A-799-00
2002 FCA 177
Derek Hogg (Applicant)
v.
Her Majesty the Queen (Respondent)
and
Ontario Conference of Judges/Conférence des Juges de l'Ontario (Intervener)
Indexed as: Hogg v. Canada (C.A.)
Court of Appeal, Décary, Rothstein and Nadon JJ.A.-- Toronto, April 30; Ottawa, May 7, 2002.
Income Tax -- Income Calculation -- Deductions -- Judicial review of Tax Court's decision motor vehicle expenses incurred in travelling between home, place of work not deductible -- Applicant Ontario Provincial Court Judge -- Travelled between home, Courthouse in own car -- Income Tax Act, s. 8(1)(h.1) permitting deduction of "motor vehicle expenses incurred for travelling in the course of the office or employment" where taxpayer ordinarily required to carry on duties of office away from employer's place of business or in different places, and required under contract of employment to pay "motor vehicle expenses incurred for travelling in the course of the office or employment" -- Application dismissed -- "Motor vehicle expenses incurred for travelling in the course of the office or employment" requiring expenses be incurred by officer holder while performing duties.
Construction of Statutes -- Income Tax Act, s. 8(1)(h.1) permitting deduction of "motor vehicle expenses incurred for travelling in the course of the office or employment" where taxpayer ordinarily required to carry on duties of office away from employer's place of business or in different places, and required under contract of employment to pay "motor vehicle expenses incurred for travelling in the course of the office or employment" -- Necessarily requires expenses be incurred while performing duties as opposed to simply getting to work -- French text ("l'accomplissement des fonctions de sa charge", "dans l'exercise des fonctions de son emploi") supporting this interpretation.
Judges and Courts -- Ontario Provincial Court Judge seeking to deduct expenses of travelling by car between home, Courthouse under Income Tax Act, s. 8(1)(h.1) -- Arguing obliged to take car because of security concerns -- Such concerns irrelevant to entitlement to deduction -- While driving between home, Courthouse applicant incurring personal expenses -- Cannot be claimed as deduction.
statutes and regulations judicially
considered
Criminal Code, R.S.C., 1985, c. C-46, s. 369(b).
| Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1, s. 8(1)(h.1) (as enacted by S.C. 1994, c. 7, Sch. II, s. 5). |
cases judicially considered
applied:
Ricketts v. Colquhoun, [1926] A.C. 1 (H.L.); O'Neil v. Canada (2000), 2000 DTC 2409 (T.C.C.); Canada v. Mac, 2002 SCC 24; [2002] S.C.J. No. 26.
referred to:
Scott v. Canada (1998), 162 D.L.R. (4th) 595; [1998] 4 C.T.C. 103; 98 DTC 6530; 229 N.R. 273 (F.C.A.).
APPLICATION for judicial review of the Tax Court's decision that motor vehicle expenses incurred by an Ontario Provincial Court Judge in travelling between home and the Courthouse were not deductible under Income Tax Act, paragraph 8(1)(h.1) (Hogg v. Canada, [2000] T.C.J. No. 784). Application dismissed.
appearances:
Donald G. Martin, Q.C. for applicant.
J. Paul Malette, Q.C. and Jenna L. Clark for respondent.
Robert G. Kreklewetz and Teresa Galle for intervener.
solicitors of record:
Thompson, Tooze, McLean & Elkin, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
Millar Wyslobicky Kreklewetz, Toronto, for intervener.
The following are the reasons for judgment rendered in English by
[1]Nadon J.A.: This is a judicial review application of Judge Campbell of the Tax Court of Canada, rendered on November 14, 2002 ([2002] T.C.J. No. 784 (QL)). The Tax Court Judge concluded that in respect of taxation years 1996 and 1997, the applicant could not deduct the motor vehicle expenses that he incurred in travelling to and from his home to his place of work.
[2]The applicant is a judge of the Ontario Provincial Court, Criminal Division. At the relevant time, he was the Administrative Judge and his office was situated in the East Mall Provincial Court in Etobicoke (the Courthouse). The applicant travelled to and from his home to the Courthouse in his own car. When presiding away from the Courthouse or when attending meetings at other locations, he also travelled in his own car.
[3]At issue before the Tax Court Judge and before us is the deductibility of the motor vehicle expenses incurred by the applicant in travelling to and from his residence to the Courthouse.
[4]The Tax Court Judge, after a careful review of the evidence, examined the relevant statutory provisions and in particular paragraph 8(1)(h.1) [as enacted by S.C. 1994, c. 7, Sch. II, s. 5] of the Income Tax Act [R.S.C., 1985 (5th Supp.), c. 1] (the Act) which reads as follows:
8. (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.1) where the taxpayer, in the year,
(i) 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
(ii) 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
(iii) 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
(iv) claims a deduction for the year under paragraph (f);
[5]On her view of paragraph 8(1)(h.1) of the Act and relying, inter alia, on the decision of the House of Lords in Ricketts v. Colquhoun, [1926] A.C. 1 the Tax Court Judge concluded that the applicant was not entitled to the deduction claimed. In Ricketts, supra, the House of Lords held that expenses incurred by a taxpayer in commuting to and from his home to his place of work were not expenses incurred in the course of the taxpayer's performance of his duties but rather expenses incurred in order to allow him to perform his duties. Hence, these expenses were treated as personal expenses and could not be claimed as a deduction by the taxpayer.
[6]In concluding as she did, the Tax Court Judge rejected the applicant's argument that he was entitled to the deduction because he was obliged to take his car to get to the Courthouse by reason of security concerns. In the view of the Tax Court Judge, the applicant's decision to use his vehicle to get to the Courthouse, notwithstanding concerns for his security, was a personal one and, as a result, did not fall within the statutory framework of section 8 of the Act.
[7]In my view, the Tax Court Judge made no error in concluding that the applicant was not entitled to the deduction claimed.
[8]Both the applicant and the intervener argued that the requirements of paragraph 8(1)(h.1) of the Act had been met by the applicant and that he was therefore entitled to the deduction claimed. Mr. Kreklewetz, for the intervener, invited us to distinguish Ricketts, supra, which he characterized as "old or irrelevant foreign jurisprudence", on the ground that the statutory language before the House of Lords in that case was not as broad as the language used in paragraph 8(1)(h.1) of the Act. After pointing out that the English statute required the expenses to have been incurred "for travelling in the performance of the duties of the office" whereas the Act required the expenses to have been incurred "for travelling in the course of the office", Mr. Kreklewetz argued that the words "expenses incurred for travelling in the course of the office" were broad enough to include the expenses claimed as a deduction by the applicant. In Mr. Kreklewetz's submission, although those expenses were not incurred in the performance of the applicant's duties they were obviously incurred in the course of his office.
[9]In my view, Ricketts, supra, cannot be distinguished on the basis proposed by Mr. Kreklewetz. Viscount Cave L.C., in concluding that the expenses incurred by the taxpayer in travelling to and from his home to his place of work could not be deducted, made the following remarks at page 4:
As regards the appellant's travelling expenses to and from Portsmouth, with which may be linked the small payment for the carriage to the Court of the tin box containing his robes and wig, the material words of the rule are those which provide that, if the holder of an office is "necessarily obliged to incur . . . . the expenses of travelling in the performance of the duties of the office" the expenses so "necessarily incurred" may be deducted from the emoluments to be assessed. The question is whether the travelling expenses in question fall within that description. Having given the best consideration that I can to the question, I agree with the Commissioners and with the Courts below in holding that they do not. In order that they may be deductible under this rule from an assessment under Sch. E, they must be expenses which the holder of an office is necessarily obliged to incur--that is to say, obliged by the very fact that he holds the office and has to perform its duties--and they must be incurred in--that is, in the course of--the performance of those duties.
The expenses in question in this case do not appear to me to satisfy either test. They are incurred not because the appellant holds the office of Recorder of Portsmouth, but because, living and practising away from Portsmouth, he must travel to that place before he can begin to perform his duties as Recorder and, having concluded those duties, desires to return home. They are incurred, not in the course of performing his duties, but partly before he enters upon them, and partly after he has fulfilled them. [Emphasis added.]
[10]In my view, it is clear that Viscount Cave L.C., understood the meaning of the words "in the performance of those duties" to be the same as that of the words "in the course of performing his duties". Paragraph 8(1)(h.1) uses the expressions "expenses incurred in the performance of the duties of the office" and "expenses incurred for travelling in the course of the office". The "motor vehicle expenses incurred for travelling in the course of the office" necessarily require that these expenses be incurred by the holder of the office while performing his duties. The paragraph cannot be read otherwise.
[11]Although the distinction which Mr. Kreklewetz invited us to make appeared, at first glance, attractive it is without merit. In O'Neil v. Canada (2000), 2000 DTC 2409, Judge Rip of the Tax Court dealt with a similar argument. At paragraphs 23 and 24 of his reasons, he concludes that "travelling in the course of the office or employment" necessarily involves the performance "of some service as compared to simply getting oneself to the place of work". I cannot but subscribe to Judge Rip's interpretation.
[12]I find support for this interpretation in the French version of paragraph 8(1)(h.1) which leaves no doubt in my mind that the motor vehicle expenses in respect of which a taxpayer may claim a deduction must have been incurred in the course of performing the duties of his office. The French text uses the words "l'accomplissement des fonctions de sa charge" and "dans l'exercice des fonctions de son emploi". In Canada v. Mac, 2002 SCC 24; [2002] S.C.J. No. 26, the Supreme Court of Canada dealt with the interpretation of the word "adapted" as it appeared in paragraph 369(b) of the Criminal Code, R.S.C., 1985, c. C-46. In concluding that the English word "adapted" meant "suitable for", Mr. Justice Bastarache examined both the English and French texts of the section. At paragraphs 5-7 of his reasons, he explained his rationale as follows:
The Criminal Code is a bilingual statute of which both the English and French versions are equally authoritative. In his Interpretation of Legislation in Canada (3rd ed. 2000), at p. 327, Pierre-André Côté reminds us that statutory interpretation of bilingual enactments begins with a search for the shared meaning between the two versions. Where the words of one version may raise an ambiguity, courts should first look to the other official language version to determine whether its meaning is plain and unequivocal.
In this case, any ambiguity arising from the English version is resolved by the clear and unambiguous language of the French version of s. 369(b). There is therefore no need to resort to further rules of statutory interpretation, such as those invoked by the Court of Appeal.
Section 369(b) and s. 342.01(1)(d), as noted by Doherty J.A., are related provisions. They must be read together. The French version of s. 342.01(1)(d) uses the word "modifié" for the English word "adapted". In contrast, in s. 369(b), the word "adapté" is used together with the English expression "adapted". This makes clear that, in the first case, "adapted" means altered or modified, while in the second case it does not. Thus the common meaning of "adapted/adapté" in s. s. 369(b) is "suitable for".
[13]Thus, in my view, a plain reading of both the French and English texts of paragraph 8(1)(h.1) of the Act makes it clear that the words "motor vehicle expenses incurred for travelling in the course of the office" necessarily require that these expenses be incurred by the taxpayer while performing the duties of his office.
[14]The applicant and the intervener further argued, relying on this Court's decision in Scott v. Canada (1998), 162 D.L.R. (4th) 595 (F.C.A.), that the applicant's legitimate security concerns justified the use of his car and hence entitled him to the deduction claimed. At paragraph 36 of its memorandum, the intervener put its submission in the following terms:
| i. a Judge's needs for safety and privacy were legitimate needs, and ones which the Expenses met; |
| ii. a Judge's needs for safety and privacy existed precisely because of the nature of the Judicial Office; and |
| iii. safety and privacy were needs that were entirely intrinsic to the Applicant's Judicial Office. |
[15]For the reasons given by the Tax Court, I am of the view that the applicant's security concerns are irrelevant with respect to whether or not he is entitled to a deduction under paragraph 8(1)(h.1) of the Act. It goes without saying that I am not unsympathetic to the applicant's security concerns, but these are a matter that the applicant may wish to take up with his "employer". It remains, however, that while driving to and from his home to the Courthouse, the applicant is incurring expenses that are personal and that cannot be claimed as a deduction.
[16]For these reasons, this application for judicial review should be dismissed with costs.
Décary J.A.: I agree.
Rothstein J.A.: I agree.