Beaubier T.C.J.:
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(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 Symes v. R. (1993), 94 D.T.C. 6001 (S.C.C.), 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.
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