Meal Allowances and Travel

The grievors sought reimbursement for expenses incurred for meals within the headquarters area. They claimed that the Employer's calculation of the 16 kilometer "as the crows fly" was abusive and unreasonable.

On August 14, 1998, these grievances were referred to the Executive Committee with the following recommendation:

"The grievors sought reimbursement for expenses incurred for meals within the headquarters area. They claimed that the Employer's calculation of the 16 kilometre "as the crows fly" was abusive and unreasonable".

In previous similar cases, 21.4.358 and 21.4.554, the Executive Committee confirmed the intent of the Travel Directive with respect to the definition of the headquarters area.

Upon reviewing these grievances, the Executive Committee agreed that they be referred to the Government Travel Committee, for review in light of a recent decision by the Federal Court of Appeal regarding the application of the Income Tax Act, related to a similar question.

The Bargaining Agent representative stated that today's grievances were aimed to demonstrate that reliance on the "16 kilometre radius" was unequivocally unreasonable when determining entitlement to specific provisions provided in the Directive, in instances where an employee is required to travel in his/her headquarters area to perform his/her duties. These grievances clearly demonstrate that the grievors "travelled" beyond a distance of 16 kilometres to reach their specific work locations and hence the unreasonableness of the Employer to deny expenses incurred for meals while in travel status. "Reasonableness" will further be argued and supported with reference to relevant jurisprudence, which clearly supports the case before the Committee.

For grievors PX and AX, the place of work is in the Trois-Rivières area. On the days referred to in the grievances, PX and AX were asked to conduct auditing functions in Bécancour. From Trois-Rivières to Bécancour, they had to travel west from their workplace, cross the bridge and then, travel back in an eastern direction to reach their client in Bécancour. PX travelled a distance of 26 kilometres, one way, and AX, 29 kilometres. Concerning GX, the audit was conducted in Jonquière and even when using the shortest public road, the grievor travelled a distance of 19 kilometres, one way.

The Bargaining Agent representative identified the four issues to be addressed in these cases as being:

-the intent of the Travel Directive;

-whether the grievors were carrying out official duties on behalf of the Employer on the relevant dates in question;

-whether they were considered in travel status;

-the reasonableness of the application of the Travel Directive by the Employer.

The Bargaining Agent representative referred to section 1.1.2 of the Travel Directive which states that employees "... shall be afforded transportation and accommodation that are comfortable and of good quality. Allowances, rates and conditions of payment and reimbursement shall be sufficient to meet reasonable, legitimate expenses that are necessarily incurred as a result of the requirement to travel". He drew the Committee members' attention to the passage which states "reimbursement shall be sufficient to meet reasonable, legitimate expenses that are necessarily incurred as a result of the requirement to travel". In the current cases, the grievors were required to travel a one way distance from their workplace location, which is greater than 16 kilometres.

He was of the opinion that the words contained in the definition of Travel Status which state: "... means absence from the traveller's headquarters area on government business travel, and at a location which, using the most direct road route, is more than 16 kilometres from the traveller's home", indicate that when the travel is initiated from the employee's home, the methodology "using the most direct road route" is applied.

He also questioned why the rule of "how the crows flies" is applied to determine entitlement to certain benefits under the Directive and added that this issue is more confusing when the actual distance traveled is reimbursed via paragraph 2.11.1 of the Directive, which states: "The kilometric rates payable for the use of privately owned vehicles driven on authorized government business are prescribed in sections 1 (higher rate) and 2 (lower rate) of Appendix B and are paid at the employer-requested or traveller-requested rate as outlined below. Travellers shall use only the most direct road routes and shall claim only for distances necessarily driven on government business travel during the period claimed. That is, the distance from the authorized point of departure to the destination and return, subject to 1.1.4, plus other necessary distances driven on government business at the destination. A representative guide on approximate distances between various Canadian centres is provided in appendix A".

He maintained that since the grievors were reimbursed for the kilometric distance traveled, the Employer recognized that the grievors used the "most direct". He qualified the meal expenses as "reasonable, legitimate expenses that were necessarily incurred as a result of the requirement to travel".

For grievors PX and AX, the map shows that the route used has a horseshoe shape. Their destination, 16 kilometres outside the Headquarters Area radius, can be reached in a straight line direction from the normal work place location, and in doing so, the distance traveled would be 24 kilometres. In such a case, the traveller would be entitled to be reimbursed for meal expenses.

Concerning the Federal Appeal Court decision (Giannokipoulos), the Representative contended that it had a direct bearing and application to today's cases in that it involved a taxpayer who relocated from her old residence to her new residence to be closer to her work location. Under the Income Tax Act, a taxpayer can claim moving expenses as a deduction for income tax purposes, as long as the distance between his old residence and his new work location is not less than 40 kilometres greater than the distance between his new residence and new work location". Using the odometer in her car, the applicant calculated that her new residence was 44 kilometres closer to her place of work. Her claim of moving expenses was disallowed given that the Crown used the "straight line" approach to determine that her move had closed the gap by only 36 kilometres. The applicant applied to the Court for judicial review.

The Bargaining Agent representative explained that the Tax Court of Canada relied upon two antiquated English cases in determining that an "as the crow flies" method of measurement was appropriate. In his decision, Judge Marceau determined that because these two cases had nothing in relation to a taxpayer travelling to work, the Tax Court had erred in law in relying upon these two English cases to interpret the word "distance" without proper regard to the context in which it is applied. Judge Marceau further stated that "... it only makes sense to measure the distance she has moved using real routes of travel. A realistic measurement of traveling distance is necessary in order to give effect to the purpose of the provision. The straight line method bears no relation to how an employee travels to work. It is illogical to apply this technique to a provision which exists to recognize work related relocation expense."

The Bargaining Agent representative maintained that Committee members should conclude in favour of the grievors since it makes sense to simply replace "work related relocation expenses" for "work related travel expenses". In his decision, Judge Marceau concluded that the context of how distance should be determined should be taken into consideration, the idea of the shortest route one could take to travel, should be coupled with the notion of the normal route the traveling public might take. The grievors adhered to this principle in the carrying out of their duties.

The Federal Appeal Court decision has also a direct impact on how the provisions captured in the Travel Directive should be interpreted and applied. Travelling is normally done via public routes of transportation. Employees do not travel like birds "from one tree to another". The Bargaining Agent Representative ended his presentation by claiming that the distances referred to in the grievances were reasonable and qualify for reimbursement of expenses incurred for meals.

The Departmental representative first stated that the issue before this Committee was related to the interpretation of the Headquarters Area in the Travel Directive (TD) and more specifically the method of calculation of the 16 kilometre distance from the employees' workplace, and in light of a Federal Appeal Court decision.

In today's grievances, the employees are grieving situations where they were denied meals. Though the distance traveled by the shortest and the most direct route may have exceeded 16 kilometres, the grievors remained within the16 kilometre radius. They were not considered on travel status and therefore were denied meal benefits. The distances traveled by the grievors within the 16 kms radius were 19 kms for GX (in both grievances), 26 kms for PX and 29 kms for AX.

With regard to the decision of the Federal Appeal Court, the latter concluded that the Tax Court of Canada had erred in law as to how "distance" should be interpreted, as provided by Section 62 of the Income Tax Act [S.C. 1970-71-72, c. 63 (as am. by S.C. 1984, c.45, s.21) (the Act). This section reads as follows:

"62. (1) where a taxpayer has, at any time, commenced

(a) to carry on a business or to be employed at a location in Canada (in this subsection referred to as his "new work location"), or...

and by reason thereof has moved from the residence in Canada at which, before the move, he ordinarily resided (in this section referred to as his "old residence") to a residence in Canada at which, after the move, he ordinarily resided (in this section referred to as his "new residence"), so that the distance between his old residence and his new work location is not less than 40 kilometers greater than the distance between his new residence and his new work location, in computing his income for the taxation year in which he moved from his old residence to his new residence or for the immediately following taxation year, there may be deducted amounts paid by him as or on account of moving expenses incurred in the course of moving from his old residence to his new residence, to the extent that

(c) they were not paid on his behalf by his employer..."

He further stated that where the concept of distance had not been defined through legislation, precedents had established that it should be regarded through the principle of "as the crows fly", or the "straight line method". The Federal Appeal Court determined that the Tax Court of Canada had interpreted the word (distance) regardless of the context and in so doing, had committed an error of law which must be reversed. One concept put forward in this decision was that of "the ordinary, normal and shortest route".

The issue at hand is the definition of the "Headquarters Area" in the Travel Directive, which reads "Headquarters area (zone d'affectation) – means an area surrounding the workplace having a radius of 16 kilometres, centered on the workplace."

As well, the intent of the parties to the Travel Directive is also an issue before this Committee. Did they intend that the calculation of the16 kilometre range to be any different from the common mathematical concept, as defined by the Oxford Dictionary, i.e. "a straight line drawn from the centre to the circumference of a circle"? Or was the intent to define a distance traveled by "the ordinary, normal and shortest route", concept put forward in the Federal Appeal Court decision?

The Departmental representative also referred to the definition of "travel status" which says:

"Travel status (déplacement) – means absence from the traveller's headquarters area on government business travel, and at a location which, using the most direct road route, is more than 16 kilometres from the traveller's home. For the purposes of this definition, "home" includes a second residence, including a temporary, seasonal, self-contained family residence, occupied by the traveller and/or dependants immediately prior to the period of the traveller's temporary duty."

The Departmental representative maintained that the authors of the Directive have clearly defined that the 16 kilometre distance must be calculated "using the most direct route", clearly stating the parties' intention, and applying a standard dissimilar to the one put forward in the Giannakopoulos case.

Therefore, if the parties' intent is clear for the definition of "Travel Status" , why did they not indicate a similar definition for "Headquarters Area"? Why wouldn't they have incorporated wording such as "using the most direct route? This question is all the more relevant, seeing as the "Travel status" definition makes reference to "Headquarters Area".

It is the Department's view that it was clear intent of the parties that the 16 kilometres as provided in the definition of "Headquarters Area" should be calculated "as the crows fly" or by the "straight line method".

To give it any other meaning would be to change the definition. If it is the bargaining agent's intent to do so, this should be pursued under Section 7 of the NJC by-laws, which provides for the "Referral of subjects or items to the Council".

The Executive Committee considered and agreed with the Government Travel Committee report which concluded that the grievors were treated within the intent of article 4.3 of the Travel Directive.

The grievances were denied.