In 2002, the taxpayer was resident both in Canada and the U.K. for domestic tax purposes, but by virtue of Art. 4, para. 2(a) of the Canada-U.K Income Tax Convention (the "Convention") he was a resident of the U.K. for purposes of the Convention. S. 250(5) of the Act, which otherwise might have explicitly deemed his non-residence under the Convention to apply for purposes of the Act, did not apply to him in 2002.
The taxpayer argued that, even in the absence of s. 250(5), his treaty non-residence caused him to not be resident under the Act, so that he was not subject to tax under the Act on non-Canadian sourced income such as $2.9 million of U.S. employment income, imputed benefits of $1.4 million from free use of a corporate jet, and interest and dividends.
In rejecting this submission, Rip CJ indicated that the stipulation in Art. 4 that the taxpayer was resident in the U.K. for "purposes" of the Convention engaged only a "particular object" being "the Convention itself, nothing else" (para. 26), that "it is clear that if an income or capital item is not provided for in the Convention, Canada's authority to tax that item is not restricted" (para. 29), that in the OECD discussions of the residence tie-breaker rules "no mention is made of an override of domestic law" (para. 33), and that the Convention merely "allocates to each country the authority to tax" (para. 51).