Simser v. Canada, 2005 DTC 5001, 2004 FCA 414

Date: 20041207

Docket: A-284-03

Citation: 2004 FCA 414

CORAM:        STONE J.A.

NADON J.A.

SHARLOW J.A.

BETWEEN:

                                                         SCOTT IRWIN SIMSER

                                                                                                                                            Appellant

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                        Respondent

                                                                           and

                                                 CANADIAN HEARING SOCIETY

                                                                                                                                          Intervener

                                           Heard at Toronto, Ontario, on May 13, 2004.

                               Judgment delivered at Ottawa, Ontario, on December 7, 2004.

REASONS FOR JUDGMENT:                                                                                      NADON J.A.

CONCURRED IN BY:                                                                                                     STONE J.A.

                                                                                                                                  SHARLOW J.A.

Date: 20041207

Docket: A-284-03

Citation: 2004 FCA 414

CORAM:        STONE J.A.

NADON J.A.

SHARLOW J.A.

BETWEEN:

                                                         SCOTT IRWIN SIMSER

                                                                                                                                            Appellant

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                        Respondent

                                                                           and

                                                 CANADIAN HEARING SOCIETY

                                                                                                                                          Intervener

                                                    REASONS FOR JUDGMENT

[1]                This is an appeal from a decision of Deputy Judge Rowe of the Tax Court of Canada dated May 22, 2003, who concluded that funds received by the appellant pursuant to the Special Opportunities Grant for Disabled Students with Permanent Disabilities (the "SOGD") constituted a bursary within the meaning of paragraph56(1)(n) of the Income Tax Act (the "Act") and, hence, that the inclusion thereof by the Minister of National Revenue (the "Minister") in the appellant's income for the 1997 taxation year was valid.

[2]                The learned Tax Court Judge also concluded that the inclusion of the SOGD in the appellant's income did not violate his rights under section 15 of the Canadian Charter of Rights and Freedom (the "Charter").

Facts

[3]                The appellant was born profoundly deaf. From September 1994 to April 1997, he attended Law School at Osgoode Hall and upon completion of his law studies and obtention of a law degree, he enrolled in the Bar Admission Course administered by the Law Society of Upper Canada (the "Law Society").

[4]                Prior to his enrolment in the Bar Admission Course, the appellant had been provided at no cost with services to accommodate his disability. Upon enrolling in Phase I of the Bar Admission Course in May of 1997, the appellant requested the Law Society to pay for accommodation inside the classroom. Specifically, the appellant requested the Law Society to pay for sign language interpretation services and real time captioning services, which consist in the simultaneous written retranscription of speech.

[5]                The Law Society denied the applicant's request for accommodation. As a result, he made a similar request to the federal Department of Justice, where he had obtained employment as an articling student. The Department of Justice agreed to pay for the aforesaid services, but made it a condition that the appellant apply for a SOGD before granting the funding.

[6]                I should point out that the SOGD was a program funded jointly by the Ministry of Education and Training for Ontario (the "Ministry of Education") (40%) and the Department of Human Resources Development Canada ("HRDC") (60%). The funding was originally conceived by the government of Canada as a Special Opportunity Grant ("SOG") (and later, Canada Study Grant) for students with permanent disabilities. The government of Ontario designated it as a Bursary for Students with Disabilities ("BSWD") in the province of Ontario. It was a condition of the grant that the recipient qualify as a student in need of financial assistance and that the funds be spent on certain categories of disability-related expenditures. It was also a requirement that receipts be produced within 30 days of the expenditure.

[7]                Consequently, the appellant applied for financial assistance in the sum of $3,625 under the SOGD program. Although he was found to qualify for the program, he was advised by the Ministry of Education that the maximum amount available for him was $2000. In due course, the Ministry of Education issued a T-4A form for 1997 (Statement of Pension, Retirement, Annuity and Other Income) to the appellant in respect of the grant.

[8]                The appellant incurred $4,341.65 in total expenses for accommodation during the Phase 1 component of the Bar Admission Course. He used the SOGD of $2,000 to pay for sign language expenses totalling $1,978.50. With respect to the balance of his expenses, i.e. $2,363.15, these were paid by the Department of Justice. Approximately 35% of the appellant's total expenses went to real time captioning and 75% thereof went to sign language interpretation.

[9]                In the event, the Minister included the SOGD in the appellant's 1997 income, pursuant to paragraph 56(1)(n) of the Act, on the ground that the SOGD was a bursary. As a result, the appellant was obliged to pay an additional sum of $588.90 in taxes for that year.

[10]            The applicable regulations for the 1997 taxation year provided that the first $500 of a bursary, award or scholarship was exempt from taxation. Hence, with respect to the appellant's $2,000 grant, only $1,500 thereof was subject to taxation. Also, under the 1997 tax regime, sign language interpretation expenses fell into the category of allowable medical expenses for the purpose of the medical expense tax credit, but real time captioning services did not fall within that category.

[11]            At the time of filing his tax return for the 1997 year, the appellant intentionally did not include the $2,000 grant in his income on the premise that it would be discriminatory to subject the sums received to taxation. He also did not include the sign language expenses as medical expenses on his tax return.

[12]            The appellant appealed the Minister's reassessment to the Tax Court and argued that the SOGD was not a "bursary" within the meaning of paragraph 56(1)(n) of the Act. He also argued, in the alternative, that if the grant was a bursary, the inclusion thereof in his income constituted a violation of his rights under section 15 of the Charter. The Tax Court Judge rejected both of the appellant's arguments. The decision is reported at 2003 TCC 310.

[13]            I should mention that by Order dated April 8, 2004, Stone J.A. granted intervener status to the Canadian Hearing Society.

Issues

1.         Is the SOGD a "bursary" within the meaning of paragraph 56(1)(n) of the Act?

2.         If the answer to the first question is yes, does Revenue Canada's decision to include the SOGD in the appellant's income contravene section 15(1) of the Charter?

3.         If the answer to the second question is yes, does the infringement constitute a reasonable limit under section 1 of the Charter?

Legislation

[14]            The legislation relevant to this appeal is the following:

Analysis

[15]            I now turn to the first issue: is the SOGD a bursary within the meaning of paragraph 56(1)(n) of the Act?

[16]            The appellant makes three submissions in support of his position that the SOGD is not a bursary. Firstly, he argues that the funding was wrongly labelled a bursary, rather than an accommodation grant, by the Ministry of Education. He also argues that the lack of discretion in the spending of the funds, due to the strict categories of expenses and the requirement of proof of receipts, takes the SOGD out of the realm of a bursary. Lastly, the appellant invites us to conclude that the funding results from a duty of accommodation owed to him and that it is not linked to the pursuit of academic studies. The respondent disagrees with the appellant's position and submits that the Tax Court Judge made no error in concluding that the SOGD was a bursary.

[17]            Before addressing the appellant's submissions, it is important to keep in mind the characteristics of the SOGD received by the appellant. It is a grant financed jointly by the provincial and federal governments and is destined for disabled students who meet the conditions of eligibility. A reading of the relevant provisions of the Canada Student Financial Assistance Act, 1994, c. 28 (the "CSFAA") and of the Canada Student Financial Assistance Regulations (the "Regulations"), SOR 95-329, makes it clear that the SOGD is designed to help disabled students enrolled in an educational program. In order to quality for a SOGD, an applicant must:

a)         be qualified for enrolment and enrolled in an educational institution as a student and intend to attend that institution (CSFAA, subsection 2(1));

b)         have attained a satisfactory scholastic standing (CSFAA, paragraph 12(1)(a));

c)         be in need of financial assistance (CSFAA, paragraph 12(1)(b);

d)         be in need of exceptional education-related equipment or services (paragraph 34(1) (d) of the Regulations).

[18]            The appellant's first and third contentions are to the effect that the SOGD is an accommodation grant, not a bursary. His second contention, for all intents and purposes, is also to the same effect. He argues that his lack of discretion with respect to the spending of the funds is a clear indication that the SOGD is not linked to post-secondary education, but rather results from a duty of accommodation owed to him by the Ministry of Education and HRDC.

[19]            Although prepared to acknowledge that that duty rested primarily with the Law Society, the appellant submits that it was also the duty of the Ministry of Education and HRDC to accommodate him. For that proposition, he relies, in part, on the Ontario Human Rights Commission's Policy and Guidelines on Disability and the Duty to Accommodate. Section 3.4 thereof states, in part:

The accommodation process is a shared responsibility. Everyone involved should cooperatively engage in the process, share information, and avail themselves of potential accommodation solutions.

[20]            In the appellant's view, the SOGD constitutes a "funding boost" provided by government to universities and colleges to enable them to meet their duty to accommodate disabled students. This leads him to say that the link between the purpose of the accommodation funding and the constitutionally-protected ground under section 15 of the Charter, was of such importance that it is not possible to consider the SOGD as a bursary. Finally, the appellant argues that on the plain meaning of the word "bursary", the grant must have as its purpose to enable a student to further his or her academic studies. Consequently, it cannot be said that the SOGD was designed to achieve that purpose.

[21]            The Tax Court Judge rejected the appellant's submissions, as he was of the opinion that there was a clear nexus between the SOGD and an applicant's pursuit of academic studies. In my view, the Tax Court Judge's conclusion is correct. The appellant's submissions fail to recognize that an applicant cannot obtain a SOGD unless he or she is a student who has attained a satisfactory scholastic standing and is in need of financial assistance. Thus, a disabled student who cannot qualify will have to purchase the required services with his or her own funds or find another source of funding.

[22]            As a deaf student, the appellant may well have been entitled to be accommodated by the learning institution which he attended, namely the Law Society. His argument for accommodation would be that, pursuant to the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the "Ontario Code"), the Law Society, like any other learning institution, is charged with the duty of providing the appellant with those services which, by reason of his disability, are required to enable him to pursue his studies (see sections 1, 8 and 17 of the Ontario Code).

[23]            Save those cases where a learning institution has demonstrated that undue hardship would result from providing the services required by an applicant, it would appear that a person's right to receive the requested services is unconditional and does not depend on his or her financial situation or the merits of the application. Consequently, in most situations, a learning institution will have to bear the cost of providing the services which a disabled person requires to pursue his or her education (see subsections 17(2) and 24(2) of the Ontario Code). This duty is explained by the Ontario Human Rights Commission in a document entitled The Opportunity to Succeed: Achieving Barrier-Free Education for Students with Disabilities, Ontario Human Rights Commission, consultation report approved by the Commission on July 30, 2003, in the following terms (page 48):

Private career colleges, private universities, and professional licensing bodies, like all other post-secondary institutions, are bound by the Code. They are required to provide equal treatment with respect to their services, without discrimination because of disability. This means that they must provide accommodation to students with disabilities, up to the point of undue hardship. The cost of accommodation will only amount to an undue hardship where it is so substantial that it would alter the essential nature of the enterprise, or so significant that it would substantially affect its viability.

[24]            In my view, however, it cannot be said that the SOGD constitutes the fulfilment by the Ministry of Education and HRDC of their duty to accommodate the appellant. While it is true that the SOGD will be given to those handicapped students who are "in need of exceptional education-related services or equipment that are required for the student to perform the daily activities necessary to participate in studies at a post-secondary level ..." (DORS/96-368, para. 34(1(d)), the grant is reserved for students who attain a satisfactory scholastic standard and who are in need of financial assistance (See paragraphs 12(1)(a) and (b), Canada Student Financial Assistance Act, 1994, c. 28). Further, such students must provide documentary proof that they are in receipt of federal or provincial disability assistance. Consequently, I am satisfied that the characteristics of the SOGD are such as to take it out of the realm of accommodation. The SOGD was not created to "kick-in" whenever a learning institution fails or omits to fulfill its duty to accommodate a disabled person. Otherwise, it would mean that the beneficiary of a duty to accommodate would have the option of, in effect, transferring the duty owed to him to another person or institution.

[25]            I am of the opinion that the SOGD results from the government's decision to provide financial help for certain students with respect to costs relating to their disability, the purpose of which is to enable these students to continue their education, and this, notwithstanding the fact that learning institutions may have a duty to accommodate such students.

[26]            It is my view that if the appellant is seeking accommodation, he must exercise his rights against the Law Society. At paragraph 18 of his Memorandum, the appellant asserts that the Law Society owed him a duty of accommodation, but given its refusal to accommodate him and given the choice between proceeding against the Law Society and "choosing the accommodation funding under the Special Opportunities Grant, ... it was inevitable that [the appellant] had little choice but to accept the Special Opportunities Grant." I wish to make it clear that I am not concluding, nor suggesting, that the appellant would be successful against the Law Society. As that issue is not before us and, hence, the Law Society is not a party to these proceedings, it is not open to us to reach any conclusion on that issue.

[27]            The appellant's second contention as to why the SOGD is not a bursary is that the lack of discretion with respect to the spending of the funds distinguishes it from scholarships, bursaries and cash prizes. He argues that while other scholarships award cash prizes "without strings" or allow for offsets in tuition or books, the SOGD contains strict categories of expenses and requires proof of receipts.

[28]            The appellant puts much emphasis on the fact that he was obliged to spend the funds received under the SOGD program to purchase sign language interpretation services and real-time captioning, all of which were required by reason of his disability. It is in that sense that the appellant argues that the SOGD was an accommodation grant and not a bursary.

[29]            The respondent points to the existence of other bursaries reserved for disabled persons and to the fact that they are all included in the taxpayer's income. However, the funds paid out pursuant to these bursaries are not limited to the payment of specified expenses. The only exception to this appears to be that of the Ontario Students Assistance Program ("OSAP") Childcare Bursary Plan, the stated purpose of which is to "assist students who have childcare costs for three or more children". Under the plan, a childcare provider must charge the student for childcare, claim the charged fees on his or her income tax form and provide completed standard OSAP childcare receipts for the fees received. In other words, the terms of the grant require that the student demonstrate that he or she has spent the funds on specified services.

[30]            The Judge concluded, and I agree entirely with him, that "the degree of discretionary use of the funds does not change the nature of the payment" (paragraph 46 of his Reasons). In my view, the fact that the appellant did not have control of the SOGD funds, in that he was obliged to spend the funds on specific services, does not alter the nature of the grant. In any event, there is no authority for, nor does the plain meaning of the words "bursary" and "bourse d'études" support his contention that a grant cannot be characterized as a bursary unless the recipient has discretionary use of the funds.

[31]            Having concluded that the SOGD is not an accommodation grant, I must still decide whether it is a "bursary" within the meaning of paragraph 56(1)(n) of the Act. The Judge concluded, in no uncertain terms, that the grant was a bursary.

[32]            At paragraphs 38 to 42 of his Reasons, the Judge turned to the dictionaries for definitions of the words "bursary" and "bourse", which he reproduced:

[38]      The Concise Oxford English Dictionary - Tenth Edition, Revised, Oxford University Press - defines bursary as:

1. a grant, especially one awarded to a student.

[39]      The New Collegiate Dictionary - Thomas Allen & Son Limited, Toronto - defines: bursary as:

2. a monetary grant to a needy student.

[40]      The Canadian Oxford Paperback Dictionary - Oxford University Press - contains the following definition of bursary:

a financial award to a university student made primarily on the basis of financial need or some other criterion in addition to academic merit.

[41]      The same dictionary defines "grant" in this manner:

2a: a sum of money given by the state for any of various purposes, e.g. to finance education.

[42]      The French version of the paragraph in question uses the term, "bourse d'études" and "bourse", although having other definitions, is also defined by Larousse - Dictionnaire Général - 1994 - as follows:

3. Pension accordée par l'État ou par une institution à un élève, à un étudiant ou à un chercheur pour l'aider à poursuivre ses études.

[33]            To these definitions can be added the following:

Le grand Robert - dictionnaire de la langue française, Dictionnaire le Robert - Paris, 2^ème édition:

3. Bourse d'études et. absolt, bourse: pension accordée à un élève, un étudiant, pour subvenir à ses besoins pendant le temps de ses études.

The New Oxford Dictionary of English, Clarendon Press - Oxford 1998 p.246:

Bursary 1. a grant, especially one awarded to someone to enable them to study at university or college.

Canadian Dictionary of English Language, ITP Nelson 1997 p.188:

Bursary: 1. a university scholarship based primarily on need

Shorter Oxford English Dictionary, Oxford University Press Fifth edition, 2002, p.311:

3. an endowment given to a student.

[34]            These definitions of the word "bursary" highlight the fact that bursaries are grants given to students in need of financial help so as to allow them to continue their studies.

[35]            At paragraphs 45 and 46 of his Reasons, the Judge sets forth his rationale for concluding that the SOGD is a bursary:

[45]         ... In the context of the provision of funds - under that particular program - for the specific purpose of affording the appellant the means by which he could participate in the mandatory Bar Admission Course, it is difficult to regard the questioned payment as other than the sort of receipt that ordinarily - and readily - falls within the definition of "bursary" in the context in which that word is used in paragraph 56(1)(n) of the Act. I do not see any inherent ambiguity to be resolved in favour of the taxpayer. Utilizing the term "accommodation services", although an apt description of the true purpose of the funding from a social science perspective, does not change the nature of the payment that was described as a bursary and paid to the appellant pursuant to a program designed to provide financial assistance to students with disabilities. There was no definition of "grant" contained in the umbrella federal student funding legislation. Perhaps, if a definition had existed and was at odds with dictionary definitions of "bursary" - which include a grant of financial assistance to a needy student - that discrepancy might have provided some significant leverage to the appellant, considering the specific paragraph of the Act did not define "bursary" nor did it mention a "grant" other than in the context of a research grant in subsequent paragraphs within subsection 56(1).

[46]         ... The fact that the grant paid to the appellant contained more restrictions than those provided to other students within the SOG program does not disqualify this payment from inclusion into his income in accordance with the definition of bursary. It would not be unusual for a bursary or scholarship to be provided in a manner whereby the recipient was merely given credit for a reduction in tuition and/or associated educational costs under circumstances where the granting party paid a certain sum directly to the educational institution. Or, if the bursary or scholarship was provided by the institution itself, accounting entries could record a notional payment and offsetting receipt. Any payment of a bursary or scholarship is made within the context of an educational pursuit or achievement. Indeed, funds are provided by a grantor for that specific overall purpose. Depending on the precise nature of the payment, there may be more or less strings attached in accordance with the wishes of the payor. The degree of discretionary use of the funds does not change the nature of the payment. In my view, all relevant definitions contain the linkage of payment of money to a recipient who is engaged in some sort of educational pursuit. As an example, a level of government or an educational institution might confer a sum of money on a qualified recipient for the express purpose of defraying exceptional transportation costs to and from that individual's ordinary residence in order that personal funds can be otherwise expended directly on those goods and/or services normally associated with pursuing a course of study involving classroom attendance. The end result - from the perspective of the recipient - is an enhancement of that person's global financial position even if every cent of the transportation bursary or grant is expended merely in travelling to and from the educational facility. In that situation and - in the within appeal - the receipt of money has the effect of assisting both recipients within the context of a pursuit of study. In the example used, the financial assistance enabled the student to arrive at the door of the classroom. In the appellant's case, it permitted him to purchase services in order to comprehend the content of the study material and to participate fully in the Bar Admission Course within the usual classroom setting.

                                                                                                                  [Emphasis Added]

[36]            At paragraph 45 of his Reasons, after pointing out that the applicant's application for the SOGD was undertaken using a form provided by the Ministry of Education, which contained several references to "bursary funds", a "bursary cheque", and a "bursary plan", and that correspondence in regard thereto between the appellant and the Ministry of Education refer to the funds as "bursary assistance", the Judge concludes that the purpose of the SOGD was to provide financial assistance to students with disabilities. At paragraph 46, the Judge finds that the SOGD was made "within the context of an educational pursuit or achievement". He then states that the fact that the appellant had no discretion with respect to the spending of the funds does not change the nature of the SOGD.

[37]            In criticizing the Judge's decision, the appellant argues, inter alia, that he relied too heavily on the fact that the funding had been designated as a "bursary" by the Ministry of Education. I cannot agree. The Judge, following consideration of the dictionary definitions of the terms "bursary" and "bourse", applied those definitions to the SOGD received by the appellant and concluded that there was no reason why the grant should not have been labelled as a "bursary".

[38]            I have already set out at paragraph 17 of these Reasons those conditions which an applicant must meet in order to qualify for a SOGD. Can it be said that Parliament, in including in a taxpayer's income those "amounts received ... in the year ... by the taxpayer as or on account of a scholarship, fellowship or bursary, or a prize for achievement in a field of endeavour ordinarily carried out by the taxpayer" (paragraph 56(1)(n) of the Act [Emphasis added]), intended to include funds, the purpose of which was to defray the costs of services required by reason of a person's disability, so as to enable that person to pursue his or her education?

[39]            Perhaps, before going further, a few words regarding the word "received" found in sub-paragraph 56(1)(n)(i) of the Act are warranted, to the extent that the appellant argues that he did not, in effect, "receive" the funds, since he was only an intermediary between the law school and the Ministry of Education and HRDC. In Jones v. Canada, [2002] T.C.J. No. 338, at paragraph 42, Margeson J.T.C.C. cites with approval the meaning given to the word "receive" in Blais et al v. M.N.R., [1989] T.C.J. No. 505:

42. ...

The word "receive" means to get or derive benefits from something or to enjoy its advantages without necessarily having it in one's hand.

And then, at paragraph 60 of his Reasons, Margeson J.T.C.C. expands on the meaning of the word "receive" as follows:

[60]         The Court has no doubt that what was received by the Appellant here is certainly included in the definition of "scholarship" in subsection 56(1)(n). There can be no doubt that in the case at bar the money represented by the scholarship went into the Appellant's account at the College. The evidence makes it clear that the book entry made in his account sets out the amount of money in issue and this account was debited periodically to reflect the balance of credits given to the Appellant after these amounts were charged to his account. Consequently, the Court is satisfied that whatever the scholarship represented was actually received by the Appellant even though he did not have it in his own hands and at no time did he actually receive cash in that amount nor at no time was he able to control the amount in any way except that charges in his account would be offset by the amount of the scholarship.

[40]            I cannot find any fault with the above reasoning. There cannot be any doubt, in my view, that the appellant did receive an amount of $2,000, the purpose of which was to defray the costs of services which he required to attend the bar admission course.

[41]            The fact that the SOGD was given to the appellant by a government institution is also of no relevance to the determination of whether the SOGD is a bursary. Whether grants are paid by public or private funds does not change their nature. Paragraph 56(1)(n) does not, in my view, allow such an argument to be made. In [1983] 2 S.C.R. 428">Canada v. Savage, [1983] 2 S.C.R. 428 at p. 443, in discussing the expression "prize for achievement" found in paragraph 56(1)(n), Dickson J. (as he then was) made the following remarks:

[...] First, s. 56(1)(n) is not concerned with the identity of the payer or the relationship, if any, between doner and donee. There is nothing in the section which renders the scholarship, fellowship, bursary or prize taxable on the ground that the donor or payer is the employer of the taxpayer. Second, the words "scholarship, fellowship or bursary", with which the word prize is associated, are normally employed in speaking of educational attainments, usually in the sphere of advanced studies, and "polite" learning.

                                                                                                                   [Emphasis added]

[42]            In Quebec (Communauté urbaine) v. Corporation Notre-Dame de Bon-Secours, [1994] 3 S.C.R. 3, Mr. Justice Gonthier, for a unanimous Supreme Court of Canada, sets out the rules for the proper interpretation of tax legislation at page 20 of his Reasons:

The rules formulated in the preceding pages, some of which were relied on recently in Symes v. Canada, [1993] 4 S.C.R. 695, may be summarized as follows:

- The interpretation of tax legislation should follow the ordinary rules of interpretation;

- A legislative provision should be given a strict or liberal interpretation depending on the purpose underlying it, and that purpose must be identified in light of the context of the statute, its objective and the legislative intent: this is the teleological approach;

- The teleological approach will favour the taxpayer or the tax department depending solely on the legislative provision in question, and not on the existence of predetermined presumptions;

- Substance should be given precedence over form to the extent that this is consistent with the wording and objective of the statute;

- Only a reasonable doubt, not resolved by the ordinary rules of interpretation, will be settled by recourse to the residual presumption in favour of the taxpayer.

[43]            In the course of his Reasons, Gonthier J., at pages 15 and 16, identified the two purposes of tax legislation in Canada, namely, the raising of funds by the government to cover its expenditures and for the attainment of social and economic purposes.

[44]            Turning to subsection 56(1) of the Act, it appears to me that the purpose of the provision is more in line with the traditional purpose of taxing legislation, i.e. to raise funds to cover government expenditures: the stated purpose of the subsection is to include in a taxpayer's income specified sources of income, save those which have been expressly exempted by the provision. Paragraph 56(1)(n) follows this objective: for example, prizes for achievement in a field of endeavour ordinarily carried out by the taxpayer are included, but not those prescribed by regulation and those which are not ordinarily carried out by a taxpayer.

[45]            The word "bursary" is not qualified in any way. The wording of paragraph 56(1)(n) leads me to the conclusion that it must receive a liberal interpretation. The word "bourse d'études", used in the French version of paragraph 56(1)(n), makes it clear that a "bourse" is linked to the status of student. Further, the dictionary definitions which the Judge cited and those that I have added to his list evoke the notion of financial assistance for needy students. This criteria is found in the SOGD, which makes the grant available to needy students who have achieved a minimum standard of success in their studies.

[46]            Before concluding on this point, I must address an argument put forward by the appellant on an alternate basis: the SOGD is a social assistance payment, pursuant to paragraph 56(1)(u) of the Act. From the appellant's point of view, this categorization is more favourable, since the income, when included under paragraph 56(1)(u), is deductible under paragraph 110(1)(f) of the Act.

[47]            The appellant's submission is premised on the wording of paragraph 56(1)(u), which defines a "social assistance payment" as a payment made on the basis of a "means, needs or income test...". The appellant submits that the SOGD falls within that definition, since it is awarded on a needs test, i.e. that an applicant, when applying in Ontario, must first qualify for financial need under OSAP. At first glance, the appellant's argument is not without merit, but, in the end, it must fail.

[48]            A review of the material in the record, which pertains to student grants and loans in general and assistance to disabled students in particular, highlights the fact that a disabled student applying for a SOGD must initially complete an application for a full-time or part-time Canada Student Loan in order to establish his or her financial needs. Needs related to the disability are assessed separately. The question then is: should we conclude that because receipt of a SOGD depends, in part, upon the assessment of an applicant's financial needs, that such a grant is more akin to a social assistance payment under paragraph 56(1)(u) than to a bursary under paragraph 56(1)(n)?

[49]            Many of the dictionary definitions of the word "bursary" refer to the notion of financial need when delineating a bursary or grant. This is also what differentiates scholarships from bursaries. The former is often awarded to recognize excellence in the academic field, while the latter is usually awarded to provide financial assistance to a student. Both words are used in paragraph 56(1)(n).

[50]            If the true purpose of a bursary is to provide financial assistance to students, then it makes no sense to exclude from the definition thereof funds awarded on condition that financial needs be assessed. Such a conclusion would have the effect of excluding from the definition of bursary all grants attributed pursuant to the CSFAA. Another common feature of the definition of bursary is the fact that a bursary is granted to students to enable them to pursue their studies. In my view, this is the core purpose of a bursary: to provide help to a student, not in a generic way, but specifically to enable him or her to pursue his or her education. Consequently, in order to determine whether an income-tested grant falls under the category of "bursary" or of "social assistance payment", its core purpose must be determined. At paragraph 46 of his Reasons, the Tax Court Judge addressed this issue in the following terms:

[46]     (...)there is no justification for regarding the SOG payment to the appellant as other than a bursary as contemplated by that provision. It does not meet the criteria associated with a social assistance payment in the ordinary sense in which that term is employed within various pieces of legislation. It would require one to ignore the context of the SOG payment and its purpose which is inextricably linked to a facet of post-secondary education and - instead - to prefer a definition that is generally applicable to a program of broad-based, generic government funding more appropriately associated with ameliorating the effects of lower income levels on individuals and families over a longer term.

                                                                                                                   [Emphasis added]

[51]            As I have already indicated, the SOGD is not available to all disabled students, but only to those who meet the financial and educational criteria. This criteria, as the Tax Court Judge points out, correctly in my view, makes clear the link between the SOGD and the applicant's pursuit of post-secondary education.

[52]            Consequently, I am satisfied that the SOGD granted to the appellant falls within the ambit of paragraph 56(1)(n) of the Act and that, in so concluding, the Tax Court Judge made no error. I therefore turn to the Charter issue.

[53]            The constitutional validity of the inclusion of the SOGD in his income was challenged by the appellant before the Tax Court and the Tax Court Judge concluded that its inclusion did not violate his section 15 rights.

[54]            Before reaching his conclusion, the Tax Court Judge properly laid out the test enunciated by the Supreme Court of Canada in Law v. Canada (M.E.I.), [1999] 1 S.C.R. 497 at paragraph 76, to establish whether discrimination had occurred: (1) Does paragraph 56(1)(n) of the Act impose differential treatment between the appellant and other students, in purpose or effect?; (2) Is the enumerated ground of disability the basis for the differential treatment?; (3) Does paragraph 56(1)(n) of the Act have a purpose or effect that is discriminatory within the meaning of the equality guarantee?

[55]            After accepting the comparator group chosen by the appellant, i.e. the group of non-disabled students receiving bursaries, grants, fellowships or scholarships, who are not required to incur expenses for accommodation services merely to access the classroom from a physical standpoint or to comprehend course material, the Judge dealt with the first branch of the Law, supra, test, differential treatment. He concluded that taxation of the SOGD resulted from the nature of the funding without reference to any personal characteristics of the appellant. As a result, he concluded that paragraph 56(1)(n) did not draw any formal distinction between the appellant and those to whom he was compared. The essence of the Judge's reasoning is found at paragraphs 84 and 86 of his Reasons:

[84]      Turning to the facts relevant to the within appeal, the SOG was made available to the appellant only after he had demonstrated financial need, the overarching component within the particular structure designed in accordance with the overall program concerned with financing students through loans and grants. All students receiving financial aid in a form satisfying the ordinary definitions of the words used within paragraph 56(1)(n) of the Act, were required to include the taxable portion thereof into income. This requirement applied whether the grant was for the specific purpose of enabling a student to receive funds to cover the cost of transportation to and from the educational institution or to pay tuition and related fees, purchase books and supplies, compensate tutors or acquire specialized equipment and services. In terms of specific expenditures, there will, of course, be differences depending on the nature and intent of the financial aid and the needs of the recipient as recognized by the awarding of a particular bursary, fellowship or scholarship. The specificity of the purpose of the bursary does not amount to differential treatment nor does verification of the amounts expended. The other groups eligible for SOGs were female doctoral students and students with dependent children. There is no cogent evidence concerning the nature of restrictions imposed upon the recipients but it is safe to assume the terms under which their grants were provided were substantially broader in nature than those applicable to Simser. He applied for funding in order to obtain certain services - real-time captioning and sign language interpretation - and the bursary was awarded - albeit in a lesser amount than he had sought - in order that those necessary services could be obtained for the purpose of permitting him to attend the Bar Admission Course. However, all three categories required potential recipients to demonstrate financial need and to submit the appropriate documentation to support the claim of eligibility on that ground as well as to demonstrate conformity with several other terms and conditions. In the case of an SOG paid to a student with dependents, the recipient probably did not have to account for specific purchases of baby food, diapers, and other ordinary items acquired for the benefit of the children but it is reasonable to assume there were certain conditions - applicable both before and after the awarding of the grant - which were binding upon that student in a general sense. Obviously, the purpose of aiding students with their education - by making funds available to alleviate burdens created by financial need - is not to provide funds to purchase items considered as recreational in nature or to enable a student to participate in activities not having a reasonable and demonstrable link with the particular educational pursuit.

[...]

[86]      In the within appeal, the taxable nature of the SOG received by the appellant is due to the nature of the funding without reference to any personal characteristics. The specific provision of the Act - paragraph 56(1)(n) - does not draw any formal distinction between Simser and other students - whether they were disabled, recipients of another category of SOG or non-disabled students obtaining financial aid by way of a bursary, scholarship or fellowship. The legislation seeks to tax money provided through various sources to persons who - by ordinary definition of those terms - are engaged in the pursuit of education. The paragraph draws a distinction between the aforementioned categories in that an amount received as a prize is only taxable if awarded for achievement in a field of endeavour ordinarily carried on by the taxpayer.

                                                                                                                  [Emphasis Added]

[56]            The Judge then considered whether paragraph 56(1)(n) failed to take into account the appellant's already disadvantaged position within Canadian society resulting in substantively different treatment between him and others on the basis of his disability. After carefully reviewing the relevant evidence, the Judge concluded that paragraph 56(1)(n) of the Act did not fail to take into account the appellant's disadvantaged position. At paragraphs 92 to 94 of his Reasons, the Judge explains his conclusion as follows:

[92]         ... The appellant faced a communication barrier due to his profound deafness and required financial assistance to overcome that hurdle. Other students whether disabled or not and whether eligible for SOGs or a myriad of other forms of financial assistance - based on a multitude of criteria - also required funding to overcome some circumstance that created an otherwise seemingly insurmountable barrier to that important pursuit. Some students might belong to a disadvantaged group within Canadian society as in the case of an aboriginal student living in an area of extremely high unemployment affected by a devastatingly low per capita annual income. As discussed earlier in another context, the requirement that the receipt of need-based funding must be included into income is based on the premise that all students will be treated equally rather than attempting to create specialized categories within that broad group even though the downstream effect will vary from person to person - at tax time - depending on a multitude of other factors including the amount of other taxable income received during that taxation year. Even in 1997, there was recognition that recipients of amounts included within paragraph 56(1)(n) of the Act were entitled to a $500 exemption from taxation. That amount - appropriately so - has since been increased to $3,000. The position of the appellant is that the Minister should have looked beyond the mere form of the payment issued pursuant to the BSWD portion of the SOG program which - in turn - was part of the overall student financing framework of the Canada Student Loans Program. By delving deeper into the true nature of the bursary, the appellant argues the Minister could have ascertained that it was expended - as required - for the sole purpose of purchasing those accommodation services enabling him to access the classroom on an equal basis. The appellant submitted the omission of that second step fails to take into account his lifelong disadvantaged position - as a deaf person - and that the refusal to refine the meaning of a bursary so as to exclude accommodation funding - as defined by experts - results in substantively differential treatment between himself and other students at the Bar Admission Course based solely on his personal characteristic, namely, deafness.

[93]      Taking all of the relevant evidence into account, I cannot find that the Minister was required to interpret paragraph 56(1)(n) of the Act in such a manner as to create a difference between the appellant and other recipients of bursaries, fellowships, scholarships and taxable prizes, in order that the payment to the appellant could be exempted from taxation. ...

[94]      In my view, the appellant has failed to demonstrate that paragraph 56(1)(n) of the Act failed to take into account his position within the category of already disadvantaged persons in a manner that resulted in substantively differential treatment between himself and other bursary recipients on the basis that he was deaf and required certain specialized services in order to pursue his education.

                                                                                                                  [Emphasis Added]

[57]            In concluding as he did, the Tax Court Judge considered that many non-disabled students required funding to assist them in overcoming circumstances that present otherwise "seemingly unsurmountable" barriers to education and that, as a result, there was no basis for the Minister to interpret paragraph 56(1)(n) of the Act in a way which would differentiate between the appellant and other recipients of bursaries so as to exempt the SOGD from the appellant's income.

[58]            The appellant argues that paragraph 56(1)(n) treats him in a different manner by reason of the fact that non-disabled students who receive grants or bursaries may use them for various purposes, whereas his use of the SOGD is restricted to the purchase of those services which he requires in order to access the classroom. The appellant further says that the group of non-disabled students does not have a need to be accommodated in the classroom.

[59]            Before dealing with the first branch of the Law, supra, test, a few comments are in order. The appellant and the intervenor place great emphasis on the fact that the Supreme Court of Canada has held that section 15 of the Charter comprises a duty to provide accommodation (See, for example: Eldrige v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Granovsky v. Canada (M.E.I.), [2001] S.C.R. 703; Nova Scotia (Workers Compensation Board) v. Martin, (2003) S.C.J. No. 54). Their arguments share a common premise, i.e. that the SOGD was granted to the appellant by reason of his right to accommodation. I have already explained why I am of the view that that submission is incorrect and I now propose to show that the appellant's right to be accommodated is not relevant to the analysis of paragraph 56(1)(n) of the Act which must be made in the context of section 15 of the Charter.

[60]            My view of the matter is based upon a strict understanding of the right to accommodation as opposed to the broad view advocated by both the appellant and the intervenor. The right to be accommodated is one which pertains to access to a specific service and must be exercised against the institution whose duty it is to accommodate. In the present matter, the right to be accommodated which the appellant invokes is the right to be accommodated in the classroom while attending the bar admission course. The corresponding duty of accommodating the appellant appears to have been that of the Law Society, by reason of the relevant provisions of the Ontario Human Rights Code.

[61]            If a duty to provide accommodation in the classroom can be enforced upon a government entity through section 15 of the Charter, it must necessarily be in cases where a public entity is charged with the duty of providing the educational service in question, as in Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, where the provision of special education clearly fell under the authority of the Ontario Ministry of Education and the Board of Education by delegation.

[62]            In a similar way, in Eldrige, supra, the issue was accommodation of deaf patients' needs in the context of the provision of medical services by public hospitals, pursuant to the B.C. Hospital Insurance Act. Again, the question at issue was access to public services.

[63]            In Martin, supra, the issue was not one of access to services, but rather of eligibility to disability benefits. What triggered a section 15 analysis in that case was the differential treatment imposed upon injured workers suffering chronic pain by reason of the exclusion of chronic pain from the application of the workers compensation system in the province of Nova Scotia, as a result of which the appellant was denied a permanent partial disability award. This differential treatment was found to be discriminatory and could not be seen as "reasonable limits prescribed by law".

[64]            It is in the context of deciding whether the differential treatment was discriminatory that Gonthier J., in Martin, supra, concluded that the regime in place for chronic pain under the relevant statute did not respond to the specific needs of workers suffering from chronic pain. In this context, Gonthier J. emphasized the duty to accommodate state action to the specific circumstances of disabled individuals. At paragraph 93 of his Reasons, he makes the following remarks:

[93]         ... [the rationale underlying the prohibition against discrimination] is to allow for the recognition of the special needs and actual capacities of persons affected by a broad variety of different disabilities in many different social contexts. In accordance with this rationale, s. 15(1) requires a considerable degree of reasonable accommodation and adaptation of state action to the circumstances of particular individuals with disabilities.

[65]            In the present matter, neither the Ministry of Education nor HRDC had a duty of providing educational services to the appellant. The SOGD was not granted to the appellant in response to a duty to accommodate him in the classroom, but rather, was part of a program of financial assistance for students who qualified under the CSFAA and its Regulations. The duty to accommodate the appellant in the classroom, as I have now indicated on a number of occasions, was likely that of the Law Society.

[66]            The appellant applied for and was granted a SOGD. No argument was made before the Tax Court Judge nor before us that HRDC or the Ministry of Education did not adapt their grant policy to the specific needs, capabilities and circumstances of the appellant. Since the appellant was found to meet the requirements for the issuance of a SOGD, he received a positive answer and, to the extent that the Ministry of Education and HRDC owed him, in this context, a duty to accommodate his needs, that duty has been met. Consequently, this is not a case similar to Martin, supra or Granovsky, supra, where eligibility to benefits was at issue.

[67]            The specific question raised by this appeal is whether the inclusion of the SOGD in the appellant's income under paragraph 56(1)(n) of the Act is discriminatory. That question can be answered by following the steps outlined in Law,supra, keeping in mind the conclusion which I have reached that the SOGD was not awarded to the appellant in fulfilment of a duty of accommodation.

[68]            As I indicated earlier, the Tax Court Judge accepted the comparator group chosen by the appellant and there is no disagreement between the parties on this issue.

[69]            I begin with the first branch of the Law, supra, test: does paragraph 56(1)(n) of the Act either actually distinguish between the appellant and others on the grounds or one or more personal characteristics, or result in substantively different treatment on the basis of such characteristics by failing to take into account the appellant's already disadvantaged position.

[70]            Paragraph 56(1)(n) does not make any distinction between recipients of a SOGD and recipients of other SOGs. The inclusion of such grants in a taxpayer's income applies to all special opportunity grants under the CSFAA and its Regulations, and more generally to all bursaries. Thus, in the eyes of Revenue Canada, the SOGD does not enjoy a special status. It is treated like all other grants, bursaries and scholarships which are given to students on account of various considerations, such as financial need, scholastic achievement, membership in a particular group, gender, race, etc. Whether or not these grants were given by reason of the personal characteristics of a recipient, they must be declared and included in a taxpayer's income.

[71]            The analysis under the first part of the test must therefore assess whether the provision fails to take into account the SOGD recipient's disadvantaged position within Canadian society or, to put it differently, to assess a potential adverse effect of the provision. In Eldrige, supra,

La Forest J. emphasized the importance of being sensitive to the issue of adverse effects discrimination when disabled individuals are involved (at paragraph 64):

Adverse effects discrimination is especially relevant in the case of disability. The government will rarely single out disabled persons for discriminatory treatment. More common are laws of general application that have a disparate impact on the disabled. This was recognized by the Chief Justice in his dissenting opinion in Rodriguez, supra, where he held that the law criminalizing assisted suicide violated s. 15(1) of the Charter by discriminating on the basis of physical disability. There, a majority of the Court determined, inter alia, that the law was saved by s. 1 of the Charter, assuming without deciding that it infringed s. 15(1). While I refrain from commenting on the correctness of the Chief Justice's conclusion on the application of s. 15(1) in that case, I endorse his general approach to the scope of that provision, which he set out as follows, at p. 549:

Not only does s. 15(1) require the government to exercise greater caution in making express or direct distinctions based on personal characteristics, but legislation equally applicable to everyone is also capable of infringing the right to equality enshrined in that provision, and so of having to be justified in terms of s. 1. Even in imposing generally applicable provisions, the government must take into account differences which in fact exist between individuals and so far as possible ensure that the provisions adopted will not have a greater impact on certain classes of persons due to irrelevant personal characteristics than on the public as a whole. In other words, to promote the objective of the more equal society, s. 15(1) acts as a bar to the executive enacting provisions without taking into account their possible impact on already disadvantaged classes of persons.

                                                                                                                   [Emphasis added]

[72]            With respect to this branch of the test, the Tax Court Judge found that taxation resulted from the nature of the funding without reference to any personal characteristics. As a result, he concluded that paragraph 56(1)(n) did not draw, in purpose or effect, any distinction between the appellant and those with whom he was compared. The appellant submits that the Tax Court Judge, while taking into account the purpose of treating everyone equally, failed to consider the effect on disabled students. He makes two submissions as to why taxation of the SOGD results in an unequal impact upon persons with disabilities:

1.         The disabled student has a right to accommodation. None of the other categories of students, who are a not disabled, have a prima facie need to be accommodated in the classroom. Hence, disabled students are singled out because they are paying tax while being accommodated on their Charter rights, unlike the other categories of Charter-protected groups and unlike students who do not come from traditionally disadvantaged communities.

2.         Disabled students used to be accommodated by government funding institutions which serve persons who need accommodation. These institutional grants largely escaped any tax because the grants were given to institutions that did not pay tax, such as other levels of government, universities or colleges. Nowadays, disabled students are being taxed as an additional layer in between a transfer of funding from one level of government to another, although the institutions providing the education are responsible for accommodation. This is a logical absurdity which results in unequal treatment of disabled students. Such disabled students are being transformed from recipients of accommodation under a Charter right into recipients of what Revenue Canada artificially calls "income". Revenue Canada has, in essence, artificially created another transaction in the flow of income.

[73]            The appellant's first submission is, in my view, without merit. His right to be accommodated is not, as I have already indicated, a generic right that he can enforce against the institution of his choice. The Law Society refused to accommodate him and, rather than pursuing the Law Society, the appellant chose to accept financial assistance from his employer, the Department of Justice, to cover the costs of services that, in all likelihood, should have been provided by the Law Society. The SOGD was not given to him by reason of a duty on the part of HRDC and the Ministry of Education to accommodate him, nor was it given to him exclusively on the basis of his disability. He received the grant by reason of his disability, his financial needs in the pursuit of his education and by reason of his attainment of a satisfactory scholastic standing.

[74]            I note, in passing, that the material pertaining to the BSWD, the complement to the SOGD funded by the Ontario government, acknowledges the fact that the grant under that program is not linked to the duty of accommodation which might be owed to an applicant. The relevant material provides as follows:

Expenses not eligible for funding under the BSWD include:

- Expenses for services and/or accommodations that are provided by the institution as part of the institutional obligation to accommodate persons with disabilities under the Ontario Human Rights Code". (Emphasis in the original) (See Appeal Book, Vol. 2, Tab F-4, p. 216)

[75]            It therefore follows, in my view, that the appellant's right to accommodation is of no relevance because neither HRDC nor the Ministry of Education owed him a duty.

[76]            With respect to the appellant's second argument on this issue, it must also fail. The appellant contends that although educational institutions are responsible for accommodation, disabled students are taxed as an additional layer when passing accommodation funds on from one level of government to another, thus creating an artificial flow of income. Although I am sympathetic to the appellant's argument, it does not address what actually took place in the present matter: the Law Society (which is not a "level of government") did not ask the appellant to apply for a SOGD as a condition of providing him with accommodation, but rather, it simply refused to accommodate him. The appellant was able to overcome the effect of this refusal when his employer agreed to fund him on the condition that he apply for the SOGD. The appellant does not argue that the Department of Justice owed him a duty of accommodation, nor that he should not have been compelled by his employer to apply for the SOGD.

[77]            I fail to see the discriminatory effect of the inclusion of the bursary in the appellant's income, compared with the inclusion of other bursaries in a taxpayer's income. A number of bursaries are meant to help students overcome various barriers that would otherwise preclude their access to education. It is, no doubt, intended that these bursaries will be used by the recipients for the purpose of overcoming these barriers, and I have no reason to doubt that they generally are used for this purpose. The fact that the appellant had no discretion whatsoever with respect to the use of the SOGD funds, by reason of the exigencies of the program, is not sufficient, in my view, to conclude that he was treated differently.

[78]            As the respondent points out, the comparator group of non-disabled students receiving funding encompasses many persons who fall within groups that are afforded section 15 protection. While the barriers to education faced by these groups may be difficult to empirically quantify, costs that might at first glance appear to be personal or living expenses can prove, on closer scrutiny, to be barriers to equal participation in education.

[79]            In my view, the appellant has failed to appreciate the similarity between his circumstances and those of other groups. His argument, that he differs from other non-disabled grant recipients because the nature of his expenditures simply puts him in the same position as other students, ignores the reality that many students require funding to be put in the same position as "other" students as well. The Tax Court Judge deals with this point at paragraph 84 of his Reasons and he gives, inter alia, the example of students with dependent children:

[84]         ... In the case of an SOG paid to a student with dependents, the recipient probably did not have to account for specific purchases of baby food, diapers, and other ordinary items acquired for the benefit of the children but it is reasonable to assume there were certain conditions - applicable both before and after the awarding of the grant - which were binding upon that student in a general sense. Obviously, the purpose of aiding students with their education - by making funds available to alleviate burdens created by financial need - is not to provide funds to purchase items considered as recreational in nature or to enable a student to participate in activities not having a reasonable and demonstrable link with the particular educational pursuit.

[80]            There can be no doubt that the purpose of a grant to students with dependent children is to provide access to education to these parents. Without the funding, the parents might well be unable to continue their education. Consequently, the effect of the funding is to place such parents in the same position as non-parents in terms of access to education. It goes without saying that that these students still have to pay for their tuition, books and all other costs directly attributable to the course of studies.

[81]            Before concluding, I wish to reiterate that the appellant did not receive the SOGD by reason only of his disability. It was his disability combined with his status of student in need of financial assistance which qualified him for the grant. Consequently, I fail to see how it can be said that the inclusion of the SOGD in the appellant's income results in a "substantively differential treatment" based on his personal characteristics.

[82]            I have therefore not been persuaded that the inclusion of the SOGD in the appellant's income results in an unequal impact upon persons with disabilities. By reason of this conclusion, I need not address the second and third branches of the Law, supra, test.

[83]            For these reasons, I would dismiss the appeal.

                                                                                         "M. Nadon"

                                                                                                      J.A.

"I agree.

A.J. Stone J.A."

"I agree.

K. Sharlow J.A."

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       A-284-03

STYLE OF CAUSE:                                       SIMSER v. H.M.Q.

PLACE OF HEARING:                                             Toronto, Ontario

DATE OF HEARING:                                               May 13, 2004

REASONS FOR JUDGMENT:                                Nadon J.A.

CONCURRED IN BY:                                              Stone, Sharlow JJ.A.

DATED:                                                          December 7, 2004

APPEARANCES:

SOLICITORS OF RECORD: