Date: 19970116
Docket: 97-1267(IT)I
BETWEEN:
V.G. BOOTSMAN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
BEAUBIER, J.T.C.C.
[1] This appeal pursuant to the
Informal Procedures was heard in Vancouver, British Columbia on
January 9, 1998. The Appellant was the only witness.
[2] In his 1994 income tax return, the
Appellant claimed two deductions respecting a move from Edmonton
to Surrey, B.C. where he had obtained a new job with a small
corporation. Moving expenses claimed of $17,365 were allowed. The
second claim "Home Variance Allowance" of $4,634 was not. He
appealed.
[3] The $4,634 represented, as he
noted:
"The difference in home costs between Edmonton, Alberta and
Surrey, British Columbia was $65,000. An amount of $60,366 still
remains to be claimed from 1995 earnings."
[4] The Appellant submitted two legal
arguments in support of his claim.
[5] The first was based on sections 2
and 6 of the Canadian Charter of Rights and Freedoms (the
Charter). They read:
Section 2 Fundamental freedoms
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression,
including freedom of the press and other media of
communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
Section 6 Mobility rights
6.(1) Every citizen of Canada has the right to enter,
remain in and leave Canada.
(2) Every citizen of Canada and every
person who has the status of a permanent resident of Canada has
the right
(a) to move to and take up residence
in any province; and
(b) to pursue the gaining of a
livelihood in any province.
(3) The rights specified in
subsection (2) are subject to
(a) any laws or practices of general
application in force in a province other than those that
discriminate among persons primarily on the basis of province of
present or previous residence; and
(b) any laws providing for reasonable
residency requirements as a qualification for the receipt of
publicly provided social services.
(4) Subsections (2) and (3) do not
preclude any law, program or activity that has as its object the
amelioration in a province of conditions of individuals in that
province who are socially or economically disadvantaged if the
rate of employment in that province is below the rate of
employment in Canada.
[6] In this Court's view, section 2
does not apply to the Appellant's claim. A failure of the
Income Tax Act (the Act) to, in effect,
subsidize the Appellant's move to any extent whatsoever does not
restrict his freedom of association. Subsection 6(2) gives the
Appellant the right to move and to gain a livelihood in any
province. In this respect it should first be pointed out that the
deduction granted to the Appellant's moving expenses claim of
$17,365 by virtue of section 62 of the Act is a
privilege granted to the Appellant by the Act; it is not a
right. He has a right to move, but not a right to have other
Canadians pay for that move or a house for him to live in. He can
only obtain his deduction if the Act grants it to him.
There is no ambiguity respecting the $4,634 claim in the
Act. No entitlement to this claim is referred to. Thus
section 6 of the Charter need not be examined. As
Iacobucci, J. said in Elizabeth C. Symes v. The Queen,
(S.C.C.) 94 DTC 6001 at 6020:
In both Hills and Slaight
Communications, this Court was confronted with statutory
language which was ambiguous. In each case, the values of the
Charter were consulted to resolve the ambiguity. However, each
case recognizes that to consult the Charter in the absence of
such ambiguity is to deprive the Charter of a more powerful
purpose, namely, the determination of a statute's constitutional
validity. If statutory meanings must be made congruent
with the Charter even in the absence of ambiguity, then it would
never be possible to apply, rather than simply
consult, the values of the Charter. Furthermore, it would
never be possible for the government to justify infringements as
reasonable limits under s.1 of the Charter, since the
interpretive process would preclude one from finding
infringements in the first place.
Had s.63 not been present, it might be arguable
that the equality values in the Charter could have informed the
interpretation of ss.9, 18(1)(a) and 18(1)(h) of
the Act. However, as already discussed, s.63 eliminates any
question of ambiguity, and by so doing, also eliminates the need
for recourse to Charter values in this case. My analysis of the
Income Tax Act has ineluctably led me to conclude that the
Act does not permit a business expense deduction in respect of
child care as part of its s.9 profit calculation, but instead
limits the child care deduction in accordance with s.63.
[7] The second basis for the
Appellant's claim is the Act itself. The only entitlement
to moving expenses is contained in section 62. Subsection 62(1)
grants the privilege of claiming moving expenses. The context of
the subsection is that moving expenses are the expenses of
moving, that is, of the activity of moving in the verbal sense.
That is expanded by the inclusions described in subsection 62(3).
It states:
(3) Definition of "moving expenses" - In subsection
(1), "moving expenses" includes any expense incurred as or on
account of
(a) travel costs
(including a reasonable amount expended for meals and lodging),
in the course of moving the taxpayer and members of the
taxpayer's household from the old residence to the new
residence,
(b) the cost to the
taxpayer of transporting or storing household effects in the
course of moving from the old residence to the new residence,
(c) the cost to the
taxpayer of meals and lodging near the old residence or the new
residence for the taxpayer and members of the taxpayer's
household for a period not exceeding 15 days,
(d) the cost to the
taxpayer of cancelling the lease by virtue of which the taxpayer
was the lessee of the old residence,
(e) the taxpayer's
selling costs in respect of the sale of the old residence,
and
(f) where the old
residence is being or has been sold by the taxpayer or the
taxpayer's spouse as a result of the move, the cost to the
taxpayer of legal services in respect of the purchase of the new
residence and of any taxes (other than the goods and services
tax) imposed on the transfer or registration of title to the new
residence,
but, for greater certainty, does not include costs (other than
costs referred to in paragraph (f) incurred by the
taxpayer in respect of the acquisition of the new residence.
They are clearly set out. They do not include the "variance"
of $4,634 claimed.
[8] For these reasons, the appeal is
dismissed.
Signed at Ottawa, Canada, this 16th day of January 1998.
J.T.C.C.
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