Serafino Tiberio and Vitangela Tiberio v. Minister of National Revenue, [1990] 2 CTC 2545, 91 DTC 17

Garon, T.C.J.:—These five appeals, which were heard together on common evidence, involve two taxpayers who are husband and wife. There is no dispute about the facts. Appellant, Serafino Tiberio, testified briefly and he acted for himself and on behalf of his wife, appellant Vitangela Tiberio.

In two of the three appeals instituted by the appellant, Serafino Tiberio, two issues are raised in each of the 1985 and 1986 taxation years and they relate to the deductions to which the appellant, Serafino Tiberio, is entitled in computing his taxable income for each of the 1985 and 1986 taxation years in respect of both his age and his three dependent children.

With respect to the third appeal of appellant Serafino Tiberio, the issue has to do with the tax credit that the same appellant may claim in respect of age for the 1988 taxation year in computing the tax payable for that year.

As regards the two appeals instituted by the appellant, Vitangela Tiberio, they involved the 1985 and 1986 taxation years. Each appeal raises a single issue respecting the deduction in respect of age which the appellant, Vitangela Tiberio, may claim in computing her taxable income for the taxation years 1985 and 1986.

It is common ground that the appellant, Serafino Tiberio, was born on October 4, 1947 and that the date of birth of the appellant, Vitangela Tiberio, was February 10, 1949. There is no dispute either that the appellant, Serafino Tiberio, had three children who were born in 1977,1979 and 1980 respectively.

The appellant, Serafino Tiberio, claimed in respect of age deductions in computing his taxable income sums amounting to $2,590 for the 1985 taxation year and $2,610 for the 1986 taxation year and a tax credit in the amount of $550 for the 1988 taxation year. The deductions claimed in these years are those applicable to individuals who, before the end of the year in question, had attained 65 years of age. At the end of these three years 1985, 1986 and 1988, the appellant was 38, 39 and 41 years old. The same appellant also claimed in computing his taxable income in respect of each of his three dependent children deductions totalling $1,420 for each of the 1985 and 1986 taxation years. The latter amount of $1,420 is allowed to taxpayers whose dependent children are 18 years old before the end of the applicable year and who meet the other requirements set out in the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "Act"). His three children were at the end of the years 1985 and 1986 between five years old and ten years old.

The appellant, Vitangela Tiberio, deducted in respect of age for the purpose of computing her taxable income amounts of $2,590 and $2,610 for the 1985 and 1986 taxation years respectively. The latter deductions in the amounts indicated were applicable, as mentioned earlier, to taxpayers who were 65 or over at some point during the relevant taxation year. In the years 1985 and 1986, appellant Vitangela Tiberio was in her late thirties.

The following extracts of the transcript of the argument made by appellant, Serafino Tiberio, summarize the position of both appellants in this litigation:

Mr. S. Tiberio: The sole reason I was not allowed an exemption was because I was not 65. To win income is a positive action. There is so many cases people over 65, if they are earning more money, they have a higher percentage of a return on it. If someone is earning $100,000, take ‘85, ‘86, ‘87, they are going to get like a 50% on their money from the government.

If somebody has no money at all and he is 65, the law does not really mean anything because he has no taxes to pay in any event, so it is not a positive action. The government has to show it is a positive action.

Mr. S. Tiberio: In my case then if we are referring to only one case, myself, my wife. I can tell you that people of 65 years old earning the same money as me would have a bigger benefit that I do. I understand when you are 65 you earn less. . .

The Court: Generally speaking.

Mr. S. Tiberio: Yes. I also think you need less. They do not have three young kids to put through school, so they also need less money. So really that is the extent of it.

I might add that there is also another claim in here because I mentioned the children but the children are not allowed the exemption of older children, that is also part of my claim, not my wife. I can tell you from myself it costs me the same money to raise the three smaller ones, I have three little girls and I go to the store for $50.00 they do not want shoes for $10.00.

I am not giving them luxuries, I am giving them something that they want, something that they can go to school with, the kids in their own school and they want to be dressed at least the same.

Or if they go to a party, a normal function in life they want to be dressed. I need more money than the 65 year old. I earn a fair salary, I am not going to cry and say I am earning little money, I earn a fair salary. My wife does not work, we do have some other income, we have worked for it. But I should not be punished because we have worked for it or because I do a certain job and get a certain amount of money.

We should also be given the higher exemption for the children. There is no real difference in cost, the older children can get all kinds of grants from the government to go to school. We are hearing it in the papers today where the kids have to move back with their parents because now they are getting less welfare. So they do have so many other benefits, if they want to go to university, they can get grants, loans from the government, scholarships. The young child is not entitled to any of these. In elementary school I have to pay for it all.

The Court: Because you are sending your children to a private institution?

Mr. S. Tiberio: No, I am not. No. But there are expenses nonetheless. I could not afford to send them to private school.

Towards the end of his argument he reiterated his views in this way:

Mr. S. Tiberio: I am going to finalize. The only thing I can say it should not apply, if they wanted positive action, to me is something if someone is crippled, someone is blind, someone does not have any arm, these are the kind of people that should be helped, simply because someone is one age or another, I cannot see where you should find the application.

The above excerpts of the oral argument advanced on behalf of both appellants must he considered with the submission made in the undated notice of appeal filed with the Court in file No. 86-1443(IT) by the appellant, Serafino Tiberio, in respect of the 1985 taxation year, which submission is couched in the following terms: "This claim is based on the Canadian Charter of Rights & Freedoms; in particular section 15, which does not allow discrimination based on age."

A similar submission was made in the other notices of appeal.

To put the views formulated by the appellant, Serafino Tiberio, in a legal context, it amounts to saying that the provisions of paragraph 109(1)(d), as they stood in 1985 and 1986 granting a larger deduction in respect of dependent children who are, inter alia, 18 years of age are discriminatory.

In the same vein, both appellants are contending that the provisions of paragraph 109(1)(h) setting out supplementary deductions for individuals 65 or over as they read for the 1985 and 1986 taxation years are discriminatory as well by reason of age. Appellant Serafino Tiberio is advancing the same contention in respect of the 1988 taxation year with regard to the tax credit in respect of age found in subsection 118(2).

The following are the provisions of the Income Tax Act referred to earlier. (Paragraph 109(1)(d) as it applied to the 1985 taxation year.)

109.(1) For the purpose of computing the taxable income of an individual for a taxation year, there may be deducted such of the following amounts as are applicable:

(d) for each child or grandchild of the individual who, during the year, was dependent upon him for support and was

(i) under 21 years of age,

(ii) 21 years of age or over and dependent by reason of mental or physical infirmity, or

(iii) 21 years of age or over and in full-time attendance at a school or university,

an amount equal to

(iv) if the child or grandchild has not attained the age of 18 years before the end of the year, $710 less /a of the amount, if any, by which the income for the year of the child or grandchild, as the case may be, exceeds $2,350, and

(v) in any other case, $550 less the amount, if any, by which the income for the year of the child or grandchild, as the case may be, exceeds $1,150.

(Paragraph 109(1)(d) as it applied to the 1986 taxation year.)

109.(1) For the purpose of computing the taxable income of an individual for a taxation year, there may be deducted such of the following amounts as are applicable:

(d) for each dependant of the individual for the year, an amount equal to,

(i) if the dependant has not attained the age of 18 years before the end of the year, the amount, if any, by which

(A) for a taxation year ending in

(I) 1986, $710,

(11) 1987, $560, and

(111) 1988, $470;

exceeds

(B) /2 of the amount, if any, by which the income for the year of the dependant exceeds the amount by which $1,600 exceeds twice the amount determined under clause (A) for the year, and

(ii) if the dependant has attained the age of 18 years before the end of the year,

(A) in the case of a person dependent on the individual by reason of mental or physical infirmity, $550 less the amount, if any, by which the income for the year of the dependant exceeds $1,050, and

(B) in any other case, the amount, if any, by which

(I) for a taxation year ending in

1. 1986, $1,420,

2. 1987, $1,200, and

3. 1988, $1,000,

(II) 1/2 of the amount, if any, by which the income for the year of the dependant exceeds the amount by which $1,600 exceeds twice the amount determined under subclause (I) for the year,

but not exceeding, where the dependant is, in respect of the individual or his spouse, a person referred to in subparagraph (6)(b)(iii) or (iv), the amounts expended by the individual during the year for the support of that dependant.

(Paragraph 109(1)(h) as it applied to the 1985 and 1986 taxation years.)

109.(1) For the purpose of computing the taxable income of an individual for a taxation year, there may be deducted such of the following amounts as are applicable:

(h) in the case of an individual who, before the end of the year, has attained the age of 65 years, $1,000; and

(Subsection 118(2) as it applied to the 1988 taxation year.)

For the purpose of computing the tax payable under this Part for a taxation year by an individual who, before the end of the year, has attained the age of 65 years, there may be deducted an amount determined by the formula

A X $3,236

where

A is the appropriate percentage for the year.

(Since the appropriate percentage for the 1988 taxation year was 17 per cent, the tax credit was then in the amount of $550.)

For the sake of convenience, section 15 of the Canadian Charter of Rights and Freedoms is hereafter reproduced:

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

It is of particular interest to review briefly the legislative history relating to the introduction in the Income Tax Act of the old age personal exemption and the deduction in respect of dependent children.

The exemption for persons 65 or over was announced in the Budget Speech on May 18, 1948 by the then Minister of Finance. The pertinent portion of this speech reported in Hansard at page 4060 reads thus:

In the field of personal income taxes, I am proposing one change of significance which will, I believe, be accepted with commendation on all sides of the house. Having in mind the large number of elderly people living on small fixed incomes, and out of consideration for the particular trials and increased expenditures that usually come with advancing years, I am proposing that an additional exemption of $500 be granted to a taxpayer of sixty-five years of age or over. Many of these elderly people living on small pensions or other forms of fixed income with no opportunity to participate in the increased wages, salaries or profits enjoyed by other sections of the community, are particularly hard hit by the higher costs of living which present boom conditions have brought about. This group of our citizens is entitled, I think, to special consideration at this time. This special exemption follows a precedent established both in England and in the United States, and its effect in Canada will be that no taxpayer of sixty-five or over will pay tax until his income exceeds $1,250 if he is single, or $2,000 if he is married. This change will apply for 1948 and will cost about $5 million in revenue for a full year.

This personal exemption in respect of age became part of the Income Tax Act is a result of the enactment of paragraph 25(1)(e) of the Income Tax Act by chapter 52 of the Statutes of Canada for 1948. The principle of an additional deduction in computing taxable income to individuals who are 65 or over was maintained through several amendments or repeals until 1988. More specifically the deduction in respect of age as it was enacted in paragraph 109(1)(h) of the Income Tax Act by an Act to amend the statute law relating to income tax, assented to on April 18, 1973 remained unchanged until it was converted into a tax credit through (a) the repeal of section 109 of the Income Tax Act by section 76 of an Act to amend the Income Tax Act, the Canada Pension Plan, the Unemployment Insurance Act, 1971, the Federal-Provincial Fiscal Arrangements and Federal Post-Secondary Education and Health Contributions Act, 1977 and certain related Acts, S.C. 1988, c. 55 and (b) the enactment by subsection 92(1) of the latter statute of the present subsection 118(2) of the Income Tax Act setting up a tax credit for individuals who, before the end of the relevant year, have attained the age of 65 years. Both the repeal of section 109 of the Income Tax Act and the enactment of section 118(2) of the same Act were made applicable to the 1988 and subsequent taxation years.

I shall now turn to the legislative history of the larger deduction granted to individuals in respect of, inter alia, dependent children who are 18 years or over. Shortly after the implementation of a legislative scheme establishing family allowances in 1945, a larger exemption was granted to a taxpayer regarding children in respect of whom no family allowances were payable. Since that time, there has been in relation to the size of the deduction, two classes of children and other dependents, The reasons for granting a larger deduction to the older children and dependents were explained by the then Minister of Finance in his Budget Speech on October 31, 1978 in the House of Commons. The following excerpt of that speech reported in Hansard at pages 652-53 reads as follows:

Family allowances have been paid monthly to mothers since 1945. In 1974 ;hey were substantially raised and indexed to increases in prices. They became part of income tax purposes, and thus subject to progressive rates of tax geared to income to ensure that net benefits were higher for low income families.

In addition, the personal income tax system has provided exemptions in respect of dependent children. There has been one for children under age 16 and a higher one for those over this age. This distinction dates from the days when family allowances were paid only for children under age 16.

[Translation]

The third change is the elimination of the differential in the amount of exemption for children of ages 16 and 17.

The exemption has been higher for these children because originally they were not eligible for family allowances. Now that family allowances are available to children up to the age of 18, I am proposing to rationalize the exemption system under the Income Tax Act. The amount of exemption will be uniform for all children under the age of 18. However, this change will be phased in. Thus, children who are currently 16 and 17 years of age will continue to qualify for the higher exemption.

There is no doubt that Parliament by paragraph 109(1)(h) as it read in 1985 and 1986 and by subsection 118(2) as it applied to the 1988 taxation year has established a distinction between two groups of individuals, those who are 65 or over and those who have not attained before the end of the year the age of

65. Likewise, another distinction was established by paragraph 109(1)(d) in that individuals who have dependent children of 18 or over are entitled to a larger deduction.

It is therefore necessary to examine what is often referred to as the “equality provisions” of section 15 of the Canadian Charter of Rights and Freedoms in order to ascertain if the distinctions established in paragraphs 109(1)(d), 109(1)(h) and subsection 118(2) are discriminatory.

The leading authority on the interpretation and ambit of section 15 of the Canadian Charter of Rights and Freedoms is the recent judgment of the Supreme Court of Canada in the case of Andrews v. The Law Society of British Columbia, [1989] 1 S.C.R. 143; 56 D.L.R. (4th) 1. In that case, the Supreme Court of Canada had to decide whether the Canadian citizenship requirement for admission to the British Columbia Bar contravened the equality rights guaranteed by subsection 15(1) of the Charter and if so, whether that infringement was justified by section 1 of the Charter.

In that case, Justice McIntyre wrote elaborate reasons on the meaning and import of section 15 of the Charter. All five members of the Court who took part in the judgment were either in total or substantial agreement with him on his approach to section 15. The majority of the Court, however, disagreed with him on the second question relative to the application of section 1 of the Charter to the facts of that particular case. The learned judge proceeded to discuss the concept of equality in these terms at pages 9-11 (S.C.R. 163-65) of the above-mentioned report:

Section 15(1) of the Charter provides for every individual a guarantee of equality before and under the law, as well as the equal protection and equal benefit of the law without discrimination. This is not a general guarantee of equality; it does not provide for equality between individuals or groups within society in a general or abstract sense, nor does it impose on individuals or groups an obligation to accord equal treatment to others. It is concerned with the application of the law.

The concept of equality has long been a feature of Western thought. As embodied in s. 15(1) of the Charter, it is an elusive concept and, more than any of the other rights and freedoms guaranteed in the Charter, it lacks precise definition. As has been stated by John H. Schaar, "Equality of Opportunity and Beyond”, in Nomos IX: Equality (1967), J. Roland Pennock and John W. Chapman eds., at page 228:

Equality is a protean word. It is one of those political symbols —liberty and fraternity are others—into which men have poured the deepest urging of their heart. Every strongly held theory or conception of equality is at once a psychology, an ethic, a theory of social relations, and a vision of the good society.

It is a comparative concept, the condition of which may only be attained or discerned by comparison with the condition of others in the social and political setting in which the question arises. It must be recognized at once, however, that every difference in treatment between individuals under the law will not necessarily result in inequality and, as well, that identical treatment may frequently produce serious inequality. This proposition has found frequent expression in the literature on the subject but, as I have noted on a previous occasion, nowhere more aptly than in the well known words of Frankfurter, J. in Dennis v. United States, 339 U.S. 162 (1950), at p. 184, 94 L. Ed. 736 (1950):

It was a wise man who said that there is no greater inequality than the equal treatment of unequals.

The same thought has been expressed in this Court in the context of s. 2(b) of the Charter in R. v. Big M. Drug Mart Ltd. (1985), 18 D.L.R. (4th) 321 at p. 362, 18 C.C.C.

(3d) 385, [1985] S.C.R. 295 at p. 347, where Dickson C.J. said:

The equality necessary to support religious freedom does not require identical treatment of all religions. In fact, the interests of true equality may well require differentiation in treatment.

In simple terms, then, it may be said that a law which treats all identically and which provides equality of treatment between "A" and "B" might well cause inequality for "C", depending on differences in personal characteristics and situations. To approach the ideal of full equality before and under the law—and in human affairs an approach is all that can be expected—the main consideration must be the impact of the law on the individual or the group concerned. Recognizing that there will always be an infinite variety of personal characteristics, capacities, entitlements and merits among those subject to a law, there must be accorded, as nearly as may be possible, an equality of benefit and protection and no more of the restrictions, penalties or burdens imposed upon one than another. In other words, the admittedly unattainable ideal should be that a law expressed to bind all should not because of irrelevant personal differences have a more burdensome or less beneficial impact on one than another.

At page 13 (S.C.R. 168), the learned justice made it absolutely clear that section 15 allows for some differential treatment of individuals and groups by Parliament within certain parameters. He expressed himself as follows:

It is not every distinction or differentiation in treatment at law which will transgress the equality guarantees of s. 15 of the Charter. It is, of course, obvious that legislatures may—and to govern effectively—must treat different individuals and groups in different ways. Indeed, such distinctions are one of the main preoccupations of legislatures. The classifying of individuals and groups, the making of different provisions respecting such groups, the application of different rules, regulations, requirements and qualifications to different persons is necessary for the governance of modern society. As noted above, for the accommodation of differences, which is the essence of true equality, it will frequently be necessary to make distinctions. What kinds of distinctions will be acceptable under s. 15(1) and what kinds will violate its provisions?

He added later on the following observations (pages 15-16 (S.C.R. 171)):

It is clear that the purpose of s. 15 is to ensure equality in the formulation and application of the law. The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concerns, respect and consideration. It has a large remedial component.

It must be recognized, however, as well that the promotion of equality under s. 15 has a much more specific goal than the mere elimination of distinctions. If the Charter was intended to eliminate all distinctions, then there would be no place for sections such as s. 27 (multicultural heritage); s. 2(a) (freedom of conscience and religion); s. 25 (aboriginal rights and freedoms); and other such provisions designed to safeguard certain distinctions. Moreover, the fact that identical treatment may frequently produce serious inequality is recognized in s. 15(2), which states that the equality rights in s. 15(1) do "not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups . . .".

Later on in the same case, Mcintyre, J. went on to discuss the related concept of discrimination in this way (pages 18-19 (S.C.R. 174)):

There are many other statements which have aimed at a short definition of the term discrimination. In general, they are in accord with the statements referred to above. I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.

The court in the case at bar must address the issue of discrimination as the term is used in s. 15(1) of the Charter. In general, it may be said that the principles which have been applied under the Human Rights Acts are equally applicable in considering questions of discrimination under s. 15(1). Certain differences arising from the difference between the Charter and the Human Rights Acts must, however, be considered. To begin with, discrimination in s. 15(1) is limited to discrimination caused by the application or operation of law, whereas the Human Rights Acts apply also to private activities. Furthermore, and this is a distinction of more importance, all the Human Rights Acts passed in Canada specifically designate a certain limited number of grounds upon which discrimination is forbidden. Section 15(1) of the Charter is not so limited. The enumerated grounds in s. 15(1) are not exclusive and the limits, if any, on grounds for discrimination which may be established in future cases await definition. The enumerated grounds do, however, reflect the most common and probably the most socially destructive and historically practised bases of discrimination and must, in the words of s. 15(1), receive particular attention. Both the enumerated grounds themselves and other possible grounds of discrimination recognized under s. 15(1) must be interpreted in a broad and generous manner, reflecting the fact that they are constitutional provisions not easily repealed or amended but intended to provide a “continuing framework for the legitimate exercise of governmental power" and, at the same time, for "the unremitting protection" of equality rights: see Hunter v. Southam Inc. (1984), 11 D.L.R. (4th) 641 at p. 649, 14 C.C.C. (3d) 97, [1984] 2 S.C.R. 145 at p. 155.

While discrimination under s. 15(1) will be of the same nature and in descriptive terms will fit the concept of discrimination developed under the Human Rights Acts, a further step will be required in order to decide whether discriminatory laws can be justified under s. I. The onus will be on the state to establish this. This is a distinct step called for under the Charter which is not found in most Human Rights Acts, because in those Acts justification for or defence to discrimination is generally found in specific exceptions to the substantive rights.

McIntyre, J. then commented on the three possible interpretations of section 15 of the Charter in these words (pages 21-23 (S.C.R. 178-82)):

Three main approaches have been adopted in determining the role of s. 15(1), the meaning of discrimination set out in that section, and the relationship of s. 15(1) and s. 1. The first one which was advanced by Professor Peter Hogg in Constitutional Law of Canada, 2nd ed. (1985) would treat every distinction drawn by law as discrimination under s. 15(1). There would then follow a consideration of the distinction under the provisions of s. 1 of the Charter. He said, at pp. 800-1:

I conclude that s. 15 should be interpreted as providing for the universal application of every law. When a law draws a distinction between individuals, on any ground, that distinction is sufficient to constitute a breach of s. 15, and to move the constitutional issue to s. 1. The test of validity is that stipulated by s. 1, namely, whether the law comes within the phrase “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".

He reached this conclusion on the basis that, where the Charter right is expressed in unqualified terms, s. 1 supplies the standard of justification for any abridgment of the right. He argued that the word “discrimination” in s. 15(1) could be read as introducing a qualification in the section itself, but he preferred to read the word in a neutral sense because this reading would immediately send the matter to s. 1, which was included in the Charter for this purpose.

The second approach put forward by McLachlin, J.A. in the Court of Appeal involved a consideration of the reasonableness and fairness of the impugned legislation under s. 15(1). She stated, as has been noted above, at p. 610:

The ultimate question is whether a fair-minded person, weighing the purposes of legislation against its effects on the individuals adversely affected, and giving due weight to the right of the legislature to pass laws for the good of all, would conclude that the legislative means adopted are unreasonable or unfair.

She assigned a very minor role to s. 1 which would, it appears, be limited to allowing in times of emergency, war, or other crises the passage of discriminatory legislation which would normally be impermissible.

A third approach, sometimes described as an "enumerated or analogous grounds" approach, adopts the concept that discrimination is generally expressed by the enumerated grounds. Section 15(1) is designed to prevent discrimination based on these and analogous grounds. The approach is similar to that found in human rights and civil rights statutes which have been enacted throughout Canada in recent times. The following excerpts from the judgment of Hugessen, J. in Smith, Kline & French Laboratories Ltd. v. A.-G. Can., supra, at pp. 591-92 D.L.R., pp. 368-9 F.C., illustrate this approach:

The rights which it [s. 15] guarantees are not based on any concept of strict, numerical equality amongst all human beings. If they were, virtually all legislation, whose function it is, after all, to define, distinguish and make categories, would he in prima facie breach of s. 15 and would require justification under s.

1. This would be to turn the exception into the rule. Since courts would be obliged to look for and find s. 1 justification for most legislation, the alternative being anarchy, there is a real risk of paradox: the broader the reach given to s. 15 the more likely it is that it will be deprived of any real content.

The answer, in my view, is that the text of the section itself contains its own limitations. It only proscribes discrimination amongst the members of categories which are themselves similar. Thus the issue, for each case, will be to know which categories are permissible in determining similarity of situation and which are not. It is only in those cases where the categories themselves are not permissible, where equals are not treated equally, that there will be a breach of equality rights.

As far as the text of s. 15 itself is concerned, one may look to whether or not there is “discrimination”, in the pejorative sense of that word, and as to whether the categories are based upon the grounds enumerated or grounds analogous to them. The inquiry, in effect, concentrates upon the personal characteristics of those who claim to have been unequally treated. Questions of stereotyping, of historical disadvantagement, in a word, of prejudice, are the focus and there may even be a recognition that for some people equality has a different meaning than for others.

The analysis of discrimination in this approach must take place within the context of the enumerated grounds and those analogous to them. The words "without discrimination” require more than a mere finding of distinction between the treatment of groups or individuals. Those words are a form of qualifier built into s. 15 itself and limit those distinctions which are forbidden by the section to those which involve prejudice or disadvantage.

I would accept the criticisms of the first approach made by McLachlin, J.A. in the Court of Appeal. She noted that the labelling of every legislative distinction as an infringement of s. 15(1) trivializes the fundamental rights guaranteed by the Charter and, secondly, that to interpret “without discrimination” as “without distinction” deprives the notion of discrimination of content. She continued, at page 607:

Third, it cannot have been the intention of Parliament that the government be put to the requirement of establishing under s. 1 that all laws which draw distinction between people are “demonstrably justified in a free and democratic society”. If weighing of the justifiability of unequal treatment is neither required or permitted under s. 15, the result will be that such universally accepted and manifestly desirable legal distinctions as those prohibiting children or drunk persons from driving motor vehicles will be viewed as violations of fundamental rights and be required to run the gauntlet of s. 1.

Finally, it may further be contended that to define discrimination under s. 15 as synonymous with unequal treatment on the basis of personal classification will be to elevate s. 15 to the position of subsuming the other rights and freedoms defined by the Charter.

In rejecting the Hogg approach, I would say that it draws a straight line from the finding of a distinction to a determination of its validity under s. 1, but my objection would be that it virtually denies any role for s. 15(1).

I would reject, as well, the approach adopted by McLachlin, J.A. She seeks to define discrimination under s. 15(1) as an unjustifiable or unreasonable distinction. In so doing she avoids the mere distinction test but also makes a radical departure from the analytical approach to the Charter which has been approved by this Court. In the result, the determination would be made under s. 15(1) and virtually no role would be left for s. 1.

As is clear from the above comments, the Supreme Court of Canada rejected the contention advanced by Professor Hogg that every distinction is discriminatory. The same Court also rejected the approach taken by McLachlin, J.A., as she then was, in the B.C. Court of Appeal which, as put by McIntyre, J. “involved a consideration of the reasonableness and fairness” of section 15(1). McIntyre, J. accepted the third approach to the interpretation of section 15(1) in these terms (pages 23-24 (S.C.R. 182)):

The third or "enumerated and analogous grounds" approach most closely accords with the purposes of s. 15 and the definition of discrimination outlined above and leaves questions of justification to s. 1. However, in assessing whether a complainant's rights have been infringed under s. 15(1), it is not enough to focus only on the alleged ground of discrimination and decide whether or not it is an enumerated or analogous ground. The effect of the impugned distinction or classification on the complainant must be considered. Once it is accepted that not all distinctions and differentiations created by law are discriminatory, then a role must be assigned to s. 15(1) which goes beyond the mere recognition of a legal distinction. A complainant under s. 15(1) must show not only that he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her in the protection or benefit accorded by law but, in addition, must show that the legislative impact of the law is discriminatory.

With respect to the application of section 15 McIntyre, J. concluded that the provision of the Barristers and Solicitors Act of the Province of B.C. had infringed the right to equality guaranteed in section 15. In reaching this conclusion, he considered that non-citizens, lawfully permanent residents of Canada, were a good example of a “discrete and insular minority”, adopting the words of U.S. Supreme Court decision in United States v. Carolene Products Co., 304 U.S. 144 (1938), at pages 152-53 n. 4.

Applying the foregoing principles to the facts of the present case, there is no question that the provisions of paragraphs 109(1)(d) and (h) in 1985 and 1986 and subsection 118(2) in 1988 establish legal distinctions on account of age. However, I do not believe that these distinctions are discriminatory within the context of subsection 15(1) in the sense in which this concept has been defined in the Supreme Court of Canada in the case Andrews v. The Law Society of British Columbia, supra. These provisions are not founded on the basis of those "irrelevant personal differences” referred to in the latter decision, having regard to the obvious and publicly declared purpose of the legislation.

As explained earlier, the age exemption was based on the fact that generally speaking persons who are 65 or over have a small fixed income. With respect to the deduction in respect of dependent children, the larger exemption for older children took into account the fact, as mentioned in the historical narrative, that in respect of these children family allowances were not payable. Obviously these differences cannot be characterized as “irrelevant personal differences". Furthermore the individuals who are not entitled to the deductions or larger deductions, as the case may be, provided in paragraphs 109(1 )(d) and 109(1)(n) and subsection 118(2) cannot be described as a "discrete and insular minority”. In point of fact, the persons who are excluded from the application of paragraph 109(1)(h) and subsection 118(2), constitute in both cases the majority of the population. The description of "a discrete and insular minority” cannot obviously apply to parents and others who can only claim the lesser of the two deductions provided by paragraph 109(1)(d) in respect of children who are under 18 by the end of the relevant taxation year. Furthermore, with respect to the provisions of the law granting additional deductions to individuals who are 65 or over I think it could be said that this legislative scheme is a law "that has as its object the amelioration of conditions” of older persons who, as a class, are disadvantaged because of age in terms of income and earning capacity. That law is within the purview of subsection 15(2) of the Charter.

Before concluding on this branch of the case at bar, I am of the view that the approach adopted by Justice La Forest in his reasons for judgment on the role of section 15 of the Charter in the Andrews case mentioned earlier is particularly instructive (page 38 (S.C.R. 194)):

That having been said, I am convinced that it was never intended in enacting s. 15 that it become a tool for the wholesale subjection to judicial scrutiny of variegated legislative choices in no way infringing on values fundamental to a free and democratic society. Like my colleague, I am not prepared to accept that all legislative classifications must be rationally supportable before the courts. Much economic and social policy-making is simply beyond the institutional competence of the courts: their role is to protect against incursions on fundamental values, not to second-guess policy decisions.

I realize that it is no easy task to distinguish between what is fundamental and what is not and that in this context this may demand consideration of abstruse theories of equality. For example, there may well be legislative or governmental differentiation between individuals or groups that is so grossly unfair to an individual or group and so devoid of any rational relationship to a legitimate state purpose as to offend against the principle of equality before and under the law as to merit intervention pursuant to s. 15. For these reasons I would think it better at this stage of Charter development to leave the question open. I am aware that in the United States, where Holmes, J. has referred to the equal protection clause there as the “last resort of constitutional arguments" (Buck v. Bell, 274 U.S 200 at p. 208, 71 L. Ed. 1000 (1927)), the courts have been extremely reluctant to interfere with legislative judgment. Still, as I stated, there may be cases where it is indeed the last constitutional resort to protect the individual from fundamental unfairness. Assuming there is room under s. 15 for judicial intervention beyond the traditionally established and analogous policies against discrimination discussed by my col- league, it bears repeating that considerations of institutional functions and resources should make courts extremely wary about questioning legislative and governmental choices in such areas.

I am therefore of the view that the above provisions of the Income Tax Act are not discriminatory. It is therefore unnecessary for me to discuss the application in the present case of section 1 of the Canadian Charter of Rights and Freedoms.

I find it useful at this juncture to comment briefly on the type of relief sought by the appellants in the present case although, in view of the conclusion at which I have arrived, I am not compelled to do so.

In this regard the appellants' position could be looked at from two angles.

From a practical viewpoint, both appellants are seeking for the purpose of computing their taxable income for the 1985 and 1986 taxation years the benefit of an additional exemption in the amount of $1,000 provided by paragraph 109(1)(h) of the Income Tax Act which, by its terms, is applicable only to persons 65 years or over. Appellant Serafino Tiberio is also claiming for the 1988 taxation year the tax credit of $550 which is also made available only to persons in the same age category.

In order to enable the Court to grant this relief, the Court would be required to rewrite the provisions of paragraph 109(1)(h) and subsection 118(2) or otherwise amend the Income Tax Act so as to do away with the age requirement spelled out in these provisions.

A similar operation would have to be undertaken by the Court with respect to the claim in respect of the 1985 and 1986 taxation years of appellant Serafino Tiberio for the larger exemption granted by paragraph 109(1)(d) in respect of dependent children who, among other conditions, must be at least 18 years of age at the end of the year in question. In effect, the age factor set out in paragraph 109(1)(d) as a requirement for the entitlement to the larger exemption would have to be struck out.

The second angle from which the appellants’ stand in this case could be examined is in its nature theoretical. In effect, appellant Serafino Tiberio is saying that the provisions of paragraphs 109(1)(d), 109(1)(h) and subsection 118(2) are discriminatory and violate the Canadian Charter of Rights and Freedoms. In the case of the appellant Vitangela Tiberio, her contention is identical but limited to paragraph 109(1)(h) of the Act.

With respect to the nature of the remedy that the appellants here wanted to obtain reference was made to subsection 24(1) of the Charter which reads thus:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

From either of the two angles referred to earlier, the Court cannot grant the relief sought even if the Court were in agreement with the substance of the appellants’ position.

As I have pointed out earlier, the practical approach to the appellants' contention would involve the rewriting of the legislation. Subsection 24(1) of the Charter does not empower the Court to amend or rewrite the legislation under attack. This is a matter wholly beyond the judicial reach. This task is entrusted to the Parliament of Canada as far as federal legislation is concerned.

Judge Bonner of this Court considered this question in the matter of Dr. Gene Keyes v. M.N.R., [1989] 1 C.T.C. 2157; 89 D.T.C. 91. This was a case where the taxpayer contended that paragraph 122.2(2)(a) of the Income Tax Act was inconsistent with the Charter in depriving him of the benefit of the child tax credit. Judge Bonner concluded as follows at page 2163 (D.T.C. 95):

In either case, subsection 24(1) of the Charter does not empower the Courts to amend or rewrite invalid legislation in the manner sought by the appellant. If paragraph 122.2(2)(a) is invalid it falls, and in the absence of legislative action to fill the void it cannot be said that the appellant is, within the meaning of subsection 122.2(1), ”. . . an individual who has an eligible child . . ." and is therefore entitled to the credit. In short, the Charter argument, if successful, would not lead to a conclusion that the assessment under appeal is too high. This branch of the appeal therefore fails as well.

The proposition that the role of courts is not to rewrite the Income Tax Act has been endorsed by Marceau, J. on behalf of the Federal Court of Appeal in the case of Prior v. Canada, [1989] 2 C.T.C. 280; 89 D.T.C. 5503. The same Court went in the opposite direction in a majority judgment involving certain provisions of the Unemployment Insurance Act in the case of R. v. Shacter, 90 C.L.L.C. 12,023. The latter decision is presently under appeal before the Supreme Court of Canada.

On the other hand, the theoretical approach to the relief sought by the appellants would require the Court to regard the inconsistent provisions as being inoperative. To support this conclusion, I can do no better than refer to the dictum of the Chief Justice Dickson in the case of M.N.R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; (1985), 18 C.C.C. (3d) 385 at S.C.R. 294 when he wrote:

If the court or tribunal finds any statute to be inconsistent with the Constitution, the overriding effect of the Constitution Act, 1982, s. 52(1), is to give the Court not only the power, but the duty, to regard the inconsistent statute, to the extent of the inconsistency, as being no longer “of force or effect".

As mentioned by Judge Rip of this Court in the case of Lee F. Smith v. M.N.R., [1989] 2 C.T.C. 2401; 89 D.T.C. 639, this Court does not have jurisdiction to grant declaratory relief. In the Smith case, the Minister denied the taxpayer a personal exemption under paragraph 109(1)(b) of the Income Tax Act in respect of the support of his former sister-in-law.

The observations of Pratte, J. in the case of Zwarich v. A.-G. Canada, [1987] 3 F.C. 253 at 255 are, in my view, applicable to proceedings in this Court:

It is clear that neither a board of referees nor an umpire have the right to pronounce declarations as to the constitutional validity of statutes and regulations. That is a privilege reserved to the superior courts. However, like all tribunals, an umpire and a board of referees must apply the law. They must, therefore, determine what the law is. And this implies that they must not only construe the relevant statutes and regulations but also find whether they have been validly enacted. If they reach the conclusion that a relevant statutory provision violates the Charter, they must decide the case that is before them as if that provision had never been enacted.

If I had concluded that the provisions of the Income Tax Act under attack here violated the Charter and if I had decided these appeals as if the inconsistent provisions were of no force or effect, the fact would remain that this result would be of no assistance to the appellants since the deductions in respect of age in paragraph 109(1)(d) and subsection 118(2) and the larger deductions in respect of dependent children would not have been available to the appellants because they had to be considered as inoperative and of no force or effect. Nor would the appellants be further ahead if this Court had the jurisdiction to pronounce declarations as to the constitutional validity of the impugned provisions of the Income Tax Act.

I therefore conclude that the impugned provisions of the Income Tax Act are not discriminatory and consequently do not offend the Canadian Charter of Rights and Freedoms. Furthermore even if I had agreed with the substance of appellants' position I would have been constrained to dismiss the appeals since there is no remedy that could be granted by this Court that would affect the validity of the assessments in issue.

For these reasons, the appeals are dismissed.

Appeals dismissed.