BETWEEN:
and
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Appeal heard on August 8, 2005 at Calgary, Alberta
Before: The Honourable Justice Gerald J. Rip
Appearances:
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JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 2003 taxation year is dismissed.
Signed at Ottawa, Canada this 22nd day of November 2005.
BETWEEN:
THERESA YANKSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
[1] On August 8, 2005 I delivered interim reasons for judgment in Ms. Yankson's appeal from her income tax assessment for 2003. The tax authorities denied Ms. Yankson a tuition credit (paragraph 118.5(1)(c) of the Income Tax Act) and an education credit (subsection 118.6(2)).
[2] In my interim reasons I concluded that the denial of the credits to Ms. Yankson, in particular the credit she claimed pursuant to paragraph 118.5(l)(c)[1], smacked of discrimination, since she would have been entitled to the credit had she resided near the Canada-U.S. border; she resided in Calgary. I was also of the view that actual physical attendance at an educational institution offering a course of studies similar to that offered by the Seattle MidwiferySchool in Seattlemay be no longer necessary when the student is actively pursuing the course by way of the internet. A person may be a full-time student in such circumstances and be eligible for a tuition credit.
[3] I suggested that the parties give further thought to this appeal, to see if Ms. Yankson's Canadian Charter of Rights and Freedoms ("Charter") rights were not being violated, for example. I asked that each party provide me with a memorandum, that Ms. Yankson try to obtain professional assistance to prepare her memorandum. I have received a memorandum on Ms. Yankson's behalf from Mr. Michael J. Gemmiti, a Student-at-Law at Bennett Jones LLP in Calgary, as well as from counsel for the respondent.
[4] My original view that Ms. Yankson's rights under the Charter were not violated by virtue of being denied the credits has not changed. Mr. Gemmiti had argued that Ms. Yankson's equality rights under section 15 of the Charter were infringed.
[5] To determine whether or not the appellant's equality rights under section 15 of the Charter have been infringed one must engage in a three step inquiry as set out in the Supreme Court decision Law v. Canada(Minister of Employment and Immigration).[2] At paragraph 88 of Law, the Court explained that to find a violation of section 15 the Court must determine (i) whether a distinction has been made (ii) whether that distinction was made on the basis of an enumerated or analogous ground and (iii) whether that distinction is "discriminatory".
[6] The first part of the test is satisfied as paragraphs 118.5(1)(c) and 118.6(1)(c) definitely cause a distinction between taxpayers living near the boundary and those not living near the boundary.
[7] However, residence is not an enumerated ground in section 15(1). Therefore, it is necessary to determine whether or not it can be classified as an analogous ground. Establishing an analogous ground was discussed by the Supreme Court of Canada in Corbiere v. Canada (Minister of Indian and Northern Affairs)[3]. Writing for the majority, McLachlin and Bastarache JJ. stated, at paragraph 13:
What then are the criteria by which we identify a ground of distinction as analogous? The obvious answer is that we look for grounds of distinction that are analogous or like the grounds enumerated in s. 15 -- race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It seems to us that what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. This suggests that the thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. To put it another way, s. 15 targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion.
[8] The issue of residency as an analogous ground has been dealt with by the Supreme Court on a number of occasions. Residence was rejected as an analogous ground in Haig v. Canada[4], R. v. Turpin[5], R. v. S.(S.)[6] and Siemens v. Manitoba(Attorney General)[7]. Yet, the Court did not close the door on residency as an analogous ground. I agree with the appellant that those cases can be distinguished from the present appeal in that they did not consider a personal characteristic. Unfortunately, I do not believe residence can be justified as an analogous ground in the appeal at bar.
[9] The appellant argued that the residence at issue in paragraphs 118.5(1)(c) and 118.6(1)(c) addresses one of the root elements of a person's identity. It was argued that where one resides is often the place where a person was born, grew up and where all aspects of family and community are established. An individual's residence may be fundamental to the preservation of their identity. The appellant went on to describe how Calgarywas unique in that it had its own characteristics and special blend of rural and urban qualities.
[10] In Corbiere, the Supreme Courtindicated at paragraph 13 that in considering analogous grounds, a court must look to whether the decision adversely impacts a discrete and insular minority or a group that has been historically discriminated against. I do not believe that persons not residing "near the boundary" between Canada and the United States would qualify under either category. Moreover, the appellant suggested that the residency contemplated in Corbiere need not be unique to aboriginals choosing to live on or off a reserve as was the issue in that case. Rather, the issue of discrimination based on residency can apply to average Canadians. I do not agree with this argument. Aboriginals have been historically discriminated against. The choice to live on or off of a reserve has tremendous implications for an aboriginal. These considerations are not as severe for an average Canadian who may choose to live near the boundary or not. The comparison to average Canadians cannot be made.
[11] The following comments of Rothstein J. in Archibald v. Canada (C.A.)[8], at paragraph 25 are to be observed:
Absent any factors such as the vulnerability associated with being a member of a discrete and insular minority, or a historical pattern of discrimination or prejudice, subsection 15(1) is not intended to protect individuals from all perceived disadvantages incidental to where they live, even where the decision as to where to live might be influenced by factors beyond the individual's control.
[12] Lastly, paragraphs 118.5(1)(c) and 118.6(1)(c) benefit people living "near the boundary" to the exclusion of those not residing "near the boundary". At one time one may have considered that only those residing "near the boundary" could possibly benefit from these provisions because realistically only they would have the opportunity to commute to a school in the United States. This reasoning does not apply today on account of technological developments. When this legislation was first enacted one could not reasonably have foreseen that Canadians living in remote areas or at a great distance from the border would be able to commute on a regular basis between Canada and the United States. The distinction was never based on discrimination. The Act is not forcing people to move near the boundary. Educational facilities are available for people all across the country. In this case it happened to be that one taxpayer had to take correspondence courses with an institution in Seattle. The Act is not an equitable tool that can foresee every individual's situation.
[13] There are anomalies in this legislation. Regular attendance through the internet was not something originally contemplated by the legislature. Barring a few exceptions courts tend not to have the jurisdiction to fill gaps in legislation.[9]
[14] I recognize that the results for Ms. Yankson are particularly unfair. However, no Charter violation can be justified in this instance. In light of the internet and the advancement of technology and transportation it is perfectly reasonable that someone residing at a great distance from the Canada-U.S. border can take full advantage of the education provided for beyond the border.
[15] I agree with the conclusion of Associate Chief Justice Bowman (as he then was) in Krause v. Canada,[10] that the word "attendance" should be interpreted to recognize attendance at an educational institution by way of the internet. At paragraph 18 he stated:
to say that someone attends university electronically by way of the internet does no violence at all to my understanding of the word "attend". We must recognize that this is 2004 and that whereas even 25 years ago to attend university required that one turn up physically at classes, technology has moved ahead so dramatically that it is entirely possible to attend lectures by seeing and hearing them on a computer.
Bowman A.C.J. concluded:
I think it is strongly arguable that full-time attendance at a foreign university can include full-time attendance through the internet or on-line as is the case here. That view conforms to common sense and to the reality of modern technology. If there continues to be doubt on the point Parliament should move to resolve that doubt.
[16] I should also mention again that had Ms. Yankson's course of study led to a degree - not a diploma - she would be eligible for the education credit in accordance with paragraph 118.5(1)(b).
[17] Again, the tuition credit and education credit provisions of the Act require amendments to bring them up to date. In the meantime taxpayers so adversely affected should be given relief by remission orders available under the Financial Administration Act.
[18] The appeal is dismissed.
Signed at Ottawa, Canada this 22nd day of November 2005.
"Gerald J. Rip"
Rip J.
COURT FILE NO.: 2005-1488(IT)I
STYLE OF CAUSE: THERESA YANKSON AND HER MAJESTY THE QUEEN
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: August 8, 2005
REASONS FOR JUDGEMENT BY: The Honourable Justice Gerald J. Rip
DATE OF JUDGMENT: November 22, 2005
APPEARANCES:
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For the Appellant: |
The Appellant herself
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Counsel for the Respondent: |
Marla Teeling |
COUNSEL OF RECORD:
Firm:
For the Respondent: John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario
[1] Ms. Yankson's studies at the Seattle Midwifery School led to a diploma, not a degree. Therefore she could not avail herself of the provisions of paragraph 118.5(1)(b).
[2] [1999] 1 S.C.R. 497.
[3] [1999] 2 S.C.R. 203.
[4] [1993] 2 S.C.R. 995.
[5] [1989] 1 S.C.R. 1296.
[6] [1990] 2 S.C.R. 254.
[7] [2003] 1 S.C.R. 6.
[8] [2004] F.C.J. No. 857.
[9] Sullivan, Ruth. Sullivan and Driedger on the Construction of Statutes, 4th ed. (Butterworths; 2002) at 136.
[10] [2004] T.C.J. 594.