Gibson,
J:—On
this
appeal
by
way
of
stated
case,
the
taxpayer,
respondent/plaintiff
seeks
the
following
judgment,
namely:
The
City
of
Detroit
and
its
suburbs
is
not
part
of
the
“metropolitan
area”
of
the
City
of
Windsor,
and
accordingly,
the
plaintiff
is
entitled
to
deduct
disbursements
for
meals.
The
relevant
applicable
statutory
provision
is
subsection
11(7)
of
the
Income
Tax
Act
as
it
then
was,
namely:
11.
(7)
Notwithstanding
paragraphs
(a)
and
(h)
of
subsection
(1)
of
section
12,
where
a
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,
(a)
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
(b)
while
so
away
from
such
municipality
and
metropolitan
area,
to
make
disbursements
for
meals
and
lodging,
amounts
so
disbursed
by
him
in
a
taxation
year
may
be
deducted
in
computing
his
income
for
the
taxation
year
to
the
extent
that
he
has
not
been
reimbursed
and
is
not
entitled
to
be
reimbursed
in
respect
thereof.
The
plaintiff
deducted
certain
sums
in
the
calculation
of
his
taxable
income
in
his
1970
and
1971
taxation
years
ostensibly
pursuant
to
the
said
provisions
of
subsection
11(7)
of
the
Income
Tax
Act,
RSC
1952,
c
148,
as
amended
prior
to
the
amendment
of
SC
1970-71-72,
c
63.
The
Minister
of
National
Revenue
has
disallowed
the
deduction
of
such
sums
on
the
basis
that
such
disbursements
are
not
deductible
by
the
plaintiff
pursuant
to
the
said
subsection
11(7),
or
otherwise,
of
the
income
Tax
Act.
_.
The
plaintiff
and
the
Deputy
Attorney
General
of
Canada
on
behalf
of
Her
Majesty
the
Queen,
as
represented
by
the
Minister,
agreed,
pursuant
to
subsection
173(1)
of
the
Income
Tax
Act,
and
pursuant
to
subsection
17(3)
of
the
Federal
Court
Act,
RSC
1970
(2nd
Supp),
c
10,
that
the
question
herein,
being
of
law,
fact,
or
mixed
law
and
fact,
shall
be
referred
to
the
Federal
Court
of
Canada
for
determination.
The
question
for
determination
is:
Is
the
plaintiff
entitled
to
deduct
disbursements
for
meals
by
reason
that
the
City
of
Detroit
and
its
suburbs
are
away
from
the
metropolitan
area
of
the
City
of
Windsor
within
the
meaning
of
subsection
11(7)
of
the
Income
Tax
Act,
RSC
1952,
c
148?
The
parties
filed
an
Agreed
Statement
of
Facts
and
issue
which
reads
as
follows:
1.
At
all
material
times
during
his
1970
and
1971
taxation
years,
the
Plaintiff
was
an
employee
of
a
person
whose
principal
business
was
goods
transport;
2.
The
establishment
of
his
employer
to
which
the
Plaintiff
reported
to
work
during
his
1970
and
1971
taxation
years
was
located
at
2260
Walker
Road,
Windsor,
Ontario,
which
place
was
located
within
the
municipality
of
the
City
of
Windsor,
of
the
Province
of
Ontario;
3.
The
duties
of
the
Plaintiff’s
employment
required
him
regularly
to
travel
away
from
the
said
municipality
on
vehicles
used
by
his
employer
to
transport
goods;
4.
The
Plaintiff,
while
so
away
from
the
said
municipality
of
the
City
of
Windsor,
but
while
within
the
City
of
Detroit,
or
within
one
of
the
suburbs
of
that
City,
made
the
following
disbursements
for
meals:
For
1970
—
$645.
For
1971
—$633.
5.
The
Plaintiff’s
employes
did
not
reimburse
the
Plaintiff,
nor
was
the
Plaintiff
entitled
to
any
reimbursement
in
respect
of
those
disbursements;
6.
The
Plaintiff
in
caluclating
his
taxable
income
for
his
1970
and
1971
taxation
years
deducted
the
amount
of
these
disbursements,
and
did
so
on
the
basis
that
since
neither
the
City
of
Detroit
nor
its
suburbs
were
a
part
of
the
Windsor
metropolitan
area,
he
was
entitled
to
deduct
them
pursuant
to
the
provisions
of
section
11(7)
of
the
Income
Tax
Act;
7.
The
Defendant
in
assessing
the
tax
payable
by
the
Plaintiff
under
the
Income
Tax
Act
for
his
1970
and
1971
taxation
years,
disallowed
the
said
deductions
in
the
computation
of
the
Plaintiff’s
income,
and
did
so
on
the
basis
that
the
City
of
Detroit
and
its
suburbs
are
not
away
from
the
metropolitan
area
of
the
City
of
Windsor
where
the
employer’s
establishment
was
located,
such
that
the
Plaintiff
was
not
entitled
to
any
deduction
pursuant
to
section
11(7)
of
the
Income
Tax
Act.
8.
In
the
Plaintiff’s
capacity
as
a
truck
driver
employed
with
a
transport
he
was
required
to
make
three
trips
daily
from
the
home
terminal
of
the
transport
company
in
the
City
of
Windsor
to
the
City
of
Detroit,
or
to
one
of
the
suburbs
of
that
city.
9.
When
the
Plaintiff
leaves
his
employer’s
place
of
business,
he
does
not
return
until
between
10
/2
and
11
hours
later.
During
such
time,
the
Plaintiff
makes
three
trips
with
each
trip
averaging
between
3
/2
and
4
hours.
10.
To
return
to
Windsor
requires
the
Plaintiff
to
cross
the
international
border
and
the
payment
of
tolls
varying
between
$3.40
and
$6.30.
11.
The
meals
for
which
deductions
are
claimed
were
taken
at
normal
meal
hours
outside
of
Canada.
12.
The
Plaintiff
has
claimed
a
deduction
for
meal
expenses
incurred
by
him
to
the
extent
of
one
meal
per
day
for
each
of
the
days
he
travelled
to
the
City
of
Detroit,
or
to
one
of
the
suburbs
of
that
city.
13.
The
Plaintiff’s
employer
did
not
reimburse
the
Plaintiff,
nor
was
the
Plaintiff
entitled
to
any
reimbursement
in
respect
of
these
expenses,
14.
The
Plaintiff
in
his
return
of
income
for
his
1970
and
1971
taxation
years
deducted
in
computing
his
income
these
expenses,
and
did
so
on
the
basis
that
since
neither
the
city
of
Detroit
nor
its
suburbs
were
a
part
of
the
Windsor
metropolitan
area,
he
was
entitled
to
deduct
them
pursuant
to
the
provisions
of
section
8(1
)(g)
of
the
Income
Tax
Act,
RSC
1952,
c
148,
as
amented
by
section
1,
c
63,
Statutes
of
Canada
1970-71-72;
15.
The
Defendant
in
assessing
the
tax
payable
by
the
Plaintiff
under
the
Income
Tax
Act
for
his
1970
and
1971
taxation
years,
disallowed
the
said
deductions
in
the
computation
of
his
income,
and
did
so
on
the
basis
that
the
city
of
Detroit
and
its
suburbs
constituted
part
of
the
Windsor
metropolitan
area,
with
the
consequence
that
the
Plaintiff
was
not
entitled
to
any
deduction
pursuant
to
section
8(1
)(g)
of
the
Act.
16.
The
question
for
determination
by
the
Federal
Court
is:
Is
the
Plaintiff
entitled
to
deduct
disbursements
for
meals
by
reason
that
the
City
of
Detroit
and
its
suburbs
are
away
from
the
metropolitan
area
of
the
City
of
Windsor
within
the
meaning
of
section
11(7)
of
the
Income
Tax
Act,
RSC
1952,
c
148?
In
the
determination
of
this
matter,
the
Court
also
takes
notice
of
the
following
facts:
1.
The
Municipality
of
the
City
of
Windsor
has
a
population
of
about
250,000.
2.
By
municipal
annexations
of
urban
areas
to
the
City
of
Windsor
in
recent
years,
the
Municipality
of
Sandwich
West
was
substantially
annexed
to
Windsor
so
that
there
are
left
only
in
Sandwich
West
about
5,000
persons.
3.
The
Municipality
of
Sandwich
South
was
annexed
in
part
to
Windsor
so
that
there
are
now
left
in
Sandwich
South
only
about
5,000
persons.
4.
By
annexation
the
Municipalities
of
Sandwich
East
and
Riverside
were
annexed
to
Windsor
so
that
they
no
longer
exist.
5.
The
Municipality
of
Tecumseh
has
a
population
of
about
5,000.
6.
There
are
no
other
urban
areas
on
the
Canadian
side
of
the
border
contiguous
to
or
near
the
City
of
Windsor.
7.
The
City
of
Detroit
is
the
fifth
largest
city
of
the
United
States
and
has
surrounding
municipalities
of
very
substantial
size
contiguous
to
it
which
extend
for
20
to
30
miles.
Certain
dictionary
definitions
of
the
word
‘‘metropolitan”
are
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,
3rd
ed)
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
&
Wagnalls)
metropolitan
.
.
.
of,
belonging
to
a
metropolis
(The
Random
House
Dictionary)
Certain
dictionary
definitions
of
the
word
“pertain”
are
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;
e.g.
as
a
native,
as
part
of
a
whole,
as
an
accessory,
as
dependent
.
.
.
(The
Shorter
Oxford
Dictionary
on
Historical
Principles,
3rd
ed)
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)
The
City
of
Detroit
is
across
an
international
boundary.
It
is
not
integrated
in
any
way
with
the
City
of
Windsor.
For
example,
there
are
no
common
infra-structures,
municipal
services
such
as
streets,
water,
fire
or
police
protection,
and
there
is
no
political
connection.
It
does
not
“pertain”
or
‘‘belong”
in
any
way
to
the
City
of
Windsor.
There
is
a
control
of
entry
and
re-entry
between
the
two
cities
by
the
respective
federal
authorities
of
Canada
and
the
United
States
of
America.
After
careful
consideration
of
the
facts
and
the
statutory
provision
of
subsection
11(7)
of
the
Income
Tax
Act
as
it
then
read,
I
am
of
the
view,
first
that
there
is
very
considerable
doubt
that
the
City
of
Windsor
has
a
“metropolitan
area”
at
all
within
the
meaning
of
that
subsection
of
the
Act.
But,
if
it
has,
it
consists
of
the
Municipalities
of
Sandwich
West,
Sandwich
South
and
Tecumseh.
And,
second,
in
any
event,
it
would
be
nonsensical
to
hold
that
the
City
of
Detroit
and
its
suburbs
are
part
of
the
“metropolitan
area”
of
the
City
of
Windsor.
To
hold
such
would
be
like
saying
(paraphrasing
what
was
said
in
another
context)
that
“the
one
inch
tail
wags
the
ninety-nine
inch
dog”.
As
was
said
by
Viscount
Haldane
in
Lumsden
v
Commissioners
of
Inland
Revenue,
[1914]
AC
877
(HL)
at
page
892:
..
.
.
It
is
no
doubt
true
that
there
are
cases
of
construction
where
the
natural
meaning
of
the
words
of
a
statute
is
rejected,
and
another
meaning
not
expressed
by
the
words
taken
in
their
ordinary
sense
is
read
in.
That
occurs
where
the
context
and
scheme
of
the
statute
requires
that
this
should
be
done
in
order
that
the
language
of
the
statute
as
a
whole
may
be
read
as
consistent.
But
a
mere
conjecture
that
Parliament
entertained
a
purpose
which,
however
natural,
has
not
been
embodied
in
the
words
it
has
used
if
they
be
literally
interpreted
is
no
sufficient
reason
for
departing
from
the
literal
interpretation.
and
at
pages
896-7:
.
.
.
the
duty
of
judges
in
construing
statutes
is
to
adhere
to
the
literal
construction
unless
the
context
renders
it
plain
that
such
a
construction
cannot
be
put
on
the
words.
This
rule
is
especially
important
in
cases
of
Statutes
which
impose
taxation.
Accordingly,
the
question
for
determination
is
answered
in
the
affirmative.
The
plaintiff
is
entitled
to
costs.
Either
party,
by
appearance
of
counsel
or
under
Rule
324,
may
move
for
judgment
based
on
these
Reasons.
Judgment
shall
not
issue
until
settled
by
the
Court.
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