Bernier Estate v. MNR, 90 DTC 1220, [1990] 1 CTC 2535 (TCC)

Lamarre Proulx, T.C.J.:—This is an appeal by Jean-Charles Bernier concerning his 1985 taxation year. He died before the hearing of this case, and so the pleadings were amended to change the name of the appellant to the Estate of the late Jean-Charles Bernier. This request was made at the hearing. The respondent did not object and the Court acceded to the request.

This appeal concerns the method of measuring the distance referred to in subsection 62(1) of the Income Tax Act. Is this distance to be measured in a straight line or by the normal route used by the taxpayer to get to his place of work? If we measure the relevant distances under subsection 62(1) of the Act in a straight line, the taxpayer is not entitled to the deduction provided in that subsection.

There are two decisions of this Court on this point: Robert C. Haines v. M.N.R., [1984] C.T.C. 2422; 84 D.T.C. 1375, and Susan Bracken v. M.N.R., [1984] C.T.C. 2922; 84 D.T.C. 1813. These two decisions held that this distance is to be measured in a straight line, "as the crow flies”. These decisions reflect the decisions in two English cases: Lake v. Butler (1855), 24 Law J. Rep. (NS) 273, and Jewell and Another v. Stead (1856), 25 Law J. Rep. (NS) 294.

In both these English cases in which the method of measuring distances is discussed, it was held that "this distance is a straight measurement not by road or other method of transportation between the two points but 'as the crow flies'". In Lake v. Butler the meaning of the word distance was examined in the context of the Court's territorial jurisdiction. In Jewell and Another v. Stead, according to the case headnote, “a Turnpike Act provided that no toll gate should be erected, nor any toll taken, within three miles of B. It was held that the three miles were to be measured in a straight line on an horizontal plan, and not along the roads".

Counsel for the appellant argued that using a straight-line measurement could lead to absurd results. He gave me as an example the case of a taxpayer living on the shore of a major waterway such as the St Lawrence or the Ottawa River, whose new place of work is located on the other shore. He moves there because there is no bridge in the vicinity. This taxpayer, who could be located hundreds of kilometres away from his new place of work by road, could not deduct moving expenses if the straight-line measurement test is used. The same would be true for numerous other reasons involving geography or the existence of roads. On this point he referred me to the principles of interpretation of statutes, and specifically Pierre-André Côté's work entitled The Interpretation of Legislation, published by Les Éditions Yvon Blais.

The following passage appears at page 355 of that book:

. . . it favours the interpretation that does not produce unwanted or inequitable results over one that does. Mr Justice Cartwright, in Vandekerckhove v Township of Middleton i [1] expressed it this way;

There is ample authority for the proposition that when the language used by the legislature admits of two constructions one of which would lead to obvious injustice or absurdity the courts act on the view that such a result could not have been intended.

At pages 300 et seq. he discusses the importance of the object in the interpretation of legislation, and I quote, at page 302:

In Hirsch v Protestant Board of School Commissioners of Montreal, [2] Mr Justice Anglin cited with approval the words of Lord Blackburn in Bradlaugh v Clarke: [3]

All statutes are to be construed by the Courts so as to give effect to the intention which is expressed by the words used in the statute. But that is not to be discovered by considering those words in the abstract, but by inquiring what is the intention expressed by those words used in a statute with reference to the subject matter and for the object with which that statute was made . . . .

In A.G. for Canada v. Hallet & Carey Ltd., [4] Lord Radcliffe wrote, at page 449:

In their Lordships' view there is no better way of approaching the interpretation of this Act than to endeavour to appreciate the general object that it serves and to give its words their natural meaning in the light of that object. There are many so- called rules of construction that courts of law have resorted to in their interpretation of statutes, but the paramount rule remains that every statute is to be expounded according to its manifest or expressed intention.

On the specific point of the definition of distance, counsel for the appellant referred me to two American cases: Jennings v. Menaugh et al., 118 Federal Reporter 612 and State ex rel Johnson v. Mostad et al. School Directors (Supreme Court of North Dakota June 1, 1916), 158 Northwestern Reporter 349. The issue in the first case was the distance from which a witness could be required to travel to testify in a case. It was decided that "the distance is to be determined by the ordinary, usual and shortest route of public travel and not by a mathematically straight line between the place of residence and the place of trial”. In the second, the Court had to rule on the following case: section 18 of the Compiled Laws of 1912 provided that “if a petition signed by the persons charged with the support and having the custody and care of nine or more children of school age, all of whom reside not less than two and one half miles from the nearest school, is presented to the Board, asking for the organization of a school for such children, the Board shall organize such school and employ a teacher therefore, . . .". The Court expressed one of the two questions in issue as follows:

whether in computing the distance a pupil is from a school one should measure:

(a) in a straight line and as the bird flies,

(b) by the roads which are fit for or have been rendered fit for travel,

(c) or by the roads which are actually laid out and are fit for travel and in addition the section lines which, though designated by the statute to be highways, have not yet been laid out as such and are not reasonably passable.

The Court was of the opinion that:

on the first question submitted, we are of the opinion that the Legislature could not have possibly intended that the distance should be measured in a straight line or as the bird flies. As Counsel for Respondent has suggested, the straight line theory would mean that a community on one side of the Missouri river might be deprived of school facilities merely because a school happened to be located across the stream. This the Legislature could never have intended.

We are however, of the opinion, and hold that the measure of distance must be determined by the roads which are actually travelled or at present capable of travel . . . .

Counsel for the respondent referred me to the case of Hard v. The Deputy Minister of Revenue of the Province of Quebec, [1977] C.T.C. 441; 77 D.T.C. 5438; [1978] 1 S.C.R. 851. This decision discusses, inter alia, the weight to be given to the administrative policy of the Ministry of Revenue when the wording of the legislation is ambiguous. Mr. Justice de Grandpré stated, at page 859:

Once again, I am not saying that the administrative interpretation could contradict a Clear legislative text; but in a situation such as I have just outlined, this interpretation has real weight and, in case of doubt about the meaning of the legislation, becomes an important factor.

Unfortunately, the administrative policy in this matter is far from clear to me. There is no reference to the method of calculating the distance in Interpretation Bulletin IT 178R2, which deals with moving expenses. In the pamphlet that Revenue Canada published in the series "Income Tax-Family Series” the method of calculating the moving distance is explained as follows:

. . . to determine whether or not your move brings you at least 40 kilometres closer to your new location. We suggest that you make your measurements on a map using the "straight-line" method. (Emphasis added)

Were it not for the decisions of my two colleagues in Haines and Bracken, I would have decided the matter as proposed by counsel for the appellant. However, on reading the decisions of my colleagues in Haines and Bracken, it seems clear to me that the decision that the distance be calculated in a straight line is not in the nature of an obiter dictum, but is a significant, although not primary, element in the ratio decidendi of each of these two cases. On this point I would quote Mr. Justice Duff in Stuart v. Bank of Montreal (1909), 41 S.C.R. 516 at 534:

. . . "it is", said Lord Macnaghten, in New South Wales Taxation Commissioners v. Palmer, [1907] AC 179, at p 184, "impossible to treat a proposition which the court declares to be a distinct and sufficient ground for its decision as a mere dictum because there is another ground upon which, standing alone, the case might have been determined."

If I refer to the words of Mr. Justice Gerald Fauteux at page 143 of his Livre du Magistrat on the importance of consistent decisions within a court of first instance, I find the following passage:

[Translation]

A judge certainly always has the right, if not sometimes the duty, to differ and to deliver a judgment that is contrary to the case law, if he is clearly convinced that the case law is wrong and that he is faced with very strong reasons for differing.

However, these reasons must be such as those described by Chief Justice McRuer in Regina v. Northern Electric Co Ltd et al, [1955] 3 DLR 449, 466:

I think that "strong reason to the contrary" does not mean a strong argumentative reason appealing to the particular Judge, but something that may indicate that the prior decision was given without consideration of a statute or some authority that ought to have been followed. I do not think "strong reason to the contrary” is to be construed according to the flexibility of the mind of the particular Judge.

In the event that the judge is convinced, for the reasons set out above, that a precedent or line of cases decided by his court is wrong, he could surely not decide to follow it taking as his guide the commendable sentiment of collegiality that prevails among judges of the same court.

While I may not be bound by the rule of stare decisis, since these are not decisions of a higher court, nor can I, on the other hand, say that these decisions were made without consideration of the relevant legislation, since the same section of the Interpretation Act on which I would rely in finding for the appellant was considered by the Associate Chief Judge in the Bracken case. The section in question is section 12 (then 11) of the Interpretation Act, R.S.C. 1985, c. 1-21:

Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

In my view, the remedy in subsection 62(1) should be interpreted in relation to the workers, and the distance in question should be measured by the worker's normal route or the route that he would normally take to go from home to his place of work. The American legislature has been more specific. A provision of section 217 of the American Internal Revenue Code, which is similar to section 62 of the Act, provides that "the distance between two points shall be the shortest of the more commonly travelled routes between such two points".

However, I am of the opinion that in the circumstances of this case I am bound, in the interests of justice, by the earlier decisions of my colleagues and must leave the issue to be decided by a higher court. Stability and consistency in the decisions of a court are important. On this point, I adopt the positions of my colleague Judge Tremblay in B.B. Fast & Sons Distributors Ltd. v. M.N.R., [1982] C.T.C. 2002; 82 D.T.C. 1017; [1984] C.T.C. 626; 84 D.T.C. 6554; [1986] 1 C.T.C. 299; 86 D.T.C. 6106, and Mr. Justice Jackett in Canada Steamship Lines Limited v. M.N.R., [1966] Ex. C.R. 972; [1966] C.T.C. 255; 66 D.T.C. 5205.

For the foregoing reasons, the appeal is dismissed.

Appeal dismissed.