Tax Court of Canada Judgments

[OFFICIAL ENGLISH TRANSLATION]

Docket: 2000-2309(IT)G

BETWEEN:

PIERRE MÉNARD,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

____________________________________________________________________

Appeals heard on January 22 and 23, 2004 at Montreal, Quebec

Before: The Honourable Judge Paul Bédard
Appearances:
Counsel for the Appellant:	Philip Nolan
Counsel for the Respondent:	Daniel Marecki

____________________________________________________________________

JUDGMENT

          The appeals from the assessments made pursuant to the Income Tax Act for the 1996 and 1997 taxation years are dismissed, without costs.

Signed at Ottawa, Ontario, this 19th day of August, 2004.

Bédard J.

Certified true translation

Colette Dupuis-Beaulne

[OFFICIAL ENGLISH TRANSLATION]

Citation: 2004TCC516

Date: 20040819

Docket: 2000-2309(IT)G

BETWEEN:

PIERRE MÉNARD,

Appellant,

And

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR JUDGMENT

Bédard J.

[1]      These are appeals under the general procedure opposing the Appellant Pierre Ménard to the Respondent, Her Majesty The Queen. The Appellant is a longshoreman in the Port of Montreal and he claimed the deduction of his travel expenses as well as with his motor vehicle expenses in computing his income from employment for the 1996 and 1997 taxation years. These expenses amounted to $3,313 for the 1996 taxation year and $5,401 for the 1997 taxation year; the amounts are not at issue. The Respondent disallowed the deduction of these travel expenses on the grounds that the Appellant did not meet the conditions required by paragraph 8(1)(h) or 8(1)(h.1) of the Income Tax Act (the "Act"), namely of being 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 being required under the contract of employment to pay his travel expenses incurred in the performance of the duties of the office or employment.

[2]      In making and confirming the assessments at issue, the Minister of National Revenue (the "Minister") considered, specifically, the following facts[1]:

a)          the Appellant is employed as a longshoreman;

b)          the Appellant is an employee of the Maritime Employers' Association (hereinafter "M.E.A."), although he receives his paycheques and T-4 slips from the Maritime Data Centre Inc.;

c)          the Appellant's employment is governed by a collective agreement signed on June 22, 1995;

d)          M.E.A. supplies the services of longshoremen to its member companies, who operate the terminals on the geographic territory of the Port of Montreal and at Contrecoeur;

e)          longshoremen contact the employer in advance by telephone, at which time they are informed of the place, location and schedule for their assignment;

f)           in response to a written questionnaire sent on or about September 15, 1998, by Ms. Lise Pilon, the Respondent's auditor, to the Maritime Data Centre Inc., Mr. Charles Terenzi, the Executive Director, provided this answer to the following question on September 28, 1998:

[TRANSLATION]

" 1. B) Provide us with the following description of the duties of these employees.

"The place of work of a longshoreman is the port. The Port of Montreal begins at the Bonaventure Autoroute as far as the Lafontaine Tunnel; the port facilities at Contrecoeur also form part of the Port of Montreal. The longshoremen work loading and/or unloading ships. There are numerous port facilities (section and warehouses) in the Port of Montreal. The longshoreman calls his employer in the evening to receive his assignment for the following day, i.e., to know exactly where in the Port of Montreal he will work the following day. Once he reaches his place of work, the longshoreman does not need to travel during the day, until the end of his shift. Longshoremen do not require a car for their work.";

g)          the expenses claimed by the Appellant are the costs of round-trip transportation between his residence and his assigned location;

h)          these expenses constitute expenses of a personal nature and cannot be deducted from the Appellant's earnings from employment;

i)           first, in view of the nature of port operations, the place of business of the M.E.A. is the entire Port of Montreal;

j)           second, when the Appellant travels from his home to the place of his assignment (or returns), this is not in the performance of his duties;

k)          furthermore, the Appellant is in no way required by contract to have a car in order to perform his duties or to pay for travel expenses related to his work.

[3]      Section 8 of the Act reads in part as follows:

SECTION 8: Deductions.

            (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)         Travel expenses -- where the taxpayer, in the year, was both

(i)          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)         required under the contract of employment to pay the travel expenses incurred by the taxpayer in the performance of the duties of the office or employment,

amounts expended by the taxpayer in the year (other than motor vehicle expenses) for travelling in the course of the office or employment, except where the taxpayer

(iii)        received an allowance for travel expenses that was, because of subparagraph 6(1)b)(v), (vi) or (vii), not included in computing the taxpayer's income for the year, or

(iv)        claims a deduction for the year under paragraph 8(1) e), f) or g);

(h.1)      Motor vehicle travel expenses -- where the taxpayer, in the year, 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 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:

(i)          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

(ii)         claims a deduction for the year under paragraph 8(1)f);

[...]

Testimony

[4]      The Appellant, Éric Langlois and Lise Pilon testified for the Appellant. The Court heard Charles Terenzi and Jean Bédard as witnesses for the Respondent.

[5]      In his testimony, the Appellant explained the work of the longshoremen employed by the Port of Montreal. The explanations of the Appellant are effective for the years at issue. There is a "summer employment guarantee" and a "winter employment guarantee". These guarantees give the longshoremen to whom they apply the certainty that they will receive between 25 and 40 hours of work a week (in accordance with the guarantee), failing which they will nonetheless be paid for that number of hours. The summer period covers the months from March to December and the winter period covers the remainder of the year. According to the Appellant, approximately 760 longshoremen benefited from the summer guarantee during the years at issue. Only 660 of these 760 longshoremen also benefited from the winter guarantee. In 1996, the Appellant was entitled only to the summer guarantee.

[6]      Each longshoreman has a number of skills which allow him to perform some, if not all, of the duties that a longshoreman may be called upon to perform in the Port of Montreal.

[7]      As a longshoreman in the Port of Montreal, the Appellant may be called upon to work on three separate shifts: the day shift (from 8 am to 4 pm), the evening shift (from 4 pm to midnight), or the night shift (from midnight to 8 am). In addition, the longshoremen must have a 10- to 12-hour rest period between each shift. To find out his schedule for the following day, the Appellant has to telephone the assignment centre between 6 pm and midnight, whereupon he is assigned to a shift and a work location. The Appellant can be assigned to a specific dock or can be assigned to the Hiring Hall. He is also asked if he wants a "fishing assignment". I shall return to this latter element later on.

[8]      Every day, a number of longshoremen are assigned to the Hiring Hall in anticipation of absences. Thus, if a longshoreman is absent for any reason, he will be replaced by a longshoreman who is on call in the Hiring Hall. For longshoremen who have a summer or winter guarantee, assignment to the Hiring Hall is the equivalent to day's work, as they will be paid for merely being present in the Hiring Hall, unless they have already completed the number of hours of work guaranteed by their employer. Longshoremen who do not enjoy these guarantees can, if they do not have an assignment, report to the Hiring Hall for "a fishing assignment". If the Appellant is assigned to the Hiring Hall, he must report there at 8 am and remain there until 9.30. If he does not receive an assignment, the Appellant must leave the Hiring Hall and return from 12 noon to 2 pm to wait for any potential assignment. Longshoremen who are assigned to the Hiring Hall cannot remain there between 9.30 and noon, as it is closed during these times.

[9]      As was mentioned previously, longshoremen have the option of working overtime, in other words "a fishing assignment". This possibility, moreover, is limited, as longshoremen cannot do "a fishing assignment" for more than eight hours per week. They are, however, free to do it every day during their vacation period. Longshoremen who do not have a winter guarantee also have the option of "a fishing assignment" every day during the winter.

[10]     According to the Appellant's testimony, there are three ways of obtaining "a fishing assignment" in the Port of Montreal. The first occurs when the longshoreman calls in to receive his assignment for the following day. He can then make himself available for overtime following his shift. The second option is for the longshoreman to report to the Hiring Hall and to register for "a fishing assignment". Lastly, longshoremen can be called at home and asked if they wish to work overtime, even if they have not indicated they would be available to do so. The Appellant stated that, although this third way of obtaining "a fishing assignment" is done on a voluntary basis, the longshoremen accept the offer out of solidarity. Otherwise an entire gang could lose its assignment because it was not complete and many longshoremen would lose a day's work as a result. Thus, if a longshoreman is contacted at 11 am, he will be paid retroactive to 8 am.[2]

[11]     The pay of longshoremen on a "fishing assignment" varies depending on the shift during which they work when working overtime. A longshoreman who has a "fishing assignment" during the day shift is paid at the regular rate, whereas a longshoreman who has an evening "fishing assignment" is paid at the regular rate plus 50%, and at the regular rate plus 100% at night and on weekends.

[12]     The Appellant also explained that longshoremen can be called upon to "extend", which is the equivalent of working overtime. Extensions are worked only to finish loading or unloading a ship. In such cases, the longshoremen's shifts are extended by one hour, up to a maximum of four hours.    If the ship is not finished by the end of the extension, the Appellant must nonetheless leave the dock. If the extension is for one hour only, the longshoremen have no break between the end of their regular shift and the extension. If the extension is for four hours, they are allowed one hour for their meal.

[13]     In exceptional cases, it can happen that longshoremen, either as a gang or individually, are transferred to a company other than the one to which they were originally assigned for the day and thus that they work at another dock. The longshoremen must then travel to the site of their new assignment. The collective agreement provides that longshoremen can be moved from one ship to another[3]. In such cases, the Appellant stated that the longshoremen have half an hour to get to the second dock.

[14]     The Appellant testified that he was required to move during his shifts between five and ten times a year during the years at issue. He also stated that whenever he was assigned to the Hiring Hall, he was subsequently reassigned. This meant that he had to travel from his home to the Hiring Hall and from the Hiring Hall to his assigned dock. The Appellant believes that he was assigned to the Hiring Hall 20 to 25 per cent of the time during the period at issue.

[15]     The Appellant travels within the Port of Montreal by car, as there is no public road transportation in the Port of Montreal. Although M.E.A. does not require longshoremen to have a car, the Appellant estimated that 90% of all longshoremen travel in their own automobile. He added that longshoremen who have no car are taken from the Hiring Hall to their assigned dock by taxi at the employer's expense. Nonetheless, the Appellant asserted that the employer paid the taxi fare only for travel from the Hiring Hall to the dock (since the employer did not pay for the return journey) and then only when the longshoremen were specifically assigned to the Hiring Hall. We note that the longshoremen's collective agreement does not stipulate that the employer must assume these taxi expenses, nor does it stipulate that longshoremen who use their own cars to travel must pay their travel expenses.

[16]     The Appellant explained that he has to transport every day, in the trunk of his car, the equipment he requires to carry out his duties as a longshoreman. According to the Appellant, the bag in which this equipment is kept can weigh around 40 lbs and resembles a hockey bag. It would thus be difficult for the Appellant to travel to the Port of Montreal on foot or by public transit in view of the weight of the bag. We note that the Port of Montreal extends over approximately 25 km and that the longshoremen can also be assigned to Contrecoeur, which is located over 50 km from the Port of Montreal. In addition, the Appellant has no assigned locker on Port of Montreal premises. His car accordingly serves as a locker for storing this equipment, given the substantial risk of theft.

[17]     The bag in which the Appellant carries his equipment belongs to the M.E.A., as does part of his equipment, such as his overshoes, his safety harness, rain gear, etc. The Appellant maintained that his employer is required by the Canada Labour Code[4]to provide him with these personal safety items. According to the Appellant, it would be possible for the employer to provide on a daily basis the equipment that the longshoremen require. The Appellant stated, however, that this would result in chaos[5]. The Appellant further estimated that 60% of the items in his bag belonged to him.

[18]     Lastly, the Appellant explained that he used his car to visit the restrooms where the toilets are located. Even though every dock is supposed to be equipped with portable toilets, this is not always the case. The longshoremen are accordingly allowed to take a few minutes of their time to visit the toilets in the restroom, which are sometimes located several kilometres from their assigned dock. The Appellant further stated that he used his car to warm up in during the winter.

[19]     Éric Langlois then testified. Mr. Langlois is also a Port of Montreal longshoreman. In his testimony, Mr. Langlois stated that he kept a bag of equipment similar to the Appellant's in the trunk of his car. According to Mr. Langlois, the work of the longshoremen would be slowed down if they had to pick up their equipment every day. Mr. Langlois further explained that the longshoremen had to have their equipment with them at all times, as they could be called upon to move during a shift. Since these movements may involve a change of their duties for the day, the longshoremen must have the equipment they require to perform all the duties that they are authorized to do, regardless of their assignment for the day. Otherwise, the longshoremen run the risk of not being able to complete the transfer, and thus lose their day of work and their pay[6]. Mr. Langlois lastly stated that his car was essential, in that he used it as a locker for his equipment, since the risks of theft on the docks were too great to leave any equipment unattended. Mr. Langlois also keeps his bag of equipment in the trunk of his car, because the bag is too heavy to carry in the on-board crane where he spends most of his time when working.

[20]     As far as Mr. Langlois is concerned, he stated that he spent between 10% and 15% of the time on a shift travelling about. Although he had been moved as a team on several occasions, he was more frequently moved individually, in view of his many skills. Lastly, Mr. Langlois maintained that he was assigned to the Hiring Hall almost 50% of the time and that on half of these occasions, where he had to report to the Hiring Hall, he received an assignment. Since the Hiring Hall is closed from 9.30 am to noon, Mr. Langlois explained that his car was essential to allow him to return home during the hours it was closed.

[21]     Lise Pilon, the auditor for the Canada Revenue Agency (hereinafter the "CRA"), also testified for the Appellant. Ms. Pilon was the auditor of the longshoremen's files, including those of the Appellant. She stated that the CRA had sent a questionnaire to Mr. Terenzi, the Executive Director of the Maritime Data Centre (hereinafter the "M.D.C.") in order to confirm or deny what was stated on the T-2200 forms attached to the taxpayer's request, namely that the longshoremen in the Port of Montreal did not need a vehicle to perform their duties. Mr. Terenzi confirmed this statement by means of the questionnaire. The CRA accordingly did not allow the longshoremen to deduct travel expenses and motor vehicle expenses, since the longshoremen were not required to travel in the performance of their duties and because the longshoremen were not required to report to a place of business away from their employer's place of business. According to the CRA, the entire Port of Montreal constitutes the place of business of the longshoremen's employer. Ms. Pilon further admitted that at the time the travel expenses were disallowed, the CRA was unaware that the longshoremen had to carry equipment belonging to the employer.

[22]     Charles Terenzi testified for the Respondent. As was mentioned earlier, Mr. Terenzi is the Executive Director of the M.D.C.. The M.D.C. was created in 1969 by the stevedoring companies and serves as a central pay office for the longshoremen in the Port of Montreal, and for longshoremen virtually everywhere in Eastern Canada. The M.D.C. is separate from the M.E.A., which was set up by the shipping companies.

[23]     Mr. Terenzi explained that the collective agreement between the longshoremen's union and M.E.A. did not oblige the longshoremen to have a car. According to Mr. Terenzi, the longshoremen do not incur travel expenses. This is what Mr. Terenzi entered on the T-2200 forms that he was required to complete for income tax purposes[7]. Mr. Terenzi specified that, before completing the T-2200 forms, he contacted the various stevedoring companies to check the accuracy of his statements, since by his own admission, Mr. Terenzi does not deal with the longshoremen on a regular basis.

[24]     According to Mr. Terenzi, each section of the Port of Montreal constitutes a separate location. Accordingly, when a longshoreman travels from the Hiring Hall to the dock that has been assigned to him, he travels to his place of work, since the dock in question is his place of work for the day. Mr. Terenzi stated that the Hiring Hall is not a place of work for the longshoremen.

[25]     Lastly, Jean Bédard testified for the Respondent. Mr. Bédard is Vice-President of M.E.A. and in this capacity is in charge of administration. Mr. Bédard is accordingly not a witness to the everyday reality of the longshoremen in the Port of Montreal.

[26]     Mr. Bédard explained that M.E.A. was the employer of the longshoremen at the ports in the cities of Montreal, Toronto, Trois-Rivières and Hamilton, within the meaning of section 34 of the Canada Labour Code.

[27]     According to Mr. Bédard, the longshoremen carry their equipment (a change of clothing, picks, chains, etc.) that they require to do their work, and have done since their union was founded over 100 years ago. Mr. Bédard recalled that the Canada Labour Code did not require M.E.A. to provide the longshoremen with a car in which to transport their equipment. According to Mr. Bédard, it is in the very nature of the longshoremen's profession to have their equipment with them, quite apart from the fact that the longshoremen are informed the day before of the location to which they will be assigned the following day. The longshoremen accordingly know what equipment that they require for the next day. Thus, Mr. Bédard stated that it is hardly plausible that all the longshoremen would transport all their equipment every day. Mr. Bédard admitted, moreover, that the M.E.A. provides safety equipment to the longshoremen because that is a provision of the collective agreement and because it is a legal obligation imposed by the Canada Labour Code[8]. Nonetheless, Mr. Bédard stated that distributing the equipment on a daily basis would be inefficient from a practical standpoint.

[28]     Out of a deployment of 400 to 500 longshoremen, Mr.Bédard explained that 10 to 12 would be assigned to the Hiring Hall on a daily basis. He stated that he had never witnessed a transfer in the course of a shift, but maintained that he had seen transfers at the start of a shift when a ship had failed to arrive at the dock. Mr. Bédard stated that having a car was not a requirement for performing the duties of a longshoreman, since many longshoremen did not have a car, or even a driver's licence.

Analysis

[29]     The question at issue is the following: can the Appellant deduct his travel expenses and his motor vehicle expenses in connection with his travel between his residence and the various docks in the Port of Montreal? It should be noted that the Appellant did not claim the deduction of these expenses for his travel between his residence and the Hiring Hall when he was assigned to the Hiring Hall. Even though they are not at issue in this case, I will also address the following subordinate issues raised by the Appellant: (1) Can the Appellant deduct these expenses when the employer calls him at home to offer him a "fishing assignment"? (2) Can the Appellant deduct such expenses resulting from his travel between the Hiring Hall and the numerous docks in the Port of Montreal?

[30]     In order to deduct his travel expenses and his motor vehicle expenses, the Appellant must meet the criteria in paragraphs 8(1)(h) and 8(1)(h.1) of the Act. These criteria, which are, moreover, identical, are the following:

(1)         the Appellant;

(2)         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;

(3)         was required, under the contract of employment, to pay the travel expenses incurred by the taxpayer in the performance of the duties of the office or employment;

(4)         the amounts claimed were incurred by the Appellant for travelling in the course of performing the duties of his office or employment.

[31]     Was the Appellant ordinarily required to carry on his duties away from the employer's place of business or in different places? The Respondent maintains that the employer's place of business is the entire Port of Montreal, even though this location comprises many zones or sectors. The Respondent, in fact, submits that the Appellant is not required to carry on his duties away from the employer's place of business or in different places.

[32]     The term "ordinarily" has been interpreted as meaning "normally, as a matter of regular occurrence, commonly and usually"[9]. In the case at bar, it is the daily way in which the longshoremen of the Port of Montreal have to report to one of the docks in the port. The evidence has shown that even those longshoremen with the most seniority are not always assigned to the same dock. It is accordingly beyond dispute that the Appellant is ordinarily required to carry on his duties at one of the many docks of the Port of Montreal.

[33]     Furthermore, I cannot agree with the Respondent's claim that the Appellant is not required to carry on his duties "in different places". Interpretation Bulletin IT-522R entitled Motor Vehicle, Travel and Sales Expenses of Employees, defines the expression "in different places" as follows[10]:

[...] "in different places" generally refers to the situation where the employer does not have a single or fixed place of business. For example, a school inspector who has a number of schools to supervise and is required to travel from school to school meets this requirement. Similarly, an employee who is required to travel from building to building within the boundaries of the employer's property meets this requirement if the employer's property is very large and the distance between buildings is sufficient to justify the use of a "motor vehicle". On the other hand, where the employee is employed on a ship, the ship is the employer's place of business where the employer is ordinarily required to carry on the duties, and the fact that the ship may travel to different places is insufficient to meet this requirement.

[34]     In Royer v. Canada, T.C.C., No. 98-707(IT)I, February 16, 1999, 99 D.T.C. 683, [1999] T.C.J. No. 111, Lamarre Proulx J. stated[11]:

On the basis of the case law already cited, it is my view that paragraph 8(1)h.1) of the Act provides for two situations: the first is where an employee is ordinarily required to carry on his or her duties away from the employer's place of business, and the other is where an employee is ordinarily required to carry on his or her duties in different places. I believe that the first situation covers individuals who report to one place, which is a place of business, and who must ordinarily carry on their duties away from that place.

As for the second situation, I do not think that the expression, "different places" excludes a place of business. I accept the position of Counsel for the Respondent, which is supported by the above-mentioned case law, that a work site is a place of business. If an employee must carry on his or her duties at several places of business, those places of business come precisely within the meaning of "different places". If the employee ordinarily works at one of those different places and works at the others at the employer's discretion, travel to the usual place of business will be personal expenses. The conditions of employment are important in being able to determine which is the usual place of work and which constitutes the different places. The distance from one place to another and changes in the place of work based on the employer's needs will have as a consequence, inter alia, that the places of work will be different places.

[35]     In my view, the expression "different places" does not exclude a place of business. The expression "different places" can thus apply to a case where the employer does not have a single place of business, as in the instant case. Although all the docks or port facilities form part of a whole better known under the name of the "Port of Montreal" (which extends from Place Bonaventure to the Lafontaine Tunnel and includes the Contrecoeur port facilities), it must be understood that each of the docks of the Port of Montreal is operated independently by separate companies. Each of these docks, in my opinion, thus constitutes a separate place of business or a different place. It seems difficult to me, in fact, to conclude that the port facilities or docks which are located in the area of Place Bonaventure, the Lafontaine Tunnel and Contrecoeur, and which are operated by different companies, can constitute a single place of business.

[36]     Since the evidence has clearly shown that the Appellant was not ordinarily assigned to any specific dock, I conclude that the Appellant must be described as carrying on his duties in different places within the meaning of paragraphs 8(1)(h) and 8(1)(h.1) of the Act.

[37]     Was the Appellant required, under his contract of employment, to pay for his travel expenses or his motor vehicle expenses? The Appellant submits that the profession of longshoreman implies the obligation to have a car and thus to pay for his travel expenses and motor vehicle expenses. He maintains that the situation of longshoremen is unusual in that they are required to carry a bag of equipment weighing approximately 40 lbs. The Appellant thus affirms that he needs his vehicle to carry this bag, with its considerable weight, and to store his equipment during his shift to avoid its being stolen. The trunk of his car is thus used as a locker to store the equipment[12]. Also, according to the Appellant, the large area covered by the Port of Montreal means that it is implicit in his contract of employment that he must have a car to go to his assigned dock and to go to the restrooms where the toilets are located. For these reasons, the Appellant maintains that there is an implicit rule to the effect that the use of his vehicle is essential to the performance of his duties as a longshoreman[13] and accordingly, that he must assume his travel expenses and motor vehicle expenses.

[38]     The Federal Court has repeatedly stated that the condition of being required to pay travel expenses may be implicit. In Rozen v. Canada, [1985] F.C.J. No. 1002, Strayer J. explained:

I believe also that subparagraph 8(1)(h)(ii) can be interpreted somewhat more broadly. Even if the plaintiff were not specifically required to use his car, he was required to pay his travelling expenses incurred by him in the performance of his duties and this would also bring him within the subparagraph. The evidence was clear that to do his job the plaintiff had to go to the offices of a variety of clients. No provision was made for reimbursement for transportation for getting to those offices except with respect to those outside of Vancouver where at least car mileage was allowed. If an employee is obliged to travel to do his work and his employer is not prepared to pay the exact and total cost of transportation, then he must come within the requirements of subparagraph 8(1)(h)(ii). This question was not under consideration before the Federal Court of Appeal in Cival. On this basis, it is not really very important whether the plaintiff here was obliged to use his car or not; he was obliged to get himself and his papers to the firm's clients and there was no arrangement, at least in the circumstances relevant to this case, whereby the employer undertook to pay the total transportation costs."

[39]     In Betz v. Canada, F.C.T.D. No. T-2674-84, February 16, 1987 [1987] F.C.J. No. 167, Collier J. stated:

The defendant contended the plaintiff is governed here by the collective agreement; it is silent on the matter; the plaintiff must find the requirement in that contract; Rozen v. The Queen (1985) 85 D.T.C. 5611 is distinguishable because there was no collective agreement or written contract; The Queen v. Cival (1983) 83 D.T.C. 5168 (F.C.A.) applies: in that case, there was a collective agreement silent on the payment requirement, and the court found the provisions of paragraph 8(1)(h) had not been met.

I do not agree with the defendant's submissions.

A collective agreement is a contract. Just because something is not spelled out, does not mean it cannot be implied from the conduct and practice of the parties. The duties of principals are not set out in this contract. Counsel for the defendant conceded the duties need not have been set out in a written document. Yet, it is said, the requirement of payment of the expenses must be so set out in writing, in this case, to come within subparagraph (ii).

That submission cannot, as a matter of logic, stand.

[40]     This decision was confirmed, moreover, by the Federal Court of Appeal (see The Queen v. Betz, 90 D.T.C. 6201). In Canada v. Gilling, 90 D.T.C. 6274, [1990] F.C.J. No. 284, Joyal J., referring to the decisions in Betz[14] and Verrier[15], stated:

Admittedly, it is a question of fact whether or not an employer on salary or on commission or both can claim expenses under section 8(1)(f) or section 8(1)(h) of the statute. Nevertheless, I view the Federal Court of Appeal decision in the Verrier case and the endorsement of the trial decision in the Betz case as indicating that neither section of the Act imposes technical considerations which would tend to defeat the intent and spirit of the legislation when the realities of any employer-employee contract are subject to scrutiny.    If such a guide to its interpretation should favour a school principal whose salary is assured in any event, it should all the more so, in a proper case, favour an employee paid on commission and whose efforts to earn income in that fashion is far more dependent on his ability to hustle.    In any event, as was noted by Mahoney J.A. in the Verrier case, any deduction allowed such an employee is a deduction from income and not a deduction from tax.    He must still absorb the after tax expense out of his own pocket, a situation markedly different from that of an employee whose expenses are fully reimbursed by the employer.

The Court of Appeal in the two cases cited has also recognized that a specific requirement for an employee to pay his own expenses or to carry out duties outside of his normal place of business need not be patently expressed in a contract of employment.    A Court, upon studying the experience of the relationship and all surrounding circumstances may well apply common sense and conclude that these are implied terms.

[41]     In my opinion, the Appellant is not required, under the terms of his contract of employment, to pay such expenses since he is not required, implicitly or otherwise, to transport the equipment to which he refers. The employer has never required or even asked the longshoremen to transport safety equipment. Furthermore, the evidence reveals no penalties for the longshoremen in the event of non-compliance with this claimed obligation, implicit in their contract of employment, namely to transport safety equipment. The fact that the employer is in agreement with such an arrangement, or benefits from it, does not in my view entail an implicit obligation on the longshoremen to transport the safety equipment. I cannot conclude that the Appellant is implicitly required, under the terms of his contract of employment, to transport safety equipment.

[42]     Supposing that I have wrongly concluded that the Appellant is not implicitly required to transport safety equipment, I am, moreover, of the opinion that he was not required to use his motor vehicle to comply with this obligation. The testimony by Mr. Bédard showed that some 10% of longshoremen do not have a motor vehicle, or even a driver's licence. Thus, the use of a motor vehicle to transport safety equipment cannot be essential, since a substantial proportion of longshoremen manage to perform this alleged task in other ways. I recognize that the use of a motor vehicle facilitates the transport and protection of the equipment, but I nonetheless cannot conclude that the use of a motor vehicle is indispensable for this purpose. I must, moreover, emphasize that almost 60% of the equipment that the Appellant transports belongs to him. The majority of the equipment is thus necessarily transported voluntarily by the Appellant. In fact, if the Appellant were to transport only equipment supplied by his employer, his bag of equipment would probably be much easier to transport.

[43]     Lastly, the employer is supposed to provide metal lockers in the restrooms so that the longshoremen can store their clothes, tools and lunchboxes in them[16]. The employer, furthermore, is required to provide toilets in the vicinity of each dock[17]. It can thus not be implicit in the longshoremen's contract of employment that they are required to use their cars to store their equipment and to visit the toilets. On the contrary, the collective agreement states that the employer undertakes to provide what is necessary for this. The onus is on the longshoremen to see that their collective agreement is implemented if these commitments are not respected. Failure by the employer to comply with the collective agreement cannot be tantamount to an implicit agreement amending the contract of employment of each longshoreman.

[44]     In support of his claims, the Appellant cited Evans,[18]where the Court held that it was implicit in Ms. Evans' contract of employment that she use her car to transport and store the equipment she required to perform her duties as a school psychologist. The situation of the Appellant differs from that of Ms. Evans, since the lion's share of the equipment transported by the Appellant is transported as a matter of personal choice. It consists of the Appellant's personal property, such as a change of clothing in the event of rain or intense cold. Thus, the safety equipment supplied by the employer in the instant case is more limited than that which the Appellant chooses to transport and does not require the use of a car for its transportation or protection.

[45]     The Appellant also mentions Rozen[19]where Strayer J. stated the following:

[...] If an employee is obliged to travel to do his work and his employer is not prepared to pay the exact and total cost of transportation, then he must come within the requirements of subparagraph 8(1)(h)(ii). [...]

[46]     Mr. Rozen was an accountant and was required to visit the places of business of his employer's clients in order to perform his duties. In this case, the evidence was conclusive that the Appellant was implicitly required by his employer to travel by car. It was understood by Rozen's employer that he would be dismissed if he was unable to travel by car[20]. No evidence to this effect has been submitted in the instant case. On the contrary, it has been shown that almost 10% of the longshoremen do not have cars or driver's licences. I thus cannot conclude that the employer implicitly required the Appellant to use his vehicle to travel to the numerous docks of the Port of Montreal.

[47]     Since the evidence shows no express or even tacit obligation on the Appellant to pay for his travel expenses or motor vehicle expenses, I cannot conclude that the Appellant was required to pay for these expenses under the terms of his contract of employment.

[48]     When he travels from his residence to one of the docks of the Port of Montreal, is the Appellant carrying on his duties? The Appellant maintains that he is in fact on duty by virtue of the fact that he is transporting a bag of equipment belonging to his employer and that the latter is required to provide him with this equipment under the Canada Labour Code. According to the Appellant, he acts as custodian of the bag of equipment while allowing the employer to fulfill its legal obligation to provide the Appellant with "the prescribed safety materials, equipment, devices and clothing"[21]. Furthermore, the Appellant states that he is paid by his employer while he is going to work. In other words, the Appellant maintains that he is on duty once he leaves his residence, since he is transporting safety equipment belonging to his employer.

[49]     I cannot endorse these statements. The travel undertaken by a worker between his place of residence and his place of work is travel of a personal nature and thus not deductible. This was confirmed by Rip J. in O'Neil v. Canada, T.C.C., No. 1999-3989(IT)I, August 23, 2000, [2000] T.C.J. No. 534, where he analyses the relevant case law. As Rip J. put it (my emphasis)[22]:

The phrase "away from the employer's place of business or in different places" in paragraph 8(1)(h.1), has been interpreted in Royer v. Canada. If an employee has to carry on his duties at several places of business, those places of business come precisely within the meaning of "different places". If the employee ordinarily works at one of those different places and works at others at the employer's discretion, travel to the usual place of business will be a personal expense. There is no issue between the parties that Mr. O'Neil was ordinarily required to carry on his duties of employment in many areas of the city. Respondent's Counsel did not question this obvious fact.

There are at least two phrases in 8(1)(h.1), that need to be considered for purposes of these appeals. First is the phrase "expenses incurred in the performance of the duties of [...] employment". The French version of this phrase is "les frais [...] qu'il a engagés dans l'accomplissement des fonctions [...] de son emploi". These words in both languages appear to insist that, to be deductible, the automobile expenses must be incurred in actually performing or carrying out one's employment duties.

The second phrases is "[...] travelling in the course of [...] employment".    The French version is "[...] se déplacer dans l'exercice des fonctions de son emploi". This phrase also appears to imply that the taxpayer incurs the automobile expense in work while working in his employment.

Rule 9 of Schedule E of the Income Tax Act of the United Kingdom uses the words "...travelling in the performance of the duties of [...] employment". In the United Kingdom, costs of travelling to work from home are not deductible in computing income because the costs are not incurred in the course of performing the duties, but rather to get to the place where the duties will be carried out. And, even if an employee's automobile is required for his work once he arrives at the place of work, his costs of travel from or to his home are not deductible. In the Income Tax Act of the United Kingdom, unlike the Canadian Act, for an expense to be deductible, it must be also necessarily incurred. However, the principles adopted by the English Courts as to what constitutes performance of duties of employment are helpful. I shall refer briefly to two judgments of the English Courts, Ricketts v. Colquhoun and Burton v. Rednall.

In Ricketts, the taxpayer lived in London and was a practising member of the London bar. He was taxable as an individual having his own business, that of a barrister. He was also Recorder of Portsmouth and, as such, was taxable as an employee. He sought to deduct the costs of travelling from his home to Portsmouth. The House of Lords rejected his appeal on two main premises. First, when travelling to his place of work he was travelling not in the course of his duties as Recorder but in order to enable him to perform them. His duties began only at Portsmouth. Secondly, the expenses were not incurred necessarily.

In Burton, the Appellant was unable to rent a house in Ipswich but had secured one in a village about 19 miles away. Under the terms of his employment, he was required to have an automobile available in order to visit farmers in the district. In order to satisfy this condition, the Appellant used his automobile to travel from his residence to Ipswich. The Appellant claimed that the automobile expenses incurred from travelling from his residence to Ipswich should be deductible. The Court rejected his claim and held that:

[...] he is not performing his duty when he travels between his home and Ipswich. It is reasonable for him to do so - indeed, he is bound to do so -, but he is not then in the performance of the duties of his office; he is either going to perform his duties or he is going home after performing his duties and the authorities make it clear that this is the proper construction to give to the Act.

The Canadian and English Courts are consistent. The work "performance" has been defined, among other ways, by the Shorter Oxford English Dictionary on Historical Principles ("Oxford"), as the "carrying out of a command, duty, etc" and "[t]he accomplishment, carrying out, doing of any action or work; working, action". The words "[...] incurred in the performance of [...] employment" refer to automobile expenses incurred by the employee while providing services under the employment contract. The English cases have drawn a sharp distinction between an expenditure incurred in the performance of the duties of an office or employment and expenditure incurred in order to enable oneself to do the job initially or to enable oneself to perform the duties of that office more efficiently. This was emphasized in W. Friedson v. The Rev. F. H. Glyn-Thomas, where Sankey J. stated:

[...] I do not think it is possible to say that the expense of removal in order to get there was an expense necessarily incurred in the performance of his duties. There is all the difference in the world between an expense which you have to incur in order to go to a place in order to take up your duties, and an expense incurred in the performance of your duties

The word course is defined by Oxford as "[t]he habitual or ordinary manner of procedure, [...]". The phrase "[...] travelling in the course of [...] employment" has been dealt with in Luks [No. 2] v. M.N.R., and Chrapko. In Luks, it was held that a person could not be deemed to be "travelling in the course of the office or employment [...] ", unless the travel actually involved the performance of some service as compared to simply getting oneself to the place of work. The Federal Court Trial Division, in Chrapko, held that words "in the course of his employment" do not preclude a deduction in such circumstances. However, in appeal, the Federal Court of Appeal appeared to recognize that a taxpayer may deduct expenses for travelling from his home to a place of work if that place of work is not the place to which he "usually" reports to work. In assessing Mr. O'Neil, the tax authority accepted the principle that the Appellant may deduct his automobile expenses for travel between his home and a work site that was not City Hall.

[50]     In my opinion, the Appellant's travel between his residence and the various docks in the Port of Montreal is of a personal nature. The expenses arising from this travel are employment-related expenses and not expenses incurred in the performance of the duties of that employment. In order to conclude that the Appellant is carrying on his duties when he travels from his place of residence to his place of work, I would have to conclude that he is on duty from the time he leaves his home by virtue of the fact that he is transporting and that he is the custodian of the safety equipment belonging to his employer and that he is the custodian thereof. I have concluded otherwise.

[51]     On the other hand, I do not believe that transporting a bag of equipment is an intrinsic part of the duties of a longshoreman, which consist of loading and unloading ships. We should recall that the majority of the equipment is transported voluntarily by the Appellant. Lastly, the Appellant and Mr. Langlois have stated that it would be possible for the longshoremen to pick up their equipment from their employer on a daily basis. Both have acknowledged, furthermore, that this would be significantly less efficient. The fact remains, nonetheless, that such an arrangement would be possible. The Appellant is thus transporting the employer's safety equipment on a daily basis because it is probably simpler for him and for his employer to operate this way. I cannot conclude from that, however, that the Appellant's contract of employment is implicitly amended solely by virtue of the fact that the employer benefits from the situation. If the situation appears unfair to the Appellant and the longshoremen, I would suggest to them that they look into the extent to which it is in compliance with their collective agreement, or into amending the collective agreement at the next round of negotiations. The tax provisions cannot constitute a way for them to take the law into their own hands or to correct a situation that appears unfair to them.

[52]     With regard to the Appellant's argument in respect of his remuneration for his travel between his home and the Port of Montreal, this does not in any way affect my conclusions, as this is an exceptional situation. It is the case only if the Appellant is contacted at home to take "a fishing assignment" following a request from his employer. The Appellant in addition has stated that the employer remunerates the longshoremen in this way in order to encourage them to accept the offer to go on "a fishing assignment". Granting a benefit does not mean that the Appellant is engaged in the performance of his duties. Furthermore, I doubt that the Appellant is remunerated even if he fails to report at the port. Accordingly, although the Appellant may sometimes be remunerated while he is en route to the Port of Montreal, he does not begin to carry on his duties until the time he reports at the Port of Montreal. He is then remunerated retroactively from 8 am, 4 pm or midnight, as appropriate.

[53]     The Appellant is hence not engaged in the performance of his duties while commuting between his home and the Port of Montreal, despite the fact that he is transporting a bag of equipment supplied by his employer and despite the fact that he is sometimes remunerated while travelling to the Port of Montreal.

[54]     In sum, although the Appellant is ordinarily required to carry on his duties in different places, he is not required, under the terms of his employment contract, to pay travel expenses or motor vehicle expenses. Furthermore, and on the assumption that the foregoing conclusions are erroneous, the Appellant was not engaged in the performance of his duties when he incurred these expenses. Thus, the Appellant cannot deduct his travel expenses or the motor vehicle expenses arising from his travel to and from his residence and the Port of Montreal unless he meets the conditions required by either paragraph 8(1)(h) or 8(1)(h.1) of the Act.

[55]     Let us now move on to the first subsidiary issue, namely: "Can the Appellant deduct his travel expenses and his motor vehicle expenses when he is called at home with an offer of 'a fishing assignment'?" The Respondent has submitted no meaningful arguments in respect of the subsidiary issues and the Appellant has been content to restate essentially the same arguments as those raised previously.

[56]     Is the Appellant "ordinarily" required to carry on his duties away from his employer's place of business or in different places? According to the Appellant, the numerous docks in the port constitute different places where he performs his duties. I have already so concluded and accordingly reiterate this conclusion[23]. Nonetheless, I cannot conclude that the Appellant was "ordinarily" required to carry on his duties in these different places because he has not demonstrated that he was normally, as a matter of regular occurrence, commonly and usually[24]called at home to go on "a fishing assignment". I have no evidence that would establish how many times a week, a month or a year the Appellant was called at home to go on "a fishing assignment". It is accordingly impossible for me in this situation to conclude that the Appellant is "ordinarily" required to carry on his duties in different places.

[57]     Is the Appellant required, under the terms of his contract of employment, to pay his travel expenses or his motor vehicle expenses? The Appellant maintains that it is implicit in his contract of employment that he must use his vehicle because he has to transport his safety equipment. I submit that my previous analysis, dealing with the primary issue, applies here[25]. Indeed, I reiterate that there is no obligation implicit in the Appellant's contract of employment that he must transport his safety equipment, nor that he must use his motor vehicle. Furthermore, in view of the fact that 10% of longshoremen travel about without having a car, I must affirm that the use of a car is not essential to the performance of his duties.

[58]     Lastly, is the Appellant engaged in the performance of his duties when he travels to the Port of Montreal following a call offering him the opportunity of a "fishing assignment"? The Appellant submits that he is, since he is then paid for the entire shift, and thus also for the necessary travel time. As I mentioned previously[26], the evidence revealed that the employer remunerates the longshoremen in this way in order to encourage them to accept the offer of "a fishing assignment". By virtue of this, although the Appellant is remunerated while he is en route to the Port of Montreal, he is not engaged in the performance of his duties until the point at which he reports at the Port of Montreal. In short, it is not a question of travel, the expenses of which are incurred in the performance of his duties: these are employment-related expenses. It is unnecessary to repeat that transporting the bag of equipment does not alter this conclusion[27].

[59]     In summary, the Appellant cannot deduct his travel expenses or the motor vehicle expenses arising from his round-trip journey between his residence and the Port of Montreal, when he is called at home to go on a "fishing assignment", since he does not meet the conditions required by either paragraph 8(1)(h) or 8(1)h.1) of the Act. Although the numerous docks of the Port of Montreal constitute different places within the meaning of the Act, this travel is not ordinary. Furthermore, the Appellant is not required, under the terms of his contract of employment, to pay for the expenses arising from this travel, nor is he carrying on his duties when he incurs these expenses.

[60]     Let us now examine the second subsidiary issue: "Can the Appellant deduct his travel expenses and the motor vehicle expenses resulting from his travel between the Hiring Hall and the numerous docks of the Port of Montreal?"

[61]     Is the Appellant ordinarily required to carry on his duties in different places? I reiterate that the numerous docks of the Port of Montreal constitute different places[28]. In addition, the Hiring Hall is, in my opinion, one of these different places when the Appellant is assigned there in return for remuneration. The Appellant then is carrying on his duties there, which in these circumstances consist of being on the premises and being available for work. I would add that this type of travel is similar to travel by "an employee who is required to travel from building to building within the boundaries of his employer's property"[29]. In such a situation, the employee is considered as carrying on his duties at different places[30]. The Appellant is accordingly required to carry on his duties in different places.

[62]     However, I cannot conclude unreservedly that the Appellant is "ordinarily" required to carry on his duties at different places. As far as travel from one dock to another during a shift is concerned, I cannot conclude that this is done ordinarily, since such travel is exceptional in nature: the Appellant was called upon to travel in this way between five and 10 times during the years at issue, and Mr. Langlois confirmed that he travelled in this way 10 to 15% of the time. We note that Mr. Langlois has a wider range of skills, which means that he more often received new assignments during a shift. Nevertheless, I am of the view that these new assignments during a shift are not carried out normally, as a matter of regular occurrence, commonly and usually[31].

[63]     With regard to travel from the Hiring Hall to one or other of the port docks, I conclude that this is ordinary. The Appellant has affirmed that he was assigned to the Hiring Hall between 20% and 25% of the time during the years at issue. In these cases, the Appellant added that he had obtained a new assignment each time. Éric Langlois said that he was assigned to the Hiring Hall 50% of the time. On occasions where he was assigned to the Hiring Hall, Mr. Langlois affirmed that he was reassigned almost half the time. In my view, travel between the Hiring Hall and the various docks of the Port of Montreal is undertaken normally, as a matter of regular occurrence, commonly and usually[32]. This travel thus meets the criteria of regularity required by paragraphs 8(1)(h) and 8(1)(h.1) of the Act.

[64]     Is the Appellant required, under his contract of employment, to pay his travel expenses and his motor vehicle expenses? The Appellant submits that it is implicit in the longshoremen's employment contracts that they must pay their travel expenses and the motor vehicle expenses arising from travel between the Hiring Hall and the various docks of the port, because of the size of the Port of Montreal, the lack of public transit, and the transportation of the safety equipment.

[65]     The evidence in this case does not allow me to conclude that it is implicit in the employment of the longshoremen that they must pay their travel expenses between the Hiring Hall and the various docks of the Port of Montreal. This conclusion is based essentially on two facts. On the one hand, the employer has never required or even asked the longshoremen to use their cars for this travel. On the other hand, the employer pays for the taxi expenses occasioned by this travel, for longshoremen who do not have a motor vehicle. There is nothing in the evidence, moreover, to show that this would not be the case for a longshoreman who has a motor vehicle and who chooses not to use it for his travel within the boundaries of the port. I can thus not conclude that it is implicit in the contract of the employment of the longshoremen who have a motor vehicle that they must pay their travel expenses between the Hiring Hall and the various docks of the port.

[66]     With regard to travel between the docks of the port in the course of a shift, I can also not conclude that it is implicit in the Appellant's contract of employment that he must assume the costs arising therefrom. The Appellant asserts that the Port of Montreal covers almost 25 kilometres and that he must transport a relatively heavy bag of equipment, but does not have access to public transit. Consequently, the Appellant maintains that it is implicit in his contract that he must use his car to travel from one dock to another with his bag of equipment and thus that he must pay his travel expenses.

[67]     There has been no evidence introduced to show that it was imperative for the performance of his duties that the Appellant have a car to travel from one dock to the next. On the contrary, 10% of longshoremen do not have a car and they travel by other means. It has also not been shown that the employer requires for any reason that the Appellant use his car to travel from one dock to the next. It thus cannot be implicit in the Appellant's contract of employment that he is required to pay his travel expenses and motor vehicle expenses when he travels between the various docks of the Port of Montreal during a shift.

[68]     Is the Appellant carrying on his duties when he travels between the Hiring Hall and one or other of the docks in the port or when he travels from one dock to another? The answer to this question is in part affirmative. The Appellant is carrying on his duties when he travels from one dock to another during a shift at the request of his employer.

[69]     In my view, the Appellant is also carrying on his duties when he travels from the Hiring Hall to his assigned dock, when he has been expressly assigned to the Hiring Hall for remuneration. I recall that the Appellant and Mr. Langlois testified that the longshoremen who are assigned to the Hiring Hall are required to go there, to remain until 9.30 am, and to report there again from noon to 2 pm. The Appellant and Mr. Langlois have confirmed that they are then paid, whether or not they receive an assignment. Mr. Bédard explained that a number of longshoremen are assigned every day to the Hiring Hall in anticipation of absences. The longshoremen assigned to the Hiring Hall are thus carrying on their duties, even if they are not performing the ordinary duties of a longshoreman. Consequently, their travel between the Hiring Hall and their assigned dock is done in the course of the performance of their duties.

[70]     This is not the case for longshoremen who report voluntarily to the Hiring Hall in order to obtain a "fishing assignment". It is by choice that the longshoremen travel from home to the Hiring Hall in order to be able to work overtime. In such cases, they are remunerated only if they obtain an assignment and I assume that it is entirely up to them whether or not they remain in the Hiring Hall during opening hours. The longshoremen are not, under such circumstances, engaged in the performance of their duties. The Hiring Hall then is analogous to their residence, and travel between the Hiring Hall and one or other of the docks of the Port of Montreal does not constitute travel in the course of the performance of their duties. This is travel of a personal nature in the same way as travel when the longshoremen leave their residence to go to work.

[71]     Consequently, my conclusions with regard to the Appellant's second subsidiary issue can be summarized as follows: the travel that the Appellant may do in between the Hiring Hall and one or other of the docks of the Port of Montreal is ordinary travel between different places if the Appellant is expressly assigned to the Hiring Hall in return for remuneration. (The Hiring Hall is not a place where the Appellant performs his duties when he travels there of his own volition to obtain a "fishing assignment".) Furthermore, the Appellant's contract of employment does not stipulate, even implicitly, that he must pay the travel expenses and motor vehicle expenses arising from such travel. Lastly, the Appellant is not engaged in the performance of his duties during his travel between the Hiring Hall and his assigned dock unless he has been specifically assigned to the Hiring Hall. The conditions of paragraphs 8(1)(h) and 8(1)(h.1) of the Act are thus not all met: the Appellant cannot deduct the expenses arising from his travel between the Hiring Hall and the docks of the Port of Montreal.

[72]     The travel that the Appellant may do between the various docks of the Port of Montreal at the request of his employer during a shift is travel between different places. However, the Appellant is not ordinarily required to carry on his duties at different docks in the course of a shift. Furthermore, the Appellant's contract of employment does not stipulate that he must pay his travel expenses. I nonetheless recognize that the Appellant is engaged in the performance of his duties during this travel. The conditions of paragraphs 8(1)(h) and 8(1)(h.1) of the Act are thus not all met: the Appellant cannot deduct the expenses arising from his travel between the various docks of the Port of Montreal.

[73]     In light of my conclusions with regard to the question at issue, the appeals must be dismissed, without costs.

Signed at Ottawa, Ontario, the 19th day of August, 2004.

Bédard J.

Certified true translation

Colette Dupuis-Beaulne

CITATION:

2004TCC516

COURT FILE NO.:

2000-2309(IT)G

STYLE OF CAUSE:

Pierre Ménard and Her Majesty The Queen

PLACE OF HEARING:

Montreal, Quebec

DATE OF HEARING:

January 22 and 23, 2004

REASONS FOR JUDGMENT:

The Honourable Judge Paul Bédard

DATE OF JUDGMENT:

August 19, 2004

APPEARANCES:

For the Appellant;

Philip Nolan

For the Respondent:

Daniel Marecki

SOLICITOR OF RECORD:

For the Appellant:

Name:

Philip Nolan

Firm:

Lavery, de Billy Montreal, Quebec

For the Respondent:

Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada

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