Supreme Court of Canada
Henry v. Minister of National Revenue, [1974] S.C.R. 155
Date: 1971-12-20
Doctor E. Ross Henry Appellant;
and
The Minister of National Revenue Respondent.
1971: November 18, 19; 1971: December 20.
Present: Abbott, Hall, Spence, Pigeon and Laskin JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA
Taxation—Income Tax—Anaesthetist practising at the hospital—Trips between home and hospital—Are they allowed as deduction for business use and capital cost allowance?
The appellant, who is an anaesthetist practising his profession at the hospital, claimed as a business expense an amount for his trips between his home and the hospital in the morning and in the afternoon during the week and the capital cost allowance referable thereto. This amount was allowed by the Tax Appeal Board but this decision was reversed by the Exchequer Court of Canada. Hence the appeal to this Court.
Held: The appeal should be dismissed.
The appellant being in the position of a self-employed owner of a business who travels between his home and his place of business as a matter of course everyday, is not entitled to a deduction for his trips between his home and the hospital during the day nor for the capital cost allowance therefor.
APPEAL from a judgment of the Exchequer Court of Canada[1]. Appeal dismissed.
G.F. Jones, for the appellant.
G.W. Ainslie, Q.C. for the respondent.
The judgment of the Court was delivered by
HALL J.—This is an appeal from the judgment of the Honourable Mr. Justice F.A. Sheppard, Deputy Judge of the Exchequer Court of Canada. The appellant is an anaesthetist who practises his profession as one of a group. By an agreement dated June 6, 1961, between Royal Jubilee Hospital of Victoria, British Columbia, and this group of anaesthetists, the
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group agreed to supply at all times all anaesthetic services required by the Hospital and they were to have the exclusive right to administer such services. In accordance with the agreement, the appellant restricted his practice to supplying his services at the Hospital, and although he did with approval supply anaesthesia for certain dentists outside the Hospital that fact is not relevant to this appeal.
The appellant had his home at 2025 Lansdowne Road in Victoria where he lived with his wife and two daughters, a distance of about 1 1/2 miles from Royal Jubilee Hospital. He also had an office at 1207 Douglas Street in Victoria in common with a group of anaesthetists where they kept their records and had a secretary employed to send out their accounts, receive and record payments. The appellant did not see any patients there nor at his home. In his home, in common with other members of his family, he used a den or study in one area of which he had a desk where he kept stationery, a typewriter and materials for correspondence as well as a supply of anaesthetic record cards and a copy of the fee schedule to which he referred in making out the accounts. Having made out the accounts, he took them to the office on Douglas Street once or twice a week.
In the appeal before this Court the only matter in issue is the amount claimed as a business expense for going from his home to the Hospital in the morning and returning home from the Hospital in the afternoon five days a week and the capital cost allowance referable thereto. The Minister allowed as a deduction for business use and capital cost allowance the total mileage claimed for emergencies and for trips from the Hospital to the office on Douglas Street and also allowed for 299 trips claimed by the appellant as trips made during the evening from his home to the Hospital to interview patients to whom he was going to administer an anaesthetic the following day.
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The appellant relied principally on the judgment of Thurlow J. in Cumming v. The Minister of National Revenue[2]. In that case Thurlow J. held that Dr. Cumming, who was an anaesthetist under a contract with the Ottawa Civic Hospital similar to the appellant’s contract with Royal Jubilee Hospital, was entitled to deduct as a business expense the cost of going from his home in Ottawa to the Ottawa Civic Hospital and back each day. The facts in Cumming are somewhat different from those in the present appeal, but even assuming that Cumming was properly decided which is not necessary to do in this appeal, I am of opinion that the appeal must fail. The appellant has been allowed his expenses of going to and from his Douglas Street office and for emergency calls as well as for trips from his home to the Hospital in the evenings so that there remains solely his claim to deduct for going to and from the Hospital each working day of the week and the proportion of the capital cost allowance claimed in respect of these trips. I am unable to discern any difference between the appellant and the self-employed owner of any business who maintains a home from which he leaves in the morning and returns in the late afternoon as a matter of course. The appellant relied on Randall v. Minister of National Revenue[3], and Pook v. Owen[4]. Neither of these cases are of any assistance to him. In both the taxpayer was doing business and earning income at two separate localities.
I would, accordingly, dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the appellant: de Villiers, Jones, Emery & Carfra, Victoria, B.C.
Solicitor for the respondent: D.S. Maxwell, Ottawa.