Tremblay T.C.J.:
1 This appeal was heard under the informal procedure on January 9, 1996 at Québec, Quebec. The hearing was continued on November 6, 1996 after the appellant informed the Attorney General of Canada of his intention of invoking the Canadian Charter of Rights and Freedoms (the “Charter”).
1. Issue
2 According to the Notice of Appeal and the Reply to the Notice of Appeal, the issue is whether the appellant, a truck driver for Petro Canada, was entitled to deduct, in computing his income for the 1990 and 1992 taxation years, meal expenses in the amounts of $1,846 in 1990 and $6,336 in 1992.
3 The appellant argued that he got up at 5:00 a.m. and returned from work at 9:00 p.m. He was consequently away for more than 12 hours, thereby fulfilling one of the requirements of the Income Tax Act (the “Act”).
4 Moreover, truck drivers with other transport companies are entitled to deduct this expense. Lastly, the appellant invoked subsection 15(1) of the Charter.
2. Burden of proof
5 2.01 The appellant has the burden to show that the respondent's reassessments are without foundation. That burden of proof arises from several court decisions including the decision of the Supreme Court of Canada in Johnston v. Minister of National Revenue, [1948] S.C.R. 486, 3 D.T.C. 1182, [1948] C.T.C. 195 (S.C.C.).
6 2.02 In the instant case, the facts accepted by the respondent are described in subparagraphs (a) to (k) of paragraph 9 of the Reply to the Notice of Appeal. They read as follows:
[TRANSLATION]
9. In making these reassessments, the Minister relied, in particular, on the following facts:(a) during the 1990 and 1992 taxation years, the appellant was a truck driver for Petro Canada (the “employer”);
(b) the employer's principal business is not passenger, goods, or passenger and goods transport;
(c) during the 1990 and 1992 taxation years, the appellant worked four days a week for a maximum of 10 hours a day, almost all the time;
(d) the appellant's home terminal during the 1990 and 1992 taxation years was St-Romuald;
(e) during the 1990 and 1992 taxation years, the appellant's hours of work were from 6:30 a.m. to 5:30 p.m. for the day shift, and from 6:30 p.m. to 5:30 a.m. for the night shift;
(f) during the 1990 and 1992 taxation years, the area which the appellant covered was mainly Québec and its environs, that is, Québec, Beauce to Victoriaville, Rivière-du-Loup and La Malbaie; he might also be called to travel to Chicoutimi, but only rarely;
(g) during the 1990 and 1992 taxation years, when the appellant was working at St-Romuald, he would make three trips, and when he travelled away from St-Romuald, he would make one trip in the city, as well as one outside;
(h) during the 1990 and 1992 taxation years, when the appellant worked overtime, approximately one or two hours more than his regular 10-hour shift, the employer paid for a meal, while for the normal 10-hour shift, the employer did not pay for, nor reimburse, any meals;
(i) the meal expenses claimed by the appellant for the 1990 and 1992 taxation years were not incurred during a period in which his duties required him to be away, for a period of at least twelve hours, from the municipality where his employer's establishment, to which he normally reported for work, was located, and away from the metropolitan area, if there is one, where it was located;
(i) the appellant's supervisor at Petro Canada was Paul H. Roy in 1990 and 1992;
(k) Paul H. Roy does not know any supervisor at Petro Canada named Paul Contois or Paul Comtois.
7 2.03 The parties agreed that the amount of the expenses claimed is not at issue.
8 They agreed that the only question is that alleged by the respondent in paragraph 12 of the Reply to the Notice of Appeal. It reads as follows:
[TRANSLATION]12. He claims that the appellant was not employed, during the 1990 and 1992 taxation years, by a person whose principal business was passenger, goods, or passenger and goods transport pursuant to paragraph 8(1)(g) of the Act.
9 The preamble to section 8 and paragraph 8(1)(g) read as follows:
Section 8: Deductions allowed
(1) In computing a taxpayer's income for a taxation year from an office or employment, there may be deducted such of the following amounts as are wholly applicable to that source or such part of the following amounts as may reasonably be regarded as applicable thereto:- (g) Transport employee's expenses-- where the taxpayer was an employee of a person whose principal business was passenger, goods, or passenger and goods transport and the duties of the employment required the taxpayer, regularly,
(i) to travel, away from the municipality where the employer's establishment to which the taxpayer reported for work was located and away from the metropolitan area, if there is one, where it was located, on vehicles used by the employer to transport the goods or passengers, and
(ii) while so away from that municipality and metropolitan area, to make disbursements for meals and lodging,
3. Facts adduced
10 3.01 The appellant testified that, during the years at issue, he worked for Petro Canada.
11 3.02 The company has closed its transportation department since 1993. That activity was subcontracted to Lévy Transport Ltée, which apparently purchased the trucks used by Petro Canada. The appellant is apparently still employed by Petro Canada.
12 3.03 During the years at issue, the appellant travelled from Québec to Rivière-du-Loup (seven or eight service stations), Victoriaville, St-Honoré, Duchesnay, St-Gédéon de Beauce, Lac-Saint-Jean (Chambord, Alma) and Saguenay (Jonquière, Chicoutimi, La Baie).
4. Arguments
13 The arguments presented on January 9, 1996 related to the interpretation of paragraph 8(1)(g) of the Act.
14 Since counsel for the appellant wished to invoke subsection 15(1) of the Charter but had not informed the Attorney General of Canada in advance, the Court granted him a delay to do so. The argument relating to the Charter was presented on November 6, 1996.
4.01 Argument on paragraph 8(1)(g) of the Act
15 Is Petro Canada a person whose principal business is the transport of goods?
4.01.1 Appellant's argument
16 Counsel for the appellant, relying on “L'interprétation des lois” by Professor Pierre-André Côté, cautioned the Court against a solely literal interpretation of the legislation. To understand the meaning of legislation, it is necessary to put it in its context. In the instant case, it must be understood in the social context.
17 Section 8 of the Act is part of a larger chapter on income from employment:
[TRANSLATION]
The first context to which I refer relates to the purpose of the provision. Paragraph 8(1)(g) is part of a larger chapter dealing with income from employment, more specifically, the deductions to which taxpayers are entitled which relate directly to employment.
[Apart from] the terms that we are currently trying to interpret, we easily understand the others because they are constantly used in the employment context. That is, if I were to begin applying the interpretation, the principal business, to the employer's activity, in my humble view, we would just pass it over.
What I mean is that there must be a relation between these terms and the taxpayer's employment. We understand that paragraph 8(1)(g) allows a deduction, specifically, in connection with the work done in the transport sector. If we compare it to paragraph 8(1)(h), we immediately see that the main point is that the work must relate to a transport business.
Why? If we look for a logical interpretation, we see that, in order to avoid an injustice, namely, that people working in the transport sector are required to make certain expenditures, in particular for meals, because of the very nature of their work, they travel away from where they live. They travel away from where, I would say, the home base of the transport business or company is located. Accordingly, they are required to incur expenses which are expenses for meals.
Paragraph 8(1) h) does the same thing, except that paragraph 8(1)(h) requires the application of subsection 8(4) and there is an additional requirement which is to be away for at least 12 hours, which is not found in paragraph 8(1)(h).
Thus, to be specific, Parliament did not want to create an inequity, but wanted to allow employees in the transport sector to use that deduction. Because of the very nature of their work, they are required to incur all of these expenses, which others do not. Therefore, in order to avoid an inequity, the provision allows them a deduction.
And this has nothing to do, more or less -- at least not directly --, with the employer's actual business. In other words, we must not look for the literal interpretation, the actual business of the employer which could be, in part, other than transport.
As long as transport, the transport side of the company is sufficiently large to require the hiring of full-time people, sufficiently complex to send people away from region, entitlement to the deduction under paragraph 8(1)(g) is established. In my view, it would be inappropriate to completely eliminate that deduction for this type of worker because the employer, in terms of his overall business, does things other than transport. (S.N., p. 16-18)
18 According to the respondent's interpretation, two truckers who fulfil the same terms and conditions of employment are treated differently. Counsel for the appellant questioned whether that was what the legislator really wanted:
[TRANSLATION]
In short, it is as though Parliament apparently wanted to have one group of employees which works for a transport company that deals exclusively with transport and another group which works for a company that does something else; in the case before us, petroleum operations, one would be entitled to the deduction and the other would not. This seems so absurd that -- I will talk about this a little later, I believe that in these circumstances, it would open the door to the application of section 15 of the Charter of Rights and Freedoms. I will refer to this matter more specifically shortly, but I think that, in such circumstances, we would be opening a door which, under other circumstances, interpreted in its context, we would not open. The discussion would be applied, the legislator's purpose would prevail.
It is acknowledged that the Court's duty is indeed to interpret, to put things back into context in order to determine their true meaning. Because without the context, the meaning becomes absurd. And that is what Mr. Côté is trying to show in his paper: in certain situations, the context remains the key to interpreting a -- to completing, I would say, a literal interpretation. Otherwise, aberrations occur as I illustrated earlier.
Of course, the cohesiveness of the Act must also be respected. I mentioned this earlier when I spoke of the difference between paragraphs 8(1)(g) and 8(1)(h) and the application of subsection 8(4).
There is also a principle of law. A principle which is closely related to this situation, a principle of interpretation of law which relies heavily on what is called natural law, which is realized as an assumption. And one of these assumptions is that the Act is there to remedy a situation. In other words, the legislator is not there to create an inequity, but exactly the opposite, to remedy a situation to ensure greater fairness.
An overly literal interpretation of 8(1)(g) would create an inequity. We would be disregarding the principle by which the legislator tries to correct a problem and create equity. (S.N., p. 18-20)
4.01.2 Respondent's argument on paragraph 8(1)(g) by M. Gentile
19 4.01.2(a) Counsel for the respondent argued that, while there may have been corporate changes in the “transport” section of Petro Canada in 1993, as the witness mentioned, such changes have no impact on this case. The years at issue are 1990 and 1992. During these years, the trucks belonged to Petro Canada's “transport” division, a division which was not a separate entity.
20 4.01.2 (b) Counsel cited R. v. Creamer[(1976), 76 D.T.C. 6422 (Fed. T.D.)], a decision rendered by Dubé J. of the Federal Court, Trial Division. Her Majesty the Queen was appealing the decision of Chairman Flanigan of the Tax Review Board [reported[1974] C.T.C. 2277 (T.R.B.)].
21 The facts are similar to the instant appeal:
The Minister of National Revenue assumed that the principal business of Imperial Oil Limited, in 1972, the employer of the defendant, was not passenger, goods, or passenger and goods transport, under paragraph 8(1)(g) of the Act, and disallowed the expenses.
It is common ground that the defendant satisfies all the other requirements of the exemption; the sole issue is whether or not the taxpayer was an employee of a person whose principal business was transport. Defendant alleges that he was not really an employee of Imperial Oil Limited, but an employee of the transportation department of Imperial Oil Limited, or in the alternative, that transport was a principal business of Imperial Oil Limited.
The taxpayer is, and was at all times material, a truck driver employed at delivering petroleum products in southern New Brunswick from a terminal located at Saint John. He received his instructions from the terminal dispatcher of the transportation department of Imperial Oil Limited and from a schedule posted on the bulletin board in the dispatcher's office. He drove approximately 250 miles a day. His noon meals were had on the road at his expense; unless he was out more than twelve hours, when his noon meals were reimbursed from petty cash at the terminal.
There is no document showing that the defendant was employed by the “Transportation Department” of Imperial Oil Limited. There was evidence that he was working within that division of the Company, employed as he was in the transport and delivery of petroleum products. His immediate supervisors were also working within that division of the Company structure.
There is no evidence that the transportation department is a separate legal entity. “Employment” is defined in subsection 248(1) of the Act as “the position of an individual in the service of some other person”, and “person” includes “any body, corporate and politic”.
The Supreme Court of Canada held in 1960 in The Minister of National Revenue v. Imperial Oil Limited[60 D.T.C. 1219],[1960] S.C.R. 735, that it was wrong for the Exchequer Court to treat the producing department of Imperial Oil Limited as a separate entity. Judson, J., said this at pages 748-749:
In my opinion, this was error. It may have been convenient for the company for its own corporate purposes to treat the producing department as a separate entity and to include this “unrealized profit” as part of the “profits” of the producing department. In fact, the producing department was not a separate entity for tax purposes and, therefore, the company was not entitled to treat the producing department in this way. If it makes any difference, and I do not think that it does, all accountancy witnesses based their opinion in resisting the claim for deduction on the assumption that the producing department could be treated as a separate entity. No such assumption could be made in law. No company makes an actual profit merely by producing oil. There is no profit until the oil is sold.
I have no hesitation in finding that the defendant was in 1971 an employee of Imperial Oil Limited. There now remains to decide whether or not the “principal business” of Imperial Oil Limited was passenger, goods, or passenger and goods transport” as required by paragraph 8(1)(g) of the Act.
Imperial Oil Limited was incorporated for the purposes of operating refineries and dealing in petroleum oil lands. In a letter to the Department it considers itself a “principal-business corporation within the meaning of paragraph 66(15)(h) of the Act”, which means a corporation whose principal business is the production, refining or marketing of petroleum products. Its 1972 Annual Report emphasizes the exploration and production activities of the Company. Its answers to questions reveal that in 1971 only $67 million went for transportation expenses out of total expenses of $2,200 millions. There is no revenue from the transportation division in the general breakdown of revenue for the year, totalling $2,350 millions.
The conclusion therefore is inescapable that the principal business of Imperial Oil Limited is not the transport of persons or goods. Obviously the transport of petroleum products plays an important role in its overall operations, but an ancillary one.
I cannot but repeat that well entrenched, but still depressing, adage that taxation is the rule and exemption the exception. In order to benefit from the exception, the taxpayer must show, and the burden is on him, that his case falls strictly and squarely within the four corners of the exemption.
22 In this case involving Imperial Oil Limited, three judges of the Supreme Court of Canada dissented from the majority decision [reported[1960] S.C.R. 735 (S.C.C.)].
23 4.01.2 (c) No accounting evidence (income, expenses, etc.) was filed by Petro Canada in the instant case.
4.02 Arguments based on the Charter
24 The two provisions of the Charter invoked by the parties are section 1 and subsection 15(1). They read as follows:
Guarantee of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Equality Rights
15. (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.
4.02.1 Appellant's argument
25 4.02.1 (a) Counsel for the appellant referred to Andrews v. Law Society (British Columbia), [1989] 1 S.C.R. 143 (S.C.C.), at page 170:
The principle of equality before the law has long been recognized as a feature of our constitutional tradition and it found statutory recognition in the Canadian Bill of Rights. However, unlike the Canadian Bill of Rights, which spoke only of equality before the law, s. 15(1) of the Charter provides a much broader protection. Section 15 spells out four basic rights: (1) the right to equality before the law; (2) the right to equality under the law; (3) the right to equal protection of the law; and (4) the right to equal benefit of the law. The inclusion of these last three additional rights in s. 15 of the Charter was an attempt to remedy some of the shortcomings of the right to equality in the Canadian Bill of Rights.
26 In short, the purpose of subsection 15(1) is to ensure that there is no discrimination.
27 4.02.1 (b) Discrimination
28 In the same case, at pages 174-175, the Supreme Court of Canada cites the definition of “systemic discrimination” from the report of Judge Abella (p. 2) on equality in employment and then offers its own comments:
Discrimination ... means practices or attitudes that have, whether by design or impact, the effect of limiting an individual's or a group's right to the opportunities generally available because of attributed rather than actual characteristics....
It is not a question of whether this discrimination is motivated by an intentional desire to obstruct someone's potential, or whether it is the accidental by-product of innocently motivated practices or systems. If the barrier is affecting certain groups in a disproportionately negative way, it is a signal that the practices that lead to this adverse impact may be discriminatory.
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.
29 Later on, at page 175, the Court states:
...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] 2 S.C.R. 145, at p. 155.
30 4.02.1 (c) Lastly, at page 183, the Supreme Court of Canada applies the principles of subsection 15(1) to citizenship:
The rights guaranteed in s. 15(1) apply to all persons whether citizens or not. A rule which bars an entire class of persons from certain forms of employment, solely on the grounds of a lack of citizenship status and without consideration of educational and professional qualifications or the other attributes or merits of individuals in the group, would, in my view, infringe s. 15 equality rights. Non-citizens, lawfully permanent residents of Canada, are - in the words of the U.S. Supreme Court in United States v. Carolene Products Co., 304 U.S. 144(1938), at pp. 152-153, n. 4, subsequently affirmed in Graham v. Richardson, 403 U.S. 365(1971), at p. 372 - a good example of a “discrete and insular minority” who come within the protection of s. 15.
31 Indeed, the crucial point in Andrews is that citizenship is required for admission to the British Columbia bar. Mr. Andrews, an immigrant, argued that this was discrimination. The Supreme Court agreed with him.
32 4.02.1 (d) Counsel for the appellant argued that the appellant was part of this discrete and insular minority, that is, an individual or a group which has no natural defenders and which is incapable of protecting its interests or its rights.
33 The appellant testified to the effect that truck drivers from various oil companies living in various counties and himself went to their respective federal and provincial elected representatives in 1977-1978 in order to have the Act amended to stop this discrimination.
34 Indeed, the truck drivers who work for Lévy Transport, which Petro Canada controls because it is its subcontractor, are entitled to the deduction of expenses provided for in paragraph 8(1)(g) of the Act. The employer's principal business is transport.
35 4.02.1 (e) The discrimination in the instant case is based on the appellant's employee status. This status is not derived from the work he does (he does the same work and incurs the same expenses as those who are entitled to the deduction under paragraph 8(1)(g)), but the nature of the business of his employer, namely, that its principal business is not transport.
36 What discrimination or disadvantages does the appellant experience? By not allowing him the deductions to which the other truck drivers are entitled, he is being economically disadvantaged: he does not have the same buying power, nor the same opportunity to obtain a loan.
37 4.02.1 (f) Counsel argued that the discrimination to which the appellant and others in the same situation are subjected cannot be overcome by a powerful union. “There is virtually no one who will be concerned about them at the legislative level. ... They are socially, economically and politically disadvantaged. Accordingly, the Charter applies to them.”
38 4.02.1 (g) Section 1 of the Charter cannot be applied to this situation:
[TRANSLATION]
Can Section 1 be justified? Is there justification, in Mr. Gaudet's case, for violating his basic right, for discriminating against him compared to others? Can we really do this? Is there reason to say that the employer, its business, it does something other than transport, that it refines oil, is that fact such a national emergency that it justifies violating the Charter?
Is the means used, the actual purpose, to give people who have to eat, who have to travel abroad, the opportunity, do we want to provide them with some equality with respect to others? Is this measure, if we interpret it the way that the Department wants to, if it is interpreted in such a way that only people who do not work for oil companies are entitled to it? Is it really relevant when the purpose is to try to equalize an economic situation using a concept?
In conclusion, it is my view that you should set aside the interpretation, the end -- the end of the sentence, the element mentioned, set it aside.
I did not say to set it -- to throw out the entire section, but to render it inapplicable to Mr. Gaudet.
39 The burden of proof with respect to section 1 of the Charter is on the appellant.
4.02.2 Respondent's argument by A.-M. Boutin
40 4.02.2 (a) With respect to the interpretation of subsection 15(1), counsel for the respondent referred to R. v. Swain, [1991] 1 S.C.R. 933 (S.C.C.), as cited in Symes v. R., [1993] 4 S.C.R. 695 (S.C.C.), at page 757:
The court must first determine whether the claimant has shown that one of the four basic equality rights has been denied (i.e., equality before the law, equality under the law, equal protection of the law and equal benefit of the law). This inquiry will focus largely on whether the law has drawn a distinction (intentionally or otherwise) between the claimant and others, based on personal characteristics. Next, the court must determine whether the denial can be said to result in “discrimination”. This second inquiry will focus largely on whether the differential treatment has the effect of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to opportunities, benefits and advantages available to others. Furthermore, in determining whether the claimant's s. 15(1) rights have been infringed, the court must consider whether the personal characteristic in question falls within the grounds enumerated in the section or within an analogous ground, so as to ensure that the claim fits within the overall purpose of s. 15 -- namely, to remedy or prevent discrimination against groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society.
41 4.02.2 (b) First, has the appellant shown that one of the four basic rights to equality has been denied?
42 Does the Act make a distinction based on the employee's personal characteristics?
43 The respondent's position is as follows:
[TRANSLATION]
...to this first requirement, the appellant, the claimant, does not meet the requirement because paragraph 8(1)(g) does not make a distinction based on personal characteristics. It is true that paragraph 8(1)(g) creates a distinction, but the distinction is based on the nature of the employer's business.
In fact, it is not even a characteristic of the employee, it is a “characteristic of the employer”. The employer either has transport as its principal business or it does not. That is what creates the distinction, what creates -- that is what makes it possible to determine whether the employee will or will not be entitled to deduct meals and lodging.
44 Counsel for the respondent pointed out that in the Act there are similar opportunities for employees to deduct certain expenses:
45 4.02.2 (c) Assuming that the legislator based the distinction on personal characteristics, counsel for the respondent moved to the second requirement, that is, whether the personal characteristic in question (if there was one) is an enumerated ground in subsection 15(1) of the Charter, namely, race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. She argued that it is not. The respondent's position is the same with respect to analogous grounds.
46 Counsel for the respondent argued on that point that the appellant did not invoke any of the grounds enumerated in subsection 15(1) of the Charter or any analogous ground, in the notice addressed to the Attorney General of Canada.
47 4.02.2 (d) Counsel for the respondent also raised the question of whether the violation of the right resulted in discrimination. Counsel referred to the definition of “discrimination” in Andrews, cited earlier (4.02.1 (b)), and concluded:
[TRANSLATION]
Your Honour, there is no personal characteristic at issue and I repeat once again, does the different treatment that exists under this section of the statute impose a burden in the sense of infringing human dignity? A burden that would not be imposed on others? And the answer is no. That is very clear. (S.N., p. 40)
48 4.02.2 e) Lastly, counsel for the respondent noted that all of the different treatments under the Act infringe the equality guarantees of section 15 of the Charter, and cited Andrews at page 168:
It is not every distinction or differentiation in treatment at law which will transgress the equality guarantees of s. i5 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?
4.03 Decision with respect to paragraph 8(1)(g) of the Act without considering the impact of the Charter
49 The Court is bound by the decision of the Supreme Court of Canada in Imperial Oil Ltd., cited earlier in Creamer (4.01.2 (b)). It cannot consider the transportation division of Petro Canada as a separate entity, and therefore cannot conclude that the appellant's employer was a person whose principal business was passenger, goods, or passenger and goods transport, within the meaning of paragraph 8(1)(g) of the Act.
50 The appellant's appeal would therefore be dismissed if the argument with respect to the Charter was not considered.
4.04 Decision with respect to paragraph 8(1)(g) of the Act taking into consideration the Charter
51 4.04.1 The respondent argued that paragraph 8(1)(g) of the Act does not distinguish on the basis of the appellant's personal characteristics but on the nature of the employer's business (4.02.2 (b)).
52 The overall position of counsel for the appellant can be summarized as follows:53 The appellant is not the only person in that situation in Canada. The appellant and that group of persons do not, in respect of the Act, have the “equality before the law, equality under the law, equal protection of the law, or equal benefit of the law”, as do employees, the principal business of whose employer is passenger or goods transport.
54 According to counsel for the appellant, that situation is, for them, one of their personal characteristics. The different treatment which arises because of it has the effect of “imposing a burden ... or disadvantage not imposed upon others” (Symes, p. 757, par 4.02.2 (a)), those others who are entitled to deduct for meals and lodging with the economic benefits which arise therefrom (4.02.1(e)).
55 The Court understands the appellant's point of view and admits that he is the victim of “discrimination”. But is it the type of discrimination which section 15 of the Charter is intended to remedy?
56 In light of the judgment in Andrews, I must reply in the negative.
Subsection 15(1) of the Charter
57 In the passage at pages 174 and 175 in Andrews, cited by both parties (4.02.1 (b)), the court clearly specifies that the “discrimination ... must be based on grounds relating to personal characteristics of the individual or group”.
58 Being an employee for a particular employer is not a personal characteristic as provided for in the Charter: race, national or ethnic origin, colour, religion, sex or mental or physical disability, or analogous characteristics, age, citizenship or not (Andrews); added to these could also be competence or incompetence, etc.
59 Besides, the Act has a wealth of inequalities of all kinds. Taxpayers are taxed at higher rates than others. Also, some elderly persons pay a 100 per cent tax rate on their old age security income. And, as in the instant case, individuals are entitled to deductions which are denied to others.
60 The Court admits, however, that paragraph 8(1)(g) of the Act creates an inequality in the way in which truck drivers employed by a company, whose principal business is not goods or passenger transport, are treated, which has an impact on treatment.
61 In Andrews, at page 165, one can read the following:
...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.
McLaughlin J.A. in the Court of Appeal expressed the view, at p. 605, that
...the essential meaning of the constitutional requirement of equal protection and equal benefit is that persons who are “similarly situated be similarly treated and conversely, that persons who are “differently situated be differently treated”...
62 If in the instant case the inequality of treatment were based on a personal characteristic, the appeal would be allowed.
63 In my opinion, even though the discrimination to which the appellant and others in the same group are subject is not covered by subsection 15(1) of the Charter, Parliament should amend paragraph 8(1)(g) by applying the principle described by McLaughlin J.A., cited above, namely, that persons who are similarly situated be similarly treated.
5. Conclusion
64 For the above reasons, the appeal is dismissed.
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