Foster v. MNR, 83 DTC 620, [1983] CTC 2673 (TCC)

Rip, TCJ [ORALLY]:—This is the appeal of William James Foster and the Minister of National Revenue.

This is an appeal from an assessment of income tax for the appellant’s 1979 taxation year.

In filing his income tax return for 1979, the appellant, William James Foster, deducted certain amounts expended by him for meals allegedly pursuant to paragraph 8(1 )(g) of the Income Tax Act (“Act”).

The deduction was denied by the respondent “on the grounds that the taxpayer was employed by the Province of British Columbia, Department of Highways who is not a person whose principal business was passenger goods or passenger and goods transport.. and therefore is not entitled to a deduction pursuant to paragraph 8(1 )(g) of the Act.

In 1979, the appellant was employed by the Province of British Columbia, Department of Highways as a marine officer on a ferry boat which travelled approximately half a mile each trip between Albion in the Municipality of Maple Ridge in the Province of British Columbia, and MacMillan Island which lies in the Fraser River just outside the Municipality of Maple Ridge. MacMillan Island is located in the Municipality of Langley. The greater part of the ferry trip is within the Municipality of Maple Ridge. Both municipalities, that is the Municipality of Langley and the Municipality of Maple Ridge, are situated close to the City of Vancouver.

The appellant, Mr Foster, lived in Whonnock, also in the Municipality of Maple Ridge, and would report to work at his employer’s establishment in Albion.

For 96 days in 1979, the appellant worked 12 hour shifts and for about 80 days, he worked eight hour shifts. On the eight hour shift he would eat one meal and on the 12 hour shift he would eat two meals. While on a shift, the appellant was not permitted to leave his vessel. The appellant would therefore purchase food supplies at Haney, located in the Municipality of Maple Ridge, and then take his supplies on board his vessel and prepare his meals and eat on the vessel.

Paragraph 8(1 )(g) of the Act 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 him, regularly,

(i) to travel, away from the municipality where the employer’s establishment to which he 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 such municipality and metropolitan area, to make disbursements for meals and lodging, amounts so disbursed by him in the year to the extent that he has not been reimbursed and is not entitled to be reimbursed in respect thereof;

The appellant’s position is that neither MacMillan Island nor Albion is in the metropolitan area of the City of Vancouver, that each, that is, MacMillan Island and Albion, is in a different municipality, MacMillan Island being the Municipality of Langley and Albion being in the Municipality of Maple Ridge.

The evidence led by the appellant was to the effect that Maple Ridge and Langley are two different municipalities, and that neither is part of the Greater Vancouver Regional District which I understand is a quasimunicipal government consisting of several municipalities.

In the respondent’s view, the appeal must fail for at least two reasons. First, the appellant’s employer is not a person whose principal business is passenger, goods, or passenger and goods transport, and secondly, because MacMillan Island and Albion are in the Metropolitan Vancouver area of Vancouver, and the trips of the appellant on the ferry in 1979 were not outside that metropolitan area.

No evidence was adduced by the appellant as to the activities of his employer in 1979, and in particular, whether the employer’s principal business was passenger, goods or passenger and goods transport. It is for that reason I prefer not to decide this appeal on this particular question, that is, whether or not the appellant’s employer’s principal business was passenger, goods or passenger and goods transport. I am aware of the Tax Appeal Board decision in D Ft Anderson v MNR, [1969] Tax ABC 913; 69 DTC 636 and the Tax Review Board decision in À R Roy v MNR, [1981] CTC 2266; 81 DTC 238.

Mr Bonner, a member of the Tax Review Board, as he then was, had to decide the application of paragraph 8(1 )(g) of the Act in the appeal of G F Derrien v MNR, [1980] CTC 2848; 80 DTC 1751. In that appeal, the taxpayer, a master of the tugboat, claimed he travelled outside a municipality and metropolitan area and was entitled to expenses pursuant to paragraph 8(1 )(g) of the Act.

On 2850 [1753], Judge Bonner stated that:

. .. 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 for meals and lodging necessitated by travel in the course of his duties is much more directly related to the income earning process.

Judge Bonner adds:

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.

It is my understanding that Mr Foster returned home after each shift. Judge Bonner’s interpretation of paragraph 8(1 )(g) is most relevant to the case at bar.

Since the appellant’s trip one way was only of one-hour duration and most of the trip was within the municipality where he reported for work and lived, I must find that he is not entitled to deduct any amounts for meals pursuant to paragraph 8(1 )(g) of the Income Tax Act.

I also find that Fort Langley and Maple Ridge were in the metropolitan area of Vancouver. A metropolitan area as the term is used in paragraph 8(1 )(g) of the Income Tax Act includes an area in excess of a municipality or one or more municipalities.

The term “metropolitan area” was considered by Gibson, J, in Alber F Walls v The Queen, [1976] CTC 501; 76 DTC 6309. This is a decision of the Federal Court, Trial Division. In his reasons for judgment, at 504 [6311], Mr Justice Gibson referred to certain dictionary definitions of the word “metropolitan” as follows:

Metropolitan. .. Of, pertaining to, or constituting a metropolis. Also, belonging to or characteristic of the metropolis (London). ... A chief town or metropolis. ..

(The Shorter Oxford English Dictionary on Historical Principles, Third Edition.)

metropolitan. .. of, relating to, or characteristic of a metropolis. ..

(New Collegiate Dictionary, A Merriam-Webster.)

metropolitan. .. Of, pertaining to, or characteristic of a metropolis. 2. Constituting a major urban center and its environs; the metropolitan area. ..

(Standard College Dictionary, Canadian Edition, Funk & Wagnails.)

metropolitan. .. of, belonging to a metropolis (The Random House Dictionary.)

Mr Justice Gibson also referred to certain dictionary definitions of the word “pertain”, as follows:

pertain. .. To have reference or relation; to relate; as, documents which pertain to the case; to belong or be connected as a part, adjunct, possession, or attribute; to belong properly or fittingly;

(The Living Webster Encyclopedic Dictionary of the English Language.)

pertain. .. extend, tend or belong. .. To belong; eg as a native, as part of a whole, as an accessory, as dependent. ..

(The Shorter Oxford English Dictionary on Historical Principles, Third Edition.)

pertain. .. to have reference or relation; relate; documents pertaining to the case.

2. to belong or be connected as a part, adjunct, possession, attribute, etc.

(The Random House Dictionary.)

In the Walls case, Mr Justice Gibson ruled the City of Detroit and its suburbs did not constitute part of the metropolitan area of Windsor since amongst other things, the City of Detroit is not integrated in any way with the City of Windsor, and does not “pertain” or “belong” in any way to the City of Windsor. Mr Justice Gibson was obviously influenced by the relative populations of the Cities of Detroit and Windsor and stated it would be nonsensical to hold the City of Detroit and its suburbs as being part of the metropolitan area of the City of Windsor. Mr Justice Gibson said, “to hold such would be like saying (paraphrasing what was said in another context) that ‘the one inch tail wags the 99 inch dog’.”

Obviously, a larger city is not part of the metropolitan area of a smaller city. If anything, it would be vice versa. In his reasons for judgment, Mr Justice Gibson also said that in respect to the City of Windsor and the City of Detroit, there was a control of entry and re-entry between the two cities by the respective federal authorities of Canada and the United States, and there was no common infrastructure.

Vancouver is the principal city of British Columbia, both from an economic and population point of view. From a review of the evidence, including a map of the area in question, showing integrated roadways between the City of Vancouver and Maple Ridge and Langley, settlements of population around the City of Vancouver, I find that Maple Ridge and Langley pertain to Vancouver.

The City of Vancouver and the Municipalities of Maple Ridge and Langley are all in the same metropolitan area and therefore the appellant in performing his duties on the ferry in 1979 was not away from the Vancouver metropolitan area.

The appeal is therefore dismissed.

Appeal dismissed.