Napier v. Canada (Attorney General)

Napier v. Canada (Attorney General) Court (s) Database Federal Court of Appeal Decisions Date 2001-11-21 Neutral citation 2001 FCA 358 File numbers A-591-00 Decision Content Date: 20011121 Docket: A-591-00 Neutral citation: 2001 FCA 358 CORAM: STRAYER J.A. ROTHSTEIN J.A. SHARLOW J.A. BETWEEN: MICHAEL NAPIER Applicant and HER MAJESTY THE QUEEN, Represented by THE ATTORNEY GENERAL OF CANADA Respondent Heard at Winnipeg, Manitoba, on November 21, 2001. Judgment delivered from the Bench at Winnipeg, Manitoba on November 21, 2001 REASONS FOR JUDGMENT BY: ROTHSTEIN J.A. Date: 20011121 Docket: A-591-00 Neutral citation: 2001 FCA 358 CORAM: STRAYER J.A. ROTHSTEIN J.A. SHARLOW J.A. BETWEEN: MICHAEL NAPIER Applicant and HER MAJESTY THE QUEEN, Represented by THE ATTORNEY GENERAL OF CANADA, Respondent REASONS FOR JUDGMENT (Delivered from the Bench at Winnipeg, Manitoba on November 21, 2001) ROTHSTEIN J.A. [1] This is an application for judicial review of a decision of the Tax Court which denied a credit for tuition paid by the applicant to Southwind Aviation Academy Inc. in Brownsville, Texas. The Tax Court judge found on the facts of the case that the applicant did not come within paragraph 118.5(1)(c) of the Income Tax Act because: 1. There was no evidence that Southwind provided courses at a post secondary level and 2. That the applicant did not meet the commuting requirement of the provision. [2] As to whether Southwind provided courses at the post secondary level, the applicant conceded that the only evidence before the Tax Court judge was Canadian and US pilots licences and his graduation from high school. No other evidence as to whether Southwind provided courses at a post secondary level was provided. The applicant submitted that because he graduated from high school before attending the Southwind course, the Southwind course must be at a post secondary level. However, that is not necessarily the case. The onus is on the applicant to demonstrate that Southwind provided courses at a post secondary level. He did not do so. The respondent provided evidence that after a search of accredited educational institutions Southwind could not be found. [3] The Tax Court judge was correct to conclude that the evidence fell short of establishing that Southwind met the criteria in subparagraph 118.5(1)(c)(i). That is sufficient to dispose of this application in favour of the Minister. [4] The applicant also argued that the Tax Court judge erred in his interpretation of the commuting requirement in subparagraph 118.5(1)(c)(ii). It is not necessary to deal with that issue. [5] The application will be dismissed. "Marshall Rothstein" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-591-00 STYLE OF CAUSE: Michael Napier v. Her Majesty the Queen, Represented by The Attorney General of Canada PLACE OF HEARING: Winnipeg, Manitoba DATE OF HEARING: November 21, 2001 REASONS FOR JUDGMENT : ROTHSTEIN J.A. DATED: November 21, 2001 APPEARANCES: Mr. Michael Napier ON HIS OWN BEHALF Mr. Lyle Bouvier FOR THE RESPONDENT Department of Justice 301 - 310 Broadway Winnipeg, MB R3C 0S6 SOLICITORS OF RECORD: Mr. Michael Napier ON HIS OWN BEHALF 832 McDermot Avenue, Suite #3 Winnipeg, MB R3E 0T7 Morris Rosenberg Deputy Attorney General of Canada FOR THE RESPONDENT