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Citation: 2003TCC325
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Date: 20030509
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Dockets: 2000-1668(IT)I
2001-1728(IT)I
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BETWEEN:
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GUILLAUME ST-SAUVEUR,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
LamarreProulx, J.T.C.C.
[1] These appeals, heard under the informal procedure, have to do with the 1997 and 1998 taxation years.
[2] At issue is whether section 122.5 of the Income Tax Act ("the Act") contravenes section 15 of the Canadian Charter of Rights and Freedoms ("the Charter").
[3] This section provides, according to the definition of "eligible individual" set out in subsection 122.5(1), that a person must be married, have a common-law spouse, be the parent of a child, or be at least 19 years of age in order to be eligible for the Goods and Services Tax ("GST") credit.
[4] The appellant was born on July 18, 1980. At the end of the 1997 and 1998 taxation years, the appellant had not attained the age of 19 years, was not married, did not have a common-law spouse, and did not have children.
[5] The arguments invoked by the appellant in his Notices of Appeal are expressed in paragraph 18 for the 1997 taxation year and in paragraph 15 for the 1998 taxation year, as follows:
[TRANSLATION]
...
18. Its application has the prejudicial effect of systematically depriving an imposing group of young persons, less than 19 years of age who are emancipated in fact or in law, working, or others no longer living with their parents, of a credit granted to other low-income citizens in order to offset the disadvantageous effect of a tax that is imposed on everyone.
...
15. The tax legislation concerned has the prejudicial effect of systematically depriving all persons between 18 and 19 years of age of a compensatory credit granted to other Canadian citizens for the Goods and Services Tax, which is imposed on everyone.
[6] The appellant was not present. Lyse Marthe St-Sauveur, his mother, acted as his agent.
[7] Two provincial government employees working for the Batshaw Youth and Family Centres ("the Youth Centre") testified. They were Anita SySavane, a youth protection worker, and Alan Cobb, an officer with the Support Link Independent Living Program.
[8] Ms SySavane stated that in 1997, when the appellant was 17 years of age, it was the Youth Centre that paid his rent directly to the landlord (Exhibit A-1). The mother was required to make a contribution directly to the Batshaw Centre (Exhibit A-2). Application could be made for full or partial exemption of this contribution. If such an application was made, there is no evidence; if no such application was made, there is no evidence of what the tax treatment of the contributions made by the appellant's mother was. Exhibit A-4 shows that in 1997 it was the Youth Centre that paid the various outlays required by Dawson College, where the appellant was studying.
[9] The main purpose of the testimony by these two persons was to state that their services and their role ended when the young adults attained the age of 18 years, and that many of these young persons had no parental support.
Arguments by the parties
[10] The agent for the appellant referred to the Federal Court of Appeal decision in Lister v. Canada, [1994] F.C.J. No. 1051 (Q.L.). However, that decision confirmed the constitutionality of section 122.5 of the Act regarding two children living with their parents. Those children were 13 and 19 years old and had a modest income from various sources.
[11] The agent for the appellant pointed out that, in that case, the appellants' appeal was dismissed because they lived with their parents and did not adduce enough evidence of harm suffered. She therefore considered it possible to make a distinction between that decision and the fact that in the present case the appellant did not live with his parents. She referred to the comments by Heald J., writing for the minority in Lister (supra):
4 I now turn from the position of these applicants to the position of other teenagers, unmarried and living away from home. On this question as well, little, if any, evidence was adduced. Specifically, there was no evidence which addressed the question as to whether these teenagers would constitute a historically disadvantaged group from the perspective of subsection 15(1). In the case of R. v. Turpin, [1989] 1 S.C.R. 1296, at p. 1332, Wilson J. stated:
A finding that there is discrimination will, I think, in most, but perhaps not all cases, necessarily entail a search for disadvantage that exists apart from and independent of the particular legal distinction being challenged.
Such a search for "existing disadvantage" would impel the introduction of evidence which goes much beyond that contained in this record. To decide these applications on the basis of the present record would result in the decisions being made in a factual vacuum. As noted by my colleague, such an approach has been found unacceptable.
[12] The agent for the appellant pointed out that in the present case evidence was adduced that during the two taxation years at issue the appellant no longer lived with his mother and was not a dependent of his mother, and that Quebec's Direction de la protection de la jeunesse ("the DPJ") no longer assumes responsibility for young persons who have attained the age of 18 years. She found it unfair that neither young persons who no longer lived with their parents or were their parents' dependents, nor the parents of these emancipated young persons, could claim the GST credit.
[13] Counsel for the respondent, too, referred to Lister (supra), particularly paragraphs 29 to 31 of the majority decision, which I quote:
29 Applying these principles to the case at bar, I cannot say, nor is there for that matter any evidence in the present file to suggest, that unmarried children under the age of 19 are members of a group whose "claim," to paraphrase the very words of Chief Justice Lamer in R. v. Swain, "fits within the overall purpose of s. 15 - namely, to remedy or prevent discrimination against groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society."
30 I might add that it is not the function of this Court to speculate on the issue of stereotyping, historical disadvantage or political and social prejudice. The claimant has, under section 15, the burden of introducing the necessary evidence to prove these matters. The applicants' failure to do so is a sufficient ground to deny their claim. As Mr. Justice Cory ruled in MacKay v. Manitoba, [1989] 2 S.C.R. 357, at p. 366:
A factual foundation is of fundamental importance on this appeal. It is not the purpose of the legislation which is said to infringe the Charter but its effects. If the deleterious effects are not established there can be no Charter violation and no case has been made out. Thus the absence of a factual base is not just a technicality that could be overlooked, but rather it is a flaw that is fatal to the appellants' position.
31 Furthermore, when one looks at the larger context to determine whether the differential treatment created by the impugned provision amounts to discrimination within the meaning of section 15, one finds oneself in a complex social, political, legal, fiscal and economic environment where Parliament is, in the State's interest, trying to raise revenues to fund the Government, achieve equity among taxpayers in so doing and implement fiscal and social policies unrelated to the raising of revenue.
[14] Counsel for the respondent thus pointed out that Lister (supra) upheld the constitutionality of section 122.5 of the Act in all situations, those of young persons less than 19 years of age living with their parents, and those of young persons living on their own; she also argued that the absence of the appellant made it impossible to ascertain whether he was in an unequal and disadvantageous situation.
Conclusion and analysis
[15] I therefore refer first of all to a recent Supreme Court of Canada decision, in Gosselin v. Québec, [2002] S.C.J. No. 85 (Q.L.), handed down on December 19, 2002. This decision had to do with different social assistance for persons under 30 years of age in Quebec's social welfare system. I quote McLaughlin J., who explains the procedure for establishing a violation of section 15 of the Charter:
17 To establish a violation of s. 15(1), the claimant must establish on a civil standard of proof that: (1) the law imposes differential treatment between the claimant and others, in purpose or effect; (2) one or more enumerated or analogous grounds are the basis for the differential treatment; and (3) the law in question has a purpose or effect that is discriminatory in the sense that it denies human dignity or treats people as less worthy on one of the enumerated or analogous grounds. ...
25 The need for a contextual inquiry to establish whether a distinction conflicts with s. 15(1)'s purpose is the central lesson ... The issue ... is whether "a reasonable person in circumstances similar to those of the claimant would find that the legislation which imposes differential treatment has the effect of demeaning his or her dignity" having regard to the individual's or group's traits, history, and circumstances ...
[16] Here now is her assessment of the group made up of young adults:
33 Both as a general matter, and based on the evidence and our understanding of society, young adults as a class simply do not seem especially vulnerable or undervalued. There is no reason to believe that individuals between ages 18 and 30 in Quebec are or were particularly susceptible to negative preconceptions. No evidence was adduced to this effect, and I am unable to take judicial notice of such a counter-intuitive proposition. ...
[17] The courts have repeatedly indicated that not all differential treatment is discriminatory. In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at page 168, McIntyre J. writes:
It is not every distinction or differentiation in treatment at law which will transgress the equality guarantees of s. 15 of the Charter. It is, of course, obvious that legislatures may - and to govern effectively - must treat different individuals and groups in different ways.
[18] The courts have also indicated that the contextual aspect must be clearly explained and described. The onus is on the appellants to establish that their rights under subsection 15(1) have been infringed upon. It was the appellant's responsibility to establish that he was a member of a discrete, isolated minority that is subject to stereotyping, has always been disadvantaged, or is exposed to political and social pressure, as is envisaged by section 15.
[19] The appellant was not present and thus did not testify in order to explain how this provision discriminates against him. As Heald J. stated above (at paragraph 11 of these Reasons), decisions in such matters cannot be made in a factual vacuum.
[20] As well, the respondent provided no explanation of why Parliament chose the age of 19 years for eligibility for the refundable GST credit. According to Lister (supra), that choice appears to be founded on an assessment of the age at which a young person leaves or is likely to leave the family circle.
[21] The comments by the judges in Lister (supra) must be understood to mean that that the refundable GST tax credit is a social measure, not a tax measure, and that this measure is part of the government's social assistance plan. The agent for the appellant emphasized the fact that intervention by the DPJ ended when young persons attained the age of 18 years. While the role of the DPJ may end at that age, this fact does not mean that there is no social protection that then enters into play.
[22] In any case, I am bound by the Federal Court of Appeal decision in Lister (supra). The majority decision did not distinguish between 19-year-olds living with their parents and those living on their own. It considered that the credit was a social measure, developed following careful studies, that had no discriminatory intent.
[23] Nor has the appellant established that he belongs to a discrete, isolated minority that is subject to stereotyping. The Supreme Court of Canada decision in Gosselin (supra) is certainly not to that effect.
[24] The point raised by the agent for the appellant is not without merit. It could be submitted to the legislative authorities, but I am obliged to find that, from the point of view of constitutionality, section 122.5 does not violate section 15 of the Charter.
[25] Accordingly, the appeals are dismissed.
Signed at Ottawa, Canada, this 9th day of May 2003.
J.T.C.C.
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