Policy Forum: Write It Off (and Start Again)—Adapting Home Office Deductions for the Digital Era

This article examines the current and historical legal schemes for deducting employment expenses—particularly those associated with a home office—under Canada's Income Tax Act, and concludes that the current legal test for such deductions is inequitable, ineffective, and imprecise. The author reviews the employment expense deductions available to taxpayers in other jurisdictions and proposes options for modifying Canada's employment expense deduction. The proposed changes would account for increasingly digital modes of working, advance equity, and add to taxpayer certainty.

The Alchemy of Equality Rights

A clear legal test for equality is impossible, as it should be. Indeed were the test clear, it could not be for equality. It would have to be for something other than equality — in effect, for inequality. The abstract character of equality is not a new idea. In fact, the Supreme Court of Canada’s first decision under section 15 of the Canadian Charter of Rights and Freedoms1 recognized equality as “an elusive concept” that “lacks precise definition.”2 Why, then, do judges continue to demand such definition over thirty years later? The answer, at times, is politics. 1 s 15(1), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].2 Andrews v Law Society of British Columbia, [1989] 1 SCR 143 at 164, 56 DLR (4th) 1 [Andrews].

The doctor in a minority

Suppose that a doctor carrying out a treatment or advising on a treatment or acting as an expert in litigation or writing or lecturing about a treatment is in a minority so far as contemporary medical opinion is concerned. It may be a matter of choice for the doctor between treatment A (the majority practice) or treatment B (the minority practice), and the minority treatment may be of an innovative character. Unfortunately, things went badly wrong, the patient suffered harm and the doctor finds him/herself a defendant in a case for clinical negligence. What is the legal duty of the doctor? Is it sufficient that he/she acted in good faith? Or that he/she was a competent doctor? Or that he/she was a doctor following the practice of a substantial number of doctors, albeit a minority? Or that he/she was in effect acting ‘on his/her own’? The legal test is: Was the doctor following the practice of a responsible body of medical clinical opinion, albeit a minority opinion? Medicine has made huge advances over the years – one of the great achievements. But many advances have come about because of the initiative of one individual or a small group of individuals, often in the face of strong disbelief or opposition. The medical profession is a conservative profession, understandably so in view of the obvious inherent risks. Original ideas may not be well received. Therefore, the minority innovative doctor must proceed carefully because he/she runs the risk of a medical mishap, criticism and litigation.

4 Detriment

This chapter deals with B’s detriment; as this requirement is common to, and treated the same way in, each of the strands, a unified approach is taken. It shows that a proprietary estoppel claim, whether based on A’s acquiescence, representation, or promise, will fail if B cannot show that, were A free to act as A wishes, B would suffer a detriment. Some confusion has, however, been caused by the interaction between proprietary estoppel and other principles that, whilst related to proprietary estoppel, do not contain such a detriment requirement. It is therefore important to distinguish such principles from proprietary estoppel. In addition to this, the chapter also discusses the legal test for detriment.

The “Cultural Test” as Cultural Expertise: Evolution of a Legal–Anthropological Tool for Judges

This paper analyzes the state of cultural expertise in Italy and then focuses on how it can be improved through a kind of cultural expertise that Italian academics, judges, and lawyers are currently debating: the so-called “cultural test”. This is a legal test for dealing with culture, which originally emerged as judicial tool in Northern American courts: It consists of a set of pre-established questions that a judge has to answer in order to decide whether or not to accept a cultural claim made by a migrant or by a person that belongs to minority communities. Whereas some questions of the cultural test refer to typical legal balancing between rights, other questions incorporate anthropological knowledge within the trial, requiring the judge to analyze the cultural practice at issue, its historical origin, the importance it has within the community, and other information about which the judge would not be sufficiently knowledgeable without resorting to anthropology. In this sense, the “cultural test” is a form of standardized cultural expertise that helps both the judge and the cultural expert in their tasks. The paper reveals both the arguments against and those in favor of the adoption of the “cultural test” and how they are currently unfolding in the Italian debate.