[OFFICIAL ENGLISH TRANSLATION]
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Citation: 2004TCC516
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Date: 20040819
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Docket: 2000-2309(IT)G
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BETWEEN:
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PIERRE MÉNARD,
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Appellant,
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And
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
Bédard J.
[1] These are appeals under the
general procedure opposing the Appellant Pierre Ménard to
the Respondent, Her Majesty The Queen. The Appellant is a
longshoreman in the Port of Montreal and he claimed the deduction
of his travel expenses as well as with his motor vehicle expenses
in computing his income from employment for the 1996 and 1997
taxation years. These expenses amounted to $3,313 for the 1996
taxation year and $5,401 for the 1997 taxation year; the amounts
are not at issue. The Respondent disallowed the deduction of
these travel expenses on the grounds that the Appellant did not
meet the conditions required by paragraph 8(1)(h) or
8(1)(h.1) of the Income Tax Act (the
"Act"), namely of being ordinarily required to
carry on the duties of the office or employment away from the
employer's place of business or in different places, and
being required under the contract of employment to pay his travel
expenses incurred in the performance of the duties of the office
or employment.
[2] In making and confirming the
assessments at issue, the Minister of National Revenue (the
"Minister") considered, specifically, the following
facts[1]:
a) the
Appellant is employed as a longshoreman;
b) the
Appellant is an employee of the Maritime Employers' Association
(hereinafter "M.E.A."), although he receives his
paycheques and T-4 slips from the Maritime Data Centre Inc.;
c) the
Appellant's employment is governed by a collective agreement
signed on June 22, 1995;
d) M.E.A.
supplies the services of longshoremen to its member companies,
who operate the terminals on the geographic territory of the Port
of Montreal and at Contrecoeur;
e)
longshoremen contact the employer in advance by telephone, at
which time they are informed of the place, location and schedule
for their assignment;
f) in
response to a written questionnaire sent on or about September
15, 1998, by Ms. Lise Pilon, the Respondent's auditor, to the
Maritime Data Centre Inc., Mr. Charles Terenzi, the Executive
Director, provided this answer to the following question on
September 28, 1998:
[TRANSLATION]
" 1. B) Provide us with the following
description of the duties of these employees.
"The place of work of a longshoreman is the port. The
Port of Montreal begins at the Bonaventure Autoroute as far as
the Lafontaine Tunnel; the port facilities at Contrecoeur also
form part of the Port of Montreal. The longshoremen work loading
and/or unloading ships. There are numerous port facilities
(section and warehouses) in the Port of Montreal. The
longshoreman calls his employer in the evening to receive his
assignment for the following day, i.e., to know exactly where in
the Port of Montreal he will work the following day. Once he
reaches his place of work, the longshoreman does not need to
travel during the day, until the end of his shift. Longshoremen
do not require a car for their work.";
g) the
expenses claimed by the Appellant are the costs of round-trip
transportation between his residence and his assigned
location;
h) these
expenses constitute expenses of a personal nature and cannot be
deducted from the Appellant's earnings from employment;
i)
first, in view of the nature of port operations, the place of
business of the M.E.A. is the entire Port of Montreal;
j)
second, when the Appellant travels from his home to the place of
his assignment (or returns), this is not in the performance of
his duties;
k)
furthermore, the Appellant is in no way required by contract to
have a car in order to perform his duties or to pay for travel
expenses related to his work.
[3] Section 8 of the Act reads
in part as follows:
SECTION 8: Deductions.
(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:
[...]
(h) Travel
expenses -- where the taxpayer, in the year, was both
(i) ordinarily
required to carry on the duties of the office or employment away
from the employer's place of business or in different places,
and
(ii) required under
the contract of employment to pay the travel expenses incurred by
the taxpayer in the performance of the duties of the office or
employment,
amounts expended by the taxpayer in the year (other than motor
vehicle expenses) for travelling in the course of the office or
employment, except where the taxpayer
(iii) received an
allowance for travel expenses that was, because of subparagraph
6(1)b)(v), (vi) or (vii), not included in computing the
taxpayer's income for the year, or
(iv) claims a deduction
for the year under paragraph 8(1) e), f)
or g);
(h.1) Motor vehicle travel
expenses -- where the taxpayer, in the year, was
ordinarily required to carry on the duties of the office or
employment away from the employer's place of business or in
different places, and was required under the contract of
employment to pay motor vehicle expenses incurred in the
performance of the duties of the office or employment, amounts
expended by the taxpayer in the year in respect of motor vehicle
expenses incurred for travelling in the course of the office or
employment, except where the taxpayer:
(i) received
an allowance for motor vehicle expenses that was, because of
paragraph 6(1)b), not included in computing the
taxpayer's income for the year; or
(ii) claims a
deduction for the year under paragraph 8(1)f);
[...]
Testimony
[4] The Appellant, Éric
Langlois and Lise Pilon testified for the Appellant. The Court
heard Charles Terenzi and Jean Bédard as witnesses for the
Respondent.
[5] In his testimony, the Appellant
explained the work of the longshoremen employed by the Port of
Montreal. The explanations of the Appellant are effective for the
years at issue. There is a "summer employment
guarantee" and a "winter employment guarantee".
These guarantees give the longshoremen to whom they apply the
certainty that they will receive between 25 and 40 hours of work
a week (in accordance with the guarantee), failing which they
will nonetheless be paid for that number of hours. The summer
period covers the months from March to December and the winter
period covers the remainder of the year. According to the
Appellant, approximately 760 longshoremen benefited from the
summer guarantee during the years at issue. Only 660 of these 760
longshoremen also benefited from the winter guarantee. In 1996,
the Appellant was entitled only to the summer guarantee.
[6] Each longshoreman has a number of
skills which allow him to perform some, if not all, of the duties
that a longshoreman may be called upon to perform in the Port of
Montreal.
[7] As a longshoreman in the Port of
Montreal, the Appellant may be called upon to work on three
separate shifts: the day shift (from 8 am to 4 pm), the evening
shift (from 4 pm to midnight), or the night shift (from midnight
to 8 am). In addition, the longshoremen must have a 10- to
12-hour rest period between each shift. To find out his schedule
for the following day, the Appellant has to telephone the
assignment centre between 6 pm and midnight, whereupon he is
assigned to a shift and a work location. The Appellant can be
assigned to a specific dock or can be assigned to the Hiring
Hall. He is also asked if he wants a "fishing assignment". I
shall return to this latter element later on.
[8] Every day, a number of
longshoremen are assigned to the Hiring Hall in anticipation of
absences. Thus, if a longshoreman is absent for any reason, he
will be replaced by a longshoreman who is on call in the Hiring
Hall. For longshoremen who have a summer or winter guarantee,
assignment to the Hiring Hall is the equivalent to day's
work, as they will be paid for merely being present in the Hiring
Hall, unless they have already completed the number of hours of
work guaranteed by their employer. Longshoremen who do not enjoy
these guarantees can, if they do not have an assignment, report
to the Hiring Hall for "a fishing assignment". If the
Appellant is assigned to the Hiring Hall, he must report there at
8 am and remain there until 9.30. If he does not receive an
assignment, the Appellant must leave the Hiring Hall and return
from 12 noon to 2 pm to wait for any potential assignment.
Longshoremen who are assigned to the Hiring Hall cannot remain
there between 9.30 and noon, as it is closed during these
times.
[9] As was mentioned previously,
longshoremen have the option of working overtime, in other words
"a fishing assignment". This possibility, moreover, is
limited, as longshoremen cannot do "a fishing
assignment" for more than eight hours per week. They are,
however, free to do it every day during their vacation period.
Longshoremen who do not have a winter guarantee also have the
option of "a fishing assignment" every day during the
winter.
[10] According to the Appellant's
testimony, there are three ways of obtaining "a fishing
assignment" in the Port of Montreal. The first occurs when
the longshoreman calls in to receive his assignment for the
following day. He can then make himself available for overtime
following his shift. The second option is for the longshoreman to
report to the Hiring Hall and to register for "a fishing
assignment". Lastly, longshoremen can be called at home and
asked if they wish to work overtime, even if they have not
indicated they would be available to do so. The Appellant stated
that, although this third way of obtaining "a fishing
assignment" is done on a voluntary basis, the longshoremen
accept the offer out of solidarity. Otherwise an entire gang
could lose its assignment because it was not complete and many
longshoremen would lose a day's work as a result. Thus, if a
longshoreman is contacted at 11 am, he will be paid retroactive
to 8 am.[2]
[11] The pay of longshoremen on a "fishing
assignment" varies depending on the shift during which they work
when working overtime. A longshoreman who has a "fishing
assignment" during the day shift is paid at the regular rate,
whereas a longshoreman who has an evening "fishing
assignment" is paid at the regular rate plus 50%, and at the
regular rate plus 100% at night and on weekends.
[12] The Appellant also explained that
longshoremen can be called upon to "extend", which is the
equivalent of working overtime. Extensions are worked only to
finish loading or unloading a ship. In such cases, the
longshoremen's shifts are extended by one hour, up to a maximum
of four hours. If the ship is not finished by the end
of the extension, the Appellant must nonetheless leave the dock.
If the extension is for one hour only, the longshoremen have no
break between the end of their regular shift and the extension.
If the extension is for four hours, they are allowed one hour for
their meal.
[13] In exceptional cases, it can happen
that longshoremen, either as a gang or individually, are
transferred to a company other than the one to which they were
originally assigned for the day and thus that they work at
another dock. The longshoremen must then travel to the site of
their new assignment. The collective agreement provides that
longshoremen can be moved from one ship to another[3]. In such cases, the
Appellant stated that the longshoremen have half an hour to get
to the second dock.
[14] The Appellant testified that he was
required to move during his shifts between five and ten times a
year during the years at issue. He also stated that whenever he
was assigned to the Hiring Hall, he was subsequently reassigned.
This meant that he had to travel from his home to the Hiring Hall
and from the Hiring Hall to his assigned dock. The Appellant
believes that he was assigned to the Hiring Hall 20 to 25 per
cent of the time during the period at issue.
[15] The Appellant travels within the Port
of Montreal by car, as there is no public road transportation in
the Port of Montreal. Although M.E.A. does not require
longshoremen to have a car, the Appellant estimated that 90% of
all longshoremen travel in their own automobile. He added that
longshoremen who have no car are taken from the Hiring Hall to
their assigned dock by taxi at the employer's expense.
Nonetheless, the Appellant asserted that the employer paid the
taxi fare only for travel from the Hiring Hall to the dock (since
the employer did not pay for the return journey) and then only
when the longshoremen were specifically assigned to the Hiring
Hall. We note that the longshoremen's collective agreement
does not stipulate that the employer must assume these taxi
expenses, nor does it stipulate that longshoremen who use their
own cars to travel must pay their travel expenses.
[16] The Appellant explained that he has to
transport every day, in the trunk of his car, the equipment he
requires to carry out his duties as a longshoreman. According to
the Appellant, the bag in which this equipment is kept can weigh
around 40 lbs and resembles a hockey bag. It would thus be
difficult for the Appellant to travel to the Port of Montreal on
foot or by public transit in view of the weight of the bag. We
note that the Port of Montreal extends over approximately 25 km
and that the longshoremen can also be assigned to
Contrecoeur, which is located over 50 km from the Port of
Montreal. In addition, the Appellant has no assigned locker on
Port of Montreal premises. His car accordingly serves as a locker
for storing this equipment, given the substantial risk of
theft.
[17] The bag in which the Appellant carries
his equipment belongs to the M.E.A., as does part of his
equipment, such as his overshoes, his safety harness, rain gear,
etc. The Appellant maintained that his employer is required by
the Canada Labour Code[4]to provide him with these personal safety
items. According to the Appellant, it would be possible for the
employer to provide on a daily basis the equipment that the
longshoremen require. The Appellant stated, however, that this
would result in chaos[5]. The Appellant further estimated that 60% of the items
in his bag belonged to him.
[18] Lastly, the Appellant explained that he
used his car to visit the restrooms where the toilets are
located. Even though every dock is supposed to be equipped with
portable toilets, this is not always the case. The longshoremen
are accordingly allowed to take a few minutes of their time to
visit the toilets in the restroom, which are sometimes located
several kilometres from their assigned dock. The Appellant
further stated that he used his car to warm up in during the
winter.
[19] Éric Langlois then testified.
Mr. Langlois is also a Port of Montreal longshoreman. In his
testimony, Mr. Langlois stated that he kept a bag of equipment
similar to the Appellant's in the trunk of his car. According
to Mr. Langlois, the work of the longshoremen would be slowed
down if they had to pick up their equipment every day. Mr.
Langlois further explained that the longshoremen had to have
their equipment with them at all times, as they could be called
upon to move during a shift. Since these movements may involve a
change of their duties for the day, the longshoremen must have
the equipment they require to perform all the duties that they
are authorized to do, regardless of their assignment for the day.
Otherwise, the longshoremen run the risk of not being able to
complete the transfer, and thus lose their day of work and their
pay[6].
Mr. Langlois lastly stated that his car was essential, in
that he used it as a locker for his equipment, since the risks of
theft on the docks were too great to leave any equipment
unattended. Mr. Langlois also keeps his bag of equipment in the
trunk of his car, because the bag is too heavy to carry in the
on-board crane where he spends most of his time when
working.
[20] As far as Mr. Langlois is concerned, he
stated that he spent between 10% and 15% of the time on a shift
travelling about. Although he had been moved as a team on several
occasions, he was more frequently moved individually, in view of
his many skills. Lastly, Mr. Langlois maintained that he was
assigned to the Hiring Hall almost 50% of the time and that on
half of these occasions, where he had to report to the Hiring
Hall, he received an assignment. Since the Hiring Hall is closed
from 9.30 am to noon, Mr. Langlois explained that his car was
essential to allow him to return home during the hours it was
closed.
[21] Lise Pilon, the auditor for the Canada
Revenue Agency (hereinafter the "CRA"), also testified
for the Appellant. Ms. Pilon was the auditor of the
longshoremen's files, including those of the Appellant. She
stated that the CRA had sent a questionnaire to Mr. Terenzi, the
Executive Director of the Maritime Data Centre (hereinafter the
"M.D.C.") in order to confirm or deny what was stated
on the T-2200 forms attached to the taxpayer's request,
namely that the longshoremen in the Port of Montreal did not need
a vehicle to perform their duties. Mr. Terenzi confirmed this
statement by means of the questionnaire. The CRA accordingly did
not allow the longshoremen to deduct travel expenses and motor
vehicle expenses, since the longshoremen were not required to
travel in the performance of their duties and because the
longshoremen were not required to report to a place of business
away from their employer's place of business. According to the
CRA, the entire Port of Montreal constitutes the place of
business of the longshoremen's employer. Ms. Pilon further
admitted that at the time the travel expenses were disallowed,
the CRA was unaware that the longshoremen had to carry equipment
belonging to the employer.
[22] Charles Terenzi testified for the
Respondent. As was mentioned earlier, Mr. Terenzi is the
Executive Director of the M.D.C.. The M.D.C. was created in 1969
by the stevedoring companies and serves as a central pay office
for the longshoremen in the Port of Montreal, and for
longshoremen virtually everywhere in Eastern Canada. The M.D.C.
is separate from the M.E.A., which was set up by the shipping
companies.
[23] Mr. Terenzi explained that the
collective agreement between the longshoremen's union and
M.E.A. did not oblige the longshoremen to have a car. According
to Mr. Terenzi, the longshoremen do not incur travel
expenses. This is what Mr. Terenzi entered on the T-2200 forms
that he was required to complete for income tax purposes[7]. Mr. Terenzi specified
that, before completing the T-2200 forms, he contacted the
various stevedoring companies to check the accuracy of his
statements, since by his own admission, Mr. Terenzi does not deal
with the longshoremen on a regular basis.
[24] According to Mr. Terenzi, each section
of the Port of Montreal constitutes a separate location.
Accordingly, when a longshoreman travels from the Hiring Hall to
the dock that has been assigned to him, he travels to his place
of work, since the dock in question is his place of work for the
day. Mr. Terenzi stated that the Hiring Hall is not a place of
work for the longshoremen.
[25] Lastly, Jean Bédard testified
for the Respondent. Mr. Bédard is Vice-President of M.E.A.
and in this capacity is in charge of administration. Mr.
Bédard is accordingly not a witness to the everyday
reality of the longshoremen in the Port of Montreal.
[26] Mr. Bédard explained that M.E.A.
was the employer of the longshoremen at the ports in the cities
of Montreal, Toronto, Trois-Rivières and Hamilton, within
the meaning of section 34 of the Canada Labour Code.
[27] According to Mr. Bédard, the
longshoremen carry their equipment (a change of clothing, picks,
chains, etc.) that they require to do their work, and have done
since their union was founded over 100 years ago. Mr.
Bédard recalled that the Canada Labour Code did not
require M.E.A. to provide the longshoremen with a car in which to
transport their equipment. According to Mr. Bédard, it is
in the very nature of the longshoremen's profession to have
their equipment with them, quite apart from the fact that the
longshoremen are informed the day before of the location to which
they will be assigned the following day. The longshoremen
accordingly know what equipment that they require for the next
day. Thus, Mr. Bédard stated that it is hardly plausible
that all the longshoremen would transport all their equipment
every day. Mr. Bédard admitted, moreover, that the M.E.A.
provides safety equipment to the longshoremen because that is a
provision of the collective agreement and because it is a legal
obligation imposed by the Canada Labour Code[8]. Nonetheless, Mr.
Bédard stated that distributing the equipment on a daily
basis would be inefficient from a practical standpoint.
[28] Out of a deployment of 400 to 500
longshoremen, Mr.Bédard explained that 10 to 12 would be
assigned to the Hiring Hall on a daily basis. He stated that he
had never witnessed a transfer in the course of a shift, but
maintained that he had seen transfers at the start of a shift
when a ship had failed to arrive at the dock. Mr. Bédard
stated that having a car was not a requirement for performing the
duties of a longshoreman, since many longshoremen did not have a
car, or even a driver's licence.
Analysis
[29] The question at issue is the following:
can the Appellant deduct his travel expenses and his motor
vehicle expenses in connection with his travel between his
residence and the various docks in the Port of Montreal? It
should be noted that the Appellant did not claim the deduction of
these expenses for his travel between his residence and the
Hiring Hall when he was assigned to the Hiring Hall. Even though
they are not at issue in this case, I will also address the
following subordinate issues raised by the Appellant: (1) Can the
Appellant deduct these expenses when the employer calls him at
home to offer him a "fishing assignment"? (2) Can
the Appellant deduct such expenses resulting from his travel
between the Hiring Hall and the numerous docks in the Port of
Montreal?
[30] In order to deduct his travel expenses
and his motor vehicle expenses, the Appellant must meet the
criteria in paragraphs 8(1)(h) and 8(1)(h.1) of the
Act. These criteria, which are, moreover, identical, are
the following:
(1) the
Appellant;
(2) was ordinarily
required to carry on the duties of the office or employment away
from the employer's place of business or in different
places;
(3) was required,
under the contract of employment, to pay the travel expenses
incurred by the taxpayer in the performance of the duties of the
office or employment;
(4) the amounts
claimed were incurred by the Appellant for travelling in the
course of performing the duties of his office or employment.
[31] Was the Appellant ordinarily required
to carry on his duties away from the employer's place of
business or in different places? The Respondent maintains that
the employer's place of business is the entire Port of Montreal,
even though this location comprises many zones or sectors. The
Respondent, in fact, submits that the Appellant is not required
to carry on his duties away from the employer's place of
business or in different places.
[32] The term "ordinarily" has
been interpreted as meaning "normally, as a matter of
regular occurrence, commonly and usually"[9]. In the case at bar, it is the
daily way in which the longshoremen of the Port of Montreal have
to report to one of the docks in the port. The evidence has shown
that even those longshoremen with the most seniority are not
always assigned to the same dock. It is accordingly beyond
dispute that the Appellant is ordinarily required to carry on his
duties at one of the many docks of the Port of Montreal.
[33] Furthermore, I cannot agree with the
Respondent's claim that the Appellant is not required to
carry on his duties "in different places".
Interpretation Bulletin IT-522R entitled Motor Vehicle, Travel
and Sales Expenses of Employees, defines the
expression "in different places" as follows[10]:
[...] "in different places" generally refers to the situation
where the employer does not have a single or fixed place of
business. For example, a school inspector who has a number of
schools to supervise and is required to travel from school to
school meets this requirement. Similarly, an employee who is
required to travel from building to building within the
boundaries of the employer's property meets this requirement if
the employer's property is very large and the distance between
buildings is sufficient to justify the use of a "motor vehicle".
On the other hand, where the employee is employed on a ship, the
ship is the employer's place of business where the employer is
ordinarily required to carry on the duties, and the fact that the
ship may travel to different places is insufficient to meet this
requirement.
[34] In Royer v. Canada,
T.C.C., No. 98-707(IT)I, February 16, 1999, 99 D.T.C. 683,
[1999] T.C.J. No. 111, Lamarre Proulx J. stated[11]:
On the basis of the case law already cited, it is my view that
paragraph 8(1)h.1) of the Act provides for two
situations: the first is where an employee is ordinarily required
to carry on his or her duties away from the employer's place
of business, and the other is where an employee is ordinarily
required to carry on his or her duties in different places. I
believe that the first situation covers individuals who report to
one place, which is a place of business, and who must ordinarily
carry on their duties away from that place.
As for the second situation, I do not think that the
expression, "different places" excludes a place of
business. I accept the position of Counsel for the Respondent,
which is supported by the above-mentioned case law, that a work
site is a place of business. If an employee must carry on his or
her duties at several places of business, those places of
business come precisely within the meaning of "different
places". If the employee ordinarily works at one of those
different places and works at the others at the employer's
discretion, travel to the usual place of business will be
personal expenses. The conditions of employment are important in
being able to determine which is the usual place of work and
which constitutes the different places. The distance from one
place to another and changes in the place of work based on the
employer's needs will have as a consequence, inter alia, that
the places of work will be different places.
[35] In my view, the expression
"different places" does not exclude a place of
business. The expression "different places" can thus
apply to a case where the employer does not have a single place
of business, as in the instant case. Although all the docks or
port facilities form part of a whole better known under the name
of the "Port of Montreal" (which extends from Place
Bonaventure to the Lafontaine Tunnel and includes the Contrecoeur
port facilities), it must be understood that each of the docks of
the Port of Montreal is operated independently by separate
companies. Each of these docks, in my opinion, thus constitutes a
separate place of business or a different place. It seems
difficult to me, in fact, to conclude that the port facilities or
docks which are located in the area of Place Bonaventure, the
Lafontaine Tunnel and Contrecoeur, and which are operated by
different companies, can constitute a single place of
business.
[36] Since the evidence has clearly shown
that the Appellant was not ordinarily assigned to any specific
dock, I conclude that the Appellant must be described as carrying
on his duties in different places within the meaning of
paragraphs 8(1)(h) and 8(1)(h.1) of the
Act.
[37] Was the Appellant required, under his
contract of employment, to pay for his travel expenses or his
motor vehicle expenses? The Appellant submits that the profession
of longshoreman implies the obligation to have a car and thus to
pay for his travel expenses and motor vehicle expenses. He
maintains that the situation of longshoremen is unusual in that
they are required to carry a bag of equipment weighing
approximately 40 lbs. The Appellant thus affirms that he needs
his vehicle to carry this bag, with its considerable weight, and
to store his equipment during his shift to avoid its being
stolen. The trunk of his car is thus used as a locker to store
the equipment[12]. Also, according to the Appellant, the large area
covered by the Port of Montreal means that it is implicit in his
contract of employment that he must have a car to go to his
assigned dock and to go to the restrooms where the toilets are
located. For these reasons, the Appellant maintains that there is
an implicit rule to the effect that the use of his vehicle is
essential to the performance of his duties as a longshoreman[13] and
accordingly, that he must assume his travel expenses and motor
vehicle expenses.
[38] The Federal Court has repeatedly stated
that the condition of being required to pay travel expenses may
be implicit. In Rozen v. Canada, [1985] F.C.J. No.
1002, Strayer J. explained:
I believe also that subparagraph 8(1)(h)(ii) can be
interpreted somewhat more broadly. Even if the plaintiff were not
specifically required to use his car, he was required to pay his
travelling expenses incurred by him in the performance of his
duties and this would also bring him within the subparagraph. The
evidence was clear that to do his job the plaintiff had to go to
the offices of a variety of clients. No provision was made for
reimbursement for transportation for getting to those offices
except with respect to those outside of Vancouver where at least
car mileage was allowed. If an employee is obliged to travel to
do his work and his employer is not prepared to pay the exact and
total cost of transportation, then he must come within the
requirements of subparagraph 8(1)(h)(ii). This question
was not under consideration before the Federal Court of Appeal in
Cival. On this basis, it is not really very important
whether the plaintiff here was obliged to use his car or not; he
was obliged to get himself and his papers to the firm's
clients and there was no arrangement, at least in the
circumstances relevant to this case, whereby the employer
undertook to pay the total transportation costs."
[39] In Betz v. Canada,
F.C.T.D. No. T-2674-84, February 16, 1987 [1987] F.C.J. No. 167,
Collier J. stated:
The defendant contended the plaintiff is governed here by the
collective agreement; it is silent on the matter; the plaintiff
must find the requirement in that contract; Rozen v. The
Queen (1985) 85 D.T.C. 5611 is distinguishable because there
was no collective agreement or written contract; The Queen v.
Cival (1983) 83 D.T.C. 5168 (F.C.A.) applies: in that case,
there was a collective agreement silent on the payment
requirement, and the court found the provisions of
paragraph 8(1)(h) had not been met.
I do not agree with the defendant's submissions.
A collective agreement is a contract. Just because something
is not spelled out, does not mean it cannot be implied from the
conduct and practice of the parties. The duties of principals are
not set out in this contract. Counsel for the defendant conceded
the duties need not have been set out in a written document. Yet,
it is said, the requirement of payment of the expenses must be so
set out in writing, in this case, to come within subparagraph
(ii).
That submission cannot, as a matter of logic, stand.
[40] This decision was confirmed, moreover,
by the Federal Court of Appeal (see The Queen v. Betz,
90 D.T.C. 6201). In Canada v. Gilling, 90 D.T.C.
6274, [1990] F.C.J. No. 284, Joyal J., referring to the decisions
in Betz[14] and Verrier[15], stated:
Admittedly, it is a question of fact whether or not an
employer on salary or on commission or both can claim expenses
under section 8(1)(f) or section 8(1)(h) of the
statute. Nevertheless, I view the Federal Court of Appeal
decision in the Verrier case and the endorsement of the
trial decision in the Betz case as indicating that neither
section of the Act imposes technical considerations which would
tend to defeat the intent and spirit of the legislation when the
realities of any employer-employee contract are subject to
scrutiny. If such a guide to its interpretation should
favour a school principal whose salary is assured in any event,
it should all the more so, in a proper case, favour an employee
paid on commission and whose efforts to earn income in that
fashion is far more dependent on his ability to
hustle. In any event, as was noted by Mahoney J.A. in
the Verrier case, any deduction allowed such an employee
is a deduction from income and not a deduction from
tax. He must still absorb the after tax expense out of
his own pocket, a situation markedly different from that of an
employee whose expenses are fully reimbursed by the employer.
The Court of Appeal in the two cases cited has also recognized
that a specific requirement for an employee to pay his own
expenses or to carry out duties outside of his normal place of
business need not be patently expressed in a contract of
employment. A Court, upon studying the experience of
the relationship and all surrounding circumstances may well apply
common sense and conclude that these are implied terms.
[41] In my opinion, the Appellant is not
required, under the terms of his contract of employment, to pay
such expenses since he is not required, implicitly or otherwise,
to transport the equipment to which he refers. The employer has
never required or even asked the longshoremen to transport safety
equipment. Furthermore, the evidence reveals no penalties for the
longshoremen in the event of non-compliance with this claimed
obligation, implicit in their contract of employment, namely to
transport safety equipment. The fact that the employer is in
agreement with such an arrangement, or benefits from it, does not
in my view entail an implicit obligation on the longshoremen to
transport the safety equipment. I cannot conclude that the
Appellant is implicitly required, under the terms of his contract
of employment, to transport safety equipment.
[42] Supposing that I have wrongly concluded
that the Appellant is not implicitly required to transport safety
equipment, I am, moreover, of the opinion that he was not
required to use his motor vehicle to comply with this obligation.
The testimony by Mr. Bédard showed that some 10% of
longshoremen do not have a motor vehicle, or even a driver's
licence. Thus, the use of a motor vehicle to transport safety
equipment cannot be essential, since a substantial proportion of
longshoremen manage to perform this alleged task in other ways. I
recognize that the use of a motor vehicle facilitates the
transport and protection of the equipment, but I nonetheless
cannot conclude that the use of a motor vehicle is indispensable
for this purpose. I must, moreover, emphasize that almost 60% of
the equipment that the Appellant transports belongs to him. The
majority of the equipment is thus necessarily transported
voluntarily by the Appellant. In fact, if the Appellant were to
transport only equipment supplied by his employer, his bag of
equipment would probably be much easier to transport.
[43] Lastly, the employer is supposed to
provide metal lockers in the restrooms so that the longshoremen
can store their clothes, tools and lunchboxes in them[16]. The employer,
furthermore, is required to provide toilets in the vicinity of
each dock[17]. It
can thus not be implicit in the longshoremen's contract of
employment that they are required to use their cars to store
their equipment and to visit the toilets. On the contrary, the
collective agreement states that the employer undertakes to
provide what is necessary for this. The onus is on the
longshoremen to see that their collective agreement is
implemented if these commitments are not respected. Failure by
the employer to comply with the collective agreement cannot be
tantamount to an implicit agreement amending the contract of
employment of each longshoreman.
[44] In support of his claims, the Appellant
cited Evans,[18]where the Court held that it was implicit in Ms.
Evans' contract of employment that she use her car to
transport and store the equipment she required to perform her
duties as a school psychologist. The situation of the Appellant
differs from that of Ms. Evans, since the lion's share of the
equipment transported by the Appellant is transported as a matter
of personal choice. It consists of the Appellant's personal
property, such as a change of clothing in the event of rain or
intense cold. Thus, the safety equipment supplied by the employer
in the instant case is more limited than that which the Appellant
chooses to transport and does not require the use of a car for
its transportation or protection.
[45] The Appellant also mentions
Rozen[19]where Strayer J. stated the following:
[...] If an employee is obliged to travel to do his work and
his employer is not prepared to pay the exact and total cost of
transportation, then he must come within the requirements of
subparagraph 8(1)(h)(ii). [...]
[46] Mr. Rozen was an accountant and was
required to visit the places of business of his employer's
clients in order to perform his duties. In this case, the
evidence was conclusive that the Appellant was implicitly
required by his employer to travel by car. It was understood by
Rozen's employer that he would be dismissed if he was unable to
travel by car[20]. No evidence to this effect has been submitted in the
instant case. On the contrary, it has been shown that almost 10%
of the longshoremen do not have cars or driver's licences. I
thus cannot conclude that the employer implicitly required the
Appellant to use his vehicle to travel to the numerous docks of
the Port of Montreal.
[47] Since the evidence shows no express or
even tacit obligation on the Appellant to pay for his travel
expenses or motor vehicle expenses, I cannot conclude that the
Appellant was required to pay for these expenses under the terms
of his contract of employment.
[48] When he travels from his residence to
one of the docks of the Port of Montreal, is the Appellant
carrying on his duties? The Appellant maintains that he is in
fact on duty by virtue of the fact that he is transporting a bag
of equipment belonging to his employer and that the latter is
required to provide him with this equipment under the Canada
Labour Code. According to the Appellant, he acts as custodian
of the bag of equipment while allowing the employer to fulfill
its legal obligation to provide the Appellant with "the
prescribed safety materials, equipment, devices and
clothing"[21]. Furthermore, the Appellant states that he is paid by
his employer while he is going to work. In other words, the
Appellant maintains that he is on duty once he leaves his
residence, since he is transporting safety equipment belonging to
his employer.
[49] I cannot endorse these statements. The
travel undertaken by a worker between his place of residence and
his place of work is travel of a personal nature and thus not
deductible. This was confirmed by Rip J. in O'Neil v.
Canada, T.C.C., No. 1999-3989(IT)I, August 23, 2000,
[2000] T.C.J. No. 534, where he analyses the relevant case law.
As Rip J. put it (my emphasis)[22]:
The phrase "away from the employer's place of
business or in different places" in paragraph
8(1)(h.1), has been interpreted in Royer v. Canada.
If an employee has to carry on his duties at several places of
business, those places of business come precisely within the
meaning of "different places". If the employee
ordinarily works at one of those different places and works at
others at the employer's discretion, travel to the usual
place of business will be a personal expense. There is no
issue between the parties that Mr. O'Neil was ordinarily
required to carry on his duties of employment in many areas of
the city. Respondent's Counsel did not question this obvious
fact.
There are at least two phrases in 8(1)(h.1), that need
to be considered for purposes of these appeals. First is the
phrase "expenses incurred in the performance of the duties
of [...] employment". The French version of this phrase is
"les frais [...] qu'il a engagés dans
l'accomplissement des fonctions [...] de son emploi".
These words in both languages appear to insist that, to be
deductible, the automobile expenses must be incurred in actually
performing or carrying out one's employment duties.
The second phrases is "[...] travelling in the course
of [...] employment". The French version is
"[...] se déplacer dans l'exercice des fonctions
de son emploi". This phrase also appears to imply that the
taxpayer incurs the automobile expense in work while working in
his employment.
Rule 9 of Schedule E of the Income Tax Act of the
United Kingdom uses the words "...travelling in the
performance of the duties of [...] employment". In the
United Kingdom, costs of travelling to work from home are not
deductible in computing income because the costs are not incurred
in the course of performing the duties, but rather to get to the
place where the duties will be carried out. And, even if an
employee's automobile is required for his work once he
arrives at the place of work, his costs of travel from or to his
home are not deductible. In the Income Tax Act of the
United Kingdom, unlike the Canadian Act, for an expense to
be deductible, it must be also necessarily incurred. However, the
principles adopted by the English Courts as to what constitutes
performance of duties of employment are helpful. I shall refer
briefly to two judgments of the English Courts, Ricketts v.
Colquhoun and Burton v. Rednall.
In Ricketts, the taxpayer lived in London and was a
practising member of the London bar. He was taxable as an
individual having his own business, that of a barrister. He was
also Recorder of Portsmouth and, as such, was taxable as an
employee. He sought to deduct the costs of travelling from his
home to Portsmouth. The House of Lords rejected his appeal on two
main premises. First, when travelling to his place of work he was
travelling not in the course of his duties as Recorder but in
order to enable him to perform them. His duties began only at
Portsmouth. Secondly, the expenses were not incurred
necessarily.
In Burton, the Appellant was unable to rent a house in
Ipswich but had secured one in a village about 19 miles away.
Under the terms of his employment, he was required to have an
automobile available in order to visit farmers in the district.
In order to satisfy this condition, the Appellant used his
automobile to travel from his residence to Ipswich. The Appellant
claimed that the automobile expenses incurred from travelling
from his residence to Ipswich should be deductible. The Court
rejected his claim and held that:
[...] he is not performing his duty when he travels between
his home and Ipswich. It is reasonable for him to do so - indeed,
he is bound to do so -, but he is not then in the performance of
the duties of his office; he is either going to perform his
duties or he is going home after performing his duties and the
authorities make it clear that this is the proper construction to
give to the Act.
The Canadian and English Courts are consistent. The work
"performance" has been defined, among other ways, by
the Shorter Oxford English Dictionary on Historical
Principles ("Oxford"), as the "carrying out of
a command, duty, etc" and "[t]he accomplishment,
carrying out, doing of any action or work; working, action".
The words "[...] incurred in the performance of
[...] employment" refer to automobile expenses incurred
by the employee while providing services under the employment
contract. The English cases have drawn a sharp distinction
between an expenditure incurred in the performance of the duties
of an office or employment and expenditure incurred in order to
enable oneself to do the job initially or to enable oneself to
perform the duties of that office more efficiently. This was
emphasized in W. Friedson v. The Rev. F. H. Glyn-Thomas,
where Sankey J. stated:
[...] I do not think it is possible to say that the expense of
removal in order to get there was an expense necessarily incurred
in the performance of his duties. There is all the difference in
the world between an expense which you have to incur in order to
go to a place in order to take up your duties, and an expense
incurred in the performance of your duties
The word course is defined by Oxford as "[t]he
habitual or ordinary manner of procedure, [...]". The phrase
"[...] travelling in the course of [...] employment"
has been dealt with in Luks [No. 2] v. M.N.R., and
Chrapko. In Luks, it was held that a person could
not be deemed to be "travelling in the course of the office
or employment [...] ", unless the travel actually
involved the performance of some service as compared to simply
getting oneself to the place of work. The Federal Court Trial
Division, in Chrapko, held that words "in the course
of his employment" do not preclude a deduction in such
circumstances. However, in appeal, the Federal Court of Appeal
appeared to recognize that a taxpayer may deduct expenses for
travelling from his home to a place of work if that place of work
is not the place to which he "usually" reports to work.
In assessing Mr. O'Neil, the tax authority accepted the
principle that the Appellant may deduct his automobile expenses
for travel between his home and a work site that was not City
Hall.
[50] In my opinion, the Appellant's
travel between his residence and the various docks in the Port of
Montreal is of a personal nature. The expenses arising from this
travel are employment-related expenses and not expenses incurred
in the performance of the duties of that employment. In order to
conclude that the Appellant is carrying on his duties when he
travels from his place of residence to his place of work, I would
have to conclude that he is on duty from the time he leaves his
home by virtue of the fact that he is transporting and that he is
the custodian of the safety equipment belonging to his employer
and that he is the custodian thereof. I have concluded
otherwise.
[51] On the other hand, I do not believe
that transporting a bag of equipment is an intrinsic part of the
duties of a longshoreman, which consist of loading and unloading
ships. We should recall that the majority of the equipment is
transported voluntarily by the Appellant. Lastly, the Appellant
and Mr. Langlois have stated that it would be possible for the
longshoremen to pick up their equipment from their employer on a
daily basis. Both have acknowledged, furthermore, that this would
be significantly less efficient. The fact remains, nonetheless,
that such an arrangement would be possible. The Appellant is thus
transporting the employer's safety equipment on a daily basis
because it is probably simpler for him and for his employer to
operate this way. I cannot conclude from that, however, that the
Appellant's contract of employment is implicitly amended
solely by virtue of the fact that the employer benefits from the
situation. If the situation appears unfair to the Appellant and
the longshoremen, I would suggest to them that they look into the
extent to which it is in compliance with their collective
agreement, or into amending the collective agreement at the next
round of negotiations. The tax provisions cannot constitute a way
for them to take the law into their own hands or to correct a
situation that appears unfair to them.
[52] With regard to the Appellant's
argument in respect of his remuneration for his travel between
his home and the Port of Montreal, this does not in any way
affect my conclusions, as this is an exceptional situation. It is
the case only if the Appellant is contacted at home to take
"a fishing assignment" following a request from his
employer. The Appellant in addition has stated that the employer
remunerates the longshoremen in this way in order to encourage
them to accept the offer to go on "a fishing
assignment". Granting a benefit does not mean that the
Appellant is engaged in the performance of his duties.
Furthermore, I doubt that the Appellant is remunerated even if he
fails to report at the port. Accordingly, although the Appellant
may sometimes be remunerated while he is en route to the Port of
Montreal, he does not begin to carry on his duties until the time
he reports at the Port of Montreal. He is then remunerated
retroactively from 8 am, 4 pm or midnight, as appropriate.
[53] The Appellant is hence not engaged in
the performance of his duties while commuting between his home
and the Port of Montreal, despite the fact that he is
transporting a bag of equipment supplied by his employer and
despite the fact that he is sometimes remunerated while
travelling to the Port of Montreal.
[54] In sum, although the Appellant is
ordinarily required to carry on his duties in different places,
he is not required, under the terms of his employment contract,
to pay travel expenses or motor vehicle expenses. Furthermore,
and on the assumption that the foregoing conclusions are
erroneous, the Appellant was not engaged in the performance of
his duties when he incurred these expenses. Thus, the Appellant
cannot deduct his travel expenses or the motor vehicle expenses
arising from his travel to and from his residence and the Port of
Montreal unless he meets the conditions required by either
paragraph 8(1)(h) or 8(1)(h.1) of the
Act.
[55] Let us now move on to the first
subsidiary issue, namely: "Can the Appellant deduct his
travel expenses and his motor vehicle expenses when he is called
at home with an offer of 'a fishing assignment'?"
The Respondent has submitted no meaningful arguments in respect
of the subsidiary issues and the Appellant has been content to
restate essentially the same arguments as those raised
previously.
[56] Is the Appellant "ordinarily"
required to carry on his duties away from his employer's
place of business or in different places? According to the
Appellant, the numerous docks in the port constitute different
places where he performs his duties. I have already so concluded
and accordingly reiterate this conclusion[23]. Nonetheless, I cannot conclude
that the Appellant was "ordinarily" required to carry
on his duties in these different places because he has not
demonstrated that he was normally, as a matter of regular
occurrence, commonly and usually[24]called at home to go on "a
fishing assignment". I have no evidence that would establish
how many times a week, a month or a year the Appellant was called
at home to go on "a fishing assignment". It is
accordingly impossible for me in this situation to conclude that
the Appellant is "ordinarily" required to carry on his
duties in different places.
[57] Is the Appellant required, under the
terms of his contract of employment, to pay his travel expenses
or his motor vehicle expenses? The Appellant maintains that it is
implicit in his contract of employment that he must use his
vehicle because he has to transport his safety equipment. I
submit that my previous analysis, dealing with the primary issue,
applies here[25].
Indeed, I reiterate that there is no obligation implicit in the
Appellant's contract of employment that he must transport his
safety equipment, nor that he must use his motor vehicle.
Furthermore, in view of the fact that 10% of longshoremen travel
about without having a car, I must affirm that the use of a car
is not essential to the performance of his duties.
[58] Lastly, is the Appellant engaged in the
performance of his duties when he travels to the Port of Montreal
following a call offering him the opportunity of a "fishing
assignment"? The Appellant submits that he is, since he is
then paid for the entire shift, and thus also for the necessary
travel time. As I mentioned previously[26], the evidence revealed that the
employer remunerates the longshoremen in this way in order to
encourage them to accept the offer of "a fishing
assignment". By virtue of this, although the Appellant is
remunerated while he is en route to the Port of Montreal, he is
not engaged in the performance of his duties until the point at
which he reports at the Port of Montreal. In short, it is not a
question of travel, the expenses of which are incurred in the
performance of his duties: these are employment-related expenses.
It is unnecessary to repeat that transporting the bag of
equipment does not alter this conclusion[27].
[59] In summary, the Appellant cannot deduct
his travel expenses or the motor vehicle expenses arising from
his round-trip journey between his residence and the Port of
Montreal, when he is called at home to go on a "fishing
assignment", since he does not meet the conditions required
by either paragraph 8(1)(h) or 8(1)h.1) of the
Act. Although the numerous docks of the Port of Montreal
constitute different places within the meaning of the Act,
this travel is not ordinary. Furthermore, the Appellant is not
required, under the terms of his contract of employment, to pay
for the expenses arising from this travel, nor is he carrying on
his duties when he incurs these expenses.
[60] Let us now examine the second
subsidiary issue: "Can the Appellant deduct his travel
expenses and the motor vehicle expenses resulting from his travel
between the Hiring Hall and the numerous docks of the Port of
Montreal?"
[61] Is the Appellant ordinarily required to
carry on his duties in different places? I reiterate that the
numerous docks of the Port of Montreal constitute different
places[28]. In
addition, the Hiring Hall is, in my opinion, one of these
different places when the Appellant is assigned there in return
for remuneration. The Appellant then is carrying on his duties
there, which in these circumstances consist of being on the
premises and being available for work. I would add that this type
of travel is similar to travel by "an employee who is
required to travel from building to building within the
boundaries of his employer's property"[29]. In such a situation, the employee
is considered as carrying on his duties at different places[30]. The Appellant
is accordingly required to carry on his duties in different
places.
[62] However, I cannot conclude unreservedly
that the Appellant is "ordinarily" required to carry on
his duties at different places. As far as travel from one dock to
another during a shift is concerned, I cannot conclude that this
is done ordinarily, since such travel is exceptional in nature:
the Appellant was called upon to travel in this way between five
and 10 times during the years at issue, and Mr. Langlois
confirmed that he travelled in this way 10 to 15% of the time. We
note that Mr. Langlois has a wider range of skills, which means
that he more often received new assignments during a shift.
Nevertheless, I am of the view that these new assignments during
a shift are not carried out normally, as a matter of regular
occurrence, commonly and usually[31].
[63] With regard to travel from the Hiring
Hall to one or other of the port docks, I conclude that this is
ordinary. The Appellant has affirmed that he was assigned to the
Hiring Hall between 20% and 25% of the time during the years at
issue. In these cases, the Appellant added that he had obtained a
new assignment each time. Éric Langlois said that he
was assigned to the Hiring Hall 50% of the time. On occasions
where he was assigned to the Hiring Hall, Mr. Langlois affirmed
that he was reassigned almost half the time. In my view, travel
between the Hiring Hall and the various docks of the Port of
Montreal is undertaken normally, as a matter of regular
occurrence, commonly and usually[32]. This travel thus meets the
criteria of regularity required by paragraphs 8(1)(h) and
8(1)(h.1) of the Act.
[64] Is the Appellant required, under his
contract of employment, to pay his travel expenses and his motor
vehicle expenses? The Appellant submits that it is implicit in
the longshoremen's employment contracts that they must pay
their travel expenses and the motor vehicle expenses arising from
travel between the Hiring Hall and the various docks of the port,
because of the size of the Port of Montreal, the lack of public
transit, and the transportation of the safety equipment.
[65] The evidence in this case does not
allow me to conclude that it is implicit in the employment of the
longshoremen that they must pay their travel expenses between the
Hiring Hall and the various docks of the Port of Montreal. This
conclusion is based essentially on two facts. On the one hand,
the employer has never required or even asked the longshoremen to
use their cars for this travel. On the other hand, the employer
pays for the taxi expenses occasioned by this travel, for
longshoremen who do not have a motor vehicle. There is nothing in
the evidence, moreover, to show that this would not be the case
for a longshoreman who has a motor vehicle and who chooses not to
use it for his travel within the boundaries of the port. I can
thus not conclude that it is implicit in the contract of the
employment of the longshoremen who have a motor vehicle that they
must pay their travel expenses between the Hiring Hall and the
various docks of the port.
[66] With regard to travel between the docks
of the port in the course of a shift, I can also not conclude
that it is implicit in the Appellant's contract of employment
that he must assume the costs arising therefrom. The Appellant
asserts that the Port of Montreal covers almost 25 kilometres and
that he must transport a relatively heavy bag of equipment, but
does not have access to public transit. Consequently, the
Appellant maintains that it is implicit in his contract that he
must use his car to travel from one dock to another with his bag
of equipment and thus that he must pay his travel expenses.
[67] There has been no evidence introduced
to show that it was imperative for the performance of his duties
that the Appellant have a car to travel from one dock to the
next. On the contrary, 10% of longshoremen do not have a car and
they travel by other means. It has also not been shown that the
employer requires for any reason that the Appellant use his car
to travel from one dock to the next. It thus cannot be implicit
in the Appellant's contract of employment that he is required to
pay his travel expenses and motor vehicle expenses when he
travels between the various docks of the Port of Montreal during
a shift.
[68] Is the Appellant carrying on his duties
when he travels between the Hiring Hall and one or other of the
docks in the port or when he travels from one dock to another?
The answer to this question is in part affirmative. The Appellant
is carrying on his duties when he travels from one dock to
another during a shift at the request of his employer.
[69] In my view, the Appellant is also
carrying on his duties when he travels from the Hiring Hall to
his assigned dock, when he has been expressly assigned to the
Hiring Hall for remuneration. I recall that the Appellant and Mr.
Langlois testified that the longshoremen who are assigned to the
Hiring Hall are required to go there, to remain until 9.30 am,
and to report there again from noon to 2 pm. The Appellant and
Mr. Langlois have confirmed that they are then paid, whether or
not they receive an assignment. Mr. Bédard explained that
a number of longshoremen are assigned every day to the Hiring
Hall in anticipation of absences. The longshoremen assigned to
the Hiring Hall are thus carrying on their duties, even if they
are not performing the ordinary duties of a longshoreman.
Consequently, their travel between the Hiring Hall and their
assigned dock is done in the course of the performance of their
duties.
[70] This is not the case for longshoremen
who report voluntarily to the Hiring Hall in order to obtain a
"fishing assignment". It is by choice that the longshoremen
travel from home to the Hiring Hall in order to be able to work
overtime. In such cases, they are remunerated only if they obtain
an assignment and I assume that it is entirely up to them whether
or not they remain in the Hiring Hall during opening hours. The
longshoremen are not, under such circumstances, engaged in the
performance of their duties. The Hiring Hall then is analogous to
their residence, and travel between the Hiring Hall and one or
other of the docks of the Port of Montreal does not constitute
travel in the course of the performance of their duties. This is
travel of a personal nature in the same way as travel when the
longshoremen leave their residence to go to work.
[71] Consequently, my conclusions with
regard to the Appellant's second subsidiary issue can be
summarized as follows: the travel that the Appellant may do in
between the Hiring Hall and one or other of the docks of the Port
of Montreal is ordinary travel between different places if the
Appellant is expressly assigned to the Hiring Hall in return for
remuneration. (The Hiring Hall is not a place where the Appellant
performs his duties when he travels there of his own volition to
obtain a "fishing assignment".) Furthermore, the
Appellant's contract of employment does not stipulate, even
implicitly, that he must pay the travel expenses and motor
vehicle expenses arising from such travel. Lastly, the Appellant
is not engaged in the performance of his duties during his travel
between the Hiring Hall and his assigned dock unless he has been
specifically assigned to the Hiring Hall. The conditions of
paragraphs 8(1)(h) and 8(1)(h.1) of the Act
are thus not all met: the Appellant cannot deduct the expenses
arising from his travel between the Hiring Hall and the docks of
the Port of Montreal.
[72] The travel that the Appellant may do
between the various docks of the Port of Montreal at the request
of his employer during a shift is travel between different
places. However, the Appellant is not ordinarily required to
carry on his duties at different docks in the course of a shift.
Furthermore, the Appellant's contract of employment does not
stipulate that he must pay his travel expenses. I nonetheless
recognize that the Appellant is engaged in the performance of his
duties during this travel. The conditions of paragraphs
8(1)(h) and 8(1)(h.1) of the Act are thus
not all met: the Appellant cannot deduct the expenses arising
from his travel between the various docks of the Port of
Montreal.
[73] In light of my conclusions with regard
to the question at issue, the appeals must be dismissed, without
costs.
Signed at Ottawa, Ontario, the 19th day of August, 2004.
Bédard J.
Certified true translation
Colette Dupuis-Beaulne
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