Landon v. Canada

Gary Landon, Appellant, and
Her Majesty the Queen, Respondent

Court File No. 96-4182(IT)I

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

Heard:September 17, 1997
Judgment:December 1, 1997


The Appellant, in person.
Sean O'Donnell, for the Respondent.


JUDGMENT:--The appeals from the assessments under the Income Tax Act for the 1994 and 1995 taxation years are dismissed.


BONNER T.C.J.:—The Appellant appeals from assessments of income tax for the 1994 and 1995 taxation years. The appeals relate to the constitutional validity of the Income Tax Act as a whole and to the validity, having regard to section 15 of the Canadian Charter of Rights and Freedoms, of the system of personal tax credits under subsection 118(1) of the Income Tax Act.

I will deal first with the submission that the Income Tax Act is beyond the power of the Parliament of Canada because it relates to a matter within the exclusive competence of the legislatures of the provinces, namely, direct taxation within a province in order to raise revenue for provincial purposes. This submission must be rejected. It is contrary to settled law. [See Note 1 below]

Note 1: Caron v. The King, [1924] A.C. 999.

I turn next to the argument based on section 15 of the Charter. It is summarized in paragraphs 19 to 26 of the Notice of Appeal as follows:

19. The Appellant has a spouse (Katherine Landon) and five children (Seth Landon) aged 3 years, (Moshe Landon) 4 years, (Justin Landon) 8 years, (Jonathan Landon) 18 years and (Shayne Landon) 22 years. Katherine, Seth, Moshe and Justin are dependents that resided with the Appellant. The Appellant, during the years of 1994 and 1995 contributed to the support of Jonathan and Shayne Landon.

20. The Appellant is required by Criminal Law, with penalty to "provide the necessaries of life", to his spouse and to the persons under his charge. By definition this includes the three dependent children referred to in fact number 19 until each reaches 16 years of age.

21. The Appellant is required by Provincial Statutes to support those dependent children until they reach the age of 18 years and the Appellant is liable to "Payment Orders".

22. The Appellant's income, is family income, included with that of the Appellant's spouse and dependents.

23. The Appellant's income is the income of the Appellant's spouse and dependents.

24. The Appellant's spouse and dependents are not allowed a personal tax exemption that is allowed to the Appellant.

25. The personal tax exemption allowed to the Appellant in the Tax Act is reasonably the minimal cost "to provide the necessaries" of a person.

26. It is an unconstitutional inequality not to allow the Appellant's spouse and dependent children a personal tax exemption. Further, this inequality is neither trivial or insubstantial.

The Appellant asserts that persons who support their spouses and dependents do not receive sufficient tax relief under section 118 of the Income Tax Act. He argues that section 15 of the Canadian Charter of Rights and Freedoms requires that he be granted an equal amount of tax relief for each individual dependent upon him for support. His position seems to be that, for each person to whom he is required to provide the necessaries of life [See Note 2 below] he ought to receive tax relief in an amount sufficient to enable him to furnish the support out of pre-tax income.

Note 2: Section 215 of the Criminal Code.

Subsection 15(1) of the Charter reads:

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 can find nothing in the Charter which requires the legislature to exempt from taxation either directly or by way of tax credit any particular amount of income. In my view, an individual's entitlement under section 15 of the Charter to equal protection and equal benefit of the law does not encompass an exemption from taxation that varies directly with the cost to the individual of compliance with his or her legal obligations. It is true that section 118 of the Income Tax Act makes distinctions among individual taxpayers based on criteria such as matrimonial status and the provision of support to dependent persons. Before the period now in issue a credit was available for persons under the age of 18 who were dependent on the taxpayer for support. That credit was replaced by a child tax benefit under section 122.61 of the Act. However distinctions are inherent in the legislative process. What may be fatal to the validity of legislation is a distinction which gives rise to discrimination. In Egan v. Canada, [1995] 2 S.C.R. 513, La Forest J. noted at page 530:

"What then is discrimination? There are several comments in the course of McIntyre J.'s remarks in Andrews that go a long way towards clarifying the concept. Thus, at p. 174, he stated:

I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.

This statement cannot, however, be looked at in isolation. It must be read in conjunction with McIntyre J.'s earlier comment, at p. 165, as follows:

In other words, the admittedly unattainable ideal [of equality] should be that a law expressed to bind all should not because of irrelevant personal differences have a more burdensome or less beneficial impact on one than another.

Similarly in my separate reasons, at p. 193, I observed that "the relevant question ... is ... whether the impugned provision amounts to discrimination in the sense in which my colleague has defined it, i.e. on the basis of irrelevant personal differences' such as those listed in s. 15 ...".

In the same case Cory and Iacobucci J.J. stated at page 583:

"Section 15(1) of the Charter is of fundamental importance to Canadian society. The praiseworthy object of the section is the prevention of discrimination and 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": Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 171. It has been recognized that the purpose of s. 15(1) is "to advance the value that all persons be subject to the equal demands and burdens of the law and not suffer any greater disability in the substance and application of the law than others": R. v. Turpin, [1989] 1 S.C.R. 1296, at p. 1329. It is this section of the Charter, more than any other, which recognizes and cherishes the innate human dignity of every individual. It is this section which recognizes that no legislation should treat individuals unfairly simply on the basis of personal characteristics which bear no relationship to their merit, capacity or need.

With this background in mind, it is appropriate to consider the principles which should guide a court in an interpretation of s. 15(1) and then to apply those principles to the situation presented in this case.

In Andrews, supra, and Turpin, supra, a two-step analysis was formulated to determine whether a s. 15(1) right to equality had been violated. The first step is to determine whether, due to a distinction created by the questioned law, a claimant's right to equality before the law, equality under the law, equal protection of the law or equal benefit of law has been denied. During this first step, the inquiry should focus upon whether the challenged law has drawn a distinction between the claimant and others, based on personal characteristics.

Not every distinction created by legislation gives rise to discrimination. Therefore, the second step must be to determine whether the distinction created by the law results in discrimination. In order to make this determination, it is necessary to consider first, whether the equality right was denied on the basis of a personal characteristic which is either enumerated in s. 15(1) or which is analogous to those enumerated, and second, whether that distinction has the effect on the claimant of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to benefits or advantages which are available to others."

The essence of the Appellant's complaint does not relate to discrimination. Rather it is that the tax relief offered to him is insufficient. There is simply no rational basis for a conclusion that the legislature has, in enacting sections 118 and 122.6 withheld benefits or advantages on the basis of "irrelevant personal differences".

The appeals will be dismissed.