Cross v. R., [1998] 3 CTC 224, 98 DTC 6328

Rothstein J.:

The appellant, who is self represented, appeals from the decision of Deputy Judge R.H. King of the Tax Court of Canada which dismissed his appeal and found that his travelling expenses to get to and from work were personal expenses and could not be deducted as an expense in computing taxable income.

The evidence and argument in this Court are virtually identical to the evidence and argument in the Tax Court. No useful purpose would be served by a recitation of the detailed facts or the many cases which have found that commuting or travelling expenses to get to and from work are not deductible. The case that comes closest to the facts here is Mifsud v. Minister of National Revenue (1978), 78 D.T.C. 1408 (T.R.B.) and there is no reason not to follow that case in which commuting expenses of unionized employees involving considerable distance were found not to be deductible.

The appellant says that his mobility rights under subsection 6(2) of the Canadian Charter of Rights and Freedom, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11, are infringed because he cannot deduct his travelling expenses from Saskatoon to work in Ontario and other places in Saskatchewan. The simple answer is found in the dicta of Mitchell J.A. in Walker v. Prince Edward Island (1993), 107 D.L.R. (4th) 69 (P.E.I. C.A.), at 77:

Section 6(2)(b) does not guarantee a free standing right to work. Skapinker v. Law Society of Upper Canada (1984), 9 D.L.R. (4th) 161 (S.C.C.) at p. 181, (1984), 11 C.C.C. (3d) 481, [1984] 1 S.C.R. 357 (S.C.C.) . It simply guarantees all Canadian citizens and permanent residents the right to pursue a livelihood of choice in any province on the same terms and conditions as the residents of that province. [1]

That the Income Tax Act, R.S.C. 1952, c. 148, as amended, does not permit the deduction of travelling expenses to work in another province is not an infringement of mobility rights under subsection 6(2) of the Charter.

The appellant then says that he is the subject of discrimination under section 15 of the Charter. He says that subsection 6(6) of the Income Tax Act provides that a reasonable allowance received from an employer in respect of board and lodging and transportation at, and to and from, a “special work site” or “remote location” is not to be included in income. He says that in comparison to persons under subsection 6(6) he is treated unfairly under the Income Tax Act. He says that as he received no allowance for travelling and living expenses, he should be entitled to a deduction of his travelling and living expenses. Only in that way would he be treated the same as persons under subsection 6(6).

The appellant’s argument is flawed for many reasons not all of which need be set out. While the appellant wants to be compared to those under subsection 6(6), the most obvious comparison would be with the vast majority of employees who are not allowed to deduct their travelling and living expenses under the Income Tax Act. The appellant seems to think that the distance he must travel has some bearing on the issue but it does not. Further, the appellant has not identified himself with an enumerated ground under section 15 nor any possible analogous ground. He does not advance any of the indicia set forth in the jurisprudence under section 15 from which an analogous group may be identified.

The appeal is dismissed.

Appeal dismissed.