Lyn Kew v. The Queen
(July 29, 2015 – 2015 TCC 193, Woods J.).
Mr. Kew left Canada in 2004 and spent the next 7 years living on a sailboat. In 2011 he sailed back to Canada and claimed his expenses on the voyage as a deductible moving expense. Since his income in 2011 was not enough to absorb the expense in full, he carried the balance forward to 2012. This was an appeal of his 2012 taxation year.
The Court disallowed the expenses because Mr. Kew was not returning to Canada for any specific business or employment opportunity.
The facts of this case were not complex:
 In 2004, Calvin Lyn Kew left Pickering, which is near Toronto, and spent the next seven years living on a sailboat. This appeal concerns a deduction claimed by Mr. Lyn Kew for expenses incurred in 2011 in sailing for 52 days from West Palm Beach, Florida to Pickering and in transporting the sailboat from Pickering to a storage area. Mr. Lyn Kew submits that the expenses are deductible as work-related moving expenses pursuant to section 62 of the Income Tax Act.
 The reassessment at issue disallowed the deduction in its entirety on the basis that the trip did not qualify as an “eligible relocation” as required by section 62.
The question was whether this was an “eligible relocation” expense:
248.(1) Definitions - In this Act,
“eligible relocation” means a relocation of a taxpayer in respect of which the following apply:
(a) the relocation occurs to enable the taxpayer
(i) to carry on a business or to be employed at a location (in section 62 and this definition referred to as “the new work location”) that is, except if the taxpayer is absent from but resident in Canada, in Canada, or
(ii) to be a student in full-time attendance enrolled in a program at a post-secondary level at a location of a university, college or other educational institution (in section 62 and this definition referred to as “the new work location”),
(b) the taxpayer ordinarily resided before the relocation at a residence (in section 62 and this definition referred to as “the old residence”) and ordinarily resided after the relocation at a residence (in section 62 and this definition referred to as “the new residence”),
(c) except if the taxpayer is absent from but resident in Canada, both the old residence and the new residence are in Canada, and
(d) the distance between the old residence and the new work location is not less than 40 kilometres greater than the distance between the new residence and the new work location;
The Court concluded that Mr. Kew did not meet this definition:
 Before the relocation, the appellant had only had a general plan to look for work in the Toronto/Pickering area. It only makes sense that the appellant would be open to the best work opportunity that came his way. I find that the appellant did not have a specific intent to commence a business at his mother’s residence.
 This conclusion is supported by an excerpt from an email titled “What’s Up?” sent by the appellant to an acquaintance on July 4, 2011 (Ex. A-1, Tab 10). At the time, the appellant was enroute from Florida to Pickering.
I want a job too, so I can make some money to help my kids, even though they are grown up and can help themselves much. But I am fifty five and I don’t know who will hire me at my age. Do you have any ideas how I can earn money? Is it too late for me to start a business of my own, do you think? I’ve never been in business for myself before but I think I would do well if I find a good business to get into. Any ideas?
 This email demonstrates that the appellant wanted to find work but that he had not formulated a specific work plan at the time he left Florida.
 I conclude that the relocation did not occur to enable the appellant to commence a business at his mother’s residence and that the expenses were not incurred in respect of an “eligible relocation.”
As a result the Court dismissed the appeal and also disallowed Mr. Kew’s request for costs based on what he alleged to be poor communication on the part of CRA in explaining to him the basis for his reassessment:
 As for costs, the appellant seeks an award of costs for the inordinate amount of time that he spent preparing for this appeal due to Canada Revenue Agency’s poor communication in describing the reasons for the reassessment.
 In an appeal in this Court, there must be exceptional circumstances to justify an award of costs to the losing party. This is not such a case.
 The problem with the appellant’s position is that the prior communications by the Canada Revenue Agency are not relevant in determining the issues in the appeal. The issues for purposes of the appeal, from the respondent’s perspective, are set out in the Reply. It is the function of the Reply to inform the taxpayer of the case that he has to meet in Court.
 It is unfortunate if the prior communications were not clear, but it is not appropriate to deviate from the usual rule as to costs.
 Accordingly, each party shall bear their own costs.