Giles,
A.S.P.:—The
motion
before
me
was
to
strike
the
statement
of
claim
of
Gerard
O'Sullivan.
In
his
action
the
plaintiff
is
apparently
appealing
a
decision
of
the
Tax
Court
of
Canada
to
claim:
(a)
a
reduction
of
his
income
tax
for
the
year
1980
and
every
year
thereafter,
and
(b)
a
declaration
that
the
law
permits
the
use
of
taxpayers’
money
to
finance
legal
abortions
has
no
force
or
effect
and
therefore
should
be
declared
null
and
void
under
section
52
of
the
Constitution
Act,
1982.
The
taxpayer
is
representing
himself
and
I
thought
it
appropriate
also
to
consider
that
the
claim
might
be
construed
as
seeking
relief
under
subsection
24(1)
of
the
Charter.
Additionally
he
appears
to
be
seeking
a
declaration
that
the
law
which
permits
use
of
taxpayers'
money
to
finance
abortions
is
void
under
section
52
of
the
Charter.
Dealing
first
with
the
income
tax
aspect
of
the
case.
At
the
hearing
both
sides
referred
to
Prior
v.
The
Queen,
[1987]
1
C.T.C.
2076;
87
D.T.C.
26
(T.C.C.);
[1988]
1
C.T.C.
241;
88
D.T.C.
6207
(F.C.T.D.);
[1989]
2
C.T.C.
280;
89
D.T.C.
5503
(F.C.A.).
In
that
case
it
was
pointed
out
that
raising
money
by
any
mode
or
system
of
taxation
was
within
the
enumerated
powers
of
the
Parliament
of
Canada
as
was
the
power
with
respect
to
defence,
the
matter
on
which
the
money
being
raised
in
that
case
was
allegedly
going
to
be
spent.
In
my
view,
the
fact
that
in
this
case
the
alleged
expenditure
of
tax
money
is
on
something
not
specifically
enumerated
in
section
91
makes
no
difference
because
there
is
no
nexus
between
the
raising
of
money
from
Mr.
Sullivan
and
the
expenditure.
Moneys
raised
by
income
tax,
other
taxes
and
the
proceeds
of
borrowing
are
paid
into
the
Consolidated
Revenue
Fund.
From
that
fund
are
paid
the
various
expenses
authorized
by
various
statutes.
In
Prior,
supra,
the
expenditure
alleged
to
infringe
the
plaintiff's
constitutional
rights
was
a
direct
expenditure
on
defence.
Here
the
connection
was
even
more
remote,
being
no
doubt
by
way
of
transfer
payment
to
one
or
more
provinces,
and
by
such
provinces
to
doctors,
hospitals
and
others
performing
the
abortions.
The
legality
of
such
transfer
payments
and
their
nature
was
discussed
by
the
Court
of
Appeal
for
Alberta
in
Winterhaven
Stables
Ltd.
v.
A.-G.
Canada,
[1989]
1
C.T.C.
16;
53
D.L.R.
(4th)
413,
wherein
it
was
decided
that
legislation
of
the
Parliament
of
Canada
to
transfer
money
to
provinces
for
certain
purposes
was
not
legislation
in
relation
to
such
purposes.
Thus,
the
nexus
between
income
tax
and
provincial
expenditure
on
abortion
would
be
even
less,
if
that
were
possible,
than
the
nexus
between
income
tax
and
the
section
91.7
enumerated
subject
defence.
It
was
suggested
that
the
plaintiff
should
be
permitted
to
use
the
fact
he
was
before
the
Court
to
raise
a
constitutional
issue
and
seek
relief
under
subsection
24(1).
While
it
may
be,
that
based
on
the
principles
set
forth
in
Canada
(Minister
of
Justice)
v.
Borowski,
[1981]
2
S.C.R.
575;
130
D.L.R.
(3d)
588,
the
plaintiff
could
find
standing
to
challenge
transfer
payments
for
health
purposes,
there
is
not
sufficient
nexus
between
funds
raised
by
income
tax
and
disbursements
from
the
Consolidated
Revenue
Fund
to
allow
this
action
to
continue.
The
plaintiff
will
have
to
raise
his
constitutional
concerns
with
regard
to
abortion
in
a
different
action.
The
statement
of
claim
in
this
action
will
be
struck
out
and
the
action
dismissed.
Action
dismissed.
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