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Citation: 2003TCC688
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Date: 20030930
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Docket: 2002-3095(IT)I
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BETWEEN:
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AREF CHAYA,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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____________________________________________________________________
For the Appellant: The Appellant himself
Agent for the Respondent: Penny Piper
(Student-at-law)
____________________________________________________________________
REASONS FOR JUDGMENT
(Delivered orally from the Bench at
Winnipeg, Manitoba, on December 10, 2002)
Sarchuk J.
HIS
HONOUR:
I accept everything you say but all of that does not help you one
little bit, unfortunately, because this is a very, very
stringently written and interpreted section. I do not write
the law.
MR.
CHAYA:
I understand, Your Honour.
HIS
HONOUR:
I mean, that is the people that you elected write it.
MR.
CHAYA:
I understand, Your Honour, but I have my -- like, there should be
a special circumstances.
HIS
HONOUR:
There should be --
MR.
CHAYA:
Like, I have my wife tragic death --
[1] If I had the right to do so, on
the basis of fairness and equity, you would be in a much better
position. I do not have that kind of authority. You have to
understand that right at the beginning. This Court is not what is
known as a court of equity, a court of equity meaning, maybe in
simple language, a court where even though the law says that ABC
should happen, in some instances a court of equity has the right
to say, "Now but that creates a very unfair situation and we
are going to rectify it, we are going to make it
better." I do not have that kind of authority.
MR.
CHAYA:
But, Your Honour --
HIS
HONOUR:
I was not given that kind of authority when I was appointed.
MR.
CHAYA:
Your Honour --
HIS
HONOUR:
Let me finish.
MR.
CHAYA:
Sorry.
HIS
HONOUR:
And so what I have to deal with, I have to deal with the
legislation as it is written, not as it should be written, to be
fair. Do you understand?
MR.
CHAYA:
I understand.
HIS
HONOUR:
So you have got to keep your argument within that sort of
parameter.
MR.
CHAYA:
Okay, Your Honour, I understand the law says if she don't
reside with me, I'm not qualified. But there is certain
circumstances. I reside with her and I support her.
The only reason is -- the only -- if I bring my daughter over to
Canada, one week or two weeks to reside with me in my apartment
in Canada, I be qualified.
HIS
HONOUR:
Well, then why don't you do that?
MR.
CHAYA:
Your Honour, it costs me $1,800.00 --
HIS
HONOUR:
Now, I mean, what you are saying to me destroys your case because
you are saying to me, "If I did this, I would be
qualified," which means that unless you do that, you are not
qualified.
MR.
CHAYA:
I understand, Your Honour, but to --
HIS
HONOUR:
But what are you asking me to do, sir? You are asking
me
MR.
CHAYA:
Your Honour, just to allow --
HIS
HONOUR:
You are asking me to allow something that I cannot allow in
law. I do not have the right to do that. As much as I
would like to say I think the way the legislators wrote this
legislation is full of you-know-what -
MR.
CHAYA:
I understand.
HIS
HONOUR:
-- and I would like to change it but I cannot do that.
MR.
CHAYA:
But, Your Honour, I -- like, that's why I came to the
Court. If I have to accept what it says in the law, like
there should be some kind of special provision who would --
HIS
HONOUR:
There is not, that is what I am trying to tell you.
MR.
CHAYA:
-- who would give me some leeway.
[2] That is exactly what I am trying
to tell you, sir, is this Court does not have the authority, the
right to grant what you ask for, what we refer to as equitable
relief or relief because it is fair to give that relief. I
do not have the right to do that. Now I may think that this
section is unfair but just because I think it is unfair, does not
mean that I can rewrite it. That is my dilemma. I
think your situation warrants, should be something that the
legislators should take a look at. But until the
legislation is changed, I do not have the right to change
it. And I am not trying to be difficult because I hear many
cases where I think fairness should enter into it and I do not
have the authority to do that.
MR.
CHAYA:
So it's mean, Your Honour, that the legislation or the
government, they don't want people to work and pay taxes
HIS
HONOUR:
Well --
MR.
CHAYA:
-- they want people to live on welfare and --
[3] I have no idea what the government
wants. I mean, all I know is what they have written
here. But this type of case, this is not the first
one. There are probably several dozen of them identical to
your situation, over and over again. Counsel has referred
to a few. There are a few others. There is a recent
case, Ruzicka v. The Queen,[1] almost identical, almost exactly the
same as your case, and it was disallowed. This type of case,
exactly this type of case has gone to the Federal Court of Appeal
and they have dealt with it in a case called The Queen v.
Scheller.[2] And in that case -- the simple decision in all
of these cases is that you cannot claim this particular deduction
unless the daughter, in your case, was maintained by the taxpayer
in the domestic establishment in Canada where you lived. I mean,
that has been said over and over and over and over again because
that is the way the legislation was written.
MR.
CHAYA:
So if this money, the money, Your Honour, the money I sent to my
daughter, if I send it to a child in Africa or --
HIS
HONOUR:
Well, you have told me that and I --
MR.
CHAYA:
-- somewhere, it's taxable, it's non-taxable.
HIS
HONOUR:
I agree with you, I agree that maybe the whole thing is not right
but I cannot do anything to rectify it. That is what you
have got to understand.
[4] It is interesting that in the case
of Jankowski-Kamac v. The Queen[3] that counsel for the Minister has
referred to, it is Judge Hershfield's judgement, I am going
to read it to you because I am not the first one to say this.
Judge Hershfield had this to say,
Accordingly, the appeal must fail. Any inequity,
and that means unfairness,
... any inequity in respect of this finding is a matter for
Parliament. As found by Cattanach J. in The Queen v.
Scheller
that is the Federal Court of Appeal decision that I was
referring to,
... in the context of a case not unlike the one at hand, when
the meaning of the provisions in a statute are clear, the courts
have nothing to do with their policy or their justice or
injustice. The function of the judge is to apply the law as
it reads, as to do otherwise would be to abandon the office of
judge and assume the office of the legislative branch of
government.
That is exactly what I am trying to say to you. We do
not have the right to change the law as it is written, much as we
might like to do so.
MR.
CHAYA:
Well, thank you very much, Your Honour.
[5] This is not the first case that I
have had before me in the 20 years that I have been on the bench
where I look at a section and I look at particular facts and I
feel uncomfortable, I feel uncomfortable. But because of
the facts and because of the legislation, I have no alternative
but to rule in accordance with, in this case, the legislation.
The Minister was correct in assessing, as he did, because he
followed the way the rule book was written by the people you
elected.
MR.
CHAYA:
It was a mistake.
HIS
HONOUR:
I am sorry to say, I have to dismiss the appeal. I tell you
candidly, I have great sympathy for your position but sympathy is
not going to get you --
MR.
CHAYA:
Like, what -- so I have to contact the Parliament or --
HIS
HONOUR:
You have to contact what?
MR.
CHAYA:
The Parliament or my Member of the Parliament.
HIS
HONOUR:
Well, you would have to speak to the Member of Parliament and see
if this legislation can be changed. I am not saying it
should be because I do not know all the other aspects of it, but
certainly it seems to me that there is an element of unfairness
in certain situations and as Judge Hershfield said in that
case.
I hate doing this but it is not something that sits easily
with me, but the only choice that I have is to dismiss your
appeal.
Take it up with your representative, the man that you elected
or the lady that you elected to Parliament.
Signed at Ottawa, Canada, this 30th day of September,
2003.
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