2013 FCA 99
at Toronto, Ontario, on April 10, 2013.
delivered from the Bench at Toronto, Ontario, on April 10, 2013.
REASONS FOR JUDGMENT OF THE COURT
BY: SHARLOW J.A.
2013 FCA 99
REASONS FOR JUDGMENT
OF THE COURT
from the Bench at Toronto, Ontario, on April 10, 2013)
Fannon is appealing a judgment of Justice Near (2012 FC 876). That judgment
dismissed an application for judicial review of a decision of the Minister of
National Revenue refusing Mr. Fannon’s request for reassessments for the years
2001 to 2005. The reassessments were requested to allow deductions pursuant to
section 63 of the Income Tax Act, R.S.C. 1985, c.1 (5th
Supp.) for child care expenses paid by Mr. Fannon with respect to his son. We
are all of the view that this appeal must be dismissed for the following
63 sets out a number of conditions that must be met before a deduction for
child care expenses can be allowed. It is undisputed that in this case, the
child care expenses paid by Mr. Fannon are deductible only if his son resided
with him when the expenses were incurred. Mr. Fannon concedes that during the
relevant period, his son did not reside with him. Justice Near concluded that
because that statutory condition was not met, the Minister’s decision not to
reassess to allow the deductions was reasonable. We agree.
Fannon also argued in the Federal Court, and maintains in this Court, that section
63 violates his right under subsection 15(1) of the Canadian Charter of
Rights and Freedoms to the equal benefit of the law without discrimination.
He argues that section 63 discriminates against him on the basis of marital
status, family status and an analogous ground, place of residence.
Near rejected Mr. Fannon’s Charter argument for a number of reasons. In
this appeal it is enough to comment on only one of those reasons, which is the
lack of evidence (see paragraph 17 of Justice Near’s reasons).
order to succeed in his Charter claim, Mr. Fannon was required to submit
evidence capable of proving that the statutory condition barring his claim for
a deduction for child care expenses creates an adverse distinction based on an
enumerated or analogous ground, and that the statutory distinction creates a
disadvantage by perpetuating prejudice or stereotyping (Quebec (Attorney
General) v. A., 2013 SCC 5; R. v. Kapp, 2008 SCC 41). Mr. Fannon
presented no evidence in the Federal Court that addresses those questions. The
lack of an evidentiary foundation is fatal to his Charter claim (MacKay
v. Manitoba,  2 S.C.R. 357).
Fannon also argues that section 63 should be interpreted more generously than
the Minister has done in this case, because even though his son did not reside
with him when the child care expenses were incurred, his claim for a deduction
for those expenses is fair and reasonable in the circumstances, and meets the
policy objectives of section 63. Unfortunately for Mr. Fannon, the Minister is
not free to disregard statutory conditions to the deductibility of child care
expenses. If section 63 is too restrictive to meet its policy objectives in the
particular circumstances of this case, the remedy lies with Parliament, not
with the Minister and not with this Court.
these reasons, the appeal will be dismissed with costs. Based on the oral
submissions of the parties, costs will be fixed in the amount of $300 inclusive
of all disbursements and taxes.
FEDERAL COURT OF
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
(APPEAL FROM A JUDGMENT OF THE
HONOURABLE MR. JUSTICE NEAR, DATED JULY 11, 2012, IN DOCKET NO. T-586-11)
STYLE OF CAUSE: DANIEL LAWRENCE FANNON
v. REVENUE CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April
REASONS FOR JUDGMENT
OF THE COURT BY: SHARLOW
DELIVERED FROM THE
BENCH BY: SHARLOW J.A.
SOLICITORS OF RECORD:
FOR THE APPELLANT
Attorney General of Canada