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T-2003-76
Alger F. Walls (Respondent) (Plaintiff)
v.
The Queen (Applicant) (Defendant)
Trial Division, Gibson J.—Windsor, June 24; Ottawa, July 16, 1976.
Income tax—Plaintiff employed in goods transport required to travel away from place of business in Windsor—Seeking to deduct disbursements for meals consumed in Detroit, under section 11(7) of Income Tax Act—Defendant disallowing— Whether Detroit and suburbs part of metropolitan area of Windsor—Income Tax Act, R.S.C. 1952, c. 148, s. 11(7).
Plaintiff was employed by a person whose principal business was goods transport and whose head office was in Windsor. He was required to travel away from his place of work and claimed deductions for meals consumed in Detroit, for which he was not reimbursed, under section 11(7) of the Income Tax Act. Defendant disallowed the deduction on the basis that the City of Detroit and suburbs were not away from the metropolitan area of Windsor. Plaintiff sought a judgment that Detroit and its suburbs were not part of the metropolitan area of Windsor and that the disbursements were deductible.
Held, the question is answered affirmatively. The City of Detroit is across an international boundary. It is not integrated in any way with the City of Windsor, and does not "pertain" or "belong" in any way to Windsor. There is a very great doubt that Windsor has a "metropolitan area" at all within the meaning of the subsection. And, in any event, it would be nonsensical to hold that Detroit and suburbs were part of the "metropolitan area" of Windsor.
Lumsden v. Commissioners of Inland Revenue [1914] A.C. 877 (H.L.), applied.
STATED case. COUNSEL:
G. J. Courey for respondent (plaintiff). N. Nichols for applicant (defendant).
SOLICITORS:
Paroian, Courey, Cohen & Houston, Wind- sor, for respondent (plaintiff).
Deputy Attorney General of Canada for applicant (defendant).
The following are the reasons for judgment rendered in English by
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 "met- ropolitan area" of the City of Windsor, and accordingly, the plaintiff is entitled to deduct disbursements for meals.
The relevant applicable statutory provision is section 11(7) of the Income Tax Act as it then was, namely:
(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 pas senger and goods transport and the duties of the employment required him regularly,
(a) to travel, away from the municipality where the employ er'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. [Emphasis added.]
The plaintiff deducted certain sums in the calcu lation of his taxable income in his 1970 and 1971 taxation years ostensibly pursuant to the said provisions of section 11(7) of the Income Tax Act, R.S.C. 1952, c. 148, as amended prior to the amendment of S.C. 1970-71-72, c. 63.
The Minister of National Revenue has disal lowed the deduction of such sums on the basis that such disbursements are not deductible by the plaintiff pursuant to the said section 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 section 173(1) of the Income Tax Act, and pursu ant to section 17(3) of the Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.), 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 bf 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, R.S.C. 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 princi pal 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 regu larly 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 employer did not reimburse the Plaintiff, nor was the Plaintiff entitled to any reimbursement in respect of those disbursements;
6. The Plaintiff in calculating his taxable income for his 1970 and 1971 taxation years deducted the amount of these disburse ments, 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 Plaintiffs 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 Plaintiffs 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 1 / 2 and 11 hours later. During such time, the Plaintiff makes three trips with each trip averaging between 3 1 / 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, R.S.C. 1952, c. 148, as amended 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 R.S.C. 1952 c. I48?
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 Munici pality of Sandwich West was substantially annexed to Windsor so that there is left only in Sandwich West about 5,000 persons;
3. The Municipality of Sandwich South was annexed in part to Windsor so that there is now left in Sandwich South only about 5,000 persons;
4. By annexation the Municipalities of Sand wich East and Riverside were annexed to Wind- sor so that they no longer exist;
5. The Municipality of Tecumseh has a popula tion 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 munici palities of very substantial size contiguous to it which extend for 20 to 30 miles.
Certain dictionary definitions of the word "met- ropolitan" are as follows:
Metropolitan ... Of, pertaining to, or constituting a met ropolis. Also, belonging to or characteristic of the metropolis (London).... A chief town or metropolis ... .
(The Shorter Oxford English Dictionary on Historical Princi ples, Third Edition.)
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 envi rons: 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 "per- tain" are as follows:
pertain ... To have reference or relation; to relate; as, docu ments 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 English Dictionary on Historical Princi ples, Third Edition.)
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 "per-
tain" 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 section 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' 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 896-97:
... 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 especial ly 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.
' [1914] A.C. 877 (H.L.).
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