Dussault T.C.J.:
1 This case concerns appeals from assessments for the appellant's 1986 to 1992 taxation years. For 1986 and 1987, the appellant claimed the deduction provided for under paragraph 110(1)(e) of the Income Tax Act (the “Act”), whereas, for the years 1988 to 1992, he claimed the tax credit provided for under sections 118.3 and 118.4 of the Act. The appellant, who had not claimed the deduction or credit when filing his returns of income for the years in issue, did so in a letter dated March 23, 1993 accompanied by form T2201, in which Dr. Michel Marceau diagnosed permanent deafness.
2 The Minister of National Revenue (the “Minister”) refused to grant the appellant's request and the appellant was notified of the refusal on June 18, 1993. The reason for the refusal, as stated in subparagraph 6(d) of the Reply to the Notice of Appeal, is that the appellant's ability to perform a basic activity of daily living was not markedly restricted.
3 On April 19, 1993, the appellant served on the Minister a notice of objection to the assessment for each of the 1986 to 1992 taxation years.
4 On or about September 29, 1993, the Minister notified the appellant that no review of the file could be conducted in respect of the 1986 to 1990 taxation years since the notice of objection had not been served within the time allowed.
5 For the 1991 and 1992 taxation years, the Minister confirmed the assessment dated September 30, 1993, refusing to allow the appellant the mental or physical disability tax credit.
6 With respect to the 1986 to 1990 taxation years, there is no dispute as to the fact that the notice of objection was not served within the time period provided for by paragraph 165(1)(a) of the Act, so that there could be no valid appeal under subsection 169(1) of the Act in respect of each of those years. Thus, the alleged appeals for the 1986 to 1990 taxation years must be dismissed for nullity.
7 As to the 1991 and 1992 taxation years, counsel for the appellant admitted that the appellant had not met the test set out in subsection 118.4(1) of the Act. However, citing subsection 15(1) of the Canadian Charter of Rights and Freedoms (the “Charter”), he contended that the activity described in subparagraph 118.4(1)(c)(iv), that is “hearing so as to understand, in a quiet setting, another person familiar with the individual”, as a basic activity of daily living that an individual must all or substantially all of the time be unable (or require an inordinate amount of time) to perform, in order to be eligible for the credit, discriminates against persons suffering certain hearing problems within the meaning of subsection 15(1) of the Charter.
8 The appellant did not testify. No other person, including the physician who examined him, testified as to his condition and the nature of the hearing impairment from which he suffers.
9 Counsel for the appellant summoned France Désilets, an audiologist, to testify as an expert. She did not examine the appellant and had not studied the particular characteristics of his impairment.
10 Ms. Désilets' testimony concerned types or levels of impairment, with particular emphasis on the functional limitations which Parliament apparently wanted to take into account in the Act, without however adopting sufficiently precise criteria on this point. Thus, in her view, no account is taken, for instance, of lip reading in order to reduce or compensate for the functional limitations resulting from certain hearing problems. Nor is any account taken of the environment, in that there may be varying noise levels in the work place, for example, as a result of which the criterion used was not very representative of the difficulties that some people with functional limitations as a result of hearing problems must overcome. However, Ms. Désilets admitted, while emphasizing their limitations, that audiograms, the tests which are used in most cases, are still the most accessible and fairest way of measuring and comparing the hearing impairments of a large number of people. In her view, while the perception of sounds measured in decibels can be used as a basic criterion, it should also be possible to provide some room for exceptional cases when they are analyzed in a well-documented report.
11 Counsel for the appellant considered that the result of applying the test set out in subparagraph 118.4(1)(c)(iv) of the Act may be that persons who are very deaf might not be able to receive the credit, whereas other persons whose deficiency is less marked could claim it. In his view, the test is highly subjective and the fact that certain persons may be excluded constitutes the type of discrimination contemplated in subsection 15(1) of the Charter since it does not guarantee that individuals are treated fairly and uniformly under the Act. He also argued that using such a test is not justifiable on the basis of the factors adopted by the courts with respect to section 1 of the Charter.
12 In support of his argument, counsel for the appellant referred in particular to the decisions by the Supreme Court of Canada in the following cases:13 Counsel for the respondent pointed out, for his part, that there was no evidence whatsoever regarding the appellant's condition and the prejudice or disadvantage he had suffered relative to other persons as a result of the application of the test set out in subparagraph 118.4(1)(c)(iv) of the Act. In his view, absent any evidence that he had been treated more severely than other persons suffering from a mental or physical impairment who comprise the base or reference group for the purposes of the tax credit, there could be no discrimination under subsection 15(1) of the Charter. He stated that the provisions of sections 118.3 and 118.4 providing for the tax credit constitute, as it were, “positive discrimination” as permitted by subsection 15(2) of the Charter, which is restricted to persons whose ability to perform a basic activity of daily living, as defined, is markedly restricted.
14 While admitting that the test used for persons suffering from hearing problems could be more precise, counsel for the respondent contended that it would in any case be impossible to cover all situations, whatever the tests used, and that, in any event, it was not up to the Court, but to Parliament, to specify those tests.
15 Counsel for the respondent closed by pointing out that if the Court came to the conclusion that there had in fact been discrimination within the meaning of subsection 15(1) of the Charter, despite the fact that there was no evidence whatsoever regarding the appellant's condition, it could only declare the specific provision found to be discriminatory, that is subparagraph 118.4(1)(c)(iv) of the Act, to be of no force or effect, so that the appellant in practice could not obtain any relief whatever since neither he nor anyone else would be entitled to the credit. The decision in Tiberio v. Minister of National Revenue (1990), 91 D.T.C. 17 (T.C.C.), was cited in support of this argument. Counsel for the respondent also pointed out that, while certain provisions of section 118.4 might be found to be discriminatory, section 118.3, which sets out the basic requirements for entitlement to the credit, would continue to apply and, as a consequence, the appellant in any case would not be entitled to the credit since no evidence was led to show that he had a severe and prolonged impairment.
16 I am in general agreement with the argument made by counsel for the respondent. First, there was no evidence respecting the impairment from which the appellant suffers. The analysis of the constitutional validity of a statutory provision under subsection 15(1) of the Charter and the conclusions that may be reached cannot be based on hypothetical or unproven factors. First, I find that there was no evidence of a denial of the appellant's right to “equal protection” and “equal benefit” of the Act as compared with some other person. Second, even if such evidence had been led, additional evidence would have been necessary to show that this denial constituted discrimination based “on one of the grounds enumerated in s. 15(1) or an analogous ground and that the unequal treatment is based on the stereotypical application of presumed group or personal characteristics” (Miron v. Trudel, supra, at page 485).
17 I would add that it is therefore easy to imagine that, as long as a provision is not based on such a prohibited ground, mere different treatment of persons does not automatically result in a violation of subsection 15(1) of the Charter.
18 Sections 118.3 and 118.4 providing for a tax credit for persons with a mental or physical impairment have been amended a number of times as part of a slow evolution toward fairer treatment of persons with impairments which vary widely and are very different from one another, but which are above all severe and prolonged and the effects of which are such (according to the tests applied today) that the ability of those persons to perform a basic activity of daily living is markedly restricted, to use the wording of paragraph 118.3(1)(a. 1) of the Act.
19 These provisions, which may certainly be likened to those referred to in subsection 15(2) of the Charter, since they provide for tax relief based on the criterion of mental or physical disability, were not, it goes without saying, developed for the purpose of granting a benefit to the largest number of persons, but only to those whose threshold or level of impairment was considered particularly high.
20 It is precisely to prevent the uncertainty, and possibly also the arbitrary treatment, that could result from the previous, relatively general tests that, starting in 1991, Parliament tried to limit the scope of expressions that had previously not been defined in the Act itself, including the one concerning the marked restriction of a person's ability to perform a basic activity of daily living and the one concerning even what an activity of daily living must be taken to mean (on this point, see the notes accompanying the various bills amending the Act).
21 An impairment is defined by paragraph 118.4(1)(a) as being prolonged if it lasts for a period of 12 months. It is defined as severe by paragraphs 118.4(1)(b), (c) and (d) if the person's ability to perform certain activities is markedly restricted or the person requires an inordinate amount of time to perform them. The activities that are considered to be basic activities of daily living and that could be characterized as minimum or survival activities are exhaustively enumerated, to the exclusion of all other activities including working, housekeeping, social or recreational activities and those to which, for the purposes of the credit, the same importance is not attached, although in practice they are fundamentally important to day-to-day life. What this approach does is precisely to introduce a standard of objectivity designed to clarify to a greater degree the threshold of impairment for which Parliament is prepared to grant tax relief. It also reduced, although it did not completely eliminate, the latitude that could be available to anyone for subjectively assessing the severity of an impairment on which entitlement to the credit could be based.
22 Having said that, we can immediately agree that the tests applied are probably not flexible and precise enough to cover all situations and satisfy with mathematical rigour all taxpayers who, according to their own assessments, consider that they too have a severe impairment which should be taken into account.
23 Does this mean that the tests applied, the purpose of which is to determine whether an individual can or cannot perform a basic activity described by Parliament, or does or does not require an inordinate amount of time to perform it, are essentially based on the grounds enumerated in subsection 15(1) of the Charter or an analogous ground by reference to a stereotype? I do not believe so. I find, on the contrary, that this was not at all convincingly proved with regard to subparagraph 118.4(1)(c)(iv) of the Act. An analysis of the decisions to which counsel for both parties referred in fact leads me to the conclusion that the test applied cannot be considered to be a prohibited ground under subsection 15(1) of the Charter or an analogous ground.
24 I would add, as Judge Garon of this Court did in Tiberio, supra, that the opposite conclusion could not in the circumstances have led to the result desired by the appellant. Indeed, I would have concluded that subparagraph 118.4(1)(c)(iv) constituted a violation of subsection 15(1) of the Charter, and that such a conclusion could only mean that that subparagraph was of no force or effect, without, in my view, affecting the other components of sections 118.3 and 118.4 of the Act. Once again, no evidence was led to show that the requirements set out in those provisions would have been met even if we disregarded subparagraph 118.4(1)(c)(iv) of the Act.
25 Having regard to the foregoing, the alleged appeals from the assessments for the 1986 to 1990 taxation years are dismissed for nullity. The appeals from the assessments for the 1991 and 1992 taxation years are dismissed.
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