REASONS
FOR JUDGMENT
Graham J.
[1]
Gerald Bleiler had his left eye removed in 1938
when he was 4 years old. He now wears a prosthesis in that eye. His vision in
his right eye is above average. Mr. Bleiler claimed a disability tax credit in
respect of his 2012 tax year. The Minister of National Revenue denied the claim
on the basis that Mr. Bleiler was not “blind” within the parameters that
have been applied to that term by the Courts in interpreting its use in
paragraph 118.4(1)(b) of the Income Tax Act (the “Act”). Mr. Bleiler has appealed that decision.
[2]
Mr. Bleiler accepts that he is not “blind” and
therefore does not qualify for the disability tax credit set out in the test
currently set out in the Act. He also accepts that he does not otherwise
meet the tests set out for claiming a disability tax credit under sections
118.3 and 118.4 of the Act, despite some difficulties that he has in
walking and some mental anguish that he suffers as a result of his visual
impairment. However, Mr. Bleiler submits that the narrow manner in which those
sections have been drafted is a breach of his equality rights under
section 15 of the Canadian Charter of Rights and Freedoms. Mr.
Bleiler says that sections 118.3 and 118.4 breach section 15 of the Charter
because those sections define the attributes of a person with a disability so
narrowly as to exclude others, like himself, who have a disability that places
fewer limitations on them.
[3]
Mr. Bleiler has given the appropriate Charter
notice to the Attorney General of Canada and the Attorneys General of each of
the Provinces and Territories.
Issue
[4]
The issue in this Appeal is whether the narrow
manner in which sections 118.3 and 118.4 prescribe the attributes necessary to
qualify for a disability tax credit breaches section 15(1) of the Charter.
[5]
The two-part test to be applied on a section 15
analysis was confirmed by the Supreme Court of Canada in Withler v. Canada (Attorney
General). The first part of the test requires me to determine whether the
law creates a distinction based on a ground that is enumerated in section 15 or
on an analogous ground. The second part of the test asks whether that
distinction creates a disadvantage by perpetuating prejudice or stereotyping.
Does the law create a distinction based on an enumerated or
analogous ground?
[6]
Mental and physical disabilities are an
enumerated ground under section 15 of the Charter. Mr. Bleiler argues
that sections 118.3 and 118.4 create a distinction between people with less
severe disabilities and people with no disabilities. However, people with less
severe disabilities and people with no disabilities are treated the same under
those sections; both are denied disability tax credits.
[7]
The more appropriate way of characterizing the
distinction for the purposes of the two-part test in Withler is as a
distinction between people with less severe disabilities and people with more
severe disabilities as these two groups are treated differently under the Act.
The Respondent concedes that sections 118.3 and 118.4 create a distinction
between those two groups of people and therefore that this first step of the Withler
test is met. The Respondent’s concession is based on the reasoning of the
Supreme Court of Canada in Granovsky v. Canada (Minister of Employment and
Immigration).
Does the Distinction Create a Disadvantage by Perpetuating Prejudice
or Stereotyping?
[8]
The second step of the Withler test
involves an examination of various contextual factors with the goal of
determining whether the distinction in the legislation creates a disadvantage
by perpetuating prejudice or stereotyping. At paragraph 38, Withler
identifies a non-exhaustive list of contextual factors that can be considered:
Without attempting
to limit the factors that may be useful in assessing a claim of discrimination,
it can be said that where the discriminatory effect is said to be the
perpetuation of disadvantage or prejudice, evidence that goes to establishing a
claimant’s historical position of disadvantage or to demonstrating existing
prejudice against the claimant group, as well as the nature of the interest
that is affected, will be considered. … Where the impugned law is part of a
larger benefits scheme, as it is here, the ameliorative effect of the law on
others and the multiplicity of interests it attempts to balance will also
colour the discrimination analysis.
[9]
There is no question that Mr. Bleiler’s visual
impairment causes him some personal difficulties. Mr. Bleiler described various
challenges that he has avoiding people and objects when walking due to his
reduced range of vision and lack of depth perception. He also explained that,
while he can read, reading for extended periods of time causes eye strain that
he believes is not shared by people with binocular vision. He also stated that
he has additional expenses related to the purchase of his prosthetic eye and to
the maintenance of both that prosthetic and his eye socket. Finally, Mr.
Bleiler testified that his visual impairment has caused him mental anguish for
a number of reasons. The first reason is what I will informally describe as
survivor’s guilt related to his being discharged from the army prior to the
deployment of his army unit to the Korean War. The second reason for his
anguish is his increased fear of losing his eyesight completely if anything
were to happen to his right eye. The final reason for his anguish is the way
that he perceives that others view him as a result of his impairment.
[10]
All that said, the question is not whether Mr.
Bleiler personally has difficulties as a result of his visual impairment but
rather whether, in general, people with less severe disabilities are subject to
prejudice or stereotyping. Mr. Bleiler introduced very little evidence on
this point. However, given that the existence of such prejudice or stereotyping
in respect of people with disabilities is hardly controversial and given that
acknowledging such prejudice and stereotyping without direct evidence thereof
will not affect the outcome of this case, I am prepared to take judicial notice
of the existence of such prejudice and stereotyping for the purposes of this
case. The standards established by sections 118.3 and 118.4 are
sufficiently high that at least some people who would commonly be acknowledged
as having a physical or mental disability and who may suffer prejudice and
stereotyping as a result of that disability would not qualify for the
disability tax credit.
[11]
However, it is not enough for Mr. Bleiler to
demonstrate that people with less severe disabilities suffer prejudice or
stereotyping. Mr. Bleiler must also show that the denial of the disability tax
credit to those people has the effect of perpetuating that prejudice or
disadvantage. The only effect of being denied the disability tax credit that
Mr. Bleiler described was the fact that he had to pay more tax than he would
have paid if he had received the credit. In Granovsky, the Supreme Court
of Canada stated at paragraph 58 that:
The question therefore
is not just whether the appellant has suffered the deprivation of a financial
benefit, which he has, but whether the deprivation promotes the view that
persons with temporary disabilities are “less capable, or less worthy of
recognition or value as human beings or as members of Canadian society,
equally deserving of concern, respect, and consideration.
[emphasis in original]
[12]
I struggle to see how not receiving the
disability tax credit perpetuates the prejudice or stereotyping suffered by
less severely disabled people. Mr. Bleiler did not introduce any evidence that
denying a disability tax credit to a person with a less severe disability in
any way promotes the view that such people are less capable or less worthy of
recognition or value as human beings or members of Canadian society.
[13]
Since the purpose of the disability tax credit
is to provide financial relief, Mr. Bleiler would have to have shown that the
relief provided did not take into account the actual needs or circumstances of
people with less severe disabilities. Mr. Bleiler did not provide any evidence
of the financial needs of this group. The only financial circumstances that he
described were his own. The fact that a person has a disability does not mean
that he or she earns less income. Mr. Bleiler’s case is a good example.
While his visual impairment resulted in some limitations on the employment
opportunities available to him, it
did not prevent him from earning what I must presume would have been at least a
solid middle class living as a personnel director at a major medical
institution for 17 years and, following his retirement from that job, as a
part-time professor.
[14]
Even if Mr. Bleiler had provided evidence that
the disability tax credit did not take into account the financial needs of
people with less severe disabilities, he would still have needed to show that,
looking at the scheme of the Act as a whole, the line that Parliament
has chosen to draw between people with more severe disabilities and people with
less severe disabilities was not generally appropriate. The Supreme Court of
Canada explained this aspect of the test at paragraph 67 of Withler:
In cases involving a
pension benefits program such as this case, the contextual inquiry at the
second step of the s. 15(1) analysis will typically focus on the purpose of the
provision that is alleged to discriminate, viewed in the broader context of the
scheme as a whole. Whom did the legislature intend to benefit and why? In
determining whether the distinction perpetuates prejudice or stereotypes a
particular group, the court will take into account the fact that such programs
are designed to benefit a number of different groups and necessarily draw lines
on factors like age. It will ask whether the lines drawn are generally appropriate,
having regard to the circumstances of the persons impacted and the objects of
the scheme. Perfect correspondence between a benefit program and the actual
needs and circumstances of the claimant group is not required. Allocation of
resources and particular policy goals that the legislature may be seeking to
achieve may also be considered.
[15]
Mr. Bleiler did not introduce any evidence that
would show that the line drawn by Parliament between people with more severe
disabilities and people with less severe disabilities was not generally
appropriate.
[16]
In light of all of the foregoing, I find that
Mr. Bleiler has not shown that sections 118.3 and 118.4 breach section 15 of
the Charter.
Section 1
Analysis
[17]
Since I have concluded that sections 118.3 and
118.4 do not breach section 15 of the Charter, there is no need for
me to conduct an analysis under section 1 of the Charter.
Conclusion
[18]
Based on all of the foregoing, the appeal is
dismissed without costs.
Signed at Toronto, Ontario, this 6th
day of October 2014.
“David E. Graham”
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