T-2836-78
Luis Ayala (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Collier J.—Edmonton, February 2;
Ottawa, February 14, 1979.
Income tax — Income calculation — Deductions — Child
care expenses claimed by husband — Wife attending Universi
ty — Deduction disallowed because conditions for deducting
those expenses not met — Whether or not s. 63 creating
discrimination by reason of sex leading to inequality before the
law contrary to the Canadian Bill of Rights — Whether or not
offending portions of s. 63 should be declared inoperable —
Income Tax Act, S.C. 1970-71-72, c. 63, s. 63.
This is an appeal from a decision of the Tax Review Board
rejecting plaintiffs appeal from the Minister's assessment dis
allowing a claimed deduction for child care expenses. Plaintiff,
whose wife was a full-time law student, sought to deduct a sum
paid by him in respect of child care expenses even though he
did not fall within any of the categories set out in paragraph
63(1)(b) of the Income Tax Act. It is argued that section 63
creates discrimination by reason of sex leading, in plaintiffs
case, to inequality before the law, that the Canadian Bill of
Rights is applicable, and that the offending portions of the
section should be declared inoperable.
Held, the appeal is dismissed. In respect of section 63 the
legislators sought to provide some relief to a working parent
having custody of children, who incurred child care expenses.
That is a valid federal objective. It is not made invalid because
one class of taxpaying parent (whether male or female) was
given relief, and other classes of taxpaying male parents were
not. There is not, in section 63, discrimination by reason of sex,
inequality before the law, or both, or a combination. Although
the qualifications for deductions, in respect of a female parent,
are less restrictive than in the case of a male parent, the
differences, and whatever the legislative reasons for them, do
not run afoul of the Canadian Bill of Rights.
INCOME tax appeal.
COUNSEL:
Susan J. Ayala for plaintiff.
W. A. Ruskin for defendant.
SOLICITORS:
Macdonald & Ayala, Edmonton, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
COLLIER J.: This is an appeal from a decision of
the Tax Review Board.
The plaintiff, in 1974, sought to deduct, for
income tax purposes, an amount of $984. That
sum had been paid by him in respect of daycare
expenses for his two pre-school children.
The plaintiff was employed as a social worker.
His gross income for 1974 was $10,611.87. He was
married. His wife, in that year, was a full-time law
student at the University of Alberta. He and his
wife were not separated "pursuant to a decree,
order or judgment of a competent tribunal or
pursuant to a written agreement".
Obviously child care was required in order for
these two parents to carry on, at the same time,
their occupational pursuits.
I note, from the agreed statement of facts, the
plaintiff claimed, in respect of his wife, a married
exemption. His wife's net income in 1974 was
$685.64. He claimed, as well, a deduction of $400
in respect of his wife's educational studies.
The authority for deducting child care expenses
(up to certain maximums) is found in section 63 of
the Income Tax Act.' I set out the relevant por
tions of section 63:
63. (1) There may be deducted in computing the income for
a taxation year of a taxpayer who is
(a) a woman, or
(b) a man
(i) who at any time in the year was not married,
(ii) who at any time in the year was separated from his
wife pursuant to a decree, order or judgment of a com
petent tribunal or pursuant to a written agreement,
(iii) whose wife is certified by a qualified medical practi
tioner to be a person who,
(A) by reason of mental or physical infirmity and her
confinement throughout a period of not less than 2
weeks in the year to bed, to a wheelchair or as a patient
' S.C. 1970-71-72, c. 63, as further amended.
in a hospital, asylum or other similar institution, was
incapable of caring for children, or
(B) by reason of mental or physical infirmity, was in the
year, and is likely to be for a long-continued period of
indefinite duration, incapable of caring for children, or
(iv) whose wife was confined to prison throughout a
period of not less than 2 weeks in the year,
amounts paid by the taxpayer in the year as or on account of
child care expenses in respect of the taxpayer's children, to the
extent that....
It was common ground, before the Tax Review
Board and this Court, the plaintiff did not fall
within any of the categories set out in paragraph
63(1)(b). It seems clear that if the plaintiffs wife
had, in 1974, earned taxable income and paid the
child care expenses, she would have been entitled
to deduct them.
The plaintiff's case is this. Section 63 creates
discrimination by reason of sex, leading, in the
case of the plaintiff, to inequality before the law.
The Canadian Bill of Rights 2 is, it is said, appli
cable; the offending portions of section 63 should
be declared inoperative.
The Assistant Chairman of the Tax Review
Board rejected the plaintiffs appeal 3 from the
Minister of National Revenue's assessment disal
lowing the claimed deduction. The appeal to this
Court followed.
At this stage, I set out the well-known, but
pertinent, portions of the Canadian Bill of Rights:
PART I
BILL OF RIGHTS
1. It is hereby recognized and declared that in Canada there
have existed and shall continue to exist without discrimination
by reason of race, national origin, colour, religion or sex, the
following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the
person and enjoyment of property, and the right not to be
deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and
the protection of the law;
(e) freedom of religion;
(d) freedom of speech;
R.S.C. 1970, Appendix III.
3 [1978] C.T.C. 2299.
(e) freedom of assembly and association; and
(J) freedom of the press.
2. Every law of Canada shall, unless it is expressly declared
by an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed
and applied as not to abrogate, abridge or infringe or to
authorize the abrogation, abridgment or infringement of any of
the rights or freedoms herein recognized and declared, and in
particular, no law of Canada shall be construed or applied so as
to....
The plaintiff founds his case on R. v. Drybones. 4
The effect of the Drybones case was succinctly
stated by Martland J. in R. v. Burnshine: 5
It was felt by the majority in that case that the section
deliberately created a specific type of offence, subject to pun
ishment, which could be committed only by Indians, and that,
in consequence, an inequality before the law had been created,
based upon racial grounds. The scope of this judgment was
spelled out by Ritchie J., who delivered the majority reasons, at
p. 298, as follows:
It appears to me to be desirable to make it plain that these
reasons for judgment are limited to a situation in which,
under the laws of Canada, it is made an offence punishable
at law on account of race, for a person to do something which
all Canadians who are not members of that race may do with
impunity; in my opinion the same considerations do not by
any means apply to all the provisions of the Indian Act.
The plaintiff applies the Drybones result, to his
situation, as follows: section 63 permits the deduc
tion of child care expenses (subject to certain
conditions); those deductions can be claimed by all
female taxpaying parents; only certain male tax-
paying parents are given the same right; a large
segment of male taxpaying parents, such as he, is
excluded; "in consequence, an inequality before
the law [has] been created, based upon . .." dis
crimination by reason of sex.
Federal statutes need not apply to all individuals
in the same manner. That principle was repeated
in Prata v. Minister of Manpower and
Immigration. 6 Prata had been ordered deported.
He appealed to the Immigration Appeal Board,
seeking the exercise of its discretion on compas
sionate or humanitarian grounds. But a certificate
was filed by two Ministers of the Crown pursuant
to section 21 of the relevant statute. Section 21
stripped the Immigration Appeal Board of its dis
° [1970] S.C.R. 282.
5 [1975] 1 S.C.R. 693 at 706.
6 [1976] 1 S.C.R. 376 at 382.
cretionary power where the certificate, "based
upon security or criminal intelligence reports",
stated it would be contrary to the national interest
for the Board to intervene by way of its discretion
ary power. Prata endeavoured to invoke the
Canadian Bill of Rights. Martland J. said:
The second ground of appeal is that the provisions of the
Canadian Bill of Rights prevent the application of s. 21 in
accordance with its terms, in the circumstances of the present
case.
It is contended that the application of s. 21 has deprived the
appellant of the right to "equality before the law" declared by
s. 1(b) of the Canadian Bill of Rights. The effect of this
contention is that Parliament could not exclude from the
operation of s. 15 persons who the Crown considered should
not, in the national interest, be permitted to remain in Canada,
because such persons would thereby be treated differently from
those who are permitted to apply to obtain the benefits of s. 15.
The purpose of enacting s. 21 is clear and it seeks to achieve a
valid federal objective. This Court has held that s. 1(b) of the
Canadian Bill of Rights does not require that all federal
statutes must apply to all individuals in the same manner.
Legislation dealing with a particular class of people is valid if it
is enacted for the purpose of achieving a valid federal objective
(R. v. Burnshine) ((1974), 44 D.L.R. (3d) 584).
The plaintiff says there was a valid federal
objective in section 21 of the Immigration Appeal
Board Act, R.S.C. 1970, c. I-3, but that is not the
case with section 63 of the Income Tax Act.
I disagree.
The Income Tax Act has a number of provisions
in which certain taxpayers receive benefits in the
form of deductions or other concessions, while
others are not so favoured. In respect of section 63
the legislators sought, as I see it, to provide some
relief to a working parent, having custody of chil
dren, who incurred child care expenses.' That, in
my view, is a valid federal objective. It is not made
invalid because one class of taxpaying parent
(whether male or female) was given relief, and
other classes of taxpaying male parents were not.
7 See subsection 63(3) for the meaning of child care
expenses:
There is not, in. section 63, to my mind, discrimi
nation by reason of sex, inequality before the law,
or both, or a combination. The legislation is direct
ed to the status of certain parents who incur child
care expenses. The qualifications for deductions, in
respect of a female parent, are less restrictive than
in the case of a male parent. One can speculate on
the reasons for the difference: the role, historically
at least, of women in providing most of child care
during infancy; or perhaps, again historically, the
economic earning power of the working woman
compared to the working man.
In any event, the differences, and whatever the
legislative reasons for them, do not, as I see it, run
section 63 afoul of the Canadian Bill of Rights.
My conclusion is, I think, reinforced by the most
recent decision of the Supreme Court of Canada
dealing with the Canadian Bill of Rights, and
inequality before the law: Bliss v. Attorney Gener
al of Canada.' The appellant, because of pregnan
cy, ceased employment. She did not qualify for the
special pregnancy benefits conferred by section 30
of the Unemployment Insurance Act, 1971. A few
days after confinement she became capable of and
available for work. She could not find employ
ment. Her claim for "ordinary" benefits, as
opposed to pregnancy benefits, was rejected. Sec
tion 46 of the Act denied benefits, subject to
section 30, to pregnant claimants for a period of 8
weeks prior to confinement and 6 weeks after. The
appellant invoked the Canadian Bill of Rights,
alleging discrimination by reason of sex (males
were not subject to the prohibitions of section 46),
leading to inequality before the law. Alternatively,
the appellant contended section 46, quite apart
from any discrimination, created inequality before
the law.
The appellant failed.
8 [1979] 1 S.C.R. 183 affirming Attorney General of Canada
v. Bliss [1978] 1 F.C. 208.
Ritchie J., for the Court, said, in respect of the
prescribing of conditions of entitlement to unem
ployment insurance benefits: 9
It was, in my view, necessary for the effective exercise of the
authority conferred by s. 91(2A) of the British North America
Act that Parliament should prescribe conditions of entitlement
to the benefits for which the Act provides. The establishment of
such conditions was an integral part of a legislative scheme
enacted by Parliament for a valid federal purpose in the
discharge of the constitutional authority entrusted to it under s.
91(2A) and the fact that this involved treating claimants who
fulfil the conditions differently from those who do not, cannot,
in my opinion, be said to invalidate such legislation.
Those words envelop, as I see it, the scheme of
the Income Tax Act and the conditions, provided'
by section 63, entitling deductions.
Ritchie J. went on: 10
As I have indicated, s. 46 constitutes a limitation on the
entitlement to benefits of a specific group of individuals and as
such was part of a valid federal scheme. There is a wide
difference between legislation which treats one section of the
population more harshly than all others by reason of race as in
the case of Regina v. Drybones, supra, and legislation providing
additional benefits to one class of women, specifying the condi
tions which entitle a claimant to such benefits and defining a
period during which no benefits are available. The one case
involves the imposition of a penalty on a racial group to which
other citizens are not subjected; the other involves a definition
of the qualifications required for entitlement to benefits, and in
my view the enforcement of the limitation provided by s. 46
does not involve denial of equality of treatment in the adminis
tration and enforcement of the law before the ordinary courts
of the land as was the case in Drybones.
The plaintiff, in this case, has further difficul
ties. Assuming that section 63 does offend the
provisions of the Canadian Bill of Rights, what
can this Court do in order to direct the Minister of
National Revenue to permit the deduction the
plaintiff claims? Manifestly, the whole of subsec
tion 63(1) cannot be declared inoperative or steril
ized. The plaintiff suggests the words of the sub
section beginning with subparagraph 63(1)(b)(i)
and ending with subparagraph 63(1)(b)(ii) be
declared inoperative. The subsection would then
permit all male or female parent taxpayers to
deduct child care expenses.
9 lbid., p. 186.
10 Ibid., pp. 191-192.
I cannot accept that suggestion. It would, in my
opinion, be equally logical to declare inoperative
the unrestricted right of every female parent to the
deductions. A declaration to the latter effect
would, of course, not assist the plaintiff.
In respect of a somewhat similar difficulty in
another case, I said: "
There is, it seems to me, a further problem (again assuming
discrimination): which part of section 10 is to be declared
offensive, the requirement of one year's residence on the part of
the female spouse or the 5-year residence requirement on the
part of most other persons? To hold one way or the other
would, to my mind, be amendment of the legislation, which is
not contemplated by the Bill of Rights.
The plaintiffs action is dismissed. The decision
of the Tax Review Board is affirmed. The defend
ant is entitled to costs.
n Re Schmitz [1972] F.C. 1351, at 1353.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.