T-2916-75
The Queen (Plaintiff)
v.
Ervin E. Diemert (Defendant)
Trial Division, Cattanach J.—Regina, April 21;
Ottawa, April 29, 1976.
Income tax—Deductions—Defendant, railway engineer,
living in Regina and working out of Assiniboia—Claiming
$2,589 for meals and car expenses—Plaintiff disallowing $829
as expenses of 37 return trips to Assiniboia and 1 to Wey-
burn—Income Tax Act, R.S.C. 1952, c. 148, s. 5(1)(a),(b),
11(7),(9),(9a); S.C. 1970-71-72, c. 163, s. 178(2).
Defendant, a railway engineer, resided in Regina, and, for
some time in 1971, was assigned to work out of Assiniboia. He
claimed $2,589 as a deduction for "meals and car expenses", of
which the Minister disallowed $829, the expenses of 37 return
trips from Regina to Assiniboia, and 1 from Regina to Wey-
burn. The $1,760 claim for meals was allowed, as it came
within section 11(7) of the Income Tax Act. He did not claim
for meals consumed in Assiniboia or for lodging in Assiniboia.
The Tax Appeal Board allowed the $829 deduction, and this
appeal resulted.
Held, allowing the appeal, the deduction was properly disal
lowed. In order to succeed, defendant must meet all of the
conditions precedent to the applicability of section 11(9).
Assuming that the preliminary conditions as set out in section
11(9)(a),(b) and (c) have been met, what may be deducted are
"amounts expended ... for travelling in the course of ...
employment." It is well settled that expenses of travelling to
work cannot be deducted from remuneration received for per
forming the work. The distinction here is between travelling on
his work (i.e. driving a locomotive along the tracks leading out
of Assiniboia) and travelling to his work (i.e. driving his private
car from Regina to Assiniboia and Weyburn). The starting
point of defendant's work was Assiniboia (and once, Weyburn);
this was his "home terminal". Defendant was an employee; he
had, while assigned to Assiniboia, one place of employment,
and that was Assiniboia, and in another instance, Weyburn.
The trips in his own car were not for the employer's benefit, on
its behalf, at its discretion, or under its control. The utmost that
can be said of the 38 journeys is that they were made in
consequence of defendant's employment, a far different thing
than travelling in the course of his employment.
Lumbers v. M.N.R. [1943] Ex.C.R. 202; The Queen v.
Little 74 DTC 6534, followed. Ricketts v. Colquhoun
[1926] A.C. 1; Mahaffy v. M.N.R. [1946] S.C.R. 450;
Luks v. M.N.R. [1959] Ex.C.R. 45, applied. Owen v. Pook
[1969] 2 All E.R. 1; Taylor v. Provan [1974] 1 All E.R.
1201, discussed. Cumming v. M.N.R. [1968] 1 Ex.C.R.
425, distinguished.
INCOME tax appeal.
COUNSEL:
C. Fryers for plaintiff.
L. Smith for defendant.
SOLICITORS:
Deputy Attorney General of Canada for
plaintiff.
McDougall, Ready, Wakeling, Youck and
Kuski, Regina, for defendant.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: This is an appeal by Her
Majesty the Queen from a decision of the Tax
Review Board dated September 12, 1975, with
respect to the assessment of the defendant to
income tax by the Minister of National Revenue
for the defendant's 1971 taxation year.
The defendant was employed by the Canadian
Pacific Railway originally as a fireman but he
became qualified for and was promoted to a
locomotive engineer. Because of this promotion,
which I recall the evidence to indicate as occurring
late in 1970, the defendant ranked high on the
seniority list of firemen but very low on the sen
iority list of engineers.
Assignments for work as an engineer, as well as
for fireman, are on the strict basis of seniority.
Because the defendant was low on the seniority list
for engineers, it follows that he received the least
desirable jobs, but was high on the list for firemen.
If no assignments were available to him as an
engineer, he was not averse to accepting a bid as a
fireman.
The defendant by personal choice resided in
Regina, Saskatchewan, with his wife and children.
Twice a year all engineers bid for jobs and there
are three zones of choice, Regina, Saskatoon and
Moose Jaw but an engineer resident in one of these
zones is not limited to that zone. Rather, he may
bid on any zone. On the basis of those bids and the
seniority of those bidders, assignments are made
from the bid book in which those bids are
recorded.
However at the beginning of each week those
assignments are subject to change due to a variety
of circumstances such as the work available, the
desires of the more senior engineers who may wish
to book off, take vacations, who may be ill or take
another assignment and like reasons. Otherwise
the assignments remain constant for six months
until bids are made afresh.
The defendant's preference for assignments
were (1) Regina to Saskatoon, through freight, (2)
Road switcher at a calcium plant just outside
Regina, (3) Regina yard switcher on two of the
more desirable of three eight-hour yard shifts, (4)
Regina spare board, (5) the late or least desirable
of the three Regina yard switcher shifts, (6) Wey-
burn, and (7) Assiniboia. The defendant does not
specifically recall if he bid in that order of prefer
ence but since these are his preference I would
assume that he did so bid. Significantly Assiniboia
was his last choice.
At the beginning of 1971 the defendant's assign
ment was to Assiniboia there to operate a locomo
tive on way freights to Shaunovan, Big Beaver,
Killdeer or Mankota as schedules dictated. That
was the defendant's assignment consequent upon
the six month's bid and remained so until there
was a change in the work available or a change in
the seniority which created a change in the jobs
available to allow the defendant to take on a
different job which might occur at the beginning
of any week.
The weekly scheduling of trains is done by the
locomotive foreman in Moose Jaw. For example, if
a way freight is to run from Assiniboia to Shauno-
van on a Monday, the locomotive foreman in
Moose Jaw advises the Regina division that a crew
is required for that time and place. It is the
responsibility of the Regina division to select and
advise the personnel. The Moose Jaw locomotive
foreman advises Regina of the requirements and
Regina fulfills those requirements from its bid
book and posts those assignments on its weekly
bulletin board.
More specifically, as the assignments affect the
defendant, the locomotive foreman in Moose Jaw
advises Regina that a way freight is to run out of
Assiniboia on a Monday at a certain time. The
clerk in Regina consults his list of available crew
on the basis of the bids, seniority and assignments
and determines that the job is the defendant's. He
therefore telephones the defendant at his home in
Regina and advises him that he is required to take
the way freight out of Assiniboia at a specific time.
Under the terms of the collective agreement be
tween the Canadian Pacific Railway and the
Brotherhood of Locomotive Engineers, of which
the defendant is a member, the defendant must be
given a minimum of two hours' notice. However,
all subsequent orders are given by the locomotive
engineer in Moose Jaw and are transmitted to
Assiniboia. All that the Regina office conveys to
the defendant is an advance notice of his first
assignment for that week in Assiniboia.
The defendant worked out of Assiniboia for the
full months of January, February, March and
April, from May 15 to May 31, June 1 to June 19,
and September 8 to December 11. What the
defendant would do was to drive from his home in
Regina by his own private automobile in time to
take his first run out of Assiniboia. His assign
ments to Assiniboia would normally begin on the
Monday of the week. That assignment normally
lasted for five or six days. On the completion of
the week's assignment in Assiniboia, the defendant
would then return to his home in Regina in his
own automobile for the weekend. This exercise
would then be repeated for the next week as is
evident from the defendant's assignments to
Assiniboia in 1971 which have been listed above.
In fact, he drove to Assiniboia from Regina 37
times and returned to Regina the same number of
times as well as one trip to Weyburn and return to
Regina.
In preparing his income tax return for 1971 the
defendant claimed as a deduction an amount of
$2,589 for "meals and car expenses" of which
$1,760 was for meals consumed by him while away
from his employer's establishment to which he had
been assigned and $829 as the expense of driving
from Regina to Assiniboia and return 37 times and
from Regina to Weyburn and return once, a total
of 8,290 miles at 10¢ per mile.
In assessing the defendant as he did the Minister
allowed the defendant's claim for meals in the
amount of $1,760 as a proper deduction within the
four corners of section 11(7) of the Income Tax
Act which reads:
11. (7) Notwithstanding paragraphs (a) and (h) of subsec
tion (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.
It is significant to note that the defendant did
not claim for meals consumed by him in Assiniboia
but only for meals while he was driving his
employer's locomotive on runs outside of
Assiniboia. Neither did he• claim for lodging while
in Assiniboia because his employer provided
accommodation there which was described in evi
dence as a courtesy.
However, the Minister did disallow the amount
of $829 as a deduction from income as had been
claimed by the defendant.
The Tax Review Board held that this amount
claimed by the defendant was properly deductible
and allowed the defendant's appeal.
The present appeal by Her Majesty the Queen
results from that decision.
There is no dispute between the parties as to the
accuracy of the amount of $829 claimed by the
defendant as a deduction. The only dispute is as to
the deductibility thereof.
Section 178(2) of the Income Tax Act now in
force reads:
178. (2) Where, on an appeal by the Minister other than by
way of cross-appeal, from a decision of the Tax Review Board,
the amount of tax that is in controversy does not exceed $2,500,
the Federal Court, in delivering judgment disposing of the
appeal, shall order the Minister to pay all reasonable and
proper costs of the taxpayer in connection therewith.
It follows that, regardless of the success of this
appeal, there shall be an order directing the Minis
ter to pay all reasonable and proper costs of the
defendant.
It is common ground that the defendant is an
employee of the Canadian Pacific Railway. It is so
pleaded in the statement of claim and that fact is
admitted in the statement of defence and is infer-
entially pleaded in the statement of defence.
Income from employment is specifically defined
in section 5 of the Income Tax Act as the salary,
wages or other remuneration, including gratuities,
received by the taxpayer in the taxation year plus
any benefits received by him as are set forth in
paragraphs (a) and (b) of subsection (1) of section
5. Paragraph (b) includes as income all amounts
received by the taxpayer in the taxation year as an
allowance for personal or living expenses or as an
allowance for any other purpose except, and I here
quote subparagraph (b)(vii):
5. (1) Income for a taxation year from an office or employ
ment is the salary, wages and other remuneration, including
gratuities, received by the taxpayer in the year plus
(b) all amounts received by him in the year as an allowance
for personal or living expenses or as an allowance for any
other purpose except
(vii) allowances (not in excess of reasonable amounts) for
travelling expenses received by an officer or employee
(other than an employee employed in connection with the
selling of property or negotiating of contracts for his
employer) from his employer if they were computed by
reference to time actually spent by the officer or employee
travelling away from
(A) the municipality where the employer's establish
ment at which the officer or employee ordinarily worked
or to which he ordinarily made his reports was located,
and
(B) the metropolitan area, if there -is one, where that
establishment was located,
in the performance of the duties of his office or employ
ment, or
Section 5 goes on to preclude any deduction from a
taxpayer's income as defined in the section save
what is expressly permitted by certain particular
subsections of section 11 of the Income Tax Act.
The pertinent portion of section 5 reads:
minus the deductions permitted by paragraphs (i),(ib),(q) and
(qa) of subsection (1) of section 11 and by subsections (5) to
(11), inclusive, of section 11 but without any other deductions
whatsoever.
The subsections of section 11 applicable to the
present appeal are subsections (7),(9) and (9a).
Subsection (7) has been quoted above. Subsections
(9) and (9a) read:
11. (9) Where an officer or employee, in a taxation year,
(a) was ordinarily required to carry on the duties of his
employment away from his employer's place of business or in
different places,
(b) under the contract of employment was required to pay
the travelling expenses incurred by him in the performance of
the duties of his office or employment, and
(c) was not in receipt of an allowance for travelling expenses
that was, by virtue of subparagraph (v),(vi) or (vii) of
paragraph (b) of subsection (1) of section 5, not included in
computing his income and did not claim any deduction for
the year under subsection (5),(6) or (7),
there may be deducted, in computing his income from the
office or employment for the year, notwithstanding paragraphs
(a) and (h) of subsection (1) of section 12, amounts expended
by him in the year for travelling in the course of his
employment.
(9a) An amount expended in respect of a meal consumed by
an officer or employee shall not be included in computing the
amount of a deduction under subsection (6) or (9) unless the
meal was consumed during a period while he was required by
his duties to be away, for a period of not less than twelve hours,
from the municipality where the employer's establishment to
which he ordinarily reported for work was located and away
from the metropolitan area, if there is one, where it was
located.
Subsection (7) is obviously a special section
devoted to the expenses of transport employees in
what in common parlance is referred to as the
"running trades" such as employees of railways,
buses, airlines, steamship companies and like busi
nesses. On the other hand, subsections (9) and
(9a) are more general in nature and are designed
to cover travelling expenses of employees generally
who may fall precisely within the conditions there
in provided. The most obvious type of job in the
category of jobs envisioned by subsections (9) and
(9a) that occurs to me by way of example is that
of a commercial traveller.
It was by virtue of the provisions of subsection
(7) of section 11 that the defendant's claim for
deduction of the amounts disbursed by him for
meals consumed while operating his employer's
locomotive out of Assiniboia was properly allowed.
However, if the amount which the defendant seeks
to deduct as a consequence of driving his private
automobile from his home in Regina to Assiniboia
thirty-seven times and to Weyburn once is to be
properly deductible, then the defendant must bring
himself precisely within section 11(9).
In Lumbers v. M.N.R.', Thorson P. said at page
211:
... a taxpayer cannot succeed in claiming an exemption from
income tax unless his claim comes clearly within the provisions
of some exempting section of the Income War Tax Act: he
must show that every constituent element necessary, to the
exemption is present in his case and that every condition
required by the exempting section has been complied with.
The essence of the contention by counsel for the
defendant, as I understand it, was simply that for
the defendant to do his job on the occasions here in
question, which was to drive a railway locomotive
along railway tracks emanating from Assiniboia,
and Weyburn in one instance, to other points on
those tracks, the defendant must of necessity first
get to Assiniboia or Weyburn from his residence in
Regina. The logic of that contention is irrefutable
but it is well settled law that the expenses of
travelling to work cannot be deducted from the
remuneration received for performing the work for
the purpose of computing taxable income. The
distinction is between travelling on the taxpayer's
work, which, in the present instance is while the
defendant is driving a locomotive along the tracks
leading out of Assiniboia, and travelling to his
work, which again in the present instance is when
the defendant drives his private automobile from
his home in Regina to Assiniboia.
It is implicit in this submission on behalf of the
defendant that the starting point of the defendant's
work is Regina. That the starting point of the
defendant's work was Assiniboia and in one
instance Weyburn rather than Regina has been
decided by myself in The Queen v. Little 2 . In the
Little case, the taxpayer, also a locomotive engi
neer, resident in Moose Jaw, Saskatchewan, was
frequently assigned to yard duty in Swift Current,
Saskatchewan, where he would remain for five day
shifts. Prior to and at the conclusion of his shifts
he would drive by private automobile to and from
his home in Moose Jaw to Swift Current. The
defendant sought to deduct an amount laid out by
[1943] Ex.C.R. 202.
2 74 DTC 6534.
him for meals while on duty at Swift Current. The
deductibility of this expense fell to be determined
upon the interpretation of subsection (7) of section
11, which is quoted above. There was no question
that the defendant's employer had an establish
ment in Moose Jaw and another in Swift Current.
The question in the Little case was to which
establishment did the taxpayer report for work.
While it was true that the assignment of work was
done by the locomotive foreman in Moose Jaw,
nevertheless the taxpayer reported for work in
Swift Current. It was in Swift Current that he
received his orders as to his specific duties.
Similarly so in the present appeal. Here the
scheduling of work in Assiniboia was done by the
locomotive foreman in Moose Jaw. Notice of such
schedule was relayed to Regina and the Regina
division selected the locomotive engineer who was
to be assigned to duty in Assiniboia and notified
the engineer selected. In the numerous instances
here in question the defendant was so selected. It is
abundantly clear that the defendant reports for
work at Assiniboia. Apart from advance notice as
to the first schedule run, it was there that he
received all subsequent orders. The assistant super
intendent specifically testified that Assiniboia was
to Regina as Swift Current was to Moose Jaw.
Furthermore, in a schedule prepared by the
defendant as part of his income tax return and
entitled "Road Expenses for 1971—Meals away
from Home Terminal", Assiniboia is described by
him as the Home Terminal, and still later in this
same schedule when the defendant was assigned
from June 20 to August 28, 1971, to the spare
board in Regina, which is a biddable assignment,
the defendant describes Regina as his Home
Terminal.
This being so, it follows that the defendant in
driving by automobile to and from his home in
Regina to Assiniboia was travelling to his work as
contrasted with travelling on his work and accord
ingly the expenses of so doing do not fall within
the meaning of "amounts expended by him in the
year for travelling in the course of his employ
ment" as used in section 11(9).
As I have said at the outset, the defendant in
order to succeed must meet all the conditions
precedent to the applicability of subsection (9).
However in the view I take of the matter, it is not
necessary for me to determine if the preliminary
conditions outlined in paragraphs (a),(b) and (c)
of subsection (9) have been met. Without so decid
ing I am content to assume that they have been
met.
In all likelihood the defendant meets the condi
tions in paragraph (a) in that he was ordinarily
required to carry on the duties of his employment
in different places, that is to say in places where
his employer has a place of business or an estab
lishment such as Assiniboia, Weyburn, Regina and
others.
It may be that the defendant under his contract
of employment was required to pay the travelling
expenses incurred by him "in the performance of
the duties of his ... employment" although I have
distinct reservations that this is so in that the
duties he performed were driving a freight train
out of his employer's establishment to which he
had been assigned. While so engaged, he incurred
no "travelling expenses". He travelled in the
locomotive he was driving. He was not reimbursed
by his employer for the disbursements he made for
meals and lodging but his claim of those expenses
as a deduction was allowed to him as a deduction
for income tax. He did not claim for meals in
Assiniboia nor for lodging there which was pro
vided by the employer. The blunt fact remains that
the employer did not reimburse the defendant for
the expenses incurred by him in travelling to and
fro between his home in Regina and Assiniboia by
automobile although it was the only practical way
for the defendant to get there to begin the
performance of his duties. There is specific provi
sion in the collective agreement that the defendant
was entitled to wages and travelling expenses while
"dead heading" but in travelling by private
automobile to Assiniboia the defendant was not
dead heading. The only occasion on which his
travelling expenses were paid was when he was
assigned to Assiniboia from the Regina spare
board. Under the collective agreement the employ
er was not required to pay these expenses incurred
by the defendant. The question was raised that
because the employer was not so obliged whether
the defendant could be considered to be "required"
to pay these expenses "under the contract of
employment" in the absence of a positive provision
requiring him to do so. I do not decide this matter
and leave the matter entirely open to be decided
when it may become material and essential to do
so.
Under paragraph (c) the defendant was not in
receipt of a "travelling allowance" but I am doubt
ful if the condition of paragraph (c) has been met
in that the defendant did claim a deduction for
meals which was allowed as such by virtue of
subsection (7) of section 11, of which specific
mention is made in paragraph (c) of subsection (9)
of section 11. Again, because of the view I have
taken of the matter, it is not necessary for me to
decide this question and I do not do so leaving the
question open for decision when it becomes ma
terial untrammelled by any remarks I may have
made incidentally.
Assuming as I have that all preliminary condi
tions have been met, then by subsection (9) what
may be deducted is "amounts expended by [the
taxpayer] in the year for travelling in the course of
his employment" and this raises the question
whether the expense of travelling from Regina to
Assiniboia claimed by the defendant is "for travel
ling in the course of his employment". I have
expressed the opinion that they are not and I base
that conclusion on Ricketts v. Colquhoun 3 ,
Mahaffy v. M.N.R. 4 and Luks v. M.N.R. 5
Ricketts v. Colquhoun is the leading case and
lays down the general rule that the expense
incurred by an employee in travelling to and from
his place of work is not deductible. In this case the
taxpayer was a barrister practising in London who
also held an appointment of Recorder of Port-
smouth. He claimed as a deduction his travelling
expenses from London to Portsmouth on the occa
sions when he sat as Recorder. The House of
Lords rejected this claim because the expenses
were not incurred "in the course of' the taxpayer's
duties. Viscount Cave L.C. said at page 4:
3 [ 1926] A.C. 1.
4 [1946] S.C.R. 450.
5 [1959] Ex.C.R. 45.
They [the expenses] 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.
In Mahaffy v. M.N.R., the Supreme Court of
Canada dealt with a claim for travelling expenses
incurred by a member of a legislative assembly in
travelling from his home to the provincial capital
and back on weekends during the legislative ses
sion. Rand J. said at pages 455-456:
The question is whether the items deducted are travelling
expenses "in the pursuit of a trade or business" or
disbursements or expenses wholly, exclusively and necessarily
laid out or expended for the purpose of earning the income
and in my opinion they are neither. Whether or not attending a
session of a Legislative Assembly can be deemed "business"
which I think extremely doubtful, certainly making the extra
trips and lodging in a hotel in Edmonton cannot be looked upon
as "in the pursuit" of it. That expression had been judicially
interpreted to mean "in the process of earning" the income:
Minister of National Revenue v. Dominion Natural Gas Co.
([1941] S.C.R. 19). The sessional allowance is specifically for
attendance by members at the legislative proceedings: it has no
relation to any time or place or activity outside of that. The
"pursuit" of a business contemplates only the time and place
which embrace the range of those activities for which the
allowance is made: the "process of earning" consists of engag
ing in those activities. To treat the travelling expenses here as
within that range would enable employees generally who must,
in a practical sense, take a street car or bus or train to reach
their work to claim these daily expenses as deductions.
Employees are paid for what they do while "at work"; and the
legislators receive the allowance for their participation in the
sessional deliberations: up to those boundaries, each class is on
its own. For the same reason it cannot seriously be urged that
the expenses are "wholly, exclusively and necessarily" laid out
for the purpose of earning the allowance: they are for acts or
requirements of the member as an individual and not as a
participant in the remunerated field.
In Luks v. M.N.R. (supra), my brother Thurlow
had under consideration the case of an electrician
who found it necessary to drive his automobile to
and from job sites on which he was engaged at
different times in order to transport his tools. He
sought to deduct from his income the expenses
incurred in driving to and from his place of
employment and a capital cost allowance for his
automobile as well. Thurlow J., after quoting the
passages from Ricketts v. Colquhoun (supra) and
Mahaffy v. M.N.R. (supra), substantially as I
have quoted them above, said at page 50:
In the present case, travelling between the appellant's home
and the several places where he was employed was not part of
the duties of his employment, nor was it any part of the duties
of his employment to take his tools from the place of employ
ment to his home each day, nor to carry them each day from
his home to the place of employment. This may well have been
the practical thing for him to do in the circumstances, but the
fact that it was a practical thing to do does not make it part of
the duties of his employment. Both travelling from his home to
the place of employment and carrying his tools from his home
to the place of employment were things done before entering
upon such duties, and both travelling home and carrying his
tools home at the close of the day were things done after the
duties of the employment for the day had been performed. The
journeys were not made for the employer's benefit, nor were
they made on the employer's behalf or at his direction, nor had
the employer any control over the appellant when he was
making them. The utmost that can be said of them is that they
were made in consequence of the appellant's employment. That
is not sufficient for the present purpose. In my opinion, neither
the appellant's travelling nor the carrying of his tools were
"travelling in the course of his employment" within the mean
ing of s. 11(9).
I acknowledge the severity of the rule as laid
down in Ricketts v. Colquhoun (supra).
It is a variant on the category of itinerant jobs
that the concept of two places of work has been
introduced particularly in Owen v. Pook 6 and
Taylor v. Provan 7 , both decided by the House of
Lords. Basically, that variant is that if a man has
to travel from one place of work to another place
of work he may deduct the expense of this travel
because he is travelling on his work, but not those
of travelling from either place of work to his home
or vice versa unless his home happens to be a place
of work. For this concept to apply, the facts must
be that the work or the job must be done in two
places. It is not enough that the man might choose
to do part of the work in a place separate from
where the job is objectively located.
But neither of the decisions in Owen v. Pook
(supra) or Taylor v. Provan (supra) detract from
the authority of Ricketts v. Colquhoun (supra). In
Owen v. Pook their Lordships did not say that
Ricketts v. Colquhoun was wrongly decided, but
6 [1969] 2 All E.R. 1.
7 [1974] 1 All E.R. 1201.
on the contrary it was distinguished on its facts. In
the Ricketts case there was only one place of
employment, Portsmouth. No duties were per
formed in London. In Owen v. Pook there was a
finding of fact that the work was done in two
places, first when the doctor was contacted by the
hospital authorities and secondly at the hospital.
Similarly in Taylor v. Provan, Owen v. Pook was
applied and Ricketts v. Colquhoun was distin
guished on the facts.
Mr. Justice Thurlow anticipated the decisions of
the House of Lords in Owen v. Pook and Taylor v.
Provan by some two years in Cumming v. M.N.R. 8
In the Cumming case, an anaesthetist held an
appointment at a hospital where he rendered all
his services to his patients. All of the administra
tive work in connection with his practice was
carried on at his home. No facilities were available
to him at the hospital for this purpose. The appel
lant's expenses in travelling to the hospital where
he treated his patients from his home base where
he performed all administrative work and return
ing to his home were allowed as a deduction.
Because the doctor was engaged in a business,
Thurlow J. pointed out that in the Luks (supra)
case the taxpayer was an employee and so the
Luks case had no application to the Cumming
case.
In the present appeal it was common ground
that the defendant was an employee and accord
ingly the Luks case is applicable to the present
appeal and the Cumming case is not. I have found
as a fact, predicated on the Little case (supra),
that the defendant while assigned to Assiniboia
had but one place of employment and that place
was Assiniboia, and in another instance, Weyburn.
Here the defendant's journeys in his private
automobile were not made for the employer's ben
efit, on its behalf, at its direction nor did the
employer have any control over the defendant
when he was making these journeys. The only
interest that the employer had in the matter was
that the defendant should be present at the appro
priate time and place to begin the performance of
his duties.
8 [1968] 1 Ex.C.R. 425.
As Mr. Justice Thurlow said in Luks v. M.N.R.,
the utmost that can be said of the thirty-seven
journeys made by the defendant to Assiniboia and
the one journey to Weyburn is that they were
made in consequence of the defendant's employ
ment which is a far different thing than travelling
in the course of his employment.
Incidentally, while the defendant was on the
spare board in Regina, he was assigned to
Assiniboia and elsewhere from the spare board
between June 20 to August 28, 1971. Being so
assigned from the spare board, his travelling
expenses to those points were paid by the Canadi-
an Pacific Railway and the defendant quite prop
erly refrained from claiming these expenses as a
deduction.
For the reasons I have expressed, it follows that
the claim of $829 for travelling expenses were
properly disallowed by the Minister and the appeal
by Her Majesty is allowed. As I pointed out at the
outset, the defendant is entitled to his taxable costs
in accordance with section 178(2) of the Income
Tax Act.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.