Date: 20000803
Docket: 1999-4999-IT-I
BETWEEN:
GLENN HOFFMAN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Rip, J.T.C.C.
[1] Glenn Hoffman appeals from an assessment of tax for 1997
in which the Minister of National Revenue ("Minister")
denied him the unused amount of the disability tax credit of
Marianne Boranko, his sister-in-law. The appellant does not
question that subsection 118.3(2) excludes a brother or sister of
a mentally or physically impaired person to deduct any unused
amount of the disability tax credit granted to such person by
subsection 118.3(1). However the appellant's position is that
subsections 118.3(2) and 252(1) of the Income Tax Act
("Act") should be read consistent with value of
the Canadian Charter of Rights and Freedoms
("Charter"), specifically section 15 and,
therefore, the definition of "child" for the purposes
of section 118.3(2) includes a "sister". The word
"sister" should be read into subsections 118.3(2) and
252(1) of the Act.
[2] Subsection 118.3(1) permits a mentally or physically
impaired person to deduct from tax otherwise payable under Part I
of the Act a tax credit not excluding $4,118. If the
credit cannot be used by the mentally or physically impaired
person that person may, in accordance with subsection 118.3(2),
transfer the unused portion of the tax credit to a child,
grandchild, parent or grandparent or to the person to whom the
impaired person is fully dependent upon.
[3] Marianne Boranko resides with Mr. Hoffman and his family.
Mr. Hoffman is married to Ms. Boranko's sister. Mr. Hoffman
is a child and youth counsellor. Mrs. Hoffman is a field
supervisor of home support workers. They have two children.
Before her mother's death in 1995 Ms. Boranko lived with her
mother. Mrs. Hoffman promised her mother that she would take care
of Ms. Boranko upon their mother's death.
[4] Ms. Boranko who is 26 years of age suffers from cerebral
palsy and is also mentally impaired. Mrs. Hoffman tries to make
Ms. Boranko as independent as possible and has arranged for her
to do certain work which is supported by government assistance
programs. Ms. Boranko, in 1997, received "about" $90
every two months for work as well as the government benefits of
$771 per month.
[5] Mrs. Hoffman testified that her sister cannot live by
herself and requires the aid of other persons. Ms. Boranko has a
short-term memory. She loses touch of where she is and requires
help to do basic activities. She is able to shower but Mrs.
Hoffman gives her a bath once a week. She is prescribed
anticonvulsant medication but must be reminded to take the
medicine. Mrs. Hoffman says that her sister requires
"consistent supervision". Mrs. Hoffman has taken upon
herself and her family to care for Ms. Boranko and to tend to her
physical and intellectual needs. There is no question in my mind
that Mr. and Mrs. Hoffman are unselfish in their responsibilities
towards Ms. Boranko.
[6] Subsection 118.3(2) does not permit Mr. Hoffman to deduct,
for the purposes of computing his tax, any amount of the mental
and physical impairment tax credit not used by Ms. Boranko. The
Minister is of the view that Mrs. Hoffman is not Ms.
Boranko's parent, grandparent, child or grandchild nor does
Ms. Boranko meet the definition of the extended meaning of
"child" as defined by subsection 252(1) of the
Act.
[7] Subsection 15(1) of the Charter states:
15. (1) Every individual is equal before and under the law and
has the right to the equal protection and equal benefit of the
law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
[8] Paragraph 118.3(2)(a) of the Act provides
that:
Where
(a) an individual has, in respect of a person (other
than a person in respect of whom the person's spouse deducts
for the year an amount under section 118 or 118.8) who is
resident in Canada at any time in a taxation year and who is
entitled to deduct an amount under subsection (1) for the year,
claimed for the year a deduction under subsection 118(1) because
of
(i) paragraph (b) of the description of B in subsection
118(1), or
(ii) paragraph (d) of the description of B in
subsection 118(1) where that person is the individual's child
or grandchild,
or, where that person is the individual's parent,
grandparent, child or grandchild, could have claimed such a
deduction if the individual were not married and that person had
no income for the year and had attained the age of 18 years
before the end of the year, . . .
there may be deducted for the purpose for computing the tax
payable under this Part by the individual for the year, the
amount, if any, by which . . .
[9] While the appellant's Notice of Appeal alleges the
fact that the word "child" does not include a sister is
a violation of the Charter, that is not the real issue
before me. What is before me is whether the appellant's
Charter rights, namely subsection 15(1), are violated by
subsection 118.3(2) of the Act, in particular paragraph
(a). Subparagraph 118.3(2)(a)(ii) and the closing
words of paragraph (a) grant a benefit to parents,
grandparents, children and grandchildren of the impaired person
but not to siblings or cousins of the impaired person who care
for him or her. Parents, grandparents, children and grandchildren
are lineal ascendants and descendants of the impaired person.
Siblings and cousins, for example, are related to the impaired
person but are not lineal descendants or ascendants of that
person.
[10] The appellant is a member of a group of caregivers of
relatives of dependants who are not children, grandchildren or
parents. The distinction is not based on the personal
characteristic of the dependant person. While the appellant may
be eligible for other tax credits under section 118, for example,
the appellant is not entitled to a transfer of the unused portion
of the impaired person's tax credit in subsection
118.3(2).
[11] In Law v. Canada (Minister of Employment and
Immigration)[1], the Supreme Court of Canada stated that the
purpose of subsection 15(1) was:
. . . to prevent the violation of essential human dignity and
freedom through the imposition of disadvantage, stereotyping, or
political or social prejudice, and to promote a society in which
all persons enjoy equal recognition at law as human beings or as
members of Canadian society, equally capable and equally
deserving of concern, respect and consideration.
[12] In Andrews v. Law Society of British Columbia,[2] McIntyre J.
described discrimination:
. . . as a distinction, whether intentional or not but based
on grounds relating to personal characteristics of the individual
or group, which has the effect of imposing burdens, obligations,
or disadvantages on such individual or group not imposed upon
others, or which withholds or limits access to opportunities,
benefits, and advantages available to other members of society.
Distinctions based on personal characteristics attributed to an
individual solely on the basis of association with a group will
rarely escape the charge of discrimination, while those based on
an individual's merits and capacities will rarely be so
classed.
[13] In Andrews, the Supreme Court adopted a two-step
approach to subsection 15(1) of the Charter. The
first step is to determine whether there was a distinction based
on personal characteristics. The second step is to determine
whether the distinction results in discrimination, because it was
recognized that not every distinction would result in
discrimination. Appellant's counsel relied upon the Supreme
Court decision in Law, which held that a three-step
analysis must be made to determine a discrimination claim under
subsection 15(1) of the Charter:
First, does the impugned law (a) draw a formal distinction
between the claimant and others on the basis of one or more
personal characteristics, or (b) fail to take into account the
claimant's already disadvantaged position within Canadian
society resulting in substantively differential treatment between
the claimant and others on the basis of one or more personal
characteristics? If so, there is differential treatment for the
purpose of s. 15(1). Second, was the claimant subject to
differential treatment on the basis of one or more of the
enumerated and analogous grounds? And third, does the
differential treatment discriminate in a substantive sense,
bringing into play the purpose of s. 15(1) of the
Charter in remedying such ills as prejudice, stereotyping,
and historical disadvantage?[3]
[14] The Supreme Court concluded that:
. . . An infringement of s. 15(1) of the Charter exists
if it can be demonstrated that, from the perspective of a
reasonable person in circumstances similar to those of the
claimant who takes into account the contextual factors relevant
to the claim, the legislative imposition of differential
treatment has the effect of demeaning his or her dignity.[4]
[15] The issue in Law involved age qualifications with
respect to eligibility requirements for survivor pensions. Where
the surviving spouse was under the age of 35 no pension was
available. The Supreme Court held that there was a
differentiation on the basis of grounds enumerated in subsection
15(1), that of age. However the distinction did not impair the
claimant's human dignity and therefore subsection 15(1) was
not offended. It would therefore appear that a distinction based
on an enumerated or analogous grounds would not amount to
discrimination under subsection 15(1) unless the distinction was
also a violation of essential human dignity.[5]
[16] Appellant's counsel took the position that a formal
distinction is drawn between the appellant (and Mrs. Hoffman) and
other near relatives. He contended that being a person's
sibling is a personal characteristic for the purpose of
subsection 15(1) of the Charter. In this regard counsel
relied on Collins v. Canada[6] for the proposition that a
characterization of an individual's status
vis-à-vis another person is a personal
characteristic. With respect to the first stage of inquiry under
subsection 15(1), appellant's counsel concluded that the
appellant's wife is denied a benefit for the sole reason that
she is an impaired person's sister and not the impaired
person's parent or grandparent. This denial imposes
substantively different treatment.
[17] Appellant's counsel concedes that there is no legal
authority holding that being a brother or sister is analogous,
nor that being a brother or sister is a family status. However,
he argues that "being near family members comes under the
definition of family status". Counsel also referred to the
comments of Mr. John R.A. Douglas of the Canadian Human
Rights Tribunal in Schapp v. Canada (Canadian Armed
Forces)[7], with respect to the definition of the
expression "family status", and, in particular, his
view that the natural and ordinary meaning of the expression
"family status" includes, among other things, the
relationship between siblings. Counsel submitted that
"family status" is a ground of discrimination in many
human rights legislation. Counsel referred to McIntyre J. in
Andrews who stated that a discriminatory burden or denial
of a benefit is to be understood in the context of the historical
development of the human rights codes.[8]
[18] To determine whether there was discrimination in the
substantive sense, counsel for the appellant cited
Collins, paragraphs 33 and 34, with reference to the
"human dignity approach" adopted in Law, to
analyse whether a legislative distinction based upon an analogous
ground is discriminatory in the substantive sense.
[19] Counsel conceded that there is no pre-existing
disadvantage, stereotyping, prejudice or vulnerability
experienced by the appellant. However, he argued that similarly
to parents and grandparents, brothers and sisters do care for
their impaired siblings out of family responsibility and
therefore brothers and sisters have the same needs and
capabilities as the parents and grandparents. Legislation must
take into account the actual needs and capabilities of the
claimant or it is likely to have a negative effect on human
dignity.[9]
[20] In Collins, Rothstein J.A. held that the group
that was excluded from the legislation was not more advantaged
than the individuals being targeted by the legislation,
therefore, it cannot be said that the legislation had an
ameliorative purpose or effect for the group. This finding should
apply to the appeal at bar as well. Rothstein J.A. referred to
Law and stated that:
[l]egislation which seeks to ameliorate disadvantage already
suffered by certain individuals or groups in society may not
offend subsection 15(1) of the Charter even though it excludes
certain other individuals or groups. However, this will only be
the case where the group that is excluded from the legislation is
more advantaged in a relative sense than those the legislation
seeks to assist.[10]
[21] With respect to the nature of the interest affected,
counsel suggested that the question to ask is "whether the
distinction restricts access to a fundamental social institution,
or affects a basic aspect of full membership in Canadian society,
or constitutes a complete non-recognition of a particular
group": Collins[11]. Appellant's counsel submitted that
the exclusion of siblings from the benefit under the Act
implies that siblings are less in need of this type of tax
benefit regardless of their actual circumstances and therefore
denies them access to a basic component of federal government
assistance.
Analysis
[22] There is no doubt that there is a clear distinction drawn
by subsection 118.3(2) of the Act between siblings
caring for an impaired dependant and parents, grandparents,
children and grandchildren caring for an impaired dependant. Not
every person in a family who cares for an impaired relative is
entitled to the transfer of the credit. There is a distinction
between persons caring for children, parents and grandparents as
opposed to those caring for other relatives, such as siblings,
and the Act gives a benefit to the former and not to the
latter. This formal distinction results in differential
treatment.
[23] In Miron v. Trudel[12] McLachlin J. (as she then was)
observed, at pages 495-96, that:
The grounds of discrimination enumerated in s. 15(1) of the
Charter identify group characteristics which often serve
as irrelevant grounds of distinction between people. . . . Logic
suggests that in determining whether a particular group
characteristic is an analogous ground, the fundamental
consideration is whether the characteristic may serve as an
irrelevant basis of exclusion and a denial of essential human
dignity in the human rights tradition. In other words, may it
serve as a basis for unequal treatment based on stereotypical
attributes ascribed to the group, rather than on the true worth
and ability or circumstances of the individual? An affirmative
answer to this question indicates that the characteristic may be
used in a manner which is violative of human dignity and
freedom.
[24] McLachlin J. describes several indications of analogous
grounds that have been heard by the Supreme Court: historical
disadvantage, Andrews, supra, at page 152 per
Wilson J.; Turpin, supra, at pages 1331-32; the
fact that the group constitutes a "discrete and insular
minority", Andrews, supra, at page 152 per Wilson J.,
the fact that distinction is made based on personal
characteristics, Andrews, supra, at pages 174-75 per
McIntyre J., and distinctions made on personal and immutable
characteristics, Andrews, supra, at page 195 per
La Forest J. Analogous grounds include sexual orientation,
marital status and citizenship. It does not include family
status.
[25] In my view subsection 15(1) of the Charter has not
been infringed by subsection 118.1(2) of the Act because
the differential treatment is not on the basis of an enumerated
or analogous grounds. There is a distinction between relatives of
the impaired person. Lineal descendants and ascendants of the
impaired person may get a benefit that other relatives do not.
This is not unusual in our society; an intestate dies leaving no
spouse the estate devolves first upon ascendants and descendants
of the deceased.[13] Their status within the family group is different. In
any event there is no evidence that caregivers of impaired
relatives are a group that is historically disadvantaged in the
context of their place in the social, political and legal fabric
of our society. Linden J.A. wrote in Schachtschneider v. The
Queen:
. . . However, the issue at this stage of the analysis is not
whether the impugned legislation disadvantages the individual or
group in question, but whether the individual or group is
independently disadvantaged, so as to fit within the primary
purpose of section 15 - namely to remedy or prevent
discrimination against groups subject to stereotyping, historical
disadvantage and political and social prejudice in Canadian
society. Married persons do not meet this description, and,
hence, cannot be considered discriminated against merely because
they are treated differently by paragraph 118(1)(b).[14]
[26] If the legislation does make a formal distinction based
on analogous grounds, then one must determine whether the
different treatment discriminates in a substantive sense,
bringing into play the purpose of subsection 15(1) of the
Charter in remedying such ills as prejudice, stereotyping
and historical disadvantage.
[27] Appellant's counsel states that the legislative
distinction at issue violates the human dignity of the appellant.
I cannot find that the purpose and effect of subsection 118.3(2)
violates essential human dignity and freedom through the
imposition of disadvantage, stereotyping, or political or social
prejudice. The law, in purpose or effect, conforms to a society
equally capable and equally deserving of concern, respect and
consideration.[15] Counsel for the appellant has not demonstrated that
either the purpose or effect of subsection 118.3(2) violates the
appellant's human dignity so as to constitute discrimination.
Siblings have not been consistently and routinely subjected to
the sorts of disadvantage, stereotyping or political or social
prejudice faced by other discrete and insular minorities.
[28] As Gonthier J. stated in Thibaudeau v. Canada:[16]
It is of the very essence of the ITA to make distinctions, so
as to generate revenue for the government while equitably
reconciling a range of necessarily divergent interests. In view
of this, the right to the equal benefit of the law cannot mean
that each taxpayer has an equal right to receive the same
amounts, deductions or benefits, but merely a right to be equally
governed by the law.
. . .
That being the case, one should not confuse the concept of
fiscal equity, which is concerned with the best distribution of
the tax burden in light of the need for revenue, the
taxpayers' ability to pay and the economic and social
policies of the government, with the concept of the right to
equality, which as I shall explain in detail later means that a
member of a group shall not be disadvantaged on account of an
irrelevant personal characteristic shared by that group.
[29] The very essence of the Act is to make
distinctions and these distinctions should not confuse fiscal
equality with the concept of the right to equality. The Courts
should be cautious in second guessing Parliament's economic
and social distinctions.
[30] Fortunately for taxpayers like the Hoffmans, the
government announced in its last budget that the disability tax
credit will be broadened to allow the transfer of unused amounts
to an expanded list of supporting relatives, including brothers
and sisters.[17]
This proposed amendment to the Act does not help the
appellant for 1997. Therefore I asked counsel for written
submissions that if I could find Mr. and Mrs. Hoffman
in loco parentis to Ms. Boranko, whether the appellant
could succeed in his appeal.
[31] Subsection 252(1) of the Act defines
"child" as follows:
(1) In this Act, words referring to a child of the
taxpayer include
(a) a person of whom the taxpayer is the natural parent
whether the person was born within or outside marriage;
(b) a person who is wholly dependent on the taxpayer
for support and of whom the taxpayer has, or immediately before
the person attained the age of 19 years had, in law or in fact,
the custody and control;
(c) a child of the taxpayer's spouse;
(d) an adopted child of the taxpayer; and
(e) a spouse of a child of the taxpayer.
[32] The list of persons defined as children in subsection
252(1) does not include a sister of the taxpayer's spouse and
the definition of "child" should not include a person
for whom an individual stands in loco parentis. Courts
must be cautious before finding within the clear provisions of
the Act an unexpressed intention of Parliament.[18]
[33] In Ogg-Moss v. The Queen,[19]Dickson J., as he then was,
discussed the meaning of "child" and found that an
individual could not stand in loco parentis to an adult
because the adult was not a child. He stated, at pages 187-8:
If mentally retarded adults are to be considered
"children" solely on the basis of their dependency on a
"parenting" figure, it is difficult to see how the
category of "children" would be limited to the mentally
retarded. Essentially the same argument could be made with regard
to the functional relationship between the sufferers from
senility or other cognitive disorder, or perhaps even stroke
victims or other invalids, and those who take care of them. If an
inability to tend to one's basic needs, or an inability,
because of one's mental state, to function unassisted in
society, are indices of "childishness", then the
category of adults subject to correction is a very broad one
indeed. I do not believe that a functional analysis of childlike
dependency is appropriate in these latter cases and for similar
reasons I cannot accept it with regard to mentally retarded
adults.
A mentally retarded adult is not a child in fact,
nor for the purposes of the law in general, nor for
purposes of s. 43 of the Criminal Code in particular. [Emphasis
added]
This reasoning would apply to all impaired adults.
[34] The appeal is dismissed.
Signed at Ottawa, Canada, this 3rd day of August 2000.
"Gerald J. Rip"
J.T.C.C.
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