A-683-96

CORAM:      THE HONOURABLE THE CHIEF JUSTICE

         THE HONOURABLE MR. JUSTICE STONE

         THE HONOURABLE MR. JUSTICE MCDONALD

BETWEEN:

     KAREN L. TURNER-LIENAUX,

     Applicant,

     - and -

     HER MAJESTY THE QUEEN,

     Respondent.

Heard at Halifax, Nova Scotia on Monday, May 5, 1997.

Judgment delivered from the Bench at Halifax, Nova Scotia,

on May 5, 1997.

REASONS FOR JUDGMENT OF THE COURT BY: STONE, J.A.

     A-683-96

CORAM:      THE HONOURABLE THE CHIEF JUSTICE

         THE HONOURABLE MR. JUSTICE STONE

         THE HONOURABLE MR. JUSTICE MCDONALD

BETWEEN:

     KAREN L. TURNER-LIENAUX,

     Applicant,

     - and -

     HER MAJESTY THE QUEEN,

     Respondent.

     REASONS FOR JUDGMENT OF THE COURT

     (Delivered from the Bench at Halifax, Nova Scotia,

     Monday, May 5, 1997)

STONE,J.A.

     This is an application to review and set aside a judgment of the Tax Court of Canada by which it was determined that legal expenses that were laid out by the applicant to challenge by way of legal proceedings the outcome of a competition in the public service of Nova Scotia as a result of which another position with the same employer was awarded to a third party, were not deductible under paragraph 8(1)(b) of the Income Tax Act, which reads:

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 or may reasonably be regarded as applicable thereto:

.....

(b) amounts paid by the taxpayer in the year as or on account of legal expenses incurred by the taxpayer to collect or establish a right to salary or wages owed to the taxpayer by the employer or former employer of the taxpayer.

[Emphasis added]

     In deciding as he did, the learned Tax Court Judge stated, at page 7:

This Court has some difficulty in concluding that a person is "owed" a salary or "wages" if he did not do the work or occupy the position that required the salary or wages to be paid. Further it has difficulty in concluding that a person could be found to have incurred legal expenses to establish a right to salary or wages when two Courts of competent jurisdiction actually found that the appellant did not have the "right" that she was seeking to explore by the legal action.

     In our view it has not been demonstrated that in disposing of the matter as he did the Tax Court Judge erred in any way that would warrant the intervention of this Court. This is not a case where legal expenses were incurred "to establish a right to salary or wages owed to the taxpayer by the employer or former employer of the taxpayer" within the meaning of paragraph 8 (1) (b). Although the result may appear to be unfortunate for the applicant, it is nevertheless the one that, in our view, is compelled by the statute.

     The section 28 application will be dismissed.

           

                     J.A.

     FEDERAL COURT OF APPEAL

     Names of Counsel and Solicitors of Record

COURT NUMBER:      A-683-96

STYLE OF CAUSE:      Karen L. Turner-Lienaux

                     v.

                 Her Majesty the Queen

PLACE OF HEARING:      Halifax, Nova Scotia

DATE OF HEARING:      May 5, 1997

REASONS FOR JUDGMENT OF THE COURT: (The Chief Justice, Stone,

                        McDonald JJ.A)

RENDERED FROM THE BENCH BY: Stone, J.A.

APPEARANCES:

Mr. Charles Lienaux

     for Applicant

Mr. Peter Leslie

     for Respondent

SOLICITORS OF RECORD:

Charles Lienaux

Halifax, Nova Scotia

     for Applicant

George Thomson

Deputy Attorney General of Canada

Ottawa, Ontario

     for Respondent