equivalent in the "old" Act
was subsection 11(10).
or to maintain membership in an association of public ser
vants the primary object of which is to promote the improve
ment of the members' conditions of employment or work, and
(v) annual dues that were, pursuant to the provisions of a
collective agreement, retained by his employer from his
remuneration and paid to a trade union or association
designated in subparagraph (iv) of which the taxpayer was
not a member,
to the extent that he has not been reimbursed, and is not
entitled to be reimbursed in respect thereof;
It is common ground that the payments made by
the defendant to the four organizations are "annu-
al professional membership dues". The plaintiff
concedes the defendant is a "professional", in the
sense he is qualified and skilled in the general field
of chemistry. The nub of the dispute is whether the
payment of the amounts was "necessary to main
tain a professional status recognized by statute".
The Tax Review Board found the payments were
allowable deductions. The Minister now appeals
that judgment to this Court.
Some legislative and legal history is, in consider
ing subparagraph 8(1)(i)(i), appropriate.
The Income War Tax Act 3 had no counterpart
to 8(1)(i)(i). But several decisions dealt with the
deductibility, under that legislation, of annual dues
paid by employees in respect of the carrying on of
their employment.
Bond v. M.N.R. 4 is the leading author
ity. The taxpayer was a salaried employee of the
City of Winnipeg. He was by profession a lawyer.
He performed legal duties for his employer. He
was a member of the governing body for lawyers in
Manitoba. He paid annual dues to that organiza
tion. He could not legally practise as a lawyer
without maintaining membership in the Law
Society and paying those annual dues. He sought
to deduct them, as an expense, from income. Thor-
son P. held the dues to be a permissible deduction.
I set out the essential portions of the Court's
reasons at pages 581-582:
R.S.C. 1927, c. 97 and amendments.
4 [1946] Ex.C.R. 577.
Two lines of argument were laid out by counsel for the
respondent in support of the disallowance of the deduction. One
was that it was excluded under section 6(a) of the Income War
Tax Act which provides:
6. In computing the amount of the profits or gains to be
assessed, a deduction shall not be allowed in respect of
(a) disbursements or expenses not wholly, exclusively and
necessarily laid out or expended for the purpose of earning
the income;
Counsel admitted frankly that the appellant could not continue
to be Counsel for the City of Winnipeg without continuing to
be a member of the Law Society of Manitoba and had to pay
the annual fees and special assessment sought to be deducted in
order to retain such membership but contended, nevertheless,
that this disbursement was not wholly, exclusively and neces
sarily laid out by the appellant for the purpose of earning the
income in that it was made only for the purpose of retaining his
professional qualification so that he could earn the income but
was not made for the purpose of earning it. The disbursement
was said to be related to the maintenance of the professional
qualification but not to the earning of the income. It was
admitted by counsel that while the taxing authority has not
allowed the deduction of Law Society annual fees in the case of
practising lawyers in receipt of a salary of a fixed amount it has
allowed such deduction in the case of those whose remuneration
is by way of fees. It is obvious, of course, that if the contention
put forward by counsel is sound then the deduction is no more
justifiable in the one case than in the other, for the same
argument would apply to both; the deduction is permissible
either in both cases or in neither. Moreover, in as much as the
fees paid by the appellant were annual practising fees, it would
also seem to follow that all similar fees, such as annual licence
fees, would have to be disallowed as deductions on the ground
that they were paid to entitle the taxpayer to do business but
not for the purpose of earning the income.
Pages 585-586:
Section 6(a) is an excluding section. It prohibits the deduc
tion of disbursements or expenses "not wholly, exclusively and
necessarily laid out or expended for the purpose of earning the
income". Can it reasonably be said that the amount paid by the
appellant to the Law Society falls within the exclusions of the
section? I do not think so. The appellant had to pay this
amount in 1943 in order to be entitled to practise law in that
year. It was an annual practising fee. If he did not pay it he
would be suspended and then struck off the rolls. Any attempt
on his part thereafter to perform his duties would be contrary
to law and constitute an offence for which he would be subject
to a penalty and also to an injunction preventing him from
continuing his attempt at practice. The payment of the amount
was, therefore, necessary to the lawful and continuous perform
ance of his duties and the earning of the income. Moreover, I
think it was inherent in the contractual relationship between
the appellant and the City of Winnipeg that he should continue
to be a lawyer in good standing since his duties could not be
performed without such standing. The maintenance of good
standing was essential to the valid performance of his contract
without which he could not earn the income. In my view, he
had to pay the fees to earn the income and could not do so
without paying them. The expenditure was an annual one
which he could not escape but had to make. It constituted a
working expense as part of the process of earning the income.
Likewise, it was clearly made for the purpose of enabling him
to carry on his duties and earn the income. That it was
necessarily made for such purpose is quite clear, and there is
nothing to indicate that it was made otherwise than wholly and
exclusively for such purpose. In my view, the payment by a
practising lawyer to his law society of his annual practising fees
or an obligatory annual assessment is not a disbursement or
expense "not wholly, exclusively and necessarily laid out or
expended for the purpose of earning the income" and is not
excluded as a deduction from his remuneration by section 6(a)
of the Act. Moreover, it meets the test of deductibility of
expense laid down in the cases referred to. The appellant is,
therefore, entitled to a deduction of the amount claimed by him
unless he is excluded therefrom for some other reason such as
the one advanced by counsel for the appellant.
Page 586:
It was contended that since the appellant had a salary of a
fixed amount there could be no deduction of any expenses from
it, and that the amount of the income being fixed it was of itself
"net" income and, therefore, taxable income. I have already
referred to the admission made by counsel that the department
has allowed the deduction of the annual fees paid by practising
lawyers to their law societies where their remuneration is by
way of fees, but has not allowed any such deduction where it is
by way of fixed salary. I am unable to see any justification in
principle for any such discrimination of treatment, and it ought
not to be approved by the Court unless the law clearly so
demands.
Page 589:
In my view, it is clear that what is to be taxed is the annual
"net" profit or gain or gratuity, regardless of whether the profit
or gain or gratuity is "ascertained" as being one kind of income
or "unascertained" as being a different kind. Such an interpre
tation is a sound grammatical one; it also removes the unfair
discrimination of the present departmental practice. In my
judgment, an income is not necessarily net annual profit or gain
or gratuity and, therefore, taxable income merely because it is a
salary of a fixed amount, and there is nothing in the Income
War Tax Act that excludes the deduction of proper disburse
ments or expenses from such fixed amount in order to deter
mine the amount thereof that is taxable.
A similar conclusion was reached in Rutherford
v. M.N.R. 5 The taxpayer there was a lawyer
employed by a provincial government as legislative
counsel. Thorson P. found there was no distinction
5 [1946] C.T.C. 293.
in principle between his status and that of the
taxpayer in the Bond case.
Cooper v. M.N.R. 6 followed the reasoning of the
Bond decision. Cooper was a salaried motion pic
ture projectionist. He sought to deduct annual
dues paid to his trade union. He had to be a union
member in order to be employed as a projectionist.
The Court held the dues were permissible
deductions.
As .I see it, the effect of the three decisions
referred to was this.' Where a taxpayer's income
was derived from an office or employment, he
could deduct dues he was required to pay in order
to exercise the very right to carry on his profession
or calling, and thus earn salary or remuneration.
Then, effective 1949, came The Income Tax
Act. 8 There were, as well, some relevant amend
ments (applicable to the 1949 taxation year) to the
Income War Tax Act.
Section 5 of the 1948 statute provided that
income from an office or employment was the
salary, wages or other remuneration received (plus
certain other benefits or allowances) minus certain
deductions permitted by particular sections of the
statute
... but without any other deductions whatsoever.
The relevant part of the amendment to the
Income War Tax Act, S.C. 1948, c. 53, s. 3 was as
follows:
(6) In computing the income from an office or employment, no
amount is deductible for a disbursement or expense laid out for
the purpose of earning the income....
6 [1949] Ex.C.R. 275.
' In Morley v. M.N.R. [1949] Tax A.B.C. 81 the taxpayer
was a salaried County Court Judge. He sought to deduct, under
the Income War Tax Act, certain expenses. One was for a
membership fee in a County Judge's Association and a library
fee paid by him to the local Law Association. The Board ruled
against him. It held the expenses incurred were not in the
nature of a necessity. The Bond case was, rightly in my view,
distinguished.
8 S.C. 1948, c. 52. This statute and its amendments were
carried into the 1952 Revision as c. 148, now commonly
referred to as the "old" Act.
There was no change in the applicable provi
sions of the 1948 legislation until 1951. In my
view, Parliament had, for those years, taken away
the right to deduct the Bond, Rutherford, and
Cooper-type expenses.
The predecessor of present subparagraph
8(1)(î)(i) appeared in 1951. It became subsection
11(10) of the old Act: 9
11.
(10) Notwithstanding paragraphs (a) and (h) of subsection
(1) of section 12, the following amounts may, if paid by a
taxpayer in a taxation year, be deducted in computing his
income from an office or employment for the year
(a) annual professional membership dues the payment of
which was necessary to maintain a professional status recog
nized by statute that he was required by his contract of
employment to maintain,
(b) office rent, or salary to an assistant or substitute, the
payment of which by the officer or employee was required by
the contract of employment,
(c) the cost of supplies that were consumed directly in the
performance of the duties of his office or employment and
that the officer or employee was required by the contract of
employment to supply and pay for, and
(d) annual dues to maintain membership in a trade union as
defined
(i) by paragraph (r) of subsection (1) of section 2 of The
Industrial Relations and Disputes Investigation Act, or
(ii). in any provincial statute providing for the investiga
tion, conciliation or settlement of industrial disputes,
or to maintain membership in an association of public ser
vants the primary object of which is to promote the improve
ment of the members' conditions of employment or work,
to the extent that he has not been reimbursed, and is not
entitled to be reimbursed in respect thereof. 10
At the same time, section 5 (dealing with
income from employment) was amended (in part)
as follows:
minus the deductions permitted by paragraphs (g), (j) and (o)
of subsection (1) of section 11 and by subsections (5) to (11),
inclusive, of section 11 but without any other deductions
whatsoever.
9 S.C. 1951, c. 51, subs. 3(3).
10 The editors of the Canada Tax Service, at p. 11-1002,
expressed the view that section 11(10)(a) "was enacted to give
statutory recognition to the position taken by Thorson P. in ...
[Bond and Rutherford]." An identical statement appears in the
new edition of the same service. (See p. 8-452.) In my opinion,
it is at least arguable that Parliament may have intended to go
beyond the Bond position. Certainly, paragraph (d) appears to
go further than the Cooper case.
In 1952, paragraph (e) was added to subsection
11(10):"
(e) annual dues that were, pursuant to the provisions of a
collective agreement, retained by his employer from his remu
neration and paid to a trade union or association designated in
paragraph (d) of which the taxpayer was not a member,
At that point in time, subsection 11(10) was
identical to present subparagraph 8(1)(î)(i),
except in two aspects. One is immaterial. The
reference to the Industrial Relations and Disputes
Investigation Act has been changed to the Canada
Labour Code. The other difference is, in my view,
of some significance.
In 1957, the words at the end of paragraph
11(10)(a):
... that he was required by his contract of employment to
maintain,
were deleted. 12 It is implicit in the Bond case that
it was a requirement of the taxpayer's employment
that he pay the annual dues. Otherwise, he could
not render the services required under his contract.
I turn now to the case before me. Counsel for
the plaintiff contends that even if the defendant
has a professional status recognized by statute, the
payment of the dues in question was not necessary
to maintain that status. The defendant, it is said,
retains his professional status as a chemist or
analyst whether he pays annual dues to these
societies, or not; his legal right to carry on his
profession is not dependent on belonging to any of
them. M.N.R. v. Montgomery" was relied on. The
taxpayer, in addition to being a self-employed
practising lawyer, was an officer in the RCNR. He
sought, unsuccessfully, to deduct wardroom dues.
The essence of the reasons of Kerr J. is at pages
120-121:
11 S.C. 1952, c. 29, subs. 3(2).
12 S.C. 1957, c. 29, subs. 4(5).
13 [ 1970] C.T.C. 115. At about the same time the Montgom-
ery case was decided, the reasons in Martel v. M.N.R. [1970]
Ex.C.R. 68 were released. That taxpayer was a judge of a
Superior Court. It appears the main point in the case was
whether certain compensation made to him was "income". But
in addition, the taxpayer sought to deduct, among other things,
annual subscriptions to legal reviews and law reports, as well as
dues paid to the Canadian Bar Association. Apparently, the
Department of National Revenue allowed the latter. The other
Counsel for the appellant submitted that a lawyer, for exam
ple, who is carrying on a general practice, does not need Section
11(10)(a) in order to deduct his Barristers Society's dues, for
such dues may be deducted as a business expense of carrying on
his practice; but that the lawyer who is employed and receives a
salary under a contract of employment requires Section
11(10)(a) in order to deduct such dues, which are dues that
each of the lawyers must pay in order to maintain his member
ship in the Society and the right to practise which goes with
such membership.
I am satisfied that as an officer in the RCNR the respondent
is a person with a "profession", that the status of an officer in
the RCNR is a professional status recognized by statute, i.e.
the National Defence Act, that the wardroom mess of
H.M.C.S. Tecumseh is composed of RCNR officers, and that it
was necessary for the respondent to pay his wardroom dues.
But it does not follow that those wardroom dues fall within
Section 11(10)(a). It is my opinion that the necessity that
Parliament was contemplating in that subsection is directly
related to the essential purpose to be served by the payment of
the professional membership dues. Inherent in the subsection is
a direct relationship between membership in a professional
society and professional status. The status recognized by statute
is a professional status that is dependent upon membership in
the professional society. No membership, no status. Such dues
are no doubt used for the needs of the society, but the primary
purpose of their payment is retention of membership, with its
rights and privileges. It is clear to me that wardroom dues are
paid for a very different purpose, namely, to defray operational
costs of the mess, which is a room or suite where the members
meet, eat, converse, entertain, etc. A wardroom mess can be
established by a very few officers, even three or four. I under
stood LCDR Gwillim to say that he had served in 50 messes.
The purpose of the payment of wardroom dues is not, in my
opinion, to maintain a professional status. The status of a navy
officer does not call for membership in a mess, unlike the
practice of medicine, for example, which calls for membership
in a medical society established by statute.
Officers receive their commissions from the Crown. No dues
are paid to obtain or maintain their commissions and officer
status. My attention was not drawn to any specific recognition
of a wardroom mess in a statute, and I scarcely think that the
status of membership in a wardroom mess is a professional
status recognized by statute.
The consequence of failure on the part of an officer to pay
his wardroom dues conceivably might be loss of his status as an
officer, and in that negative and limited sense it may be said
that payment is necessary to maintain his status, but, in my
items were contested. Noël J. dismissed the taxpayer's appeal
on all issues. He gave no reasons in respect of the subscriptions.
opinion, that possibility is remote from what Parliament was
contemplating and endeavouring to provide in the Income Tax
Act when enacting Section 11(10)(a). If it were intended to
include dues payable for operation of messes in the armed
forces, it would have been easy to have said so expressly.
In my opinion, therefore, the wardroom dues in question are
not deductible under Section 11(10)(a).
The plaintiff argues the Montgomery case holds
that the only deductible dues are those which have
the effect of maintaining one's professional status
and, at the same time, are the source of the right
to carry on the practice of the particular profes
sion. I do not think the Montgomery case goes that
far.
I can visualize situations where a profession is
recognized by statute, but where no annual dues
are required to be paid in order to carry on that
profession; yet at the same time it may be "neces-
sary" to belong to organizations in order to remain
qualified, in the practical and business sense; to be
able effectively to perform, and earn income, in a
particular profession.
For example, I think it indisputable that
accountancy is a profession; that an accountant is
a "professional". A particular person may be a
highly qualified and skilled accountant. That
profession is, in British Columbia for example,
recognized by statute: see the Chartered Account
ants Act 14 and the Certified General Accountants
Act. 15 But one is not bound to be a member of the
Institute of Chartered Accountants or of the Asso
ciation of Certified General Accountants in order
to practise the general profession of an accountant.
An outsider is merely prevented from using the
designation chartered accountant or certified gen
eral accountant. I can foresee, however, that a
highly qualified and skilled accountant (in the
general sense) may well find it necessary to pay
annual dues to an appropriate professional organi
zation in order to maintain his high qualifications
and skills, and so be able to continue selling his
services to others, including an employer.
14 R.S.B.C. 1960, c. 51.
15 R.S.B.C. 1960, c. 47.
Subparagraph 8(l)(i)(i) must ' not be read in
isolation. In subparagraph (iv), for example, there
is no requirement that the union dues there speci
fied must be paid by the taxpayer, in order to
obtain or keep employment in a particular calling
(the situation in the Cooper case). On the other
hand, the dues specified in subparagraph (v) are
those that must be paid in order for the taxpayer
to retain employment, even though he is not a
member of the particular union (the so-called
"union shop" situation).
Counsel for the parties here indicated this suit
was of some importance; it was regarded as some
what of a test case; the result would likely affect
other taxpayers. Fortunately or unfortunately, I do
not propose to express any opinion on the main
issue and submissions outlined above, or as to the
precise interpretation of the subparagraph of the
statute.
To my mind, the defendant has not proved one
essential matter, quite necessary before the
so-called main issue can be met. The defendant is
a chemist or an analyst, or perhaps both. If he is
viewed as a chemist, it has not, as I see it, been
shown, on the materials before me, that the profes
sional status of a chemist is one "recognized by
statute". I am convinced the defendant has indeed
a "professional" status in his particular field just
as much as a doctor or lawyer. But no statutes
recognizing that professional status were put
before me, nor cited.
If the defendant is viewed merely as an analyst,
I have difficulty in holding, on the evidence before
me, that an analyst has a "professional status
recognized by statute". I assume there are many
kinds of analysts. The legislation earlier referred to
(the Canada Shipping Act, the Northern Inland
Waters Act, the Arctic Waters Pollution Preven
tion Act and the Clean Air Act) do not define an
"analyst". Nor do they describe that occupation in.
any manner from which a "professional status"
can be inferred. The statutes merely provide that
"any person", or sometimes a "qualified person"
may be designated as an analyst. Subsection
731(1) of the Canada Shipping Act (to use it as an
example) reads:
731. (1) The Minister may designate any person as a pollu
tion prevention officer or an analyst for the purposes of this
Part.
But when one turns to subparagraph 8(1)(î)(i)
of the Income Tax Act the use of the term "profes-
sional" seems to infer special skills, abilities, or
qualifications. The statutes relied on by the
defendant are silent as to those matters. The
defendant has not brought his claim for the deduc
tions clearly within the terms of this subparagraph
conferring the right. 16
The appeal must, in my view, be allowed. The
Minister's assessment, on the facts here, is correct.
It is agreed that subsection 178(2) is applicable.
The Minister shall therefore pay the reasonable
and proper costs " of the taxpayer.
16 W. A. Sheaffer Pen Co. of Canada Ltd. v. M.N.R. [1953]
Ex.C.R. 251 at 255.
" See The Queen v. Creamer [1977] 2 F.C. 195.
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.