A-290-89
Her Majesty the Queen (Appellant)
v.
Elizabeth C. Symes (Respondent)
INDEXED AS: SYMES v. CANADA (CA.)
Court of Appeal, Pratte, MacGuigan and Décary
JJ.A.—Toronto, May 7 and 8; Ottawa, June 19,
1991.
Income tax — Income calculation — Deductions — Appeal
from trial judgment vacating reassessment disallowing self-
employed mother's deduction of nanny's salary as business
expense under Income Tax Act, s. 18(1)(a), while allowing
deduction as child care expense under s. 63 — Child care
expenses parental expense (s. 63), not business expense (s.
18(1)(a)) — S. 63 code covering self-employed and salaried
parents — Accepting respondent's argument would favour
self-employed professional over salaried taxpayers.
Construction of statutes — Income Tax Act, s. 18(1)(a) —
Trial Judge vacating reassessment disallowing self-employed
mother's deduction of nanny's salary as business expense
under s. 18(1)(a), allowing relatively modest deduction as child
care expense under s. 63 — Meaning of 'for the purpose of in
s. 18(1)(a) — Judicial interpretation sensitive to changing
circumstances (women's entry into economy) — Context in
which business expense developed considered, but Parliament
having amended Act to provide for respondent's situation by
adopting s. 63 — Legislation not to be minutely examined,
given extreme interpretation to implicate Charter — Court not
to substitute own view for Parliament's political, social and
economic choice.
Constitutional law — Charter of Rights — Equality rights
— Appeal from trial judgment vacating reassessment disal
lowing self-employed mother's deduction of nanny's salary as
business expense under Income Tax Act, s. 18(1)(a) — Arguing
economic and social inequality as cost of child care barrier to
women's entry into workplace — Charter not to be implicated
by extreme statutory construction — Charter not imposing
obligation on legislatures to redress social or economic
inequalities — Trial judgment creating discrimination between
self-employed professional and salaried taxpayers — S. 63,
favouring all women, not infringing right to equality.
This was an appeal from the trial judgment vacating notices
of reassessment disallowing deductions of a nanny's salary as a
business expense under Income Tax Act, paragraph 18(1)(a),
but substituting the relatively modest deductions for "child care
expenses" permitted by section 63. Taxpayer was a married
woman, self-employed in the practice of labour law. Income
Tax Act, paragraph 18(1)(a) allows deductions for expenses
made for the purpose of gaining or producing income; para
graph 18(1 )(h) precludes deduction of personal or living
expenses; and section 63 allows a specified deduction per child
for child care expenses. The respondent argued that child care
expenses were incurred "for the purpose of gaining income ...
from the business" and were not personal or living expenses.
While the respondent invited the Court to interpret "for the
purpose of' in paragraph 18(1)(a) so as to take into account
contemporary reality in the business world, specifically the
problems of child care faced by women in business, the appel
lant suggested a new concept: expenses incurred within the
"revenue-producing circle" are deductible, but those incurred
simply to approach the circle are not. The appellant relied on
Mattabi Mines Ltd. v. Ontario (Minister of Revenue) in sup
port of the argument that "for the purpose or in paragraph
18(1 )(a) means "in the process of earning" and that deductible
expenses should be incurred "in the ordinary course of busi
ness". The appellant also argued that section 63 was enacted to
deal with the question of child care expenses and precluded
their deduction under paragraph 18(1)(a). Finally, respondent
argued that if a statute fails to redress a social or economic
inequality, the courts should interpret it so as to redress the
inequality since to interpret it otherwise would be contrary to
the Charter in its application, if not in its actual wording. The
Trial Judge held that paragraph 18(1)(a) should be interpreted
in view of the social and economic realities of the times and
that he was not bound by cases decided in the 1950's and
1960's based on the reasoning of an 1891 decision. He added
that to ignore that women bear the major responsibility for
child rearing and that the costs of child care are a major barrier
to women's participation in the economy would violate Charter,
section 15.
Held, the appeal should be allowed.
Child care expenses are not a business expense within para
graph 18(1)(a), but a parental expense within section 63. While
Mattabi Mines lent support to the appellant's argument, it did
not preclude the respondent's contentions. Judicial interpreta
tion had to be flexible and sensitive so that it could adapt to
changing circumstances. The concept of business expense had
developed exclusively in relation to the commercial needs of
business, without regard to the particular needs of those in
charge. It was difficult to see how a change in the needs of
these persons could justify modifying an interpretation which
had nothing to do with their needs. In any event, section 63 had
been enacted to provide for the specific situation in which
taxpayer found herself. Section 63 is a complete and independ-
ent code, covering both self-employed and salaried mothers. It
was a "liberalization" of the law which permitted a deduction
by all parents, regardless of the nature of their work, income or
sex.
Legislation was not to be minutely examined to determine
whether, by an extreme interpretation, it might be possible to
implicate the Charter. The rights which section 15 guarantees
are not based on any concept of strict, numerical equality
amongst all human beings. If they were, virtually all legislation,
whose function is to define, distinguish and make categories,
would be prima fade in breach of section 15 and require
justification under section 1. The broader the reach given to
section 15, the more likely it will be deprived of any real
content.
The Charter imposes on legislatures no obligation to redress
all social or economic inequalities. The respondent's proposition
would mean that, through the right to equality recognized by
section 15, the Charter guarantees individuals every right,
whether or not included in those expressly defined in the
Charter. For example, though the right to work and the right to
be in a position to work are not guaranteed by the Charter, an
individual could invoke section 15 to require legislatures to
adopt measures enabling him to work and be in a position to
work. That is not the effect of section 15. To give effect to
taxpayer's argument would accord privileged treatment to
mothers in her position and create discrimination between
professional and salaried taxpayers. By adopting section 63,
Parliament made a political, social and economic choice. A
provision which favours all women cannot directly or indirectly
infringe the right of women to equality. Even if there were
discrimination, in light of the ample evidence of justification,
the Court should not substitute its choice for that of
Parliament.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], s. 15.
Child Welfare Act, R.S.O. 1980, c. 66, s.
I9(1)(b)(ii),(iii).
Criminal Code, R.S.C., 1985, c. C-46, ss. 215, 218.
Income Tax Act, S.C. 1970-71-72, c. 63, ss. 9,
18(1)(a),(h), 63 (as am. by S.C. 1976-77, c. 4, s. 21;
1984, c. 1, s. 25; c. 45, s. 22; 1988, c. 55, s. 39).
CASES JUDICIALLY CONSIDERED
APPLIED:
Andrews v. Law Society of British Columbia, [1989] 1
S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R.
289; 34 B.C.L.R. (2d) 273; 36 C.R.R. 193; 91 N.R. 255;
Smith, Kline & French Laboratories Ltd. v. Canada
(Attorney General), [1987] 2 F.C. 359; (1986), 34 D.L.R.
(4th) 584; 11 C.I.P.R. 181; 12 C.P.R. (3d) 385; 27
C.R.R. 286; 78 N.R. 30 (C.A.); Ontario Public Service
Employees Union et al. v. National Citizens Coalition
Inc. et al. (1987), 60 O.R. (2d) 26; 39 D.L.R. (4th) 449;
[1987] 2 C.T.C. 59; 87 DTC 5270 (H.C.); affd (1990),
74 O.R. (2d) 260; 90 DTC 6326; 38 O.A.C. 70 (C.A.);
PSAC v. Canada, [1987] I S.C.R. 424; (1987), 38
D.L.R. (4th) 249; 87 CLLC 14,022; 32 C.R.R. 114;
[1987] D.L.Q. 230; 75 N.R. 161.
REVERSED:
Symes v. Canada, [1989] 3 F.C. 59; [1989] 1 C.T.C. 476;
(1989), 89 DTC 5243; 25 F.T.R. 306 (T.D.).
DISTINGUISHED:
Schachter v. Canada, [1990] 2 F.C. 129; (1990), 66
D.L.R. (4th) 635; 29 C.C.E.L. 113; 90 CLLC 14,005; 34
F.T.R. 80; 108 N.R. 123 (C.A.).
CONSIDERED:
Mattabi Mines Ltd. v. Ontario (Minister of Revenue),
[1988] 2 S.C.R. 175; (1988), 53 D.L.R. (4th) 656;
[1988] 2 C.T.C. 294; 87 N.R. 300; 29 O.A.C. 268;
Slaight Communications Inc. v. Davidson, [1989] 1
S.C.R. 1038; (1989), 59 D.L.R. (4th) 416; 26 C.C.E.L.
85; 84 CLLC 14,031; 93 N.R. 183; Hills v. Canada
(Attorney General), [1988] I S.C.R. 513; (1988), 48
D.L.R. (4th) 193; 88 CLLC 14,011; 84 N.R. 86.
REFERRED TO:
Bailey et al. v. M.N.R. (1980), 1 C.H.R.R. 193
(C.H.R.T.); Foothills Pipe Lines (Yukon) Ltd. v. The
Queen (1990), 90 DTC 6607 (F.C.A.); Royal Trust Co.,
The v. Minister of National Revenue, [1956-60] Ex.C.R.
70; (1957), 9 D.L.R. (2d) 28; [1957] C.T.C. 32; 52 DTC
1055; The Queen v. Kurisko (S.R.), [1988] 2 C.T.C. 254;
(1988), 88 DTC 6434; 19 F.T.R. 182 (F.C.T.D.); affd
[1990] .2 C.T.C. 136; (1990), 90 DTC 6376; 36 F.T.R.
160 (note); I11 N.R. 146 (F.C.A.); leave to appeal to
S.C.C. denied; Tiberio v. M.N.R., [1990] 2 C.T.C. 2545;
(1990), 91 DTC 17 (T.C.C.); R. v. Big M Drug Mart
Ltd. et al., [1985] 1 S.C.R. 295; (1985), 60 A.R. 161; 18
D.L.R. (4th) 321; [1985] 3 W.W.R. 481; 37 Alta. L.R.
(2d) 97; 18 C.C.C. (3d) 385; 85 CLLC 14,023; 13
C.R.R. 64; 58 N.R. 81; R. v. Turpin, [1989] 1 S.C.R.
1296; (1989), 48 C.C.C. (3d) 8; 69 C.R. (3d) 97; 96 N.R.
115; R. v. Beare, [1988] 2 S.C.R. 387; (1988), 55 D.L.R.
(4th) 481; [1989] 1 W.W.R. 97; 71 Sask. R. 1; 45 C.C.C.
(3d) 57; 66 C.R. (3d) 97; 36 C.R.R. 90, 88 N.R. 205; R.
v. Whyte, [1988] 2 S.C.R. 3; [1988] 5 W.W.R. 26;
(1988), 29 B.C.L.R. (2d) 273; 42 C.C.C. (3d) 97; 64
C.R. (3d) 123; 6 M.V.R. (2d) 138; 86 N.R. 328; R. v.
Schwartz, [1988] 2 S.C.R. 443; (1988), 55 D.L.R. (4th)
1; [1989] 1 W.W.R. 289; 56 Man. R. (2d) 92; 45 C.C.C.
(3d) 97; 66 C.R. (3d) 251; 88 N.R. 90; United States of
America v. Cotroni, [1989] 1 S.C.R. 1469; (1989), 23
Q.A.C. 182; 96 N.R. 321; 48 C.C.C. (3d) 193; Irwin Toy
Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927;
(1989), 58 D.L.R. (4th) 577; 25 C.P.R. (3d) 417; 94
N.R. 167; McKinney v. University of Guelph, [1990] 3
S.C.R. 229; (1990), 76 D.L.R. (4th) 545; 91 CLLC
17,004.
AUTHORS CITED
Arnold, B. J. "The Deduction for Child Care Expenses in
the United States and Canada: A Comparative Anal
ysis" (1973), 12 West Ont. L. Rev. 1.
Canada, House of Commons Debates, Vol. 21, 1st Sess.,
32nd Parl., 33 Eliz. II, 1983, at p. 24744.
Canada, House of Commons Debates, Vol. 10, 2nd Sess.,
33rd Parl., 33 Eliz. II, 1988, at p. 12926.
Dickson, Alan J. "Deduct the Nanny?" (1989), 16
N.S.L. News No. 2, p. 17.
Hanly, Kathleen S. M. "A Break for Working Women"
(1989), 37 Cdn. Tax Jl. 733.
Hershfield, Joe E. "Recent Trends in the Deduction of
Expenses in Computing Income" (1989), Can. Tax
Found. 41.
National Council on Welfare, Child Care: A Better
Alternative, December 1988.
Ontario Ministry of Labour, Study of Wages and
Employment Conditions of Domestics and their
Employers, Toronto, May 29, 1985.
Report of the Royal Commission on Taxation, Ottawa:
Queen's Printer, 1966 (Chair. K. M. Carter).
Status of Women Canada. Report of the Task Force on
Child Care, Ottawa: Supply & Services Canada, 1985.
Task Force on Immigration Practices and Procedures,
Domestic Workers on Employment Authorizations.
Woodman, Faye "A Child Care Expenses Deduction,
Tax Reform and the Charter: Some Modest Proposals"
(1989), 8 Can. J1. Fam. L. 371.
COUNSEL:
John R. Power, Q.C. and Sandra E. Phillips
for appellant.
Mary Eberts and Wendy M. Mathieson for
respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Tory, Tory, DesLauriers & Binnington,
Toronto, for respondent.
The following is the English version of the
reasons for judgment rendered by
DÉCARY J.A.: The appellant is challenging a
judgment of Cullen J. rendered on May 11, 1989
[[1989] 3 F.C. 59]. At that time the Trial Judge,
as requested by the respondent, vacated notices of
reassessment by which the Minister of National
Revenue had, first, disallowed deductions which
the respondent was claiming for the salary she
paid to her nanny and which she regarded as a
business expense within the meaning of paragraph
18(1)(a) of the Income Tax Act' ("the Act"), and
second, substituted for those deductions the ones
authorized by section 63 of the Act for "child care
expenses".
The notices of reassessment cover four taxation
years. Depending on whether the respondent can
avail herself of the provisions of paragraph
18(1)(a) of the Act, the amount of the eligible
deductions will be $10,075, $11,200, $13,173 and
$13,359 instead of $1,000, $2,000, $2,000 and
$4,000 for the 1982, 1983, 1984 and 1985 taxation
years respectively.
A brief review of the relevant facts is necessary.
FACTS AND EVIDENCE
(a) Respondent's situation
The respondent has been married since 1969.
She was admitted to the Ontario Bar in 1978 and
practised as a lawyer by herself in Toronto before
going into a firm with two colleagues in 1980,
which she did not leave until March 1988. Her
practice consisted mostly of litigation, primarily in
labour law. She developed relations with her cli
ents that were such as to make it difficult for her
to delegate her work to her colleagues in any way.
Few days went by without her having to go to
court and her practice sometimes required her to
travel outside Toronto. As a general rule she left
her house at 8:30 a.m. and returned at about
6:30 p.m., and would even do two to three hours'
work in the evenings. She could not have practised
her profession from her home, neither could she
have done so on a part-time basis or intermittently.
Her husband is a salaried employee whose
income for the period at issue was about the same
as her own. When the couple decided to have
children, it was agreed that if it became necessary
1 S.C. 1970-71-72, c. 63, as amended.
for one of them to remain at home to look after the
children, it would be the respondent that would
give up her job, rather than her husband.
Their first daughter was born on November 26,
1981. The respondent explored the possibility of
obtaining authorized day-care services, but such
services were almost non-existent for very young
children, did not offer any flexibility after
6:00 p.m. without paying a considerable financial
premium and were not available when a child was
ill. In short, the only solution consistent with the
practice of the respondent's profession was to hire
the services of a nanny.
The respondent accordingly hired a Ms. Simp-
son. She came to the house at 8:30 a.m. and did
not leave until 6:30 p.m., when one of the parents
returned. She looked after the child exclusively
from Monday to Friday, and did no housework,
laundry or shopping except in connection with the
child's needs. Ms. Simpson also looked after a
second child, born on June 12, 1985.
The respondent and her husband agreed that
Ms. Simpson's salary would be paid from the
respondent's income rather than from her hus
band's or from the couple's combined income.
This, the respondent said, was a "family decision"
based on the fact that in practice it was the
respondent who was ultimately responsible for
looking after the house and caring for the children.
The respondent said they were jointly responsible
but most of the burden fell onto her.
The respondent deducted tax withholdings from
the salary she paid Ms. Simpson as well as contri
butions to the pension and unemployment insur
ance plans, and gave her T-4 forms every year. In
her own tax returns, the respondent then deducted
as a business expense the salary she paid her
nanny. It is worth noting at this stage that this
expense was treated not as an expense of the firm
but as the respondent's personal expense. This
approach was suggested by accountants for the
firm and applied both to the nanny's salary and,
for example, to automobile expenses incurred
individually by each of the partners.
After accepting the deductions as claimed for
the 1982 and 1983 taxation years, Revenue
Canada changed its mind and, by notices of reas
sessment dated December 9, 1985 and
November 7, 1986 told the respondent that she
would have to be content with the deductions
allowed by section 63 of the Act ("child care
expenses"), that is $1,000 for 1982 (only one child,
deduction allowed $1,000 per child), $2,000 for
each of 1983 and 1984 (one child, deduction
allowed raised to $2,000 per child), and $4,000 for
1985 (two children, deduction allowed $2,000 per
child). In the opinion of Revenue Canada, the
salary paid to the nanny was not an expense
incurred by the taxpayer to earn business income
(which would be deductible under paragraph
18(1)(a) of the Act), but an expense in the nature
of personal or living expenses (which are not
deductible under paragraph 18(1)(h)).
(b) Situation of professional women in labour
market
Relying on the sworn statement and testimony
of an expert in sociology, Dr. Pat Armstrong, the
respondent submitted evidence of a major social
development which she expected to make use of in
her interpretation both of the Income Tax Act and
section 15 of the Canadian Charter of Rights and
Freedoms [being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.) [R.S.C., 1985, Appendix II, No. 44]] (the
Charter). Essentially, that evidence was that when
women moved into the labour market in the 1970's
this radically altered the landscape and the way in
which business was conducted; that women who
have young children have no choice if they want to
work, and they do, but to make use of day-care
services; that women bear by far the greatest
burden of caring for children, even when they
work away from home; that women who are self-
employed incur additional problems when the time
comes to have their children looked after, in par
ticular because their working hours are unpredict
able, they find it very hard to be away from their
work when a problem arises involving the children,
and if they are to go on operating their businesses
they have greater need of day-care services which
are reliable and responsible in all respects and at
all times. At the risk of simplifying Dr. Arm-
strong's testimony, it seems advisable to set out
what the Trial Judge concluded from this [at
pages 73, 81 and 84]:
... Armstrong's evidence supports the notion that the availabil
ity of child care increases productivity by enhancing the peace
of mind of employees. Enhancing productivity is something that
is totally in keeping with well established business practices.
Moreover, Armstrong's evidence indicates that the absence of
child care is a barrier to women's participation in the economy,
in terms of paid work and income-generating work and there
fore lowering the barrier by arriving at a satisfactory means of
dealing with the cost of child care, would make good business
sense.
... women bear by far the largest burden of child care.
... Armstrong's evidence seems to indicate that something is
"wrong" and that according to government reports, the present
system is not delivering child care in sufficient quantities for
Canadian women. The cost of child care takes up a consider
able portion of women's income (approximately one-fifth) and
is considered a high price item. As a high price item it
constitutes a barrier to women's access to the economy.
(c) Fiscal history of child care expenses
In 1966, the Report of the Royal Commission
on Taxation (the "Carter Report") expressly
recommended that "Such things as commuting
expenses, the costs of child care, and recreational
club memberships should be explicitly denied as
deductions from income" 2 and favoured instead
the granting of tax credits to mothers working
outside the home.
In 1969, the "Proposals for Tax Reform" (the
White Paper) moved away from this recommenda
tion and proposed the following: 3
2.7 We propose to permit deduction of the child care expenses
that face many working parents today. The problem of
adequately caring for children when both parents are work
ing, or when there is only one parent in the family and he
or she is working, is both a personal and a social one. We
2 A.B., vol. 2, at p. 243.
3 A.B., vol. 2, at p. 248.
consider it desirable on social as well as economic grounds
to permit a tax deduction for child care expenses, under
carefully controlled terms, in addition to the general deduc
tion for children.
In 1972, as part of a major tax reform, Parlia
ment accepted the proposals contained in the
White Paper and adopted section 63 of the
Income Tax Act. That section allowed a woman,
and in certain well-defined cases a man, to deduct
child care expenses of $500 per child from their
income, with a maximum of $2,000 per family,
and made this deduction subject to a considerable
number of conditions.
In 1976, section 63 was amended [S.C. 1976-
77, c. 4, s. 21]. The deduction allowed per child
rose from $500 to $1,000, and the total allowable
per family rose from $2,000 to $4,000.
In 1983, section 63 was again amended [S.C.
1984, c. 1, s. 25]. The deduction allowed per child
rose from $1,000 to $2,000, and the total allowed
per family rose from $4,000 to $8,000. Additional
ly, to correct what the Canadian Human Rights
Tribunal had found to be discriminatory,' Parlia
ment allowed men the same right to claim deduc
tions as it had granted to women. In his budget
speech on April 19, 1983 the Hon. Marc Lalonde,
Minister of Finance, said that this amendment was
one of four measures designed to assist lower-
income families, working parents and others in
needs and in the "Budget Papers" tabled by the
Minister at that time, there is the following: 6
Through the Family Allowance program, the child tax credit,
the child tax exemption, and the child care expense deduction,
the federal government provides a comprehensive system of
child benefits. [My emphasis.]
Finally, in 1988, section 63 was once again
amended [S.C. 1988, c. 55, s. 39]. The deduction
allowed per child rose from $2,000 to $4,000 for
children six years and under, and the total of
° Bailey et al. v. M.N.R. (1980), 1 C.H.R.R. 193
(C.H.R.T.).
5 A.B., vol. 2, at p. 175.
6 A.B., vol. 2, at p. 179.
$8,000 allowed per family was dropped. In his
budget speech on February 10, 1988, the Minister
of Finance noted that this amendment and several
others had been made to the Income Tax Act to
give effect in tax legislation to the new government
policy on child care, announced by the Minister of
National Health and Welfare in December 1987.'
(d) Government policies on child care expenses
Certain ministerial statements made in the
debates on the budget or on other measures are
worth examining.
On April 21, 1983 the Hon. Monique Bégin,
Minister of National Health and Welfare, said the
following in the budget debate: 8
One of the areas that has brought forth a great deal of
discussion is the child care expense deduction. The growing
consensus ... is that the current child care expense deduction is
totally inadequate ... The Government has responded through
the budget, and I am pleased about that.
This measure is an excellent one. I realize it does not cover the
entire cost of child care, but it has never been the policy of this
Government to subsidize the total cost of child care. Our
objective is to support the family in its role of bringing up
children in a society where all family partners are working.
[My emphasis.]
On February 12, 1988 the Hon. Michael Wil-
son, Minister of Finance, in answer to an Opposi
tion M.P. who charged that he was not doing
enough for child care, said: 9
... the program put forward on behalf of the Government by
the Minister of National Health and Welfare is a much more
balanced program and provides a much broader response to the
needs of Canadian working women and other women than
would the more narrow approach which the Hon. Member
would follow.
(e) Reports and Commissions
Governments both federal and provincial have
explored the problems connected with child care
and have looked at a range of solutions, including
direct grants, tax deductions, tax credits and
7 A.B., vol. 2, at pp. 171-173.
8 Canada, House of Commons Debates (April 21, 1983, vol.
21, at p. 24744), A.B., vol. 3, at p. 476.
9 Canada, House of Commons Debates (February 12, 1988,
vol. 10, at p. 12926), A.B., vol. 3, at p. 498.
grant[s] to private and public day-care centers.
The parties referred in this connection to the
Report of the Task Force on Child Care, prepared
in 1985 for Status of Women Canada '° and to
certain background papers;" to the Report by the
National Council on Welfare, titled Child Care: A
Better Alternative, prepared in December 1988; 12
to the Study of Wages and Employment Condi
tions of Domestics and their Employers, prepared
in 1985 by the Ontario Ministry of Labour; 13 and
to the Report of the Task Force on Immigration
Practices and Procedures, titled Domestic Workers
on Employment Authorizations. 14
ARGUMENTS OF PARTIES
In their simplest form, the parties' arguments
may be summarized as follows:
respondent: — child care expenses, inasmuch as
the concept of a business expense is given a
modern interpretation, are actually incurred by the
taxpayer "for the purpose of gaining ... income
from the business" within the meaning of para
graph 18(1)(a) of the Act and are not "personal or
living expenses" within the meaning of para
graph 18(1)(h);
— the existence of a statutory deduc
tion for child care expenses in section 63 of the
Act does not in any way alter the taxpayer's right
to rely on paragraph 18(1)(a);
— any other interpretation would
mean that the inability of a self-employed taxpay
er to claim a deduction for all the expenses reason
ably incurred for child care would be a kind of
discrimination prohibited by the Charter, and the
courts cannot interpret legislation so as to make it
contrary to the Charter.
appellant: — child care expenses are not business
expenses, but personal or living expenses;
10 A.B., vol. 4, at pp. 521 et seq.
11 A.B., vol. 5, at pp. 618 et seq.
12 A.B., vol. 6, at pp. 855 et seq.
'3 A.B., vol. 6, at pp. 913 et seq.
14 A.B., vol. 7, at pp. 999 et seq.
— in section 63 of the Act, Parliament
dealt expressly with the question of child care
expenses;
— it is not for the courts to question
the validity of the socio-economic policies adopted
by governments;
— as the Charter confers no right to
deduct child care expenses, it is in no way a breach
of the Charter to interpret the Income Tax Act as
not authorizing this deduction as a business
expense.
JUDGMENT A QUO
The Trial Judge first recognized [at page 75]
that "Prior to 1972, child care expenses were
treated as non-deductible personal expenses for
income tax purposes". 15
On paragraph 18(1)(a), the Trial Judge said
[at pages 72-73] that in his opinion that paragraph
should be interpreted "in view of the social and
economic realities of the times" and that he was
not bound "by a cluster of cases decided in the
1950's and 1960's based on the reasoning of a
decision made in 1891". He found [at page 73]
that the respondent "exercised good business and
commercial judgment in deciding to dedicate part
of her resources from the law practice to the
provision of child care" and that this decision by
the respondent "was acceptable according to busi
ness principles which include the development of
intellectual capital, the improvement of productivi
ty, the provision of services to clients and making
available the resource which she sells, namely her
time". He noted [at page 73], referring to the
testimony of Dr. Armstrong, that "the absence of
child care is a barrier to women's participation in
the economy, in terms of paid work and income-
generating work and therefore lowering the barrier
by arriving at a satisfactory means of dealing with
' 5 See also B. J. Arnold, "The Deduction for Child Care
Expenses in the United States and Canada: A Comparative
Analysis" (1973), 12 West. Ont. L. Rev. 1, at pp. 26-27, and
the cases cited there. Thus, for example, the salary of the nanny
hired by a professional man or woman, or by a man whose wife
was in hospital, was not recognized as a business expense.
the costs of child care, would make good business
sense". He concluded [at page 73] that "it can be
said that there is a causal relationship between the
dedication of resources generated in her practice to
child care and the generation of those resources".
On section 63, the Trial Judge, based on an
admission made by counsel for the appellant con
cluded [at page 75] "that if the nanny expense is a
proper business expense pursuant to sections 3, 9
and 18 of the Act, then section 63 cannot prevent
it from being allowed as such".
Finally, rather than stopping there, as he might
have done, the Trial Judge considered the argu
ment based on the Charter and concluded [at page
84], with respect to taxation subsequent to
April 17, 1985, that "an interpretation of the
Income Tax Act which ignores the realities that
women bear a major responsibility for child rear
ing and that the costs of child care are a major
barrier to women's participation, would itself vio
late section 15 of the Charter".
SECTIONS 9(1), 18(1)(a) AND (h) AND 63 OF
THE INCOME TAX ACT
According to subsection 9(1) of the Act,
9. (1) ... a taxpayer's income for a taxation year from a
business or property is his profit therefrom for the year.
According to paragraphs 18(1)(a) and (h) of
the Act,
18. (I) In computing the income of a taxpayer from a
business or property no deduction shall be made in respect of
(a) an outlay or expense except to the extent that it was
made or incurred by the taxpayer for the purpose of gaining
or producing income from the business or property;
(h) personal or living expenses of the taxpayer except travel
ling expenses (including the entire amount expended for
meals and lodging) incurred by the taxpayer while away
from home in the course of carrying on his business;
As the Trial Judge noted, the determination of
profit and the question of whether an expenditure
is a proper business expense to be included in the
calculation of profit are questions of law. 16 As a
general rule, in determining whether an expense
can be deducted, the Court first decides whether
the calculation of profit was made in accordance
with ordinary business principles and the well-
established principles of current business practice.
If not, the Court does not have to go any further.
If it was, the Court must then consider whether
the expense was "made or incurred by [the taxpay
er] for the purpose of gaining ... income from a
business...."" In the case at bar, I will reverse
the usual order. I will deal first with paragraph
18(1)(a) and only consider subsection 9(1) if I
come to the conclusion that the expense is not
prohibited by that paragraph.
At the hearing counsel for the parties went to
great lengths to persuade the Court to adopt their
own interpretations of the expression "for the pur
pose of" ("en vue de") to be found in paragra
ph 18(1)(a). While the respondent invited the
Court to give an interpretation that takes into
account contemporary reality in the business
world, and in particular the specific problems of
child care faced by women in business, the appel
lant suggested a new concept which the Trial
Judge described as the "business or revenue-pro
ducing circle": expenses incurred within the reve-
nue-producing circle are properly speaking deduct
ible, but those incurred by the taxpayer simply to
approach the circle are not. The appellant relied in
particular on the recent judgment of the Supreme
Court of Canada, Mattabi Mines Ltd. v. Ontario
(Minister of Revenue),' 8 in which Wilson J. said
the following [at page 189] for the Court:
The only thing that matters is that the expenditures were a
legitimate expense made in the ordinary course of business with
the intention that the company could generate a taxable income
some time in the future. [My emphasis.]
16 Foothills Pipe Lines (Yukon) Ltd. v. The Queen (1990), 90
DTC 6607 (F.C.A.), at p. 6612.
l' Royal Trust Co., The v. Minister of National Revenue,
[1956-60] Ex.C.R. 70, at p. 72.
's [1988] 2 S.C.R. 175.
and confirmed [at page 189] for all practical
purposes the interpretation given by the federal
government itself in an Interpretation Bulletin
dated April 26, 1982, on paragraph 18(1)(a):,
I find support for this conclusion in the federal government's
Interpretation Bulletin dealing with s. 18(1)(a). An Interpreta
tion Bulletin does not, of course, have the binding effect of law
(I discuss this later) but such Bulletins do have persuasive force
in the event of ambiguity. The federal government's Bulletin
IT-487, April 26, 1982, entitled "General Limitation on
Deduction of Outlays or Expenses", states in part:
(b) "... for the purpose ...". It is not necessary to show that
the income actually resulted from the particular outlay or
expenditure itself. It is sufficient that the outlay or expense
was a part of the income-earning process.
I reject at the outset the respondent's argument
that the existence of a legal obligation to care for
children 19 is a reason for treating child care
expenses as a business expense. The legal obliga
tion in the case at bar—which I stress is imposed
equally on both spouses and is in any case a
natural obligation—is imposed on the parents as
parents, and follows them wherever they may be,
whether they are absent on business, pleasure or
for any other reason. The law does not impose an
obligation on the respondent to look after her
children because she is operating a business.
Mattabi Mines lends support to the appellant's
argument that the words "for the purpose of" ("en
vue de") in paragraph 18(1)(a) of the Act should
be interpreted as meaning "in the process of earn
ing" ("pendant le processus de gain"), and that
deductible expenses should be incurred "in the
ordinary course of business" ("dans le cours
ordinaire des affaires"). 20 However, that judg
ment did not deal with the question of child care
19 See Criminal Code, R.S.C., 1985, c. C-46, ss. 215 and 218;
Child Welfare Act, R.S.O. 1980, c. 66, s. 19(1)(b)(ii), (iii).
20 The parties referred the Court to a number of articles from
journals which have examined the validity of the conclusion
arrived at by the Trial Judge: Joe E. Hershfield, "Recent
Trends in the Deduction of Expenses in Computing Income",
(1989), Can. Tax Found., 44:1-44:23, at p. 44:09; Faye Wood
man, "A Child Care Expenses Deduction, Tax Reform and the
Charter: Some Modest Proposals" (1989), 8 Can. JI. Fam. L.
371; Alan J. Dickson, "Deduct the Nanny?" (1989), 16 N.S. L.
News No. 2, p. 17; Kathleen S. M. Hanly, "A Break for
Working Women" (1989), 37 Cdn. Tax Jl. 733.
or discuss the possibility of extending the tradi
tional concept of a business expense in light of the
new social reality referred to by the respondent
and I would hesitate to regard Wilson J.'s remarks
as precluding respondent's contentions.
Like the Trial Judge and like the respondent, I
consider that judicial interpretation is not cast in
stone and must be sufficiently flexible and sensi
tive to adapt to changing circumstances. I have no
problem with the idea that business tax law has
developed in a context in which women had no
place, and I have no hesitation in saying that
concepts should be extended by the courts in order
to take into account the presence of women in the
business world, and in the labour market, provided
that these concepts have been developed in relation
to these circumstances which have since changed
or that the legislature has not itself adapted its
legislation to these new realities. But the concept
of a business expense has been developed exclu
sively in relation to the commercial needs of the
business, without any regard to the particular
needs of those in charge of the business, and I have
difficulty in seeing how a change in the particular
needs of these persons could justify modifying an
interpretation which has nothing to do with these
needs. Having said that, I consider that the case at
bar does not require a conclusion on this point for
the simple reason that Parliament has itself
already amended the Income Tax Act to provide
for the specific situation relied on by the
respondent.
In 1972, by adopting section 63 which in sub-
paragraph (3)(a)(i) authorizes the deduction of
child care expenses "to enable the taxpayer, or the
supporting person of the child for the year, who
resided with the child at the time the expense was
incurred, (A) to perform the duties of an office or
employment, (B) to carry on a business either
alone or as a partner actively engaged in the
business . . ." (my emphasis), Parliament has
expressly covered self-employed parents as well as
salaried parents. (I use the word "parent" to sim
plify the discussion; it is understood that
section 63 deals more generally with an individual
providing the support for a child and residing with
the child at the time the expense was incurred.) In
the case at bar, the respondent incurred the child
care expenses to enable her "to carry on a business
... as a partner actively engaged in the business".
Had section 63 been drafted to apply specifically
to the respondent's case, it would not have been
drafted otherwise.
That is not all. The expression "earned income"
in paragraph (3)(b) is defined as "the aggregate of
(i) all salaries, wages and other remuneration ...
received ... by virtue of offices and employments"
and (iii) his incomes from all businesses carried on
either alone or as a partner actively engaged in the
business" (my emphasis). The respondent's
"earned income" in the case at bar is the income
she derived from her partnership, and it is that
income which is covered by section 63.
The intent of Parliament, referred to above, and
the fact that self-employed mothers were covered
by the very wording of the new legislation just as
much as salaried mothers, are so clear that I was
surprised to read in paragraph 60 of the respond
ent's submission: "Further, there is no indication
either in the debates or in the permissive wording
of section 63 itself that, in enacting this provision
designed to redress the inferior economic position
of women who were by and large employees in the
labour market, the Legislature intended to pre
clude self-employed women from deducting
reasonable costs of child care expenses incurred for
the purpose of gaining income".
Whatever may have been the admission made at
trial by counsel for the appellant on a point of
law—which certainly cannot bind the Court, and
which counsel hastened to withdraw in this
Court—it is not possible to interpret paragraph
18(1)(a) of the Act without reference to section
63. As Professor Faye Woodman notes in her
article mentioned above, at page 377, "surely the
existence of section 63 is very important, if not
determinative, in the interpretation of sections 9
and 18". Section 63 is really a code in itself,
complete and independent, and it does not matter
in the circumstances whether it was inserted in one
subdivision of the Act rather than another, as by
its very wording, which is clear and not open to
question, it covers a parent carrying on a business
and income earned by the parent from the opera
tion of a business.
Section 63 was adopted in 1972, and thus at a
time when according to the testimony of Dr. Arm-
strong herself (transcript, page 217), an important
social change was occurring with the entry of
women of child-bearing age into the labour
market. That section has been amended three
times, in 1976, 1983 and 1988. In light of the
evidence presented of Parliament's intent, it is
difficult not to see this section as a "liberalization"
which, for obvious monetary reasons, the respond
ent would have preferred to see take the form of a
deduction for business expenses rather than a
deduction for parental expenses, a new deduction
which is generally applicable and limited to specif
ic amounts, applying to all parents whatever the
nature of their work, whatever their income and
whatever their sex.
I therefore come to the conclusion that the
respondent's particular situation is, literally and
fundamentally, one of those which Parliament
clearly had in mind when it adopted and then
amended section 63. As I have already said, I do
not in so doing disregard the possibility of applying
a contemporary approach to the interpretation of
tax legislation; I am simply saying that, in the case
at bar, Parliament in 1972 adapted the Act to
contemporary reality when it established a system
favouring salaried mothers and self-employed
mothers.
As I have decided that in the case at bar child
care expenses are not a business expense within the
meaning of paragraph 18(1)(a), but a parental
expense within the meaning of section 63, I do not
have to determine whether they have been correct
ly taken into account in determining the "profit"
of the business within the meaning of
subsection 9(1).
SECTION 15 OF CHARTER
Although in a notice of a constitutional question
the respondent indicated her intent to challenge
the constitutionality of sections 18 and 63 of the
Income Tax Act, her counsel admitted at the
hearing that that notice was only pro forma and
she was not challenging the constitutionality of
those two sections as such. Her argument based on
the Charter derives not from the actual wording of
those two provisions but from the interpretation
this Court would give them if by chance it held—
as I have just decided—that child care expenses
incurred by a parent are not business expenses. 21
In support of this proposition, the respondent
cited the following extract from the opinions of
Lamer J. (as he then was) and L'Heureux-Dubé J.
in, respectively, Slaight Communications Inc. v.
Davidson 22 and Hills v. Canada (Attorney
General): 23
Although this Court must not add anything to legislation or
delete anything from it in order to make it consistent with the
Charter, there is no doubt in my mind that it should also not
interpret legislation that is open to more than one interpretation
so as to make it inconsistent with the Charter ... (Lamer J.)
Appellant, while not relying on any specific provision of the
Charter, nevertheless urged that preference be given to Charter
values in the interpretation of a statute, namely freedom of
association. I agree that the values embodied in the Charter
must be given preference over an interpretation which would
run contrary to them ... (L'Heureux-Dubé J.)
I do not think that by these statements the
Supreme Court of Canada intended to say that
legislation should be minutely examined to deter
mine whether, by an extreme interpretation, it
might not be possible to implicate the Charter
directly or indirectly. Strictly speaking, any legis-
21 The argument based on s. 15 is admissible with respect to
that part of the deductions which is claimed for the salary paid
after s. 15 came into effect, that is after April 17, 1985.
22 [1989] 1 S.C.R. 1038, at p. 1078.
23 [1988] 1 S.C.R. 513, at p. 558.
lation is an invasion of a right, and in the field of
taxation in particular, everything or nearly every
thing can be immediately or remotely connected in
some way to the concept of equality. On the
question of economic rights and section 15, I
adopt these observations of Hugessen J.A. in
Smith, Kline & French Laboratories Ltd. v.
Canada (Attorney General) [at pages 367-368, 369
and 3711: 24
The rights which [section 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 be in
prima fade breach of section 15 and would require justification
under section 1. This would be to turn the exception into the
rule. Since courts would be obliged to look for and find
section 1 justification for most legislation, the alternative being
anarchy, there is a real risk of paradox: the broader the reach
given to section 15 the more likely it is that it will be deprived
of any real content.
While the generalisation will no doubt require refinement, it
would seem to me that, since the Charter's primary focus is
upon personal rights, liberties and freedoms, categories whose
main impact is elsewhere, such as on property and economic
rights, will be less subject to scrutiny.
To succeed, plaintiffs have to urge, as they do, that section 15
guarantees absolute equality to every individual in every con
ceivable circumstance and that every possible distinction that
can result in one receiving a benefit or incurring a disadvantage
which is not enjoyed or suffered by all can only be justified, if
at all, under section 1 ... As I have attempted to indicate, that
view seems to me to be untenable.
which are essentially the same as those of La
Forest, Wilson and McIntyre JJ. in Andrews v.
Law Society of British Columbia: 25
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 legisla
tive 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 compe-
24 [1987] 2 F.C. 359 (C.A.).
25 [1989] 1 S.C.R. 143.
tence of the courts: their role is to protect against incursions on
fundamental values, not to second guess policy decisions. [La
Forest J., at page 194.]
If every distinction between individuals and groups gave rise to
a violation of s. 15, then this standard might well be too
stringent for application in all cases and might deny the
community at large the benefits associated with sound and
desirable social and economic legislation. [Wilson J., at page
154.]
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, require
ments and qualifications to different persons is necessary for
the governance of modern society. [McIntyre J., at pages
168-169.]
At bottom, the approach put forward by the
respondent risks trivializing the Charter. As Gal-
ligan J. of the Ontario High Court of Justice
concluded in Ontario Public Service Employees
Union et al. v. National Citizens Coalition Inc. et
al.: 26
The argument advanced with respect to s. 15(1) is that the
circumstances disclosed in paras. 10 and 11 of the statement of
claim show that certain taxpayers could be disentitled to equal
benefit of the tax laws. I have some difficulty in understanding
how tax laws can be said to bestow benefits on taxpayers. But,
having said that, it is clear that some taxpayers are entitled to
certain deductions from their income while others are not. The
Income Tax Acts are full of examples where one taxpayer for
certain reasons has certain deductions which another taxpayer
does not have. Also, certain taxpayers are called upon to pay
more taxes than others. Some taxpayers are called upon to pay
taxes at a higher rate than others.
The Charter, as it has been said in many, many cases, too
numerous to mention, is an important piece of legislation which
constitutionally protects important rights and freedoms of
people who live in this country. It seems to me that it comes
very close to trivializing that very important constitutional law,
if it is used to get into the weighing and balancing of the nuts
and bolts of taxing statutes. [My emphasis.]
n (1987), 60 O.R. (2d) 26 (H.C.), at p. 29; affd Ontario
Court of Appeal (1990), 74 O.R. (2d) 260 (C.A.). See also The
Queen v. Kurisko (S.R.), [1988] 2 C.T.C. 254 F.C.T.D., at pp.
268-269, Walsh D.J.; affd [1990] 2 C.T.C. 136 (F.C.A.); leave
to appeal denied by the Supreme Court of Canada on Septem-
ber 17, 1990; Tiberio v. M.N.R., [1990] 2 C.T.C. 2545
(T.C.C.).
Accepting the respondent's arguments would be
to fall into the trap of overshooting against which
the Supreme Court of Canada has constantly
warned the courts. 27 As Dickson C.J., dissenting,
noted in PSAC v. Canada: 28
In my opinion, courts must exercise considerable caution
when confronted with difficult questions of economic policy. It
is not our judicial role to assess the effectiveness or wisdom of
various government strategies for solving pressing economic
problems. The question how best to combat inflation has per
plexed economists for several generations. It would be highly
undesirable for the courts to attempt to pronounce on the
relative importance of various suggested causes of inflation,
such as the expansion of the money supply, fiscal deficits,
foreign inflation, or the built-in inflationary expectations of
individual economic actors. A high degree of deference ought
properly to be accorded to the government's choice of strategy
in combatting this complex problem. Due deference must be
paid as well to the symbolic leadership role of government.
Many government initiatives, especially in the economic sphere,
necessarily involve a large inspirational or psychological com
ponent which must not be undervalued. The role of the judici
ary in such situations lies primarily in ensuring that the select
ed legislative strategy is fairly implemented with as little
interference as is reasonably possible with the rights and free
doms guaranteed by the Charter.
The respondent more or less submitted that if a
situation of social or economic inequality is not
redressed by the legislature in a given statute, the
courts should interpret that statute so as to redress
the inequality, otherwise the interpretation of the
statute would be contrary to the Charter and the
statute would itself become contrary to the Chart
er, in its application if not in its actual wording.
With all due respect, I feel this would be giving the
courts a function which the Charter has not given
them and imposing on legislatures a burden which
27 See R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R.
295, at p. 345, Dickson J.; Andrews v. Law Society of British
Columbia, [1989] 1 S.C.R. 143, at p. 169, per McIntyre J.; R.
v. Turpin, [1989] 1 S.C.R. 1296, at p. 1333, per Wilson J.; R.
v. Beare, [1988] 2 S.C.R. 387, at p. 401, per La Forest J.
28 [1987] 1 S.C.R. 424, at p. 442. See also R. v. Whyte,
[1988] 2 S.C.R. 3, at p. 26; R. v. Schwartz, [1988] 2 S.C.R.
443, at pp. 487, 489 and 493; United States of America v.
Cotroni, [1989] 1 S.C.R. 1469, at pp. 1495 and 1515-1516;
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R.
927, at p. 990; McKinney v. University of Guelph, [1990] 3
S.C.R. 229, at p. 285.
the Charter, far from imposing it on them, has
been careful to avoid.
The Charter imposes on legislatures no obliga
tion to redress all social or economic inequalities.
Rather, in subsection 15(2), it allows them to
adopt "any law, program or activity that has as its
object the amelioration of conditions of disadvan
taged individuals or groups". It seems obvious to
me that what legislators have a power to do, they
do not have a duty to do.
The respondent's proposition appears to mean,
for all practical purposes, that through the right to
equality recognized in section 15, the Charter
guarantees individuals every right, whether or not
included in those expressly defined in the Charter.
For example, in the case at bar, though the right
to work and the right to be in a position to work
are not recognized by the Charter, an individual—
on these facts a woman, a parent, but it could be
anyone who can make use of the provisions of
section 15—could under cover of section 15
require legislatures to adopt measures enabling
him or her to work and be in a position to work.
That is not the effect of section 15.
In my opinion, no one could have required Par
liament to adopt section 63 and allow a parent to
deduct child care costs. Parliament adopted sec
tion 63 in the enlightened exercise of its discretion,
and I do not see on what basis a particular group
of professional women or parents, benefiting from
the deduction allowed by that section, could
require that the section be amended by the legisla
ture or interpreted by the courts so as to give the
group the right to take a further deduction. It is
the same as saying that when a social promotion
program is adopted pursuant to subsection 15(2),
Parliament must adopt as many sub-programs as
there are sub-groups and the courts must deter
mine which sub-program best corresponds to
which sub-group. The situation would of course be
different if in section 63 Parliament had provided
that only women would be entitled to deduct child
care costs. I note in this regard that it is precisely
because in its original version section 63 applied to
all women but only to some men that, in 1983,
Parliament was obliged to give identical treatment
to both. 29 I also note that in the case at bar the
respondent, who is in some measure claiming privi
leged treatment for professional women and par
ents, does not argue that the Income Tax Act
would create unlawful discrimination between
professional and salaried taxpayers if her argu
ment was allowed. As Professor Faye Woodman
argues: 3 °
Certainly, in the Canadian context, one of the problems with
Symes is that the "judicial interpretation" of sections 9 and 18
will affect other classifications, i.e.: employed and self-
employed. But even accepting that this result is appropriate, the
question still remaining to be answered is whether it is salutary
from a tax policy perspective. The answer is a resounding no.
Under this new regime, the richer the taxpayer, the more her
child care expenses will be subsidized by other Canadian
taxpayers. The poorer the taxpayer, the less she will receive.
The poorest will receive nothing.
By adopting section 63 and deciding to create a
new type of personal deduction for parents apply
ing to child care expenses, Parliament made a
political, social and economic choice. On the evi
dence presented, that choice favours women more
than men, and the respondent has no complaint
about this. I do not see how a provision which
favours all women could directly or indirectly
infringe the right of women to equality, 31 and I am
not prepared to concede that professional women
make up a disadvantaged group against whom a
form of discrimination recognized by section 15
has been perpetrated by the adopting of
section 63, or would be perpetrated by this Court's
refusal to interpret paragraph 18(1)(a) so as to
give a self-employed mother an additional deduc
tion for a business expense; and even if there were
discrimination within the meaning of section 15, I
29 Schachter v. Canada, [1990] 2 F.C. 129 (C.A.) appealed
to the Supreme Court of Canada by leave to appeal granted by
the Court on November 15, 1990, concerned a provision of the
Unemployment Insurance Act [R.S.C., 1985, c. U-1] which
was discriminatory in itself because it conferred rights on
adoptive but not on natural parents. That case does not apply
here, since s. 18(1)(a) of the Act is not in itself in any way
discriminatory.
30 Supra, note 20, at pp. 382-383.
31 I refer here to the actual principle of s. 63, not its
particular provisions, none of which as I have already said is
the subject of a constitutional challenge in the case at bar.
consider in light of the ample evidence of justifica
tion submitted to the Court that it is not the
function of this Court to substitute its choice for
the one made by Parliament, with full knowledge
of the options proposed and in keeping with an
overall policy of assisting the family.
The Court is here being asked not only to fish in
the most troubled socio-economic waters, but also
to swim against the tide of a solution expressly
adopted by Parliament in preference to that pro
posed by the respondent. The Charter, the taxpay
ers and the legal system would be badly served by
acceding to such a request.
DISPOSITION OF CASE
I would allow the appeal and restore the notices
of assessment issued by the Minister of National
Revenue, with costs to the appellant at trial and on
appeal.
PRATTE J.A.: I agree.
MACGUIGAN J.A.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.