Rooke v. Canada (Attorney General)

Rooke v. Canada (Attorney General) Court (s) Database Federal Court of Appeal Decisions Date 2002-10-22 Neutral citation 2002 FCA 393 File numbers A-548-00 Decision Content Date: 20021022 Docket: A-548-00 Neutral citation: 2002 FCA 393 CORAM: DESJARDINS J.A. SEXTON J.A. SHARLOW J.A. BETWEEN: JOHN ROOKE Appellant and ATTORNEY GENERAL OF CANADA Respondent Heard at Edmonton, Alberta on September 23, 2002. Judgment delivered at Ottawa, Ontario on October 22 2002. REASONS FOR JUDGMENT BY: SHARLOW J.A. CONCURRED IN BY: DESJARDINS J.A. SEXTON J.A. Date: 20021022 Docket: A-548-00 Neutral citation: 2002 FCA 393x CORAM: DESJARDINS J.A. SEXTON J.A. SHARLOW J.A. BETWEEN: JOHN ROOKE Appellant and ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT SHARLOW J.A. [1] This is an appeal from the judgment of the Tax Court rendered June 6, 2000, as amended June 19, 2000, reported as Rooke v. Canada, 2000 D.T.C. 2206, [2000] 3 C.T.C. 2430 < QLENDDOC > (T.C.C.). The issue is whether, in assessing Mr. Rooke's income tax for 1993, 1994 and 1995, the Crown correctly applied section 122.3 of the Income Tax Act, R.S.C. 1985 (5th supp.), c. 1, as it read for those years. [2] Section 122.3 provides for a tax credit sometimes called the "overseas employment tax credit" or "OETC". The Crown's position is that Mr. Rooke did not meet the statutory conditions for the overseas employment tax credit in 1994 and 1995. For 1993, the Crown accepted his entitlement to the tax credit but not his calculation of its amount. [3] The Tax Court Judge accepted the Crown's position for all of the years under appeal. He dismissed Mr. Rooke's appeals for 1994 and 1995, and allowed Mr. Rooke's appeal for 1993 only with respect to Mr. Rooke's foreign tax credit, an issue the Crown had conceded before trial. Mr. Rooke now appeals to this Court. Section 122.3 of the Income Tax Act [4] For the years under appeal, section 122.3 read as follows: 122.3. (1) Where an individual is resident in Canada in a taxation year and, throughout any period of more than 6 consecutive months that commenced before the end of the year and included any part of the year (in this subsection referred to as the "qualifying period") 122.3 (1) Lorsqu'un particulier réside au Canada au cours d'une année d'imposition et que, tout au long d'une période de plus de 6 mois consécutifs ayant commencé avant la fin de l'année et comprenant une fraction de l'année (appelée la « période admissible » au présent paragraphe)_: (a) was employed by a person who was a specified employer, other than for the performance of services under a prescribed international development assistance program of the Government of Canada, and a) d'une part, il a été employé par une personne qui était un employeur déterminé, dans un but autre que celui de fournir des services en vertu d'un programme, visé par règlement, d'aide au développement international du gouvernement du Canada; (b) performed all or substantially all the duties of the individual's employment outside Canada b) d'autre part, il a exercé la totalité, ou presque, des fonctions de son emploi à l'étranger: (i) in connection with a contract under which the specified employer carried on business outside Canada with respect to (i) dans le cadre d'un contrat en vertu duquel l'employeur déterminé exploitait une entreprise à l'étranger se rapportant à, selon le cas: (A) the exploration for or exploitation of petroleum, natural gas, minerals or other similar resources, (A) l'exploration pour la découverte ou l'exploitation de pétrole, de gaz naturel, de minéraux ou d'autres ressources semblables, (B) any construction, installation, agricultural or engineering activity, or (B) un projet de construction ou d'installation, ou un projet agricole ou d'ingénierie, (C) any prescribed activity, or (C) toute activité visée par règlement, (ii) for the purpose of obtaining, on behalf of the specified employer, a contract to undertake any of the activities referred to in clause (i)(A), (B) or (C), (ii) dans le but d'obtenir, pour le compte de l'employeur déterminé, un contrat pour la réalisation des activités visées à la division (i)(A), (B) ou (C), there may be deducted, from the amount that would, but for this section, be the individual's tax payable under this Part for the year, an amount equal to that proportion of the tax otherwise payable under this Part for the year by the individual that the lesser of peut être déduite du montant qui serait, sans le présent article, l'impôt à payer par le contribuable pour l'année en vertu de la présente partie une somme égale à la fraction de l'impôt qu'il est par ailleurs tenu de payer pour l'année en vertu de la présente partie que représente le moindre des éléments suivants_: (c) an amount equal to that proportion of $80,000 that the number of days c) la fraction de 80_000_$ que représente par rapport à 365 le nombre de jours_: (i) in that portion of the qualifying period that is in the year, and (i) d'une part, compris dans la partie de la période admissible qui est au cours de l'année, (ii) on which the individual was resident in Canada ii) d'autre part, au cours desquels le particulier résidait au Canada; is of 365, and (d) 80% of the individual's income for the year from that employment that is reasonably attributable to duties performed on the days referred to in paragraph (c) d) 80_% de son revenu pour l'année tiré de cet emploi et pouvant raisonnablement se rapporter aux fonctions exercées au cours des jours mentionnés à l'alinéa c), is of par rapport à_: (e) the amount, if any, by which e) l'excédent éventuel (i) where section 114 is not applicable to the individual in respect of the year, the total of the individual's income for the year and the amount, if any, included pursuant to subsection 110.4(2) in computing the individual's taxable income for the year, and (i) lorsque l'article 114 ne s'applique pas au particulier à l'égard de l'année du total de son revenu pour l'année et du montant inclus, en vertu du paragraphe 110.4(2), dans le calcul de son revenu imposable pour l'année, (ii) where section 114 applies to the individual in respect of the year, the total of (ii) lorsque l'article 114 s'applique au particulier pour l'année, du total des montants suivants: (A) the individual's income for the period or periods in the year referred to in paragraph 114(a), and (A) le revenu du particulier pour la ou les périodes de l'année visées à l'alinéa 114a), (B) the amount that would be determined under paragraph 114(b) in respect of the individual for the year if subsection 115(1) were read without reference to paragraphs 115(1)(d) to 115(1)(f) (B) le montant qui serait déterminé selon l'alinéa 114b) relativement au particulier pour l'année, compte non tenu des alinéas 115(1)d) à f), exceeds sur : (iii) the total of all amounts each of which is an amount deducted by the individual under section 110.6 or paragraph 111(1)(b) or deductible by the individual under paragraph 110(1)(d.2), (d.3), (f) or (j) for the year or in respect of the period or periods referred to in subparagraph (ii), as the case may be. (iii) le total des montants dont chaqun representante une somme déduite par le particulier en application de l'article 110.6 ou de l'alinéa 111(1) b. ou déductible par le particulier en application de l'alinéa 110(1)d.2), d.3) ,f) ou j) pour l'année ou pour la ou les périodes visées au sous-alinéa (ii). (2) In subsection (1), (2) Les définitions qui suivent s'appliquent au paragraphe (1). "specified employer" means « employeur déterminé » (a) a person resident in Canada, a) Personne résidant au Canada; (b) a partnership in which interests that exceed in total value 10% of the fair market value of all interests in the partnership are owned by persons resident in Canada or corporations controlled by persons resident in Canada, or b) société de personnes dont la valeur totale des participations appartenant à des personnes résidant au Canada ou à des sociétés contrôlées par des personnes résidant au Canada est supérieure à 10_% de la juste valeur marchande totale de toutes les participations dans la société de personnes; (c) a corporation that is a foreign affiliate of a person resident in Canada; c) société qui est une société étrangère affiliée d'une personne résidant au Canada. "tax otherwise payable under this Part for the year" means the amount that, but for this section and sections 120, 120.1, 120.2, 121, 126, 127 and 127.2 to 127.4, would be the tax payable under this Part for the year. « impôt qu'il est par ailleurs tenu de payer pour l'année en vertu de la présente partie » Le montant qui serait, sans le présent article et les articles 120, 120.1, 120.2, 121, 126, 127 et 127.2 à 127.4, l'impôt payable pour l'année en vertu de la présente partie. Facts [5] Throughout 1993, 1994 and 1995, Mr. Rooke was a resident of Canada and an employee of 420851 Alberta Ltd., a corporation that met the definition of "specified employer" in subsection 122.3(2). Mr. Rooke was also the sole shareholder and director of 420851 Alberta Ltd., but nothing turns on that. [6] Mr. Rooke is an engineer who specializes in overseeing and inspecting the startup of sulphuric acid plants. No such plants are being built in Canada. For that reason, the engineering work that Mr. Rooke performs for his employer is done outside Canada. At all relevant times that work was, to paraphrase clause 122.3(1)(b)(i)(B), in connection with contracts under which his employer carried on business outside Canada with respect to an engineering activity. None of Mr. Rooke's engineering work related to a prescribed international assistance program of the Government of Canada. [7] In each of the years under appeal, Mr. Rooke's employer entered into contracts for work outside Canada. Each contract was separately negotiated, and was separate and distinct from the others. Mr. Rooke would go to the place where the contract was to be performed, do the necessary engineering work, and then return to Canada. The Tax Court Judge described Mr. Rooke's activities in Canada as follows at paragraph 12 of his reasons: While in Canada, the Appellant, as a full-time employee of the Corporation, does minor bookkeeping services and stays in contact with clients and contacts potential future clients. The work in Canada is a very small percentage of his overall employment as substantially all of his duties are performed for the Corporation outside Canada. [8] The facts relating to Mr. Rooke's absences from Canada for 1993, 1994 and 1995 are not in dispute, and are summarized in the following table: Period Days in Canada Days outside Canada Location Contractor 1993 Jan 01 1993 Jan 09 9 1993 Jan 10 1993 Jan 28 19 U.S.A. Monsanto 1993 Jan 29 1993 Feb 17 20 1993 Feb 18 1993 June 06 109 U.S.A. Monsanto 1993 June 07 1993 July 10 34 1993 July 11 1993 July 29 19 Taiwan Monsanto 1993 July 30 1993 Oct 11 74 1993 Oct 12 1993 Nov 15 35 Taiwan Monsanto 1993 Nov 16 1994 Mar 18 123 1994 Mar 19 1994 Apr 16 29 U.S.A. Monsanto 1994 Apr 17 1994 June 05 50 1994 June 06 1994 Aug 05 61 U.S.A. Monsanto 1994 Aug 06 1994 Aug 21 16 1994 Aug 22 1994 Sept 02 12 China Simon Carves 1994 Sept 03 1994 Oct 24 52 1994 Oct 25 1994 Dec 08 45 Taiwan Monsanto 1994 Dec 09 1994 Dec 18 10 1994 Dec 19 1995 Feb 08 52 Indonesia Chemetics 1995 Feb 09 1995 Mar 01 21 1995 Mar 02 1995 Apr 05 35 Indonesia Chemetics 1995 Apr 06 1995 May 21 46 1995 May 22 1995 July 08 48 U.S.A. Monsanto 1995 July 09 1995 July 16 8 1995 July 17 1995 Sept 02 48 U.S.A. Monsanto 1995 Sept 03 1995 Oct 17 45 1995 Oct 18 1995 Nov 01 15 Singapore Monsanto 1995 Nov 02 1995 Dec 31 60 [9] The Tax Court Judge found that, throughout the years under appeal, Mr. Rooke performed all or substantially all of the duties of his employment outside Canada. The Crown does not dispute that conclusion. Analysis [10] The principles to be applied in interpreting a statute have been stated many times, most recently by the Supreme Court of Canada in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, at paragraph 26: In Elmer Driedger's definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983): Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Driedger's modern approach has been repeatedly cited by this Court as the preferred approach to statutory interpretation across a wide range of interpretive settings: see, for example, Stubart Investments Ltd. v. The Queen, [1984] 1 S.C.R. 536, at p. 578, per Estey J.; Québec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours, [1994] 3 S.C.R. 3, at p. 17; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21; R. v. Gladue, [1999] 1 S.C.R. 688, at para. 25; R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65, at para. 26; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 33, per McLachlin C.J.; Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, at para. 27. I note as well that, in the federal legislative context, this Court's preferred approach is buttressed by s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, which provides that every enactment "is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects". [11] For the purposes of this case, there are three points to be made about the statutory context of section 122.3. First, the general rule under the Income Tax Act is that individuals who are resident in Canada are subject to income tax on all of their income, regardless of where in the world it is earned. Second, section 122.3 is intended to provide substantial tax relief, subject to certain conditions, to a Canadian resident who is employed by a Canadian employer and works outside Canada. Third, section 122.3 and its statutory predecessors (which provided for a deduction in computing income rather than a tax credit) have been in theIncome Tax Act since 1980, and have been frequently amended. None of the amendments shed any light on the issues that arise in this case. [12] It is useful to dispose at the outset of two preliminary questions of interpretation that are not in dispute. The first relates to the fact that no single contract entered into by Mr. Rooke's employer required Mr. Rooke to perform his engineering work outside Canada for a period of six continuous months or more. The Crown accepts, and I agree, that this is not relevant. The conditions in section 122.3 can be met even if the work done in the qualifying period relates to more than one contract. Although subparagraph 122.3(1)(b)(i) uses the singular, "a contract" (in French, un contrat), this must be read to include the plural. That is the only conclusion that is consistent with section 33(2) of the Interpretation Act, R.S.C. 1985, c. I-21, which reads as follows: 33 (2) Words in the singular include the plural, and words in the plural include the singular. 33(2) Le pluriel ou le singulier s'appliquent, le cas échéant, à l'unité et à la pluralité. [13] The second preliminary question relates to the fact that there was no period of six continuous months or more within 1993, 1994 or 1995, or beginning or ending in any of those years, throughout which Mr. Rooke was physically absent from Canada. Again the Crown accepts, and I agree, that this is not relevant as long as it remains true that throughout the qualifying period, all or substantially all of the duties of employment are performed outside Canada. Section 122.3 does not expressly or by necessary implication impose a test based on physical absence from Canada in each day in the qualifying period. (Apparently, that is why the Crown accepted that Mr. Rooke was entitled to the overseas employment tax credit for 1993.) [14] I turn now to the interpretation of section 122.3 in its grammatical and ordinary sense. Counsel for Mr. Rooke argues for what I would characterize as a literal reading of section 122.3, which I summarize as follows. An individual is entitled to the overseas employment tax credit for a particular year if all of the following conditions are met in the year: (1) The individual was resident in Canada. (2) The individual was employed by a person who was a "specified employer" as defined in subsection 122.3(2). (3) The individual's employment for that "specified employer" was for something other than the performance of services under a prescribed international development assistance program of the Government of Canada. (4) The individual performed all or substantially all of the duties of his employment (a) outside Canada, and (b) in connection with one or more of the activities described in subparagraph 122.3(1)(b)(i) or (ii). (5) Conditions (2), (3) and (4) subsisted for a period of more than six consecutive months within the year, or beginning or ending in the year. That period is referred to as the "qualifying period" for the year. [15] The position of Mr. Rooke, based on the above interpretation of section 122.3, is that he met all of the statutory conditions for 1993, 1994 and 1995, and that for each of those years his qualifying period spanned the entire year. If he is correct, this appeal must succeed. [16] The Crown agrees that the first four conditions are met for all of the years under appeal, but argues that the fifth condition is not met for 1994 and 1995, and also argues that the qualifying period for 1993 is not the entire year. [17] For 1994 and 1995, the Crown says that Mr. Rooke does not qualify for the overseas employment tax credit because he cannot point to a period of at least six continuous months in the year, or beginning or ending in the year, throughout which he was "employed outside Canada". According to the Crown, each time Mr. Rooke returned to Canada during 1994 and 1995, he brought an end to what otherwise might have been part of a qualifying period. Under the Crown's interpretation of section 122.3, "employment outside Canada" is a condition that must be met throughout the qualifying period, in addition to the condition that the individual must perform all or substantially all of the duties of employment outside Canada throughout the qualifying period. [18] In my view, the Crown has adopted an interpretation of section 122.3 that its words cannot reasonably bear. Section 122.3 does not say or imply that "employment outside Canada" is a condition of entitlement to the overseas employment tax credit. On the contrary, section 122.3, read in its entirety, indicates that Parliament did not intend to impose any overriding "location" test with respect to the employment of a person claiming the overseas employment tax credit. [19] Paragraph 122.3(1)(b) is the only part of section 122.3 that specifies the required location of the individual's work. It states that throughout the qualifying period all or substantially all of the duties of employment must be performed "outside Canada", and that the work must be done in connection with one or more contracts under which the employer carries on business "outside Canada". These are the only location requirements in section 122.3. In the face of those express location requirements, it seems to me contrary to the intention of Parliament to impose an additional location test. [20] Put another way, the Crown is attempting, in the guise of statutory interpretation, to add a non-legislated condition to a provision of the Income Tax Act. Iacobucci J., writing for the majority of the Supreme Court of Canada in 65302 British Columbia Ltd. v. Canada, [1999]3 S.C.R. 804, explained at paragraph 51 why that is not acceptable: However, this Court has also often been cautious in utilizing tools of statutory interpretation in order to stray from clear and unambiguous statutory language. In Canada v. Antosko, [1994] 2 S.C.R. 312, at pp. 326-27, this Court held: While it is true that the courts must view discrete sections of the Income Tax Act in light of the other provisions of the Act and of the purpose of the legislation, and that they must analyze a given transaction in the context of economic and commercial reality, such techniques cannot alter the result where the words of the statute are clear and plain and where the legal and practical effect of the transaction is undisputed. In discussing this case, P. W. Hogg and J. E. Magee, while correctly acknowledging that the context and purpose of a statutory provision must always be considered, comment that "[i]t would introduce intolerable uncertainty into the Income Tax Act if clear language in a detailed provision of the Act were to be qualified by unexpressed exceptions derived from a court's view of the object and purpose of the provision": Principles of Canadian Income Tax Law (2nd ed. 1997), at pp. 475-76. This is not an endorsement of a literalist approach to statutory interpretation, but a recognition that in applying the principles of interpretation to the Act, attention must be paid to the fact that the Act is one of the most detailed, complex, and comprehensive statutes in our legislative inventory and courts should be reluctant to embrace unexpressed notions of policy or principle in the guise of statutory interpretation. [21] Counsel for the Crown argued that absurdity could result if the Crown's interpretation of section 122.3 is not adopted. An example was proposed of a person who is employed by a Canadian employer for an entire year, but does no work at all for that year except for a five day project outside Canada. According to the Crown, such a person would be entitled to the overseas employment tax credit for the entire year, unless a condition of "employment outside Canada" is imposed. This example is quite unrealistic. Certainly there are no reported cases involving such a fact pattern, and in any event a purported employment relationship that requires only five days work in a year would be likely be a sham. [22] It seems to me more reasonable to consider the situation of someone like Mr. Rooke who, for the years under appeal, spent approximately one-half of his time outside Canada, and whose employment income is almost entirely attributable to engineering work done outside Canada. I see no absurdity in permitting Mr. Rooke to claim the overseas employment tax credit. [23] However, even if there is some policy reason to conclude that a person in Mr. Rooke's circumstances does not deserve the overseas employment tax credit, the remedy lies with Parliament. It is not for the courts to adopt an interpretation of section 122.3 that its words cannot reasonably bear. This is explained by the Supreme Court of Canada in Canada v. Antosko, [1994] 2 S.C.R. 312, at paragraph 38: ...Where the words of the section are not ambiguous, it is not for this Court to find that the appellants should be disentitled to a deduction because they do not deserve a "windfall", as the respondent contends. In the absence of a situation of ambiguity, such that the Court must look to the results of a transaction to assist in ascertaining the intent of Parliament, a normative assessment of the consequences of the application of a given provision is within the ambit of the legislature, not the courts. [24] I see no ambiguity in the words of section 122.3. In the context of statutory interpretation, an ambiguity exists only if a contextual analysis leads to more than one plausible interpretation. I refer to the decision of the Supreme Court of Canada in Bell ExpressVu (supra), at paragraph 29: What, then, in law is an ambiguity? To answer, an ambiguity must be "real" [Marcotte v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108, at p. 115]. The words of the provision must be "reasonably capable of more than one meaning" (Westminister Bank Ltd. v. Zang, [1966] A.C. 182 (H.L.), at p. 222, per Lord Reid). By necessity, however, one must consider the "entire context" of a provision before one can determine if it is reasonably capable of multiple interpretations. In this regard, Major J.'s statement in CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, at para. 14, is apposite:__"It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids" (emphasis added), to which I would add, "including other principles of interpretation". Note on extraneous material [25] Among the authorities cited in this case are excerpts from many government publications, including Hansard, Minutes of Proceedings and Evidence of the Standing Committee on Finance, Trade and Economic Affairs, Budget Papers and technical notes published by the Department of Finance. All of this material describes section 122.3 and explains various amendments. The following excerpt from the 1996 Budget Supplementary Information, as quoted in David Sherman (ed.), Department of Finance Technical Notes, 11th edition (Carswell, 1999), at page 990, is typical: Section 122.3 of the Income Tax Act provides a tax credit to Canadian residents who are employed outside Canada by a specified employer for at least six months in connection with resource, construction, installation, agricultural or engineering contracts or for the purposes of obtaining those contracts. This credit - commonly known as the Overseas Employment Tax Credit (OETC) effectively eliminates 80% of the Canadian tax arising on the first $100,000 of salary or wages earned from such foreign employment. The primary purpose of this credit is to ensure that Canadian firms, employing Canadian staff, are in a position to compete against foreign firms in bidding on overseas work. The tax systems of a number of countries other than Canada provide tax relief to their residents working abroad, thus allowing firms from those countries to base their bids for overseas contracts on the reduced salary costs that such tax relief allows. Similarly, the OETC enables Canadian employers to reduce their employment costs with respect to foreign contract work, while maintaining the after-tax value of the remuneration their employees receive in connection with such work. [26] These government publications were provided in an attempt to assist the Court in interpreting section 122.3. For the reasons stated above, there is no ambiguity in section 122.3 that would justify recourse to this material. The material to which the Crown referred was not helpful in any event. [27] Counsel for the Crown said that certain statements in these publications establish that the underlying objective of section 122.3 was to enhance the international competitiveness of Canadian enterprises. This explanation of the purpose of section 122.3 may well be accurate, but it does not advance the debate about its correct interpretation. Counsel for the Crown did not argue that Mr. Rooke's interpretation of section 122.3 would harm the international competitiveness of Canadian firms, nor could such an argument be sustained without a factual foundation. Counsel for Mr. Rooke pointed out that the competitive position of Canadian firms would be enhanced by an interpretation of section 122.3 that is more generous than the Minister's interpretation, but that by itself cannot establish that the Minister's interpretation is not correct. [28] Counsel for the Crown also argued that many of these government publications state that section 122.3 was intended to benefit individuals "employed outside Canada by a specified employer for at least six months". This was intended to support the Crown's argument that section 122.3 should be interpreted as though it used those words, instead of the words enacted by Parliament. I have explained above why I believe that approach to the interpretation of section 122.3 to be incorrect. Nothing in the government publications cited by the Crown changes my opinion on that point. Conclusion [29] In my view, the interpretation of section 122.3 propounded for Mr. Rooke, as summarized in paragraph 14 above, is correct. It follows that Mr. Rooke qualified for the overseas employment tax credit for 1993, 1994 and 1995 because, throughout that entire three year period, he was employed by a "specified employer", his employment was for something other than the performance of services under a prescribed international development assistance program of the Government of Canada, and he performed all or substantially all of the duties of his employment outside Canada and in connection with one or more of the activities described in subparagraph 122.3(1)(b)(i) or (ii). [30] It also follows that, for the purposes of calculating the overseas employment tax credit, Mr. Rooke's qualifying period for each of the years under appeal was the entire year. [31] For the foregoing reasons, the judgment of the Tax Court should be set aside, the appeal should be allowed with costs in this Court and in the Tax Court, and Mr. Rooke's assessments for 1993, 1994 and 1995 should be referred back to the Minister for reassessment in accordance with these reasons. "K. Sharlow" J.A. "I concur Alice Desjardins J.A." "I agree J. Edgar Sexton" FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-548-00 STYLE OF CAUSE: John Rooke v. Her Majesty the Queen PLACE OF HEARING: Edmonton, Alberta DATE OF HEARING: September 23, 2002 REASONS FOR JUDGMENT : Sharlow J.A. CONCURRED IN BY: Desjartin, Sexton J.J.A. DATED: October 22, 2002 APPEARANCES: Douglas J. Forer FOR THE APPELLANT Rhonda Nahorniak FOR THE RESPONDENT SOLICITORS OF RECORD: Felesky Flynn LLP Edmonton, Alberta FOR THE APPELLANT Morris A. Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada Ottawa, Ontario