Tax Court of Canada Judgments

Date: 20020619

Docket: 2001-3619-IT-I,

2001-3621-IT-I,

2001-3622-IT-I,

2002-88-IT-I,

BETWEEN:

DARLENE CRAWFORD,

GARY FORSYTH,

DEBBIE RENKO,

JOHN STEWART,

Appellants,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasonsfor Judgment

BOWIE J.

[1]            Each of these four Appellants appeals from reassessments of income tax for the 1997, 1998 and 1999 taxation years. By consent of all parties, their appeals were heard together on common evidence under the informal procedure of the Court at Victoria, B.C. I am told that they are typical of a large number of cases that are pending in the Court. In each case the Minister of National Revenue (the Minister) has disallowed the Appellants' claims to be entitled to deduct the amounts paid by them for meals while at work, pursuant to paragraph 8(1)(g) of the Income Tax Act (the Act). That provision reads:

8(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 amounts as may reasonably be regarded as applicable thereto:

                ...

(g)           where the taxpayer was an employee of a person whose principal business was passenger, goods, or passenger and goods transport and the duties of the employment required the taxpayer, regularly,

(i)             to travel, away from the municipality where the employer's establishment to which the taxpayer reported for work was located and away from the metropolitan area, if there is one, where it was located, on vehicles used by the employer to transport the goods or passengers, and

(ii)            while so away from that municipality and metropolitan area, to make disbursements for meals and lodging,

amounts so disbursed by the taxpayer in the year to the extent that the taxpayer has not been reimbursed and is not entitled to be reimbursed in respect thereof;

[2]            The Minister's position is that none of the Appellants is entitled to any deduction under that provision, because the duties of their employment did not require them to make disbursements for "meals and lodging", but only for meals. Counsel for the Respondent says that the word "and" in this context is conjunctive. Counsel for the Appellants says that it is disjunctive; disbursements for either meals or lodgings may be deducted.

[3]            All the Appellants worked, at the material times, on the ferries operated by British Columbia Ferry Corporation (B.C. Ferries). Darlene Crawford is a cafeteria supervisor, Deborah Renko is a catering attendant, and Gary Forsyth is a Chief Engineer. They all are employed on the route between Schwartz Bay on Vancouver Island and Tsawassen on the mainland. All of them work shifts of at least eight and sometimes as much as ten hours. The morning shift begins at 6:45 a.m., or a little earlier in the case of Mr. Forsyth. It ends at about 2:45 or 3:00 p.m., and the afternoon shift begins then and ends at 11:00 p.m., or later if the ferry is running behind schedule. The ferries operating on that route make two round trips during each shift. The vessels on this run all have cafeterias at which the employees of B.C. Ferries may purchase food at a discount of 50% from the price charged to passengers. Ms. Renko and Ms. Crawford both have breaks during their shifts. One break is a half hour long and they also have breaks of fifteen minutes every two hours. They both testified that they usually eat two meals on each day shift. Mr. Forsyth eats his meals when the ferry is docked between crossings, rather than leave his post while it is underway. He said that typically he eats several small meals on a shift, for which he pays between $4.00 and $7.50 on average.

[4]            John Stewart works as a deck hand on a ferry that sails between Campbell River on Vancouver Island and Quadra Island. The crossing takes only about 10 minutes each way, and there are generally 17 round trip crossings made during a nine-hour shift. The morning shift starts at 6:00 a.m. and ends at 3:00 p.m.; the afternoon shift begins at 3:00 p.m. and ends at 11:00 p.m., or midnight on weekends. Mr. Stewart testified that he cannot leave the vessel to obtain a meal during a shift, and so he takes food from home, which his wife has purchased at the grocery store, and cooks it on board. The crew's quarters are equipped with a refrigerator, stove, oven and microwave oven. I understand from his evidence that he is in the habit of cooking quite substantial meals during his shifts. He said that usually he eats two meals during a day shift and one during an afternoon shift.

[5]            Not surprisingly, none of the Appellants kept all the receipts for the meals they had bought during the years under appeal so that they could compute the exact amount of their expenditures and then claim a deduction of 50% of that amount. [1] Darlene Crawford did keep some receipts after the time that the Minister started to challenge the right of the Appellants, and many of their co-workers, to claim meal deductions. Their claims were computed using what was referred to in the evidence as the administrative method. This is simply the application of a policy published by the Minister whereby claims under paragraph 8(1)(g) may be made on the basis of a flat rate of $11.00 per meal as an alternative to keeping every receipt for every meal taken during the year. Counsel for the Respondent did cross-examine on the quantum of the deductions claimed, but the real raison d'être for these appeals is the interpretation of the circumstances in which the deduction may be taken, not the amounts claimed. As I understood their evidence, all of the Appellants before me intended to claim an amount calculated on the basis of $11.00 for each meal they ate while on duty, divided by two as required by section 67.1 of the Act, and, except in the case of Mr. Stewart, divided by two again to reflect the discount afforded them by their employer. Mr. Stewart could not buy his meals from B.C. Ferries, and so he got no discount. However, I doubt very much that the ingredients he used cost an average of $11.00 per meal. In view of the conclusion that I have reached with respect to the central issue in the case, it is not necessary to quantify the cost of the meals eaten by the Appellants while at work. Had I to do so, I would find on the evidence that the Appellants, Crawford, Forsyth and Renko spent, on average, $10 per shift worked, and so would be entitled to a deduction of $5.00 per shift when reduced by 50%. I would find that Mr. Stewart spent half of that amount, and so his entitlement would be $2.50 per shift. For the reasons that follow, however, I find that they are not entitled to any deductions and that their appeals should be dismissed.

[6]            Certain important matters are not in dispute. Tsawassen is in the Vancouver metropolitan area, and Schwartz Bay is in the Victoria metropolitan area. Similarly, Quadra Island and Campbell River, although not far apart, are in different municipalities. Thus, all the Appellants leave the boundaries of the municipality in which they report for work during the course of their working day. Indeed, they do so more than once. It is also not disputed that they all end their work day where they began it, and are able to return home to their residence each night. Nor is it disputed that the principal business of B.C. Ferries is the transportation of passengers, goods, or both of these. The only point of contention, therefore, is the Appellants' claim that the word "and" must be read disjunctively where it appears in the expression "... disbursements for meals and lodging, ..." in subparagraph 8(1)(g)(ii) of the Act.

[7]            In saying this, I have not overlooked Mr. Rachert's argument that the Minister is estopped from denying that a taxpayer may claim a deduction for meals even though he/she does not incur an expense for lodging. This is said to be based upon a letter written by an official of Revenue Canada, as it was then called, to a union representative. This argument has no merit. First, the Appellants did not plead an estoppel, although it has always been the rule that an estoppel must be pleaded if it is to be raised at trial. In any event, the supposed estoppel is as to a matter of law, not fact. It was established long ago that no estoppel will lie as to that which is a matter of interpretation of a statute: see M.N.R. v. Inland Industries. [2]

[8]            Much time was taken up at the hearing by Mr. Rachert's cross-examination of the former employee of Revenue Canada as to the letter that he had written, and by his cross-examination of the assessor in an attempt to show that he had acted with bias, or at least without giving the Appellants, and others who were reassessed as well, a full opportunity to be heard on the issue. All of this missed the point. I do not sit in review of the manner in which the assessor did his job. Although in the present case it appears to me that he acted perfectly reasonably and correctly, from a procedural point of view, that is of no moment here. My jurisdiction is to find the facts, so far as they are in dispute, from the evidence before me, and then to apply the law as written by Parliament to those facts, interpreting the words of the Act if they are ambiguous.

[9]            There is no ambiguity in the present case. The same question came before Judge Bonner when he was a Member of the Tax Review Board, in Derrien v. M.N.R. [3] on facts indistinguishable from those before me now. He said at page 1753:

In my view the solution becomes apparent when paragraph 8(1)(g) is read as a whole within its statutory context. The approach of the Income Tax Act to deductions from salary or wages in the process of computing income from office or employment is generally restrictive. In this regard reference should be made to subsection 8(2) of the Act. The exceptions in subsection 8(1) are not to be regarded as having been inserted capriciously. The exception made for transport employees by paragraph 8(1)(g) recognizes that the nature of the work often involves substantial trips away from the area where such employees live and report for work. Such trips impose a burden of expense for meals and lodging not borne by the ordinary worker who can sleep and eat, at least most of the time, at home. The "while so away" qualification and the use of the word "and" in the phrase "disbursements for meals and lodging" tend to support this conclusion. The cost to the ordinary worker of food and shelter is a personal expense. The cost to a transport worker of meals and lodging necessitated by travel in the course of his duties is much more directly related to the income earning process.

When paragraph 8(1)(g) is read as a whole within its context it will be seen that some of the dictionary definitions of "travel", such as "to go from one place to another", are inappropriate. When paragraph 8(1)(g) refers to travelling away from a municipality and its metropolitan area it contemplates journeys of such substantial distance and duration as to require disbursements for both meals and lodging. It does not encompass all cases in which a taxpayer goes from a place inside the metropolitan area to a place just outside it.

[10]          A very large number of cases have considered claims made for deductions under paragraph 8(1)(g), or its predecessor subsection 11(7), both before and since Derrien, but the correctness of that decision has never been doubted. In many of those cases the point in issue here was not raised at all; frequently the only issue has been the amount to be allowed. Where the point has been in issue, however, the Court has consistently applied Derrien. [4]

[11]          There is little that I can usefully add to what was said by Judge Bonner, except perhaps to point out that his decision is consistent with the most recent pronouncements of the Supreme Court of Canada regarding the interpretation of statutes. The word "and" in its plain meaning is clearly conjunctive. In cases of ambiguity it has been interpreted otherwise, in order to achieve the object of the legislation. In Bell ExpressVu Limited Partnership v. R., [5] the Supreme Court has yet again cautioned that there is no justification to depart from the plain meaning of statutory language and apply any of the many canons of construction unless it is first shown that the language chosen by Parliament, considered in its context within the statute as a whole, is ambiguous. There is no ambiguity in the present case, and the statute must be applied as it was written.

[12]          Mr. Rachert argued for the Appellants that to give paragraph 8(1)(g) its plain meaning would work hardship in a case where a truck driver, for example, took trips of several days, but incurred no expense for lodging because he was able to sleep in the cab of a tractor unit. No such hypothetical case is before me, and I do not propose to speculate upon it. For the present cases the legislative intent is clear. The deduction for meals is not intended to be available to workers who return to their homes each night as a matter of course. It is perhaps redundant to point out that if it were otherwise, these Appellants would be placed in a preferential position in relation to the many people who are employed in jobs where they do not leave the municipality in which they begin their work each day, but who for myriad reasons cannot return home for lunch.

[13]          Counsel for the Respondent put before me some evidence as to the legislative intent behind paragraph 8(1)(g). Since there is no ambiguity, however, I shall not make reference to it.

[14]          The appeals are dismissed.

Signed at Ottawa, Canada, this 19th day of June, 2002.

"E.A. Bowie"

J.T.C.C.

COURT FILE NO.:                                                 2001-3619(IT)I, 2001-3621(IT)I,

2001-3622(IT)I and 2002-88(IT)I

STYLE OF CAUSE:                                               Darlene Crawford, Gary Forsyth,

Debbie Renko and John Stewart and

Her Majesty the Queen

PLACE OF HEARING:                                         Victoria, British Columbia

DATE OF HEARING:                                           April 23, 2002

REASONS FOR JUDGMENT BY:      The Honourable Judge E.A. Bowie

DATE OF JUDGMENT:                                       June 19, 2002

APPEARANCES:

Counsel for the Appellant: J. Andre Rachert

Counsel for the Respondent:              Lisa Macdonell

COUNSEL OF RECORD:

For the Appellant:                

Name:                                J. Andre Rachert

Firm:                  Blair Dwyer & Company

For the Respondent:                             Morris Rosenberg

                                                                                Deputy Attorney General of Canada

                                                                                                Ottawa, Canada

2001-3619(IT)I,

2001-3621(IT)I,

2001-3622(IT)I,

2002-88(IT)I,

BETWEEN:

DARLENE CRAWFORD,

GARY FORSYTH,

DEBBIE RENKO,

JOHN STEWART,

Appellants,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeals heard on April 23, 2002, at Victoria, British Columbia, by

the Honourable Judge E.A. Bowie

Appearances

Counsel for the Appellants:        J. Andre Rachert

Counsel for the Respondent:      Lisa Macdonell

JUDGMENT

          The appeals from assessments of tax made under the Income Tax Act for the 1997, 1998 and 1999 taxation years are dismissed.

Signed at Ottawa, Canada, this 19th day of June, 2002.

"E.A. Bowie"

J.T.C.C.