Federal Court of Appeal Decisions

Date: 20010221

Docket: A-782-99

Neutral citation: 2001 FCA 31

CORAM:      RICHARD C.J.

         EVANS J.A.

         SHARLOW J.A.

BETWEEN:

                 NURI JAZAIRI

     Applicant

    

     - and -             

    

                            

     HER MAJESTY THE QUEEN

     Respondent

    

Heard at Toronto, Ontario, Wednesday, February 21, 2001

Judgment delivered from the Bench at Toronto, Ontario,

on Wednesday, February 21, 2001

                                

REASONS FOR JUDGMENT BY:      EVANS J.A.

    

Date: 20010221

Docket: A-782-99

Neutral citation: 2001 FCA 31

CORAM:      RICHARD C.J.

EVANS J.A.

SHARLOW J.A.

        

BETWEEN:

             NURI JAZAIRI

     Applicant

    

     - and -         

    

                            

     HER MAJESTY THE QUEEN

     Respondent

     REASONS FOR JUDGMENT

     (Delivered from the Bench at Toronto, Ontario

     on Tuesday, February 21, 2001)

EVANS J.A.

_.      Nuri Jazairi ("the applicant") is an associate professor at York University who was refused a promotion to full professor in 1989. He complained to the Ontario Human Rights Commission that the refusal was based on his political views, and therefore was in breach of the Ontario Human Rights Code.

_.      His claim was rejected by the Commission. The Ontario courts have dismissed his application for judicial review of the Commission's dismissal of the complaint. An application for leave to appeal from the Ontario Court of Appeal to the Supreme Court of Canada has also been dismissed.

_.      The applicant claimed to deduct from his income for the years 1994-1997 inclusive the legal expenses that he had incurred in the pursuit of his complaint against the University. Revenue Canada disallowed the deduction, and the Tax Court of Canada dismissed his appeal against the assessments. Professor Jazairi has made an application for judicial review to this Court to set aside the Tax Court's decision.

_.      The relevant provision of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) is paragraph 8(1)(b), which reads as follows:

SECTION 8: Deductions allowed.

ARTICLE 8: Éléments déductibles

(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 amount as may reasonably be regarded as applicable thereto:

(1) Sont déductibles dans le calcul du revenu d'un contribuable tiré, pour une année d'imposition, d'une charge ou d'un emploi ceux des éléments suivants qui se rapportent entièrement à cette source de revenus, ou la partie des éléments suivants qu'il est raisonnable de considérer comme s'y rapportant :

..

...

(b) Legal expenses of employee -- 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;

(b) Frais judiciaires d'un employé -- les sommes payées par le contribuable au cours de l'année au titre des frais judiciaires ou extrajudiciaires qu'il a engagés pour recouvrer le traitement ou salaire qui lui est dû par son employeur ou ancien employeur ou pour établir un droit à ceux-ci;

_.      Counsel for the applicant argues that the duties of a full professor are identical to those of an associate professor, but that a full professor is remunerated at a higher rate for performing them. Accordingly, the fees that the applicant paid to counsel for seeking legal redress for the allegedly wrongful refusal of promotion fell within the paragraph as "legal expenses incurred by the taxpayer to ..... establish a right to salary or wages owed to the taxpayer by the employer ...."

_.      We are not satisfied that in dismissing the applicant's appeal the Tax Court Judge erred in law. The evidence before the Tax Court was that the right of faculty members at York University to be remunerated on a higher basis attaches to the rank of the faculty member, and not to the nature of the duties performed.

_.      Accordingly, in our opinion, the legal expenses incurred to challenge the refusal of a promotion to a rank that would have entitled the applicant to a higher salary do not fall within paragraph 8(1)(b), even if the promotion would not affect the nature of the employment duties performed. The expenses were not incurred to establish a right to salary owed to the taxpayer by the employer.

---

_.      For these reasons, the application is dismissed with costs.

"John M. Evans"

J.A.

              FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

                            

DOCKET:                      A-782-99

STYLE OF CAUSE:                  NURI JAZAIRI

     Applicant

- and -

                         HER MAJESTY THE QUEEN

     Respondent

DATE OF HEARING:              WEDNESDAY, FEBRUARY 21, 2001

                

PLACE OF HEARING:              TORONTO, ONTARIO

REASONS FOR JUDGMENT BY:          EVANS J.A.

Delivered from the Bench at Toronto, Ontario on Wednesday, February 21, 2001

APPEARANCES BY:              Mr. Colin Campbell

For the Applicant

                                            

                         Ms. Marie-Therese Boris and

Ms. Kelly Smith Wayland

For the Respondent

                        

SOLICITORS OF RECORD:          Davies, Ward & Beck

                         1 First Canadian Place, 44^th Floor

                         P.O. Box 63, Stn. 1^st Can. Place

Toronto, Ontario

                         M5X 1B1

For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent

                         FEDERAL COURT OF APPEAL

Date: 20010221

Docket: A-782-99

                        

                         BETWEEN:

NURI JAZAIRI

     Applicant

- and -

                         HER MAJESTY THE QUEEN

     Respondent

                        

                        

REASONS FOR JUDGMENT