Landon v. Canada (Minister of National Revenue.)

Gary Landon, Appellant,
v. The Minister of National Revenue, Respondent

Action Nos. 91-511(IT), 91-512(IT)

Tax Court of Canada
Toronto, Ontario
King T. C. J.

Heard:September 5, 1991
Judgment:November 22, 1991


The taxpayer was a married man who claimed both his personal credit and the equivalent to married credit in the taxation year in question in relation to a dependant child. The Minister disallowed the credit for the child and substituted instead the dependant child credit, which was much smaller. The taxpayer appealed the reassessment to the Tax Court of Canada.

HELD:Appeal dismissed. The Court found that because the taxpayer was a married man who was not separated from his wife, he did not qualify for the equivalent to married credit because the legislative intent behind that provisions was obviously to deal with single parents with dependents. The Court held that any difference in the treatment of married and non-married cohabitants was unintended and incidental to the overall purpose of the legislation, and that the taxpayer's religious beliefs are not actually threatened by the provision. The Court rejected the taxpayer's Charter arguments on the basis that not every legal distinction constitutes discrimination for purposes of the Charter, and on the basis that the Court did not have the authority to massively rewrite a complex legislative scheme in any event.


The appellant himself, for the Appellant;
David McIntyre, for the Respondent.


KING T. C. J.:—The Appellant is appealing his reassessments of the 1988 and 1989 income tax returns.

The facts are straightforward. The Appellant, a married man in 1988 and 1989, claimed on his returns the equivalent to married status for a dependent child. Revenue Canada disallowed his claims on the basis that he being a married person and not separated, could not claim this status under paragraph 118(1)(b) of the Income Tax Act.

His appeals are based on the fact that paragraph 118(1)(b) does allow common-law couples to claim equivalent to married status and he, who because his religious belief require him to marry rather to live in a common-law relationship and raise children,thus claims that, because of these religious beliefs and marital requirements, this section of the Income Tax Act is discriminatory within the meaning of subsection 2(a) and 15(1) of the Canadian Charter of Rights and Freedoms (the "Charter")

The relevant sections of the Charter are as follows:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

I now turn to determining if paragraph 118(1)(b) results in a violation of subsection 2(a) of the Charter.

As I stated in Elaine Schachtschneider and Her Majesty the Queen (not reported) the two leading cases that deal with this question of freedom of religion are the Supreme Court cases of Regina v. Big M Drug Mart Ltd. (1985), 18 D. L. R. (4th) 321 and Edwards Book and Art Ltd. et al. v. The Queen (1986), 35 D. L. R. (4th) 1. Dickson C. J. C. wrote the majority decision in each case.

In the Big M case, supra, at pp. 353-354 he explained the meaning of freedom of religion as follows:

"Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person. The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest belief by worship and practice or by teaching and dissemination. But the concept means more than that.

Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the State or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience."

In the Edwards Book and Art case, supra, he reviewed the Big M Drug Mart case extensively and stated at pp. 34-35:

"This does not mean, however, that every burden on religious practices is offensive to the constitutional guarantee of freedom of religion. It means only that indirect or unintentional burdens will not be held to be outside the scope of Charter protection on that account alone. Section 2(a) does not require the Legislatures to eliminate every minuscule state-imposed cost associated with the practice of religion. Otherwise the Charter would offer protection from innocuous secular legislation such as a taxation act that imposed a modest sales tax extending to all products, including those used in the course of religious worship. In my opinion, it is unnecessary to turn to s. 1 in order to justify legislation of that sort. The purpose of s. 2(a) is to ensure that society does not interfere with profoundly personal beliefs that govern one's perception of oneself, humankind, nature, and, in some cases, a higher or different order of being. These beliefs, in turn, govern one's conduct and practices. The Constitution shelters individuals and groups only to the extent that religious beliefs or conduct might reasonably or actually be threatened. For a state-imposed cost or burden to be proscribed by s. 2(a) it must be capable of interfering with religious belief or practice. In short, legislative or administrative action which increases the cost of practising or otherwise manifesting religious beliefs is not prohibited if the burden is trivial or insubstantial."

We are here dealing with a taxing statute. It is clear that Parliament in paragraph 118(1)(a) deals with married persons and in paragraph 118(1)(b) intended to deal with single parents with dependents. The obvious intention was to help balance the tax load for both married and single parents with dependents up to a certain income level. It appears to me that the additional benefits accruing to common-law parents with dependents, and only if both had incomes, were unintended and incidental to the overall purpose of the legislation. In light of the above it is my opinion that the Appellant's religious beliefs were by paragraph 118(1)(b) not profoundly or actually threatened. I think I would be drawing a long bow indeed to equate his inability to claim these additional tax credits as an interference with a fundamental freedom as envisioned by subsection 2(a) of the Charter.

I now turn to subsection 15(1) of the Charter. The leading case relating to this section is Andrews v. Law Society of British Columbia, (1989) 56 D. L. R. (4th) 1. McIntyre J. wrote the majority decision and p. 15 sets out the purpose of section 15. He states as follows:

"It is readily apparent that the language of s.15 was deliberately chosen in order to remedy some of the perceived defects under the Canadian Bill of Rights. The antecedent statute is part of the "linguistic, philosophic and historical context" of s.15 of the Charter.

It is clear that the purpose of s.15 is to ensure equality in the formulation and application of the law. The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration. It has a large remedial component. Howland, C. J. O. and Robins, J. A. (dissenting in the result but not with respect to this comment) in Reference re An Act to Amend the Education Act (1986), 25 D. L. R. (4th) 1, 53 O. R. (2d) 513, 23 C. R. R. 1983 (C. A.), attempts to articulate the broad range of values embraced in s.15. They state at p. 42 D. L. R. p.554 O. R.:

In our view, s.15(1) read as a whole constitutes a compendious expression of a positive right to equality in both the substance and the administration of the law. It is an all- encompassing right governing all legislative action. Like the ideals of "equal justice" and "equal access to the law", the right to equal protection and equal benefit of the law now enshrined in the Charter rests on the moral and ethical principle fundamental to a truly free and democratic society that all persons should be treated by the law on a footing of equality with equal concern and respect."

It is clear from his judgment that you must not only consider the content of the law being impugned but also its purpose and its impact not only on those to whom it applies but also those who it excludes from its application.

At p. 22 he states:

"A third approach, sometimes described as an "enumerated or analogous grounds" approach, adopts the concept that discrimination is generally expressed by the enumerated grounds. Section 15(1) is designed to prevent discrimination based on these and analogous grounds. The approach is similar to that found in human rights and civil rights statutes which have been enacted throughout Canada in recent times.

... The analysis of discrimination in this approach must take place within the context of the enumerated grounds and those analogous to them. The words "without discrimination" require more than a mere finding of distinction between the treatment of groups of or individuals. Those words are a form of qualifier built into section 15 itself and limit those distinctions which are forbidden by the section to those which involve prejudice or disadvantage."

Marital status is not an enumerated ground in subsection 15(1) but I am of the opinion that it comes within the ambit of subsection 15(1) as being an analogous ground as set out above.

I am of the opinion the question whether there is discrimination because of marital status of the Appellant precluding him from claiming the additional tax credit available to non-married taxpayers is succinctly dealt with in the judgment of Wilson J. and La Forest J. in the Andrews case, supra. There is no doubt there is a distinction drawn in paragraphs 118(1)(a) and (b) of the Income Tax Act between married and non-married persons. Wilson J. at p. 34 states as follows:

"If every distinction between individuals and groups gave rise to a violation of s. 15, then this standard might well be too stringent for application in all cases and might deny the community at large the benefits associated with sound and desirable social and economic legislation. This is not a concern, however, once the position that every distinction drawn by the law constitutes discrimination is rejected as indeed it is in the judgment of my colleague, McIntyre J."

La Forest J. at p. 38:

"That having been said, I am convinced that it was never intended in enacting s. 15 that it become a tool for the wholesale subjection to judicial scrutiny of variegated legislative choices in no way infringing on values fundamental to a free and democratic society. Like my colleague, I am not prepared to accept that all legislative classifications must be rationally supportable before the courts. Much economic and social policy-making is simply beyond the institutional competence of the courts: their role is to protect against incursions on fundamental values, not to second- guess policy decisions."

In light of the above and the fact that the Income Tax Act is, by its nature, setting out social and economic policy of Parliament, I am of the opinion that the distinction made in the paragraphs was not discrimination within the meaning of subsection 15(1) of the Charter.

In coming to this conclusion I am not unmindful of the judgment of Galligan J. in the Ontario High Court in the case of Ontario Public Service Union v. The National Citizens Coalition Inc., 87 D. T. C.5270 at p. 5272. He was dealing with subsection 15(1) of the Charter and stated as follows:

"The argument advanced with respect to s. 15(1) is that the circumstances disclosed in paragraphs 10 and 11 of the statement of claim show that certain taxpayers could be disentitled to equal benefit of the tax laws. I have some difficulty in understanding how tax laws can be said to bestow benefits on taxpayers. But, having said that, it is clear that some taxpayers are entitled to certain deductions from their income while others are not. The Income Tax Act is full of examples where one taxpayer for certain reasons has certain deductions which another taxpayer does not have. Also, certain taxpayers are called upon to pay more taxes than others. Some taxpayers are called upon to pay taxes at a higher rate than others.

The Charter, as it has been said in many, many cases, too numerous to mention, is an important piece of legislation which constitutionally protects important rights and freedoms of people who live in this country. It seems to me that it comes very close to trivializing that very important constitutional law, if it is used to get into the weighing and balancing of the nuts and bolts of taxing statutes."

Having reached the conclusion I have, I need not of course deal with section 1 of the Charter or the remedies available in this Court.

Even if my interpretation of the jurisprudence referred to above was wrong notwithstanding this interpretation there is a more compelling argument which is paramount to the disposition of this appeal. It has to do with the statutory jurisdiction of the Tax Court of Canada. A number of judgments have been rendered by different judges of the Court dealing with its competence to grant declaratory relief.

Judge Garon of this Court in Vitangela Tiberio and Serafino Tiberio (Appellants) v. The Minister of National Revenue (Respondent) 91 D. T. C. 17 has considered this problem in the light of the existing jurisprudence and has reaffirmed the principle that the Tax Court of Canada is not constitutionally empowered to grant declaratory relief which is what would be required from this Court to confirm the validity of the appeal.

In the case of Tiberio the facts are summarized as follows:

"In respect of the 1985 and 1986 taxation years, the Minister disallowed the attempt by the taxpayers V and her husband S (neither of whom had attained the age of 65), to deduct the supplementary deduction available only to taxpayers 65 years of age or over. In respect of his 1988 taxation year, S similarly objected to the Minister's disallowance for 1988 of the supplementary age tax credit which he had claimed. S also objected to the disallowance by the Minister of his attempt to claim the dependent children deduction available in respect of children having (inter alia) attained 18 years of age. At the end of 1985 and 1986, S's three children were between 5 and 10 years of age. V and S both appealed to the Tax Court of Canada."

The taxpayer had alleged that the relevant provisions of the Income Tax Act providing for larger deductions in respect of dependent children who have reached 18 years of age, and in respect of taxpayers 65 years of age or over, were discriminatory by reason of age, and hence contrary to the "equality provisions" of the Charter.

Judge Garon in dismissing the appeals says at page 26:

"In order to enable the Court to grant this relief, the Court would be required to rewrite the provisions of paragraph 109(1)(h) and subsection 118(2) or otherwise amend the Income Tax Act so as to do away with the age requirement spelled out in these provisions.

As I have pointed out earlier, the practical approach to the Appellants' contention would involve the rewriting of the legislation. Subsection 24(1) of the Charter does not empower the Court to amend or rewrite the legislation under attack. This is a matter wholly beyond the judicial reach. This task is entrusted to the Parliament of Canada as far as federal legislation is concerned.

Judge Bonner of this Court considered this question in the matter of Dr. Gene Keyes v. The Minister of National Revenue, 89 D. T. C. 91. This was a case where the taxpayer contended that paragraph 122.2(2)(a) of the Income Tax Act was inconsistent with the Charter in depriving him of the benefit of the child tax credit. Judge Bonner concluded as follows:

... In either case, subsection 24(1) of the Charter does not empower the Courts to amend or rewrite invalid legislation in the manner sought by the Appellant. If paragraph 122.2(2)(a) is invalid it falls, and in the absence of legislative action to fill the void it cannot be said that the Appellant is, within the meaning of subsection 122.2(1), "... An individual who has an eligible child..." and is therefore entitled to the credit. In short, the Charter argument, if successful, would not lead to a conclusion that the assessment under appeal is too high. This branch of the appeal therefore fails as well."

He also makes the following comments at the same page:

"As mentioned by Judge Rip of this Court in the case of Lee F. Smith v. The Minister of National Revenue, 89 D. T. C. 639, this Court does not have jurisdiction to grant declaratory relief. In the Smith case, the Minister denied the taxpayer a personal exemption under paragraph 109(1)(b) of the Income Tax Act in respect of the support of his former sister-in-law."

Finally, he says at page 27:

"I therefore conclude that the impugned provisions of the Income Tax Act are not discriminatory and consequently do not offend the Canadian Charter of Rights and Freedoms. Furthermore even if I had agreed with the substance of Appellants's position I would have been constrained to dismiss the appeals since there is no remedy that could be granted by this Court that would affect the validity of the assessments in issue."

To grant the relief sought by the appellant in the present case would require that the Court amends or rewrites the provisions of paragraph 118(1)(b), a process that is not within its jurisdiction as it is entrusted solely to the Parliament of Canada.

For these reasons the appeals are dismissed.