The Chairman (orally: April 14, 1975):
1 This is an appeal by Ervine E Deimert against the assessment of the Minister of National Revenue for the 1971 taxation year.
2 The facts are that the appellant is a locomotive engineer, and has been an engineer with the Canadian Pacific Railway since 1952. He lives in Regina, and his seniority is not such that he can work regularly out of Regina. In fact, in the year in question, he spent approximately six months working in Assiniboia. The procedure was that late Sunday night he would receive instructions, usually by telephone, from the Yard at Regina to which he would normally report to work, to attend at Assiniboia. He usually went out on Sunday night. As he said, they positioned the cars, and since this was mainly a grain operation and the grain people did not work on Saturday and Sunday, his work would usually start on Monday. Sometimes he would have occasion to return to Regina before the end of the week, but usually I think it can be said he left Regina on Sunday night and returned on Saturday.
3 The question at issue is whether or not the appellant is entitled to the travelling expenses he has claimed, and he has put forward, in support of such a claim, the provisions of subsections 11(7) and 11(9) of the Income Tax Act as it applied to the 1971 taxation year.
4 The Minister, on the other hand, has relied on the case of Her Majesty the Queen v Thomas E Little, [1974] C.T.C. 678, 74 D.T.C. 6534, a decision of Mr Justice Cattanach of the Trial Division of the Federal Court of Canada which overruled a decision of the Tax Review Board.
5 In that case, the appellant Little, according to the evidence, was a locomotive engineer, and he frequently drew duty operating locomo tives in railway yards when posted to a yard in a locality outside his place of residence, the defendant did not normally return home at night, remaining instead at the yard for the duration of the five-day shift. Sleeping accommodation was provided at no cost, but meals had to be purchased. In computing his income tax for the taxation year in question, the defendant deducted the cost of the meals away from home. The Minister disallowed the deduction maintaining that the defendant did not come within subsection 11(7). When the Tax Review Board, in an unreported decision, allowed the deduction, the Minister appealed to the Federal Court, and the appeal was allowed.
6 The Honourable Mr Justice Cattanach said that the question turned on where the defendant reported to work when given an assignment. It is clear from the facts, that regardless of when he received his instructions, he reported for work in the locality where he was assigned to work. In performing his duties, the defendant was not required to leave the railway yard and therefore he could not claim to have travelled outside the municipality where he reported for work, as required by subsection 11(7).
7 I have no hesitation whatsoever in saying that this case is easily distinguishable from the Little case in that the question of remaining in the Assiniboia yard is clearly negated by the appellant, who has indicated that he made trips from Assiniboia to two or three other locations ranging from 70 to 100 miles distant, and is a far different situation from that which existed in the Little case.
8 In my view he was working in Regina and was ordinarily required, by virtue of his lack of seniority, to travel away from Regina, and clearly falls within the provisions of subsection 11(9) and/or subsection 11(7).
9 On all the evidence I would allow the appeal and vacate the assessment.
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