Luis Ayala v. Minister of National Revenue, [1978] CTC 2299, 78 DTC 1262

The Assistant Chairman:—Were is not for the Canadian Bill of Rights, SC 1960, c 44, this appeal would not have come before this Board. The basis of the appeal is that section 63 of the Income Tax Act, after tax reform, in part discriminates against the appellant and, to the extent that it so discriminates, it should be expunged from the Income Tax Act, and then the Act should be applied to the circumstances of the appellant. The appellant was, in 1974, a happily married man with two children. He was gainfully employed. His wife, in that year, was in full-time attendance in the Faculty of Law at the University of Alberta at Edmonton. So that he could continue his employment in 1974 and so that his wife could follow her academic pursuits, the appellant incurred “child care expenses” as that term is used in said section

63. The facts of the appellant’s marriage as they existed in 1974 would in no way satisfy any of the requirements of subparagraph 63(1 )(b)(ii), (iii) or (iv) of the Income Tax Act. Consequently, as previously mentioned, if only the Income Tax Act were to be considered, this appeal would have no merit and it would have to be dismissed.

The relevant portions of subsection 63(1) read as follows:

63. (1) There may be deducted in computing the income for a taxation year of a taxpayer who is

(a) a woman, or

(b) a man

(i) who at any time in the year was not married,

(ii) who at any time in the year was separated from his wife pursuant to a decree, order or judgment of a competent tribunal or pursuant to a written agreement,

(iii) whose wife is certified by a qualified medical practitioner to be a person who,

(A) by reason of mental or physical infirmity, and her confinement throughout a period of not less than 2 weeks in the year to bed, to a wheelchair or as a patient in a hospital, asylum or other similar institution, was incapable of caring for children, or

(B) by reason of mental or physical infirmity, was in the year, and is likely to be for a long-continued period of indefinite duration, incapable of caring for children, or

(iv) whose wife was confined to prison throughout a period of not less than 2 weeks in the year,

amounts paid by the taxpayer in the year as or on account of child care expenses in respect of the taxpayer’s children, . . .

I should mention that had the appellant’s wife been the appellant, then undoubtedly there would have been no appeal as the requirements of paragraph 63(1 )(a) would have been met, and if there had been an appeal it would undoubtedly have been immediately allowed.

This then indicates the thrust of the appellant’s submission. He is being discriminated against because of his sex as, were he a woman who had the same children and who paid the same amount in the same circumstances, the amount claimed as a deduction would clearly have been allowed by subsection 63(1) of the Income Tax Act. This the appellant contends is discrimination because of sex which is contrary to the Canadian Bill of Rights and consequently the submission continues that I must strike down the impugned subparagraph and allow the appeal. That is, I must give the appellant the same deduction, pursuant to subsection 63(1), as I would give a woman in the same circumstances.

The appellant’s counsel referred to paragraph 1(b) and section 2 of the Canadian Bill of Rights which read as follows:

1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national Origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

(b) the right of the individual to equality before the law and the protection of the law;

i..

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared, . . .

Counsel for the appellant also referred to two well-known cases of the Supreme Court of Canada, namely, Regina v Drybones, [1970] SCR 282, and Attorney General of Canada v Lavell et al, [1974] SCR 1349. In addition to those two cases the respondent referred to several others which also considered the Canadian Bill of Rights.

After reading the submission of the appellant it seems as though, even if I should hold that paragraph 63(1 )(b) of the Income Tax Act discriminates against the appellant and I should expunge that paragraph from the Income Tax Act, that is not sufficient for the appellant’s appeal to succeed. I must continue and, in effect, legislate to change the word “woman” to “individual” or in some other fashion rewrite the whole or part of subsection 63(1) so that, after all discrimination is eradicated, any individual be he woman or man can satisfy the balance of section 63 and so, in the same circumstances, get the benefit of the deduction for “child care expenses”.

If I were to declare paragraph 63(1 )(b) inoperative because it was contrary to the Canadian Bill of Rights, it does not follow that I must allow the appellant’s appeal. Before I could allow that appeal, I would have to change or amend the remaining words of subsection 63(1) so that they would encompass the appellant as well. This, to me, is not interpreting legislation, but rather legislating. Since I cannot legislate, then, relying on the Canadian Bill of Rights alone, I cannot allow the appellant’s appeal. The result is, since I cannot allow the appeal considering the Canadian Bill of Rights, and since the appeal has no merits when only the Income Tax Act is considered, I must then dismiss the appeal.

The appeal is dismissed.

Appeal dismissed.