Jerome,
A.C.J.:—This
application
by
the
plaintiff
for
an
order
that
paragraph
167(5)(a)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act")
violates
section
7
of
the
Canadian
Charter
of
Rights
and
Freedoms
and
that
paragraph
167(5)(a)
is
of
no
force
or
effect
pursuant
to
section
24
or
section
52
of
the
Charter
was
heard
at
Vancouver,
British
Columbia
on
July
12,
1991.
On
June
24,
1986
the
Tax
Court
of
Canada
dismissed
for
want
of
jurisdiction
the
plaintiff's
appeal
of
an
earlier
Tax
Court
decision
that
it
had
no
jurisdiction
to
consider
the
plaintiff's
application
to
extend
time
to
file
notices
of
objection.
In
the
within
action
the
plaintiff
seeks
an
extension
of
time
within
which
to
file
notices
of
objection
to
tax
assessments
for
the
years
1975
through
1978,
but
is
barred
by
the
operation
of
the
limitation
period
imposed
by
paragraph
167(5)(a).
The
plaintiff
argues
that
she
should
be
exempted
from
the
application
of
paragraph
167(5)(a)
and
that
this
Court
should
be
permitted
to
consider
the
merits
of
her
application
for
an
extension
be-
cause,
in
the
particular
circumstances
of
her
case,
paragraph
167(5)(a)
violates
section
7
of
the
Charter.
Background
The
plaintiffs
income
tax
returns
for
the
years
1975,
1976,
1977
and
1978
were
assessed
by
the
Minister
of
National
Revenue
(the"Minister")
on
June
25,
1976,
July
26,
1977,
July
14,
1978,
and
June
26,1979
respectively.
By
way
of
notices
of
reassessment
dated
November
18,
1981
the
Minister
reassessed
the
plaintiff
with
respect
to
her
1975,
1976,
1977and
1978
taxation
years.
The
Minister
disallowed
a
number
of
expenses
claimed
by
the
plaintiff
as
having
been
incurred
for
the
purpose
of
earning
income
from
a
business
and
imposed
penalties
under
subsection
163(2)
of
the
Income
Tax
Act
.
According
to
affidavits
of
the
plaintiff
and
of
Millard
Magasin,
both
dated
June
21,
1991,
the
plaintiff
brought
the
reassessments
to
the
attention
of
her
accountant,
Mr.
Millard
Magasin,
in
November,
1981.
He
prepared
a
notice
of
objection,
but
it
was
not
filed
because,
according
to
Mr.
Magasin,
he
was
involved
in
an
ongoing
process
of
review
with
the
Department
of
National
Revenue
and
because
he
had
a
number
of
financial
problems
in
1982.
In
an
application
dated
August
10,
1983
the
plaintiff
applied
to
the
Tax
Court
of
Canada
for
an
extension
of
time
to
file
a
notice
of
objection.
The
application
was
called
for
hearing
on
January
30,
1984.
No
one
appeared
for
or
on
behalf
of
the
plaintiff,
however,
and
the
application
was
dismissed
for
want
of
prosecution
by
Order
of
St-Onge,
T.C.C.J.
dated
February
13,
1984.
In
her
affidavit
dated
June
21,
1991
the
plaintiff
explains
that
she
did
not
attend
the
hearing
because
she
was
in
the
Royal
Columbian
Hospital
in
New
Westminster,
British
Columbia,
at
the
time.
The
plaintiff
then
launched
an
appeal
to
the
Tax
Court
of
Canada
in
respect
of
her
1975,1976,1977
and
1978
taxation
years.
By
Order
of
Kempo,
T.C.C.].
dated
June
24,1986
the
Minister's
motion
requesting
that
the
appeal
be
quashed
was
allowed
because
the
plaintiff
had
failed
to
comply
with
the
provisions
of
section
169
of
the
Income
Tax
Act
.
On
October
14,
1986
the
plaintiff
issued
a
statement
of
claim
in
this
Court
with
respect
to
her
1975,
1976,
1977,
1978
and
1979
taxation
years
submitting
that,
on
the
grounds
of
her
age
and
illness,
this
Court
has
jurisdiction
to
allow
her
this
extension
since
on
a
purely
technical
ground,
she
has
been
denied
the
right
to
prove
her
case.
She
also
alleges
that
she
was
unable
to
file
proper
notices
of
objection
at
the
required
time
because
all
vouchers,
documents
and
records
on
which
the
notices
of
objection
were
based
were
held
by
the
defendant
contrary
to
the
Charter.
The
statement
of
defence
was
filed
on
January
30,
1987.
No
further
action
was
taken
until
the
defendant
by
letters
dated
January
4
and
May
6,
1991
advised
the
plaintiff
that
because
there
had
been
no
response
from
her
to
date,
it
would
be
necessary
to
strike
the
claim.
On
May
9,
1991
the
plaintiff
filed
a
notice
of
intention
to
proceed.
She
explained
that
during
the
past
several
years
she
had
suffered
from
a
very
severe
case
of
asthma
and
bronchial
disorders
which
had
prevented
her
from
giving
an
earlier
response.
On
May
17,
1991
the
defendant
brought
a
motion
to
dismiss
the
plaintiff's
action
and
on
June
24,
1991
the
plaintiff
applied
to
this
Court
for
an
order
that
subsection
167(5)
of
the
Income
Tax
Act
violates
section
7
of
the
Charter
and
is
of
no
force
or
effect.
By
order
of
Joyal,
J.
dated
July
11,
1991,
the
defendant's
motion
for
an
order
dismissing
the
plaintiff's
action
was
adjourned
to
July
12,
1991
for
the
limited
purpose
of
considering
the
plaintiffs
Charter
argument.
It
was
further
ordered
that
[i]n
the
event
the
plaintiff
is
not
successful
in
its
Charter
argument,
judgment
will
be
ordered
in
favour
of
the
defendant".
Relevant
Statutory
Provisions
The
statutory
provisions
relevant
to
this
application
are
subsections
165(1),
167(1),
167(2)
and
167(5)
of
the
Income
Tax
Act
and
section
7
of
the
Canadian
Charter
of
Rights
and
Freedoms,
Part
I
of
the
Constitution
Act,
1982,
being
Schedule
B
of
the
Canada
Act,
1982
(U.K.),
1982,
c.
11
and
subsection
52(1)
of
the
Constitution
Act,
1982:
Income
Tax
Act
165.(1)
A
taxpayer
who
objects
to
an
assessment
under
this
Part
may,
within
90
days
from
the
day
of
mailing
of
the
notice
of
assessment,
serve
on
the
Minister
a
notice
of
objection
in
duplicate
in
prescribed
form
setting
out
the
reasons
for
the
objection
and
all
relevant
facts.
167.(1)
Where
no
objection
to
an
assessment
under
section
165
or
appeal
to
the
Tax
Court
of
Canada
under
section
169
has
been
made
or
instituted
within
the
time
limited
by
section
165
or
169,
as
the
case
may
be,
for
doing
so,
an
application
may
be
made
to
the
Tax
Court
of
Canada
for
an
order
extending
the
time
within
which
a
notice
of
objection
may
be
served
or
an
appeal
instituted
and
the
Court
may,
if
in
its
opinion
the
circumstances
of
the
case
are
such
that
it
would
be
just
and
equitable
to
do
so,
make
an
order
extending
the
time
for
objecting
or
appealing
and
may
impose
such
terms
as
it
deems
just.
(2)
The
application
referred
to
in
subsection
(1)
shall
set
forth
the
reasons
why
it
was
not
possible
to
serve
the
notice
of
objection
or
institute
the
appeal
to
the
Court
within
the
time
otherwise
limited
by
this
Act
for
so
doing.
(5)
No
order
shall
be
made
under
subsection
(1)
or
(4)
(a)
unless
the
application
to
extend
the
time
for
objecting
or
appealing
is
made
within
one
year
after
the
expiration
of
the
time
otherwise
limited
by
this
Act
for
objecting
to
or
appealing
from
the
assessment
in
respect
of
which
the
application
is
made;
(b)
if
the
Tax
Court
of
Canada
or
Federal
Court
has
previously
made
an
order
extending
the
time
for
objecting
to
or
appealing
from
the
assessment;
and
(c)
unless
the
Tax
Court
of
Canada
or
Federal
Court
is
satisfied
that,
(i)
but
for
the
circumstances
mentioned
in
subsection
(1)
or
(4),
as
the
case
may
be,
an
objection
or
appeal
would
have
been
made
or
taken
within
the
time
otherwise
limited
by
this
Act
for
so
doing,
(ii)
the
application
was
brought
as
soon
as
circumstances
permitted
it
to
be
brought,
and
(iii)
there
are
reasonable
grounds
for
objecting
to
or
appealing
from
the
assessment.
Canada
Act,
1982
7.
Everyone
has
the
right
to
life,
liberty
and
security
of
the
person
and
the
right
not
to
be
deprived
thereof
except
in
accordance
with
the
principles
of
fundamental
justice.
52.(1)
The
Constitution
of
Canada
is
the
supreme
law
of
Canada,
and
any
law
that
is
inconsistent
with
the
provisions
of
the
Constitution
is,
to
the
extent
of
the
inconsistency,
of
no
force
or
effect.
[Emphasis
added.]
Issue
The
issue
is
simply
whether
paragraph
167(5)(a)
of
the
Income
Tax
Act
infringes
the
plaintiff's
right
to
life,
liberty
and
security
of
the
person
contrary
to
section
7
of
the
Charter.
Plaintiff's
Submissions
The
plaintiff
submits
that
paragraph
167(5)(a)
of
the
Income
Tax
Act
infringes
her
section
7
Charter
rights,
particularly
her
right
to
security
of
the
person.
She
contends
that
paragraph
167(5)(a)
imposes
an
inflexible
and
unjustifiable
limitation
on
her
statutory
right
of
appeal.
She
is
thereby
denied
an
opportunity
to
answer
the
issue
of
delay
and
thus
paragraph
167(5)(a)
is
at
variance
with
the
principle
that
persons
whose
property
rights
are
affected
have
a
right
to
be
heard.
Furthermore,
the
threat
of
harm
to
the
plaintiff
in
the
present
circumstances
is
sufficient
to
attract
the
protection
of
section
7
of
the
Charter.
The
loss
of
her
right
of
appeal
could
put
her
in
"dire
straits
with
respect
to
her
financial
position
at
present".
It
is
agreed
that
a
mere
economic
detriment
is
not
a
sufficient
ground
upon
which
to
base
a
section
7
Charter
argument.
The
plaintiff
alleges,
however,
that
the
loss
of
her
right
of
appeal
is
not
simply
an
economic
detriment
but
a
threat
to
her
means
of
self-support
and
sustenance
such
that
it
will
directly
bear
upon
her
physical
and
psychological
well-being
and
threaten
her
security
of
the
person.
Relying
on
the
decision
in
R.
v.
Neale
(1985),
39
Alta.
L.R.
(2d)
24
(Q.B.);
reversed
on
other
grounds
(1986),
46
Alta.
L.R.
(2d)
225,
[1986]
5
W.W.R.
577
(C.A.),
the
plaintiff
submits
that
the
purpose
of
section
7
of
the
Charter
is
to
enhance
the
vitality,
volition,
autonomy
and
physical
well-being
of
citizens.
The
word
“deprivation”
in
section
7
is
not
limited
to
the
complete
loss
or
absolute
denial
of
the
right
to
life,
liberty
and
security
of
the
person,
but
includes
its
mere
infringement,
and
the
phrase
"security
of
the
person"
is
not
restricted
to
physical
integrity
but
may
encompass
more
than
physical
and
psychological
security.
The
plaintiff
submits
that
the
Minister
is
not
prejudiced
in
any
way
should
a
delay
go
beyond
the
one-year
limitation
period
imposed
by
paragraph
167(5)(a).
She
suggests
that
if
there
is
a
section
7
Charter
infringement
or
if
a
limitation
period
prevents
a
person
from
being
heard
when
there
are
sound
reasons
for
failing
to
comply
with
a
limitation
period,
then
a
court
may
intervene
and
allow
the
person
an
opportunity
to
explain
his
or
her
failure
to
comply.
She,
therefore,
requests
that
subsection
52(1)
of
the
Charter
be
applied
in
this
instance
to
exempt
her
from
the
operation
of
paragraph
167(5)(a)
of
the
Income
Tax
Act
and
she
asks
that
this
Court
consider
the
merits
of
her
application
for
an
extension
of
time
within
which
to
file
a
notice
of
objection.
Defendant's
Submissions
The
defendant
indicates
that
in
this
case
the
90-day
period
prescribed
by
section
165
of
the
Income
Tax
Act
expired
on
February
16,
1982
and
that
the
further
one-year
period
to
apply
for
an
extension
under
section
167
expired
on
February
16,1983.
As
the
plaintiff
did
not
file
her
extension
application
until
August,
1983
she
did
not
comply
with
the
limitation
periods
imposed
by
the
Income
Tax
Act
and,
according
to
the
strict
interpretation
previously
given
to
paragraph
167(5)(a),
this
Court
does
not
have
jurisdiction
to
entertain
her
appeal.
The
defendant
submits
that
the
plaintiff's
right
to
life,
liberty
and
security
of
the
person
is
not
at
stake.
The
plaintiff's
grievance
concerns
an
assessment
of
tax
for
which
she
will
have
to
make
a
monetary
payment;
she
will
not
be
subject
to
imprisonment
or
any
other
denial
of
her
liberty
or
security.
The
remedy
she
is
seeking
is
an
economic
remedy
and,
as
such,
it
is
not
covered
by
section
7
of
the
Charter.
Taxing
statutes
affect
economic
rights
and
the
Courts
have
clearly
rejected
the
proposition
that
a
right
to
life,
liberty
or
security
of
the
person
includes
economic
remedies.
Furthermore,
there
has
been
no
threat
taken
to
collect
the
tax
liability
that
has
been
outstanding
and
collectable
since
1982
and,
in
any
event,
the
collection
of
a
valid
tax
liability
is
a
different
issue.
Finally,
fundamental
justice
does
not
include
a
right
to
abridge
limitation
periods.
Relying
on
Re
S.E.M.;
R.E.D.M.
and
E.R.M.
v.
Director
of
Child
Welfare,
[1988]
6
W.W.R.
661
(Alta.
C.A.),
the
defendant
submits
that
the
Minister
must
have
some
degree
of
certainty
as
to
when
files
can
effectively
be
closed
and
that
a
limitation
period
would
become
virtually
meaningless
with
the
automatic
extension
proposed
by
the
plaintiff.
Analysis
Section
165
of
the
Income
Tax
Act
provides
that
a
taxpayer
who
objects
to
an
assessment
may,
as
of
right,
file
a
notice
of
objection
within
90
days
from
the
date
of
the
assessment.
In
the
event
the
taxpayer
does
not
file
the
notice
of
objection
within
90
days,
section
167
of
the
Income
Tax
Act
provides
a
mechanism
whereby
an
extension
may
be
granted
to
allow
late
filing
if
certain
conditions
are
met
and
if
the
application
is
made
within
one
year
after
the
expiration
of
the
time
limit
set
out
in
section
165.
The
jurisprudence
is
clear
that
if
these
time
limits
are
not
complied
with,
then
this
Court
does
not
have
jurisdiction
to
consider
the
plaintiff's
action.
In
Graham
v.
The
Queen,
[1987]
2
C.T.C.
255,
87
D.T.C.
5455
(F.C.T.D.),
Cullen,
J.
found
that
he
did
not
have
jurisdiction
to
hear
a
taxpayer's
appeal
from
an
income
tax
assessment
when
the
action
was
not
brought
within
the
time
limits
set
out
in
paragraph
167(5)(a)
of
the
Income
Tax
Act.
Accordingly,
he
allowed
the
Crown's
application
for
an
order
to
strike
out
the
taxpayer's
statement
of
claim.
He
commented
at
256-57
(D.T.C.
5456-67):
With
respect
to
the
1979
and
1981
taxation
years,
as
earlier
stated,
the
plaintiff
applied
to
the
Tax
Court
of
Canada
for
an
extension
of
time
to
serve
upon
the
Minister
of
National
Revenue
notices
of
objection
in
respect
of
his
1948
to
1979
taxation
years,
inclusive,
as
well
as
his
1981
and
1982
taxation
years.
That
application
was
dismissed
by
Court
Order
dated
December
18,
1986
(Court
No.
2709
(IT)).
The
applications
were
for
the
most
part
undated
but
received
by
the
Court
on
December
10,
1985.
More
than
one
year
and
90
days
had
elapsed
and
so
the
Tax
Court
had
no
jurisdiction
to
extend
the
time
for
filing
notices
of
objection
(see
paragraph
167(5)(a)
of
the
Income
Tax
Act).
Based
on
the
relevant
facts,
it
was
not
open
to
the
plaintiff
to
launch
a
trial
de
novo.
If
paragraph
167(5)(a)
of
the
Act
effectively
barred
any
action
before
the
Tax
Court
of
Canada,
then
one
can
no
longer
consider
those
taxation
years.
There
is
no
jurisdiction
in
the
Federal
Court
of
Canada
because
the
action
was
not
brought
within
time
limits
imposed
by
the
Income
Tax
Act.
[Emphasis
added.]
Pinard,
J.
reached
the
same
conclusion
in
similar
circumstances
in
Starlite
Bottlers
Ltd.
v.
The
Queen,
[1988]
2
C.T.C.
60,
88
D.T.C.
6272
(F.C.T.D.).
Clearly
then,
as
indicated
in
the
order
of
Joyal,
J.
dated
July
11,
1991,
the
plaintiff
is
caught
by
the
limitation
period
unless
she
is
successful
in
her
Charter
argument.
In
support
of
her
argument
and
the
particular
remedy
sought
in
this
instance,
the
plaintiff
relies
on
two
recent
decisions
of
the
Federal
Court
of
Appeal:
Bains
v.
Minister
of
Employment
&
Immigration;
James
v.
Minister
of
Employment
&
Immigration
(1989),
8
Imm.
L.R.
(2d)
165,
and
the
majority
concurring
decision
in
Kaur
v.
Canada
(Minister
of
Employment
&
Immigration)
(1989),
10
Imm.
L.R.
(2d)
1.
In
Bains,
the
applicants
sought
to
set
aside
two
decisions
of
the
former
Immigration
Appeal
Board
refusing
to
extend
time
for
each
applicant
to
file
applications
for
redetermination
of
their
claims
to
refugee
status
under
subsection
70(1)
of
the
Immigration
Act,
1976,
S.C.
1976-77,
c.
52
in
the
light
of
the
limitation
period
prescribed
by
subsection
40(1)
of
the
Immigration
Regulations,
1978,
SOR/78-172,
as
amended
.
Hugessen,
J.A.,
for
the
Court,
concluded
that
the
Board
was
correct
in
determining
that
it
did
not
have
jurisdiction
to
extend
a
time
limit
fixed
by
the
Governor-in-Council
pursuant
to
the
regulation-making
power
conferred
on
him
by
the
Act.
However,
he
accepted
the
applicants’
argument
that
a
rigid
and
inflexible
time
limit
within
which
to
apply
for
redetermination,
with
no
possibility
of
extension
no
matter
what
the
circumstances,
is
not
in
accordance
with
the
principles
of
fundamental
justice
and
may
lead
to
a
deprivation
of
life,
liberty
or
security
of
the
person,
contrary
to
section
7
of
the
Charter.
He
noted
[at
168]
that
subsequent
to
the
Supreme
Court
of
Canada
decision
in
Singh
v.
Canada
(Minister
of
Employment
&
Immigration),
[1985]
1
S.C.R.
177,17
D.L.R.
(4th)
422,"
[i]t
is
now
well
settled
that
a
claim
to
refugee
status
may
put
in
play
rights
which
enjoy
Charter-protection".
He
allowed
the
applications
and
referred
the
matters
back
to
the
Board
for
reconsideration
"on
the
basis
that
the
Board
had
jurisdiction
to
consider
whether
fundamental
justice
requires
that,
in
the
circumstances,
the
applicants
be
permitted
to
apply
for
redetermination
of
their
refugee
claims
outside
the
time
fixed
by
law.”
He
commented
[at
page
169]:
The
difficulty
with
the
argument
advanced
by
counsel
for
the
Minister
is
that
the
Board,
being
of
the
view
that
it
had
no
jurisdiction
to
do
so,
never
examined
the
facts
of
either
case.
It
may
well
be
that,
in
the
end,
the
Board
will
agree
with
the
submission
of
counsel
for
the
Minister
and
find
that
the
facts
reveal
no
breach
of
the
rules
of
fundamental
justice,
but
the
duty
of
examining
and
answering
that
question
lies,
at
least
in
the
first
instance,
on
the
Board
and
not
on
this
Court.
The
Board
is
a
court
of
record
[Immigration
Act,
1976,
subsection
65(1)],
with
"sole
and
exclusive
jurisdiction”
[subsection
59(1)]
over
a
matter
such
as
we
have
here,
namely
an
application
for
redetermination
of
a
refugee
claim.
Its
powers
and
its
jurisdiction
must
be
read
in
the
light
of
the
Charter.
Hence
it
cannot
simply
refuse
to
entertain
an
application
of
the
type
here
in
question;
rather,
it
must
look
at
the
particular
circumstances
of
each
case
to
determine
whether
the
applicant
stands
to
be
deprived
of
a
Charter-protected
right
if
not
permitted
to
apply
for
redetermination
and,
if
so,
whether
fundamental
justice
requires
that
he
be
granted
such
permission.
[Emphasis
added.]
In
Kaur,
an
adjudicator
had
denied
a
refugee
claimant's
request
to
reopen
her
inquiry.
At
the
hearing
of
her
conventional
refugee
claim,
the
applicant
had
stated
that
she
wished
to
return
to
India
and
that
she
no
longer
wished
to
claim
refugee
status.
An
exclusion
order
was
made,
however,
the
applicant
later
requested
a
reopening
of
the
inquiry
because
at
the
time
of
the
hearing
she
had
been
under
great
duress
exerted
by
her
former
husband.
Heald,
J.A.,
for
the
majority
concurring
opinion,
held
[at
page
7]
that
the
adjudicator
"did
not
err
in
refusing
to
reopen
the
inquiry
under
the
authority
of
section
35
of
the
Act
,
absent
any
possible
application
of
the
Canadian
Charter
of
Rights
and
Freedoms.”
He
then
considered
the
argument
that
the
applicant's
Charter
rights
had
been
infringed
and
on
the
basis
of
the
following
reasoning,
he
concluded
[at
page
9]
that
"this
is
clearly
a
case
for
intervention
pursuant
to
section
7
of
the
Charter":
It
is
apparent
from
the
record
that
due
to
the
duress
exerted
upon
her
by
her
former
husband
during
the
inquiry,
she
was
effectively
deprived
of
her
right
to
be
represented
by
independent
counsel.
She
was
also
effectively
deprived
of
the
ability
to
make
a
free,
informed
and
independent
decision
respecting
a
claim
to
refugee
status.
Accordingly,
I
conclude
that
the
exclusion
order
issued
herein
is
manifestly
unfair
in
the
circumstances
of
this
case
and
contrary
to
the
provisions
of
section
7
of
the
Charter.
On
the
question
of
a
remedy
he
found
that
"this
is
a
clear
case
for
an
''exemption"
or
"reading
out”,
in
which
legislation
remains
in
force
but
is
not
applied
to
a
person
such
as
this
applicant
whose
Charter
rights
have
been
infringed
through
the
application
of
the
legislative
provisions
to
his
situation.
Consistent
with
the
reasoning
and
spirit
of
the
decisions
of
the
Federal
Court
of
Appeal
in
Kaur
and
Bains,
the
plaintiff
has
been
afforded
an
opportunity
to
demonstrate
that
her
section
7
Charter
rights
have
been
violated
by
the
application
of
paragraph
167(5)(a)
of
the
Income
Tax
Act.
I
do
not
consider
that
these
cases
stand
for
any
broader
proposition.
Here,
the
plaintiff
agrees
that
limitation
periods
are
necessary
but
suggests
that
they
are
not
valid
in
all
cases
particularly
where
a
person's
section
7
Charter
rights
are
infringed.
She
does
not
seek
a
declaration
that
the
section
is
invalid
but
simply
that,
as
it
operates
in
the
particular
circumstances
of
her
case,
the
section
imposes
an
unjustifiable
limitation
on
her
right
of
appeal.
The
plaintiff,
however,
has
not
convinced
me
that
in
the
present
circumstances
paragraph
167(5)(a)
should
be
held
to
be
inoperative
because
it
would
have
the
effect
of
depriving
her
of
security
of
the
person.
The
circumstances
put
forth
by
the
plaintiff
and
her
accountant
to
explain
her
delay
in
filing
notices
of
objection
and
to
outline
the
impact
that
the
denial
of
a
right
to
appeal
will
have
on
her
personal
situation
are
unfortunate
and
regrettable,
but
certainly
not
unique.
Accepting,
as
did
Strayer,
J.
in
Smith,
Kline
&
French
Laboratories
Ltd.
v.
Attorney
General
of
Canada,
[1986]
1
F.C.
274
at
315,
24
D.L.R.
(4th)
321;
aff'd
[1987]
2
F.C.
359,34
D.L.R.
(4th)
584
(F.C.A.),
that"there
may
be
some
situations
in
which
section
7
would
protect,
incidentally,
the
property
of
an
individual",
the
plaintiff
has
not
shown
that
this
is
such
a
case.
In
Whitbread
v.
Walley
(1988),
51
D.L.R.
(4th)
509,
[1988]
5
W.W.R.
313
(B.C.C.A.),
McLachlin,
J.A.
[as
she
then
was],
for
the
Court,
found
that
subsection
647(2)
and
section
649
of
the
Canada
Shipping
Act,
R.S.C.
1970,
c.
5-9
which
limit
the
liability
of
owners
and
masters
of
ships
for
damages
for
personal
injury
to
a
sum
based
on
the
tonnage
of
the
ship
do
not
deny
a
right
to
life,
liberty
or
security
of
the
person
contrary
to
section
7
of
the
Canadian
Charter
of
Rights
and
Freedoms.
In
Whitbread,
the
plaintiff
had
been
seriously
injured
in
a
boating
accident.
He
suffered
spinal
injuries
which
resulted
in
quadriplegia
and
he
sued
the
defendant
owners
and
operators
of
the
boat.
The
trial
judge
found
that
the
provisions
limiting
liability
were
economic
in
effect
and,
therefore,
did
not
infringe
section
7
of
the
Charter.
On
appeal,
the
Court
acknowledged
that
legislation
or
state
action
that
directly
affects
the
life,
liberty
or
security
of
the
person
falls
within
section
7
and
that
legislation
that
is
entirely
economic
falls
outside
the
scope
of
section
7.
However,
McLachlin,
J.A.
observed
[at
page
520]
that
"[t]he
difficult
question,
which
remains
to
some
extent
unresolved,
concerns
the
situation
which
falls
between
these
two
extremes—the
case
where
the
measure
complained
of,
while
it
has
an
economic
aspect,
arguably
is
connected
to
or
affects
the
life,
liberty
or
security
of
the
person."
She
summarized
the
plaintiff's
Charter
arguments
[at
pages
520-21]
as
follows:
1.
a
claim
for
economic
interest
which
is
founded
on
a
deprivation
of
life,
liberty
and
security
of
person
falls
within
section
7
of
the
Charter;
and
2.
a
claim
for
economic
interest
which
may
enhance
a
person's
ability
to
acquire
aids
and
amenities
to
improve
the
person's
life,
liberty
or
security
of
person,
falls
under
section
7
of
the
Charter.
These
arguments,
however,
were
rejected
[at
pages
521-22]:
The
first
argument.
.
.
requires
the
words"
life,
liberty
and
security
of
the
person"
in
section
7
to
be
read
as
if
they
were
amplified
by
the
words
"or
such
economic
benefit
as
the
law
may
award
in
their
stead.”
In
the
absence
of
compelling
circumstances,
I
would
be
loath
to
embark
on
a
course
of
reading
into
the
Charter
words
which
its
drafters
did
not
see
fit
to
include
and
which
the
objectives
of
the
Charter
provision
in
question,
as
interpreted
in
Reference
re
Section
94(2)
of
the
Motor
Vehicles
Act,
[(1985),
24
D.L.R.
(4th)
536,
23
C.C.C.
(3d)
289,
[1985]
2
S.C.R.
486]
do
not
require.
The
second
argument,
.
.
.
raises
the
same
difficulty.
Arguably,
it
requires
reading
into
section
7,
after
the
declaration
that
a
person
has
the
right
to"
life,
liberty
and
security
of
person",
the
additional
phrase
that
he
has
the
right
to
"any
benefit
which
may
enhance
life,
liberty
or
security
of
person".
This
argument,
however,
is
undermined
by
an
even
more
serious
problem.
It
is
difficult
to
conceive
of
a
property
or
economic
interest
which
does
not
arguably
impact
on
the
life,
liberty
or
security
of
person.
Liberty
and
security
of
person
are
flexible
and
expansive
concepts,
and
the
degree
to
which
they
can
expand
is
intimately
tied
with
the
amount
of
money
one
has
at
his
or
her
disposal.
For
example,
a
person
who
is
barred
by
legislation
from
raising
a
claim
for
breach
of
contract
or
whose
corporation
is
denied
a
licence,
might
claim
that
the
resultant
financial
loss
has
affected
his
liberty
and
security
of
person
because
without
money
he
cannot
go
where
he
wants
to
go,
pursue
the
activities
he
wishes
to
pursue,
or
provide
adequately
for
his
future.
To
accept
the
plaintiff's
second
argument
would
be
to
make
section
7
applicable
to
virtually
all
property
interests.
Given
the
scheme
of
the
Charter
and
the
absence
of
any
reference
to
the
right
to
property,
I
cannot
accept
that
this
was
the
intention
of
its
framers.
[Emphasis
added.]
Recently,
in
Wittman
(Wittman
and
Wittman)
v.
Emmott,
Nickerson,
Cronhelm,
[1991]
4
W.W.R.
175,
77
D.L.R.
(4th)
77
(B.C.C.A.),
it
was
held
that
subsection
8(1)
of
the
Limitation
Act,
R.S.B.C.
1979,
c.
236,
which
provided
for
an
ultimate
limitation
of
six
years
for
claims
against
members
of
the
medical
profession,
did
not
infringe
section
7
of
the
Charter
because
the
direct
effect
of
section
8
was
purely
economic
in
nature
in
that
it
bars
a
person
from
seeking
damages,
an
economic
remedy.
The
plaintiff
in
Wittman
was
born
in
August
1967
with
cerebral
palsy,
spastic
quadriplegia
and
other
serious
physical
disabilities.
In
March
1982
his
parents
first
became
aware
that
his
condition
may
have
resulted
from
negligent
medical
care
by
the
defendant
doctors
during
the
mother's
pregnancy.
The
plaintiff's
writ
of
summons,
issued
in
1985
was
dismissed
because
it
was
brought
outside
the
six-year
limitation
period
imposed
by
section
8
of
the
Limitation
Act.
On
appeal,
the
plaintiff
argued
inter
alia
that
section
8
violated
his
rights
under
section
7
of
the
Charter.
Wallace,
J.A.,
for
the
Court,
rejected
this
argument
stating
[at
page
185]
that
[i]n
my
opinion,
what
is
at
stake
in
this
action
is
not
liberty
or
security
of
the
person
but
an
economic
remedy."
He
considered
Whitbread
v.
Walley,
supra,
and
found
that
subsection
8(1),
in
restricting
the
time
within
which
a
claim
may
be
brought,
did
not
violate
section
7
of
the
Charter.
He
stated
[at
page
187]:
Here,
the
infant
plaintiff
is
suing
the
defendants
to
recover
damages
in
a
sum
sufficient
to
compensate
him
for
the
injuries
he
has
sustained.
As
in
Whitbread,
the
action
is
one
for
economic
relief.
It
does
not
seek
a
remedy
affecting
the
dignity,
self-esteem
or
liberty,
in
the
traditional
sense,
of
the
individual.
Even
in
the
area
of
the
deportation
of
permanent
residents
on
the
basis
of
the
commission
of
criminal
offences,
the
Federal
Court
of
Appeal
has
recently
held
in
Chiarelli
v.
Minister
of
Employment
and
Immigration,
[1990]
2
F.C.
299,
75
D.L.R.
(4th)
697,
that
subparagraph
27(1)(d)(ii)
and
subsection
32(2)
of
the
Immigration
Act,
1976
did
not
contravene
section
7
of
the
Charter.
Pratte,
J.A.,
for
the
Court
[although
dissenting
on
another
question],
did
not
accept
the
appellants
argument
that
the
making
of
a
deportation
order
against
a
permanent
resident
for
the
sole
reason
that
he
had
committed
a
criminal
offence
and
without
considering
the
circumstances
in
which
the
offence
was
committed,
was
contrary
to
his
rights
under
section
7
of
the
Charter.
Furthermore,
Lamer,
J.
[as
he
then
was]
in
a
minority
concurring
opinion
in
Reference
re
section
193
and
subsection
195.1(1)
of
the
Criminal
Code,
[1990]
1
S.C.R.
1123
considered
examples
of
when
section
7
of
the
Charter
would
come
into
play.
Although
not
limiting
the
application
of
section
7
to
the
examples
considered,
he
observed
[at
pages
1175-76]
that:
What
is
at
stake
in
these
examples
is
the
kind
of
liberty
and
security
of
the
person
the
state
typically
empowers
judges
and
courts
to
restrict.
In
other
words,
the
confinement
of
individuals
against
their
will,
or
the
restriction
of
control
over
their
own
minds
and
bodies,
are
precisely
the
kind
of
activities
that
fall
within
the
domain
of
the
judiciary
as
guardian
of
the
justice
system.
Here,
as
in
Whitbread
and
in
Wittman
I
cannot
find
that
the
plaintiff's
section
7
Charter
rights
have
been
or
will
be
infringed
by
the
application
of
paragraph
167(5)(a).
Even
though
the
plaintiff
is
not
seeking
damages
per
se,
she
is
nevertheless
seeking
an
economic
remedy.
As
in
Whitbread,
the
plaintiff
in
this
instance
is
essentially
arguing
that
she
falls
within
a
nebulous
middle
ground
where
an
economic
interest
is
connected
to
and
affects
her
life,
liberty
and
security
of
the
person.
The
Income
Tax
Act
establishes
and
delineates
a
right
of
appeal.
Even
accepting,
as
did
the
Ontario
High
Court
of
Justice
in
Streng
v.
Township
of
Winchester
(1986),
56
O.R.
(2d)
649,
at
654
that
"there
ought
to
be
some
inordinateness
of
delay
before
the
remedy
is
taken
away",
I
find
that
Parliament
has
met
this
requirement.
The
initial
limitation
period
established
by
section
165
is
90
days,
however,
during
a
further
period
of
one
year
it
may
be
extended
under
certain
conditions.
Finally,
the
plaintiff's
allegations
that
her
income
tax
records
were
withheld
contrary
to
the
Charter
thus
preventing
her
from
completing
a
proper
notice
of
objection
are
without
merit.
There
is
no
evidence
that
records
were
requested
or
concerns
expressed
with
respect
to
these
records
at
any
time
before
the
expiration
of
the
limitation
period.
In
addition,
such
allegations
are
contrary
to
the
explanations
proffered
by
Mr.
Magasin
in
his
affidavit
of
June
21,
1991.
Conclusion
Accordingly,
the
plaintiff's
constitutional
attack
is
dismissed
and
the
defendant's
application
to
strike
the
action
will
succeed.
No
order
as
to
costs.
Application
dismissed.
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