Tax Court of Canada Judgments

Docket: 1999-3963(IT)G

BETWEEN:

SCOTT IRWIN SIMSER,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

____________________________________________________________________

Appeal heard on November 12 to 15, 2002 at Toronto, Ontario,

Before: The Honourable Deputy Judge D.W. Rowe
Appearances:
Counsel for the Appellant:	Ena Chadha William Holder
Counsel for the Respondent:	Tracey Harwood-Jones

____________________________________________________________________

JUDGMENT

          The appeal from the assessment made under the Income Tax Act for the 1997 taxation year is dismissed in accordance with the attached Reasons for Judgment.

Signed at Sidney, British Columbia, this 22nd day of May 2003.

"D.W. Rowe"

D.J.T.C.C.

Citation: 2003TCC366

Date: 20030522

Docket: 1999-3963(IT)G

BETWEEN:

SCOTT IRWIN SIMSER,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR JUDGMENT

Rowe, D.J.T.C.C.

[1]      The appellant appeals from an assessment of income tax for his 1997 taxation year. In computing the appellant's income for that taxation year, the Minister of National Revenue (the "Minister") included into income the sum of $1,500 ($2,000 minus the $500 exemption) in respect of a Province of Ontario bursary which the appellant received but had not reported as income in his return. The inclusion of this bursary amount resulted in an assessment of additional federal tax.

[2]      First, the appellant's position is that the funds obtained from the Special Opportunity Grant (SOG) in the form of a Bursary for Students with Disabilities (BSWD) was used solely to enable him to purchase the accommodation services - sign language interpretation and real-time captioning - required in order to compensate for his disability - profound deafness - and, although identified as a "Disabled Student Bursary" on the T4A issued to the appellant, this amount was actually a form of Canada Study Grant, authorized by the Canada Student Financial Assistance Act, and designated under the Regulations as "Special Opportunities Grant for Students with Permanent Disabilities". As a result, the appellant maintains the sum received is not subject to inclusion into income under paragraph 56(1)(n) of the Income Tax Act (the "Act") because it does not meet the definition of "bursary"," scholarship", "fellowship" or "prize" as contemplated by that provision.

[3]      Second, the appellant appealed on the basis that if the SOG did fall within the meaning of said paragraph, the inclusion into income of the amount received from the Province of Ontario is contrary to s. 15(1) of the Charter of Rights and Freedoms (the "Charter") and discriminates against him based on a physical disability and such violation cannot be justified on the basis it is a reasonable infringement under s. 1 of the Charter.

[4]      Upon consent of counsel, the following exhibits were entered:

Exhibit A-1 - Brief of Documents for Scott Simser - tabs 1 to 21, inclusive.

Exhibit A-2 - Brief of Documents - Federal Task Force on Disability Issues, tabs 1 to 3, inclusive.

Exhibit A-3 - Brief of Documents - Financial Assistance for Students with Disabilities - tabs 1 to 6, inclusive.

Exhibit A-4 - Binder containing sheets of calculations entitled Summary of Scenarios.

Exhibit A-5 - Expert Report of Professor Lisa Philipps.

Exhibit A-6 - Expert Report of Dr. Carol Musselman.

Exhibit A-7 - Binder containing transcript of evidence of Frank Thomas Smith as recorded on September 26, 2000, in the matter of the complaint of Scott Wignall before the Canadian Human Rights Commission.

Exhibit A-8 - a binder of documents previously entered was later withdrawn.

Exhibit A-9 - Brief of Documents - In Unison: A Canadian Approach to Disability Issues.

[5]      Counsel agreed the transcript of the testimony of Frank Thomas Smith - from the Wignall hearing - could be used in the same manner as though received viva voce in the within appeal.

[6]      In the course of the within appeal, the appellant - Scott Simser (Simser) - utilized real-time captioning technology which permitted him to read words on a screen almost contemporaneously as they were being spoken and also relied on the services of sign language interpreters.

[7]      In oral testimony, Simser stated he is a lawyer residing and working in Toronto. He has a wife and 3-year old son and was called to the Ontario Bar in February, 1999 after having completed his studies at Osgoode Hall Law School under York University. Following his admission, he worked as a tax litigator for the Department of Justice. Simser stated he suffers from a bi-lateral sensory loss and had become deaf at the early age of 7 months. The medical examinations revealed he had suffered a hearing loss of 105 decibels (dB) in both ears and had been classified as profoundly deaf. The condition has not - and cannot - improve. Simser stated he cannot talk on the telephone except with immediate family members and cannot understand radio broadcasts or television programs without captioning. Originally, he wore hearing aids but - at age 30 - contracted a virus which affected his eardrums to the point where during a period of nearly 3 years he could no longer use these devices most of the time. At age 33, he received a cochlear implant, a surgical procedure which bypasses the eardrum and picks up sound in the form of electronic signals. Earlier, the appellant had taken speech therapy, a long process during which he learned sounds of the English language, one by one. He also learned lip reading and attributes 80% of his overall comprehension to this acquired skill. The balance of his understanding of speech results from a combination of hearing the spoken words and interpreting body language. However, in a classroom setting, Simser stated he would be totally lost without the aid of real-time captioning. At the time of his early diagnosis, his family was living in Kanata, Ontario. He attended public elementary school there because his parents declined to follow medical advice - offered by three physicians - that he become educated at a special school for the deaf. Instead, the appellant's mother consulted with the principal of the local school who permitted Simser to use an FM transmitter in the classroom - to increase sound levels - and agreed the appellant could take speech therapy three times per week during the regular lunch hour. Throughout his schooling, there was never any additional cost to the appellant or his parents because all educational support to accommodate his disability was paid for by the local school board. In Montréal, he took speech therapy at McGill pre-school. As time progressed, he was able to instruct his parents on the methods by which they could teach him and his mother later followed a course of study which led to her becoming a teacher for the deaf, a career which she currently pursues on an international basis. Simser stated he did not learn American Sign Language (ASL) until age 20 and described his years in high school as a period of extreme isolation due to the nature of his disability. Following high school, the appellant attended the University of Ottawa and graduated - in 1988 - with a Bachelor of Administration degree. During his three-year course of study, he utilized the services of a note taker who had been provided - free of charge - by the university's own Office of Students with Disabilities. He worked for one year at an accounting firm in Toronto and then attended York University - in 1989 and 1990 - in order to obtain his Master of Business Administration (MBA). While pursuing this academic goal, he was provided with note takers and also relied on the services of sign language interpreters. All persons providing assistance were supplied - at no cost - by the university pursuant to a provincially-funded Vocational Rehabilitation Services Program designed to assist students with disabilities in order to permit them - as much as possible - to be placed on an equal footing with other students. After obtaining his MBA, the appellant worked at IBM Canada until February, 1992, at which point be became employed by the Ministry of Environment of Ontario where he remained until 1995. During this period, he enrolled in the Certified Management Accountant (CMA) program and obtained his designation in October, 1994. The study was undertaken by correspondence and through attendance at weekend seminars during which he used the services of ASL interpreters who were paid directly by his employer. In late 1995, the appellant accepted a severance payment as part of a downsizing program pursued by the provincial government. Earlier - in 1994 - he had decided to enroll at Osgoode Hall Law School. Simser stated he wanted to become the first deaf lawyer in Ontario and - thereafter - use his professional skills to assist others with hearing disability. During his first year at law school, he used the services of an ASL interpreter as well as note takers who were fellow students. In 1996 and 1997, he had the benefit of either real-time captioning or sign language interpretation but not at the same time. Simser stated he did not want to incur debt in order to attend law school and continued to work at the Ministry of Environment until February 1, 1996. The law school paid for his note takers, interpreters and real-time captioners and he was never subject to any income tax liability as a result of receiving these services. While employed by the Ministry of Environment, sign language interpreters were provided - and paid for - by the provincial government. Following graduation from law school, Phase 1 of the requisite Bar Admission Course began in May, 1997, and continued for one month. During morning sessions, Simser was able to follow the lectures by using real-time captioning but during the more interactive afternoon sessions, he had to rely on sign language interpretation in order to participate in the proceedings. At that point in his academic and professional career, Simser stated he was accustomed to reading books and manuscripts so it was much easier to use real-time captioning in order to understand course material. However, the technology is not sufficiently mobile for purposes of group interaction and role playing where spoken language is fast, fluid and responsive. Prior to commencing the Bar Admission Course, Simser had been advised by the Law Society of Upper Canada (Law Society) that it would not provide the real-time captioning services required. As a result, he decided to seek a bursary for students with disabilities. Simser referred to the binder - Exhibit A-1 - and the brochure - at tab 1 - describing therein various aspects of a student loans program as it related to students with permanent disabilities including the SOGs - at page 8 - which - at that time - had a $3,000 limit (unless otherwise stated, future reference to tabs in the course of Simser's testimony will indicate the document(s) are to be found in Exhibit A-1). Simser stated he was aware this grant would cover the cost of interpreters and note takers and assumed it would also include real-time captioning services. On January 22, 1997, the appellant applied for financial assistance - tab 2 - in the sum of $3,625, based on his calculation of the expense associated with meeting his requirements for completing the Bar Admission Course. He received a reply - tab 3 - indicating he had qualified for assistance under the BSWD program but was advised the maximum amount available was $2,000. Simser stated that since the purpose of his application for financial assistance had been to receive sign language interpretation and real-time captioning, he had to sign a declaration certifying that funds had been spent for the intended purposes and was required to provide receipts - to a maximum of $2,000 - within 30 days of receiving his cheque. At tab 4, the appellant wrote to the funding office and, although he had spent additional amounts totalling $850.65 - tab 5 - enclosed individual receipts totalling $1,978.50 - tab 4 - so as to remain within the $2,000 limit. The total expenditure for interpretation and real-time captioning services provided to the appellant during the one-month Bar Admission Course was $4,341.65. Simser stated he understood the sum of $2,000 would - ordinarily - be included into the income of a grant recipient for tax filing purposes but advised the funding source that he was prepared to appeal any subsequent assessment of income tax based on said inclusions, on several grounds including an invocation of the Charter, if required. For the third phase of the Bar Admission Course - lasting more than three months - the Law Society agreed to provide interpreting and captioning services to the appellant. Simser rated his ability to hear spoken words in a classroom setting at 1 or 2 on a scale ranging from 0 to 10. In his opinion, the provision of captioning and/or sign language interpretation services was necessary just to enable him to comprehend course content in accordance with the level already enjoyed by classmates who were not profoundly deaf. Certain invoices - tab 5 - issued by an interpreting service and a real-time captioner were paid directly- on the appellant's behalf - by the Department of Justice because he was articling there at the time. The value of those services - $2,363.15 - was not regarded as a taxable benefit or otherwise included into his income. Simser described a note taker as a student - taking the same course - who records salient portions of lectures for his subsequent perusal. However, law school is more complex than undergraduate studies and Simser stated he preferred to utilize real-time captioning rather than sign language interpretation. In his view, he would never have been able to qualify as a lawyer without having had access to those services. On August 6, 1997, the appellant wrote a letter - tab 6 - to the Rulings Committee at Revenue Canada in which he advised that he would be completing an income tax return by April 30, 1998 - for the 1997 taxation year - but would be taking the position that the sum of $2,000 received from the Province of Ontario - in the form of an SOG - was not taxable for the reasons stated in the letter which are consistent with the grounds for this appeal from the Minister's subsequent assessment. In effect, the appellant was attempting to obtain an advance ruling regarding those funds he had received under the SOG program as it pertained to students with disabilities. He followed up with further correspondence - tab 7 - and received a reply - dated September 26, 1997 - tab 8 - stating that no advance ruling would be forthcoming and advising him that his letters had been forwarded to the Department of Finance (DOF) since it was responsible for legislative changes. Mr. Louis Lévesque, Director, Personal Income Tax Division, Department of Finance, replied to the appellant by letter - tab 9 - dated October 28, 1997 - in which he advised the government had announced that the list of expenses eligible for the medical tax credit would be expanded to included sign language interpreter's fees. In addition, Lévesque offered the opinion that "[I]n many cases, the tax relief provided through the medical expense tax credit will fully offset the tax on the grant". The appellant stated that - for his 2000 taxation year - he had claimed the $9,000 cost of a cochlear implant and the ongoing expense of purchasing batteries as well as the cost of some devices to assist him in daily living such as flashing doorbells and a telephone/teletype (TTY) device which enables him to communicate by telephone but requires special, expensive paper. He also incurred the cost of listening and speech therapy which was billed out at $55 per hour by the particular service provider. In contrast, Simser stated he considered the expenses associated with merely gaining access to a classroom as being in a different category due - in part - to the requirement that said expenses only become deductible once they exceed 3% of net income. He explained his position in a letter to Lévesque (tab 10). The Ministry of Education and Training of the Province of Ontario issued a T4A - tab 11 - to the appellant describing the sum of $2,000 paid to him as a "disabled student bursary". The appellant received another letter - dated March 30, 1998 - tab 12 - from Louis Lévesque detailing the effect - on personal income tax - of claiming a disability tax credit in addition to qualifying medical expenses. Simser stated he has claimed the disability tax credit each year since 1985 on the basis that he satisfied the requirements of the provision because his inability to hear affected a basic activity of daily living. On March 30, 1998, the appellant completed his tax return - tab 13 - for his 1997 taxation year and attached the T4A received from the Province of Ontario. However, he made a deliberate choice not to enter the sum of $2,000 - at line 130 - under the category of other income. He sent a letter - tab 14 - dated April 7, 1998 - to Revenue Canada - with a copy to Louis Lévesque - setting out his calculations concerning the effect of inclusion into income of the sum of $1,500 from the bursary ($2,000 less an exemption of $500) even if he chose to claim the interpreting and captioning costs under the head of eligible medical expenses. On April 30, 1998, the Minster issued an assessment - tab 15 - accepting the appellant's tax return as filed. On January 18, 1999, another assessment - tab 16 - was issued to the appellant in which the entire sum of $2,000 received from the government of Ontario was included into income. On January 26, 1999, the appellant directed a letter - tab 17 - to Revenue Canada in which he pointed out that the first $500 of the bursary was exempt from taxation and - on April 7, 1999 - filed a Notice of Objection - tab 18 - to the assessment. On May 3, 1999, the Minister issued a Notice of Reassessment - tab 19 - in which the sum of $500 was deducted from the bursary amount previously included into the appellant's income but otherwise confirming that the balance of $1,500 was a taxable amount. On June 21, 1999, another reassessment was issued - tab 21 - but it merely corrected an earlier mathematical error on the part of the appellant when filing his return. The appellant stated he made his position known to Revenue Canada - and to DOF - because he believed he should not have to beg for accommodation in order to be able to enter a classroom. In that sense, Simser stated he did not feel it proper that he should be taxed on an amount that merely enabled him to participate fully in a classroom in order to receive instruction. He had totally expended the amount of the SOG in order to obtain accommodation services but was required to pay additional income tax - federal and provincial - in the sum of nearly $600 as a result of the SOG payment being included into income. As a result, Simser stated he felt discriminated against because of his deafness and regarded mere accommodation for his disability as a right when it pertained to his education. In taking that position, Simser stated he accepted that he must pay for his disability in many ways including the purchase of certain equipment and accessories - required to assist him in his daily life - such as expensive batteries which often last less than one day - and considered his deafness has been an obstacle to earning an annual income generally associated with someone holding several degrees and/or certifications in business, law and accounting.

[8]      Counsel for the respondent did not cross-examine.

[9]      William Holder - co-counsel for the appellant - conducted the examination-in-chief of Rosaria Zompanti. She testified she is a Chartered Accountant and has a Master of Accounting in Taxation. She is currently employed - in Toronto - as a senior staff accountant in the tax division of the accounting firm BDO Dunwoody and in the course of her career has prepared several hundred income tax returns. She was provided with the appellant's 1997 tax return and the assessment and reassessments relating thereto. No medical expense tax credit (METC) had been claimed by the appellant. In accordance with instructions received from counsel for the appellant, she prepared a report - Exhibit A-4 - in which various scenarios were presented in order to identify different tax treatment under theAct. At page 3 of her report, Ms. Zompanti set out - in schedule form - the calculations pertaining to four different scenarios itemized at the top of page 1 of said report. In each scenario, the Disability Tax Credit (DTC) is claimed. Scenario #1 is based on Simser's original filing (minus the original mathematical error); scenario #2 includes the bursary amount in the sum of $1,500 and used the sum of $530.27 as the allowable portion of medical expenses; scenario #3 is based on the situation as set forth in the third assessment by the Minister in which the $1,500 amount is included without any allowance for medical expenses since none were claimed by the appellant in filing his return. The difference in total federal and provincial tax owing in this instance - as opposed to the original filing represented by scenario #1 - is $588.90 (the difference in federal tax is $390 plus $11.70 in individual surtax). In scenario #2, if Simser had included the bursary amount as income but claimed language interpretation services within the allowable amount of medical expenses, the resulting federal tax would have been $299.85 more than in scenario #1, based on the appellant's original return. For purposes of illustration and comparison, Zompanti structured scenario #4 on the basis the sum of $1,500 had been received as a research grant in which case the amount would have been reduced to zero after deducting the expense of his real-time captioning and sign language interpretation services. At page 5 of Exhibit A-4, Zompanti set out three scenarios. In scenario 5(a)(1), using the sum of $10,000 as employment income without claiming an METC resulted in federal tax - including surtax - payable in the total amount of $620.55. In scenario 5(b)(1), the same amount of income is used but $1,500 in bursary income is included and the sum of $1,155 is claimed as the allowable portion of the medical expenses for purposes of the tax credit. In that instance, the total federal tax payable is $680.96. In scenario 5(c)(1), the amount of $10,000 is used as employment income and the amount of the bursary is included resulting in total income of $11,500. No medical expenses are claimed and the total federal tax payable is $883.20. In the report, Zompanti dealt with other scenarios including those - at page 15 - based on employment income in the sum of $29,000. At that time, there was a bracket change where federal tax increased to 26% on any income in excess of $29,590. In scenario 7(a)(2), the sum of $29,000 represented income and the DTC was claimed. In scenario 7(b)(2) the sum of $1,500 from the bursary is included into income and the allowable portion of medical expenses - in the sum of $585 - is claimed together with the DTC. The difference in federal tax between those two situations is $244.26. In scenario 7(c)(2), the disability grant is included into income, and, although the DTC is claimed, there is no claim for medical expenses. Zompanti stated the conclusion to be drawn is that inclusion into income of funds from a disability grant has the effect of increasing income tax payable and the difference in tax becomes greater as income rises to those levels which are taxable at higher rates.

[10]     In cross-examination, Rosaria Zompanti was referred to a binder - Exhibit R-2 - prepared at the request of counsel for the respondent - containing several scenarios for purposes of illustrating the effect of different methods of tax filing. In scenario #2 - in Exhibit A-4 - Zompanti agreed she had used the sum of $1,500 as the total amount of medical expense even though Simser's actual expenses were in the sum of $2,825 which would have increased the amount of the tax credit. Zompanti agreed that once the threshold is reached - after 3% of net income - the amount of the excess medical expense was multiplied by 16% and this sum was used to reduce tax otherwise payable. Zompanti agreed that the average taxpayer - if entitled - usually claims medical expenses but the appellant had chosen not to do so. Zompanti agreed that in her example at scenario #4 - in Exhibit A-4 - she had considered the theoretical taxpayer to have received a research grant - reduced to zero by offsetting expenses - but had also claimed tuition and education amounts applicable to a student. Zompanti accepted counsel's suggestion that the majority of students are within the lowest tax bracket. Referring to scenario #3 in Exhibit A-4 and comparing it with scenario 8(a) in Exhibit R-2 where the sum of $1,500 was attributed to an SOG for women in doctoral studies - rather than a grant relating to disability - Zompanti agreed the net result was the same with regard to tax payable. She also agreed that - in 1997 - if the $1,500 bursary amount was added into income and $2,000 had been expended in eligible medical expenses that the percentage rate of the lowest tax bracket and the rate used to calculate the resulting tax credit on medical expenses was the same.

[11]     In re-examination, Zompanti stated there can be a difference if someone is entitled to receive a medical expense supplement at line 452 of the 1997 tax return. In addition, if money is spent on real-time reporting or captioning services, that amount was not eligible for inclusion within the category of medical expenses even though it had been spent and could not be used to offset inclusion of a disability grant into income. Having regard to the examples in Exhibit R-2, Zompanti was unable to offer an opinion as to whether the terms and conditions pertaining to other SOGs were as stringent as those imposed upon the appellant in respect of the amount at issue in the within appeal.

[12]     Lisa Philipps was qualified as an expert in the field of social equality and tax policy. She is an Associate Professor at Osgoode Hall Law School where she has taught taxation law since 1996. Earlier, she was a professor at the Faculty of Law at the University of Victoria and at the University of British Columbia. Philipps also practiced taxation law with a firm in Toronto. Her expert report was filed as Exhibit A-5 (her complete curriculum vitae can be found at pages 12 and 13). An accompanying Brief of Documents was filed as Exhibit A-12. Philipps has written numerous articles and papers for publication in a variety of academic journals and reviews including a recent article - 2001 - entitled "Disability, Poverty, and the Income Tax: The Case for Refundable Credits" (Exhibit A-12 - tab 7). Philipps stated her field of expertise involves examining the impact of the income tax system on different groups within society and their relationship to the Charter. In her opinion, it is evident the tax system is used as an instrument of social policy and is a convenient mechanism to achieve social objectives beyond the mere raising of revenue. In performing her work, she uses an inter-disciplinary method of analysis utilizing statistics and social studies. Some recent issues concern whether unpaid care - by family members - for a disabled family member should be recognized in the form of a caregiver tax credit. Other discussions relate to "costs of disability" which refers to the added expenses of accommodating a disability in order to lead a life more closely associated with normality. Philipps stated the costs of disability include both direct and indirect costs including those related to medical treatment, pharmaceuticals, apparatus, equipment and supplies which are eligible medical expenses for purposes of claiming the relevant tax credit. Other direct living expenses - not required in the absence of the particular disability - are often incurred but do not qualify for inclusion as a medical expense for which a tax credit may be available. As an example, Philipps referred to costs associated with the purchase of special foods or the need to pay someone for home delivery. In her opinion, these extra expenditures lead to an inability to purchase another needed item, therefore contributing to an overall lower standard of living. Indirect costs are due to an inability to generate adequate income as a result of living with disability. Philipps stated it is difficult to categorize or itemize costs of disability within the confines of a tax system or to particularize expenses associated with a disability. In her opinion, two groups are impacted negatively; one is comprised of persons with significant disability costs and the other concerns individuals who are making the transition from a program of study to earning income in the workplace. In her view, the METC is inadequate for severely disabled persons so that imposing income tax on payments received solely as accommodation funding will lead to further disadvantage. In the event the receipt of accommodation funding has the effect of bumping the disabled recipient into a higher tax bracket, the METC will be inadequate to offset the costs arising from the disability. Philipps stated she is familiar with the report of the Federal Task Force on Disability Issues (Exhibit A-2 - tab 1) In 1996, that group was given a mandate to examine the appropriate role of the federal government concerning issues arising from disability. In chapter 7 of said report - commencing at page 85 - the Task Force chaired by Andy Scott M.P. - delved into the matter of dealing with costs of disability. At page 86 - Recommendation #41 - the Task Force recommended that the federal government "should recognize that measures that deal with the costs of disability need to be separated from measures that provide income to persons with disabilities". In the course of the following recommendation, the Task Force recommended the federal government receive fair tax treatment - as opposed to subsidy based on "sympathy or charity" - in order to cope with their disabilities. Included in that passage, were statements recognizing that costs associated with disability are more onerous when borne by individuals with limited income and costs associated with disability are not limited to those with taxable income. The Task Force also appreciated that some costs were general and intangible while others could be supported by receipts for expenditures and offered the opinion that tax recognition of disability-related costs should encourage - not discourage - employment of persons with disabilities. In Philipp's opinion, the report recognized that accommodation funding consists of whatever remedial efforts are required to eliminate the negative effect of barriers flowing from disability. At page 96 of said report, recommendation #50 stated, "The Government of Canada should not treat Special Opportunity Grants for students with disabilities under the Canada Student Loans Program as taxable income". The government did not act on that recommendation nor was any other specific credit made available to offset the effect of tax imposed on SOG payments. In 1988, the Disability Tax Credit was created to replace the former deduction - introduced in 1944 - and has remained in that form. Philipps stated the purpose of the DTC is to offset some non-itemizable items associated with everyday living with a disability that are not covered by the METC provisions. Further, in the course of her work, she has not seen any document or publication to suggest the DTC was intended to offset costs associated with pursuit of education by disabled persons. Philipps characterized the DTC as extremely restrictive because the disability must satisfy legislative definitions and the credit is based on a fixed dollar amount multiplied by the percentage rate - 16% - in effect in 1997. As a consequence, the maximum tax reduction available was $720 and can be applied only against tax owing by an individual or through transfer to an eligible person pursuant to provisions of the Act. However, it rarely provides any relief in respect of costs associated with mental disabilities, learning disabilities or episodic disabilities that are cyclical - such as bi-polar disorder, fibromyalgia or multiple sclerosis - at certain stages - rather than those medical conditions lasting for a specified continuous period as required by the legislation. At page 5 of her report - Exhibit A-5 - Philipps considered the situation where a student is required to pay in excess of $10,000 for attendant care services while attending post-secondary education and claims the METC in respect of said services. As a result, the student is not entitled to claim the DTC in order to offset any tax resulting from a grant to fund other types of accommodations. Philipps stated the federal government had proposed amendments to further restrict the availability of the DTC and Canada Customs and Revenue Agency (CCRA) was in the midst of a current campaign to require taxpayers to demonstrate they were still qualified to receive the credit. In the course of preparing her report, Philipps referred to an article - Exhibit A-12 - tab 2 - written by David G. Duff - entitled: Disability and the Income Tax. In that paper, Duff traced the development of the DTC from its inception in 1942, when it pertained to a limited number of medical expenses to a maximum of $400 for a single person but only to the extent said amount exceeded 5% of the taxpayer's net income. In 1961, the maximum limit on medical expenses was removed and ongoing amendments lowered the threshold on deductible expenses to 4% of net income - and then 3% - while increasing the categories of eligible expenditures. By way of example, in 1998, sign language interpretation was recognized as a qualifying expense but the wording utilized in the new provision still refers to the individual as a "patient" and any payment must have been made to a person engaged in the business of providing sign language interpretation services. In 2001, the threshold was 3% of net income or $1,678 if that was the lesser of the two amounts. In 1997, the threshold was $1,614 and the total of the allowable expenses was multiplied by 16% in order to arrive at the amount of the actual credit. The relevant provisions identify the person incurring the expenditure - or on whose behalf the funds are spent - as a "patient". Any expenditure must be supported by receipts and must qualify in accordance with specific language used in the provisions. Amounts spent for nutritional items, vitamins and supplements are not considered eligible medical expenses nor are repairs to a wheelchair. Philipps stated that paragraph 56(1)(n) of the Act is an omnibus provision designed to include into income items that might not otherwise be covered. Although the non-taxable portion of a bursary was $500 in 1997, that exemption later been increased to $2,000 but the term "bursary" is not defined in the taxing provision and CCRA utilizes the ordinary dictionary meaning. Philipps referred to the different tax treatment accorded a research grant - applicable to many graduate students - in that certain expenses are permitted to be deducted in accordance with paragraph 56(1)(o) of the Act. In Philipps' opinion, even though a student may have a disability, many disabilities are not capable of meeting the criteria required to qualify for a DTC. The services provided by note takers or by real-time captioning reporters are not included in the category of allowable medical expenses for purposes of the METC. An expense incurred to pay tutors is not included at the post-secondary level. Because the DTC is intended to offset the cost of living with a disability - in a general sense - a person could obtain an SOG but remain ineligible for the DTC. Tax on the SOG might well be taxed at a higher rate while the DTC is calculated on the basis of 16%. In Philipps' opinion, the METC will probably not offset the effect of inclusion of an SOG amount into income because expenses such as real-time captioning are not included and there is still a threshold of 3% of net income to be reached prior to qualifying for any credit in relation to excess amounts. Philipps stated she considered any payment or grant designed to permit a disabled person to enter a classroom on a more or less equal footing with other students should not be seen as conferring an advantage. In her view, including the amount of an SOG payment into income inflates it - artificially - and can have an impact on a taxpayer's entitlement to a Goods and Services Tax (GST) credit or a child tax credit. Inclusion of this sort of payment can also have the effect of increasing the tax burden of a person defined as a supporting person under the Act. Philipps stated that students with high costs associated with permanent disability are a vulnerable group of individuals in transition from study to earning income from a business or employment. Once employed, certain disability-related employment benefits are excluded from income pursuant to subsection 6(16) of the Act. Pursuant to paragraph 56(1)(u) of the Act, a social assistance payment is included into income and a corresponding provision - paragraph 110(1)(f) - removes it. As late as the 1980's, Philipps stated Revenue Canada - the predecessor of CCRA - was still abiding by a series of former rulings and technical interpretations to the effect that SOG-type funds were considered to be non-taxable and were treated in the same manner as social assistance payments. Philipps stated that as a result of a technical interpretation undertaken by CCRA - in 1998 - in relation to the Alberta Skills Development Program - payments made under that program were considered to be non-taxable. In her opinion, payments to students with disabilities for accommodation services should be characterized as "a social assistance payment made on the basis of a means, needs or income test" within the meaning of paragraph 56(1)(u) because the particular term "social assistance" is not defined by reference to provincial programs commonly referred to in that manner. If costs incurred as a result of securing the appellant's attendance in a classroom - in order to permit him to participate in the Bar Admission Course - are equal to the amount of the SOG, the question posed by Philipps is whether it can be said there is truly income to the appellant under those circumstances because some means or income testing was a pre-condition to receipt of the grant. In her experience, there are several instances where mere receipt of funds does not attract income tax - such as amounts received in compensation for personal injuries or strike pay - and the courts have been reluctant to include other unusual payments not caught by the wording of specific, enumerated provisions of the Act. Turning to the specific matter of the funds received by the appellant in the within appeal, Philipps stated Simser had expended nearly $2,000 in sign-language interpretation services and - in accordance with the strict terms of the SOG - had no discretion to use any portion of that amount for any other purpose. In Philipps' experience, a bursary or scholarship would not ordinarily be as restrictive and - generally - would require enrolment in a course of study or at a particular institution without additional terms and conditions. Philipps examined the criteria contained in manuals pertaining to the Canada Student Loans Program Policy and Procedures Manual - Exhibit A-3 - tab 1A - and discovered that within the SOG program - designed to offset exceptional education-related costs - most of the funding was based on a set amount per week without restrictions on spending or any requirement to produce receipts. At tab 2, the SOG for Female Doctoral Students did not have specific restrictions on spending the amount received except that it was to be used for the intended purposes of the course of study. In Philipps' opinion, the payment of funds to Simser was different and had been provided specifically on the basis of need in order to offset his disability and the resultant exceptional education-related costs.

[13]     In cross-examination by counsel for the respondent, Professor Philipps stated that, although she was not certain if the programs in the 1980's - referred to earlier - were the same as the SOGs relevant to the within appeal, they seemed to be similar in nature as revealed by the language of the rulings she had studied. Philipps acknowledged that there may be grants with specific use requirements and agreed that if a disabled student were to receive an ordinary bursary, it would be taxable. Philipps acknowledged disabled persons are specifically mentioned in s. 15 of the Charter but added that historically - and currently - vulnerable groups face a different set of difficulties that one might consider as a barrier - other than physical - to the pursuit of higher education. A lack of income or having to pay exceptional expenses can detract from resources that might otherwise be devoted to educational purposes. Philipps was referred to her own article - Exhibit A-12, tab 7 - and agreed that even if the SOG payment had been regarded as a social assistance payment, it would remove the federal tax but might continue to be considered as income for other purposes by one or more provinces or by governmental and/or non-governmental agencies. Philipps re-stated her opinion that a payment clearly identifiable as an accommodation grant - in the context in which this term is used - should not be included into income along with ordinary bursaries, scholarships, fellowships, as enumerated in paragraph 56(1)(n) of the Act. She agreed that the list of eligible medical expenses is amended from time to time in an effort to remain current but pointed out that some anomalies remain.

[14]     Dr. Carol Musselman was qualified as an expert in the field of barriers and access to education experienced by students with disabilities and in the importance of accommodation services within an educational setting. Musselman has been a registered psychologist with the Ontario College of Psychologists since 1996. She is also a Professor (Emeritus) with the Department of Human Development and Applied Psychology at the Ontario Institute for Studies in Education at the University of Toronto (OISE/UT). She received her PhD in Social Psychology - in 1970 - from the University of Michigan. She worked - as a Research Associate - with the Toronto Board of Education until 1974 when she became an Assistant Professor within the Department of Special Education at the University of Toronto. Between 1979 and 1994, she was an Associate Professor at OISE/UT and upon obtaining her full Professorship - in 1994 - remained in that capacity until 2001. For more than 25 years, Musselman has studied and taught in the field related to the development and educational needs of deaf and hard of hearing students and has published a variety of articles and research papers which are detailed in her curriculum vitae which is attached as Appendix A to her expert report filed as Exhibit A- 6. There are three volumes of documents related to her expert report: Volume I, Exhibit A-13; volume II, Exhibit A-14; volume III, Exhibit A-15. In the course of her career, Musselman stated she studied the educational needs of students who were deaf and/or hard of hearing and children with communication exceptionalities including learning disabled and autistic children or those who were developmentally impaired. She taught courses at the Master and Doctoral level and investigated educational interventions to determine the best methods to assist deaf and hearing-impaired children to become educated. She participated in studies of deaf children - aged 3 to 15 - and was able to track a broad range of development over many years in the course of a study - funded by University of Toronto and others - involving fairly large numbers of children. Beginning in 1978, the study was completed in 1992 and is widely known within that particular discipline. Musselman stated Simser would have missed being included in the study - in 1978 -- due to his age. The study revealed that deaf children have enormous difficulties in acquiring language skills even for use in a social setting let alone in a classroom. The result is that literacy suffers due to a lack of both reading and writing skills. Sign language became the choice of many deaf children as a means of becoming capable of communicating more complex concepts. Musselman stated that during their early years, deaf children are able to cope better because language is not so important when - for example - playing at the beach and most have some ability to hear and commence learning in an auditory or spoken language program. However, at the high school level, spoken communication drops to 25% by members of that group. Later, most deaf adults have sufficient spoken language skills to order and pay for simple items at the corner store but could not communicate symptoms of distress to a doctor. Musselman described American Sign Language or ASL as a visually-based language with its own vocabulary and grammar. There are several varieties of English-based sign systems and certain signs are used to represent the plural, past tense, gerund or present participle. Among deaf people, ASL is probably the most popular since it is more comprehensive than other forms. In terms of defining an accommodation within an educational setting, Musselman explained it is more likely to relate to a specific disability. The service provided by a tutor would be included in that sense whereas an intervention is considered to be a broad term used to define a service or program employed by an educator, such as phonics or sight recognition techniques used to teach reading. As a student advances through the system, Musselman stated there is a clear link between disability and attainment of educational goals. In her opinion, deaf and hard of hearing students face systemic barriers that prevent them from accessing education on an equal basis and many studies have ascertained the number of disabled students obtaining university degrees is 50% less than non-disabled students and only 1.7% of profoundly deaf students are able to attain that level of education as opposed to 14% of the general population. A report - Exhibit A-13 - tab 6 - prepared for The Canadian Hearing Society - indicated that deaf people are more likely to be unemployed, under-employed or working less than full time. Although deaf students can access education at the community college level, most choose to study in the United States at Gallaudet University in Washington, D.C., or at the Rochester Institute in New York state because there are no university programs - for the deaf - in Canada. In the report to the Hearing Society, various barriers to university attendance were discussed including physical barriers for wheelchair users and faulty acoustics in classrooms or a lack of FM systems or TTY apparatus to aid understanding and communication. The paper also dealt with attitudes of teachers and other students towards disabled people and referred to a reluctance - or refusal - on the part of some educators to cooperate in accepting the presence of the accommodation services required. Often, people are evaluated on the basis of communication skills and that ability is equated to intelligence. Musselman noted that even among deaf people who speak very well, most will continue to have a "deaf accent". In financial terms, there are costs both direct and indirect. Direct costs include paying for accommodation services - not provided by a university or other institution - such as expenditures for material to be recorded or the cost associated with recording services or specialized transportation. Indirect costs flow from an inability to work part-time during school or to obtain summer jobs at the same rate as other students because initial job training takes longer to complete. Other direct costs include those pertaining to sign language interpreters, note takers, real-time captioners, tape recording, photocopying, tutors, editorial assistance to improve written grammar, ongoing speech therapy, costs associated with hearing devices, and TTYs for offices together with specialized software for computers. The usual fee for a sign language interpreter is $50 per hour with a 2-hour minimum. Usually, two interpreters will be required over an extended period since signing is a very strenuous activity physically and is also so mentally fatiguing that most interpreters need to be relieved after 30 to 45 minutes. In Musselman's opinion, attendance in class by a profoundly deaf person without interpreters or real-time captioning is nearly useless and, even with that expert assistance, the deaf person receives only 85% of the information delivered. There is also the added expense of vocational and personal counselling due to frustration caused by communication barriers not only in a classroom but through other interaction with other students. The disability - itself - creates stress and nearly all expenditures stem from communication problems and are incurred with the intent to accommodate those barriers. Reading is arduous for deaf children since words in print are related to sound and learning to speak is extremely difficult depending on the degree of hearing loss. Musselman stated most deaf people have a sensory bilateral neural loss and the 105 dB loss experienced by the appellant is defined as a very profound loss. She noted it is very unusual for someone with that extreme hearing deficiency to be able to develop the ability to speak at such a high level. As a result, it is generally difficult for deaf persons to access information or to express themselves - in order to demonstrate competence - or to integrate into the community of scholars. By way of example, Musselman stated it is difficult for deaf students to develop a relationship with others in order to participate in study groups. Ordinary speech occurs at 60 dB and - for most people - a sound at 120 dB would subject them to an extremely uncomfortable sensation probably at or near the threshold of pain. Musselman stated that since the English language is like beads on a string, it is necessary to invent signs in order to indicate articles and tense and using space and visual concepts makes it much faster to display the content of spoken words. Musselman noted the appellant had obtained a Bachelor and a Master degree in business together with a law degree and an accounting designation and considered it should be evident that he needed accommodation services in order to understand the complex material presented to him throughout his academic career including the study required for the Bar Admission Course. In her opinion, that intense study would require the services of a real-time captioner to be utilized concurrently with other interpretation services. She considers the purpose of accommodations is to make access possible and to address particular barriers in the sense that a properly designed ramp overcomes the obstacle created by ordinary steps. In terms of the spoken word, a sign language interpreter or a real-time captioner achieves the same result.

[15]     Counsel for the respondent did not cross-examine.

[16]     Donald Wilson was called to the stand by counsel for the respondent. He has been employed as Acting Chief of Employment and Education, Personal Income Tax Division, Department of Finance (DOF) since 2001. Before assuming that position, he was Senior Policy Analyst in Finance and had earlier worked as a policy analyst in various departments of the federal government. Wilson stated the Department of Finance is responsible for drafting text and policy concerning the Act while CCRA undertakes collection of funds in accordance with the legislation. The express purpose of paragraph 56(1)(n) of the Act is to ensure that any amount received - as enumerated - is included into income under the category of "other income". In his view, that inclusion is consistent with the fundamental principle that income from all sources should be taken into account. As income levels rise, those with higher earnings pay a larger share of income tax. Although there are some provisions in the Act to offset financial effects of disability-related expenses, Wilson acknowledged they do not afford complete relief to everyone. In a related sense, those provisions associated with the status of parenthood or advanced age also do not totally recompense specific expenses by taxpayers within those groups. In the view of DOF, a grant is non-repayable and provides a gain to the recipient. The Student Opportunity Grants - or SOGs - were administered by Human Resources Development Canada (HRDC) - on behalf of the federal government - and the provinces. The maximum grant to a full-time student with a permanent disability was subsequently increased to $5,000 - from $3,000 in 1997 - and has since been raised to $8,000. In 2002, the non-taxable portion thereof was increased to $3,000 but was only $500 in 1997. Grants to women in doctoral studies were also increased and Wilson stated he understood CCRA's position is that assistance of this nature provided to students falls within paragraph 56(1)(n) of the Act. By way of further example, Wilson referred to the Millennium Scholarship Program which provides 100,000 awards per year - at an average of $3,000 - based on individual needs, all of which are taxable by virtue of said provision. A program providing employability assistance or for education or devices to assist disabled persons within the context of educational pursuit as well as those scholarships and bursaries provided by private institutions are all considered to be taxable as other income. In Wilson's view, other bursaries and scholarships including the CN Aboriginal Scholarship and the William and Jane Sewell bursary for disabled students at Simon Fraser University, meet the dictionary definition of the words used in paragraph 56(1)(n) of the Act and any amounts received from those sources were included in income of the recipient. The Act also provides a system of tuition credits - at the rate of 16% - on tuition fees and an education credit - based on a fixed monthly amount - based on full or part-time attendance at named educational institutions both inside and outside Canada. The credits are transferable to a parent and there is now an ability to carry forward unused credits. A disabled student who was unable to attend full time at an educational institution is still eligible to obtain the full-time credit of $400 per month. Other provisions in the Act such as the DTC and the METC - which recognize specific expenditures in accordance with threshold requirements - also serve to offset the costs related to disability. In 1997, the first federal tax bracket was at 16%. Wilson stated he was aware the Task Force chaired by Andy Scott M.P. recommended - in 1997 - that SOG payments to students with permanent disabilities no longer be subject to income tax. At Exhibit R-1, tab 2, Wilson referred to an excerpt from the report by the Task Force as contained within Recommendation #50. The committee concluded that the proposal to add - in the 1997 federal budget - sign language interpreter's fees to the list of expenses eligible for the METC was partly motivated by the recommendation to exempt SOGs from tax because that particular expense was the most significant item recognized under the SOG program but not under the METC provisions. Wilson stated that, in deciding not to adopt the recommendation of the Task Force, the attitude of DOF was that it was better to work within the existing system of providing offsetting provisions rather than by creating a special exemption from taxation. Currently, real-time captioning expenses are not included on the list of qualifying medical expenses under the Act. Prior to the Minister of Finance making a recommendation to Parliament whether a particular expense should be included as a qualifying medical expense for purposes of the METC, a certain amount of analysis is undertaken by departmental staff. Other forms of grants - such as research grants - are analyzed and these grants often include specific terms requiring research to be undertaken in a particular field. Overall, CCRA takes the position that any such grant must advance knowledge as opposed to undertaking a general inquiry. Research grants are provided to some students but most often are awarded to professors and doctoral candidates and are taxable by virtue of paragraph 56(1)(o) of the Act. By contrast, Wilson stated most bursaries and scholarships do not require the recipient to carry out a specific course of action. Research grants and grants to artists provide for certain deductions of expenses on a limited basis. In Wilson's opinion, the view at DOF was that it would be difficult to recommend to the Minister a narrow change in approach concerning taxability of SOGs to disabled students as opposed to other recipients in other categories. In his view, such policy would create disparity and all similar types of assistance would then have to be included within the exemption from taxation. Since the vast majority of students do not have taxable income, a maximum student loan - comprised of federal and provincial participation - is $11,000 per year and is based on an examination of assets rather than income flow.

[17]     In cross-examination by counsel for the appellant, Donald Wilson stated he has been in 8 jobs in the federal public service during the past 8 years. Since arriving at DOF in 2001, he stated he has been aware of the legal issue concerning taxability of certain grants and has been aware of the nature of the Simser appeal since the summer of 2002. Wilson stated he works in the Social Policy Division within DOF and its mandate is to provide advice to the Minister on spending programs including those concerning issues relating to disability and poverty. His group is well aware of a correlation between individuals with disabilities and persons at lower income levels. He is also aware of statistical information regarding participation by disabled persons in the labour market and accepts there is a disparity. Matters pertaining to paragraph 56(1)(n) of the Act fall within Wilson's responsibility and he has spoken to provincial officials on issues relevant to that provision. Wilson stated that only 6% of 1% of full-time students pay any income tax. Further, there are refundable credits - such as GST - which permit individuals to obtain a payment from the federal government even if no tax is owing and these transfers could amount to $200 per year for a single individual and would increase depending on whether the recipient had dependents. Wilson agreed the effect of including an SOG payment into taxable income - pursuant to paragraph 56(1)(n) - would increase income and could reduce a GST credit. Wilson acknowledged the allowable portion of an METC is also based on an amount in excess of a specified percentage of net income and that the child benefit is based on the number of children - at approximately $1,000 per year per child - but is reduced as family income attains a certain level so that at the $70,000 mark - for a two-child family - the child tax credit would be reduced to zero. Wilson agreed that - in some circumstances - inclusion of an amount received by way of a grant related to disability could have an adverse effect on entitlements to certain other benefits and would impact on calculations of tax payable in relation to spousal income - by increasing income of the spouse - and the equivalent-to-spouse credit as it applies to a dependent parent, child or relative including a student living away from home. In addition, the inclusion of grant or bursary amounts into income of a disabled student could affect the infirm dependent credit - line 306 of the 1997 return - and any other income-based tax credit including the income-tested (up to $30,000) refundable medical expense supplement - line 452 of the return - which is based on the lesser of two amounts, either $525 or 25% of the allowable METC. Wilson agreed the provision takes effect at a family income of $2,000 per year and is targeted to low income working families with high medical expenses. He also accepted the suggestion that provincial tax credits to individuals are probably affected by increased income and, while not specifically aware of the Trillium Drug Program of the Province of Ontario which uses net federal income as a base, acknowledged that an increased income through inclusion of a bursary related to disability could have an effect in this situation. Wilson stated his current role at DOF is to make recommendations for revisions to the Act in respect of matters relating to education and employment and, in carrying out that function, is familiar with matters concerning access to post-secondary education, including student financing. He stated it is recognized that students with disabilities have greater financial needs and DOF - specifically - and the federal government - generally - is aware that the policy of treating disability grants as taxable income has been the subject of complaints from disabled students. Wilson stated he was aware of certain representations - by letter - Exhibit A-10 - sent by Kent Hehr, President of the National Educational Association of Disabled Students (NEADS) to The Honourable Pierre Pettigrew, Minister of HRDC, concerning the lack of response by the federal government to Recommendation #50 of the Task Force that "The Government of Canada should not treat Special Opportunity Grants for students with disabilities ... as taxable income". A reply - Exhibit A-11 - was sent to Hehr by The Honourable Paul Martin, Minister of Finance in which the Minister advised that under existing rules the disability grants received the same tax treatment as other scholarships and bursaries. The Minister went on to state that while the amounts were taxable "other income tax provisions will generally ensure that little or no tax is paid on Special Opportunity Grants". Wilson stated that certain accommodation funding pursuant to the Employability Assistance for Persons with Disabilities program undertaken by the federal government and some provinces is taxed under paragraph 56(1)(n) of the Act and noted that the appellant's sign language services provided by York University - free of charge - were not taxable nor were any accommodation services in the context of employment subject to tax where the benefit accrued primarily to the employer. Wilson agreed that if York University had merely provided funds to the appellant to purchase accommodation services, the amount received would have been taxable under said paragraph on the basis the federal government attempts to tax all forms of income rather than on amounts received as gifts. Wilson stated he appreciated Simser was required to fulfill certain conditions attached to the SOG but believed the appellant was better off than if he had not received the $2,000 grant in that he received a financial benefit which he used to purchase a service. Wilson agreed he was aware the other three categories of SOGs were not as restrictive in terms of expenditures. Although familiar with the document entitled In Unison: A Canadian Approach to Disability Issues - Exhibit A-9 - a report produced following a study involving HRDC and all provinces - except Québec - Wilson stated he had not read the entire document. He stated he was aware that persons with disabilities do not attend university at the same rate as persons without disabilities.

[18]     In re-examination by counsel for the respondent, Donald Wilson stated that any amount which falls into income by virtue of paragraph 56(1)(n) of the Act can affect a credit which is dependent on income levels and agreed that provinces may make distinctions in calculating tax credits applicable to the provincial portion of tax collected by the federal government.

[19]     Ms. Ena Chadha - co-counsel for the appellant - and Ms. Harwood-Jones - counsel for the Respondent in the within appeal - were both involved in the hearing of Scott Wignall before the Canadian Human Rights Commission. At the outset of this appeal, they agreed the testimony of Frank Smith - National Coordinator of the National Educational Association of Disabled Students (NEADS) - could be utilized as though it had been received in the course of the within appeal. In the course of his examination-in-chief - by Ms. Chadha - Smith described NEADS as a consumer organization representing post-secondary students and graduates with disabilities that conducts extensive research into issues affecting this group. The mandate of the association is to advocate for increased accessibility to post-secondary education in Canada for students with all types of recognized disabilities. Smith stated NEADS works with about 160 colleges and universities across Canada as well as various student organizations including the Canadian Federation of Students. In carrying out the mandate, NEADS deals with issues of accommodation services in the form of necessary technical equipment and support, access to reliable transportation - both to and from school - and attendant care services. Information gathered as a result of research is made available to students in order to assist them in making decisions when choosing to attend a particular post-secondary institution. NEADS also maintains detailed information on scholarships, grants, loans, other funding sources and a comprehensive directory was compiled in 2000 including an online version at the association's web site. Smith stated that - in 1993 - he managed the research project, the purpose of which was to survey the financial situation of students with disabilities with respect to their pursuit of post-secondary education. The study was funded by the Disabled Persons Participation of the Secretary of State which - at the time - had within its mandate the Canada Student Loans Program as well as the responsibility for the federal government's participation in programs in respect of persons with disabilities. The study concluded with the publication of a report in which various topics were discussed. One of the primary issues facing students with disabilities is the amount of additional time required to complete a program of study since they are more likely to study part time rather than full time due to the effects of their disability. The project also examined costs related to disabilities including those associated with technical aids, interpreters, readers, note takers and tutors. The study also reviewed expenditures related to expensive software such as voice recognition programs for students who are deaf or hard of hearing or for technical aids such as phonic ears. The findings contained in the report revealed that 44% of students with disabilities participating in the study indicated their total income - from all sources - was not sufficient to cover education-related services and equipment costs. As a result, the report - submitted to the funding department of the federal government - recommended increased funding for students with disabilities in order to permit them to pursue their studies and also to alleviate concern over acquiring a large debt load requiring repayment over an extended period following graduation. Within that group of 44% requiring additional funding, 29% indicated they required assistance in excess of $3,000 per year; 35% were seeking between $1,000 and $3,000 and 23% reported they would be satisfied with $1,000 or less. The report recommended increased funding should be made available to students with disabilities and should be in the form of grants as opposed to loans. In 1993, Smith stated there was no grant component in the Canada Student Loans Program but - in 1995 - the Special Opportunities Grant was established to support the exceptional costs of identified groups requiring additional assistance including students with permanent disabilities, high-needs part-time students, women in doctoral programs. Later, a grant was added in respect of students with dependents. The initial maximum amount for a grant to a student with permanent disability was $3,000. Smith stated the report was also provided to the National Advisory Group on Student Financial Assistance, established in 1989 or 1990 to advise the federal government on financial assistance programs, primarily the Canada Student Loans Program. Eligible costs for the particular SOG applicable to students with disabilities included those services and technical devices referred to earlier together with provision of services to produce materials in alternate formats such as large print or Braille. In order to qualify for the grant, a student had to produce documentation to demonstrate his or her permanent disability and was required to establish financial need. In addition, an applicant had to provide written confirmation of the services and the supports that were the subject of the grant being sought. Smith stated that - typically - this aspect would be confirmed by a special needs coordinator, disabled student services coordinator or a guidance counsellor at the educational institution in which proof of enrolment had already been provided by the applicant. The student had to provide two separate cost estimates and, if funds to a maximum of $3,000 had been provided, the recipient was required to sign a declaration that the money was spent as specified and that supporting receipts would be produced within a certain period. In relation to the funding by the Ontario Ministry of Education and Training applicable to the within appeal, that limit was within 30 days of receipt of the bursary cheque. Smith stated the terms and conditions of SOGs in the other two categories - women in doctoral studies and high-need part-time students - did not require recipients to provide either cost estimates or receipts for expenditures, although they had to meet certain eligibility criteria in order to be eligible for the grants. An additional group - students with dependents - was added later but recipients of this particular grant did not have to provide cost estimates or receipts for expenditures, leaving students with disabilities as the only group to which this requirement applied. Smith referred to the policy procedures manual of the Canada Student Loans Program (CSLP) wherein the funding was described as relating to education-related costs associated with disability, including those expenditures categorized as exceptional in nature. The manual also contained instructions concerning the requirement that disabled students applying for a grant had to produce two cost estimates and subsequent receipts. In the 1997-1998 loan years, 2,500 disabled students received an SOG. Several recipients were concerned about the taxable nature of the grant and representations were made by NEADS to the Minister responsible for HRDC on this issue (Exhibit A-10). A reply - Exhibit A-11 - was received from the Minister of Finance. Smith stated NEADS continued to undertake additional studies including one produced in 1999. The position taken by NEADS was that funding by way of an SOG is a form of accommodation for students with disabilities that supports only exceptional education-related costs incurred while pursuing post-secondary education as opposed to those general costs of attending at an educational institution.

[20]     In cross-examination by Ms. Harwood-Jones, Frank Smith stated the SOG for a disabled student was based on financial need as defined by the CSLP. A student, although ineligible for an SOG, might qualify for other funding programs. Otherwise, the student or his or her family would purchase the needed services from their own resources.

[21]     Counsel for the appellant read in the following question and answer from the examination for discovery of Louis Lévesque - Exhibit A-16 - tab 1D - entitled Brief of Documents: Respondent's Undertakings & Examinations for Discoveries.

Q.         Mr. Levesque, again, assuming without admitting that there is a Charter violation, but with respect to whether the violation minimally impairs the Charter guarantee, the government's position is this. Given that there is relief to disabled persons provided elsewhere in the Act to recognize the extraordinary expenses associated with disability, both for students and non-students alike, the impugned provision minimally impairs the Charter.

            Is that the whole of the government's position regarding whether there is a minimal impairment?

MS. HARWOOD-JONES:       I can answer that on behalf of my witness, and the answer is yes, that is the whole of the government's position. And you adopt that answer?

THE DEPONENT:       Yes.

[22]     Counsel for the appellant read in the following question and portions of the answer of Louis Lévesque (Exhibit A-16 at tab 1C).

Q.         What is the answer to those persons who can't avail themselves of the medical expense tax credit?

A.         Okay, there would be two reasons why people can't avail themselves of the medical expense credit, okay.

            First, the nature of the expense being not recognized in terms of being subject to a grant under the Canada Study Grant, let's say, or Special Opportunity Grant, at the same time not being recognized under the medical expense credit. There would be kind of an eligibility, eligible for subsidy under the grant but not eligible under the medical expense credit.

            The other way you can end up in a situation where you end up with a, quote, "net tax liability" where the tax on the grant would not be completely offset by the credit would be -- because of the nature of how the credit works, there is a threshold. There is a certain amount that is deemed to be, well, you have those expenses, but they are below 3 percent of income. We assume everybody has basically a certain amount of expenses to incur, or most people, and they are basically in the personal consumption nature. There is the 3 percent of income element which is -- for most students it is very small in terms of they have a small income.

[23]     In response, counsel for the respondent read in the remainder of the answer, as follows:

            I would say, on principle, I would like to see examples in terms of that where that would happen, and it may be small amounts, but in terms of any significant example and that was the impetus behind the decision on sign language interpreter fees.

            If there were significant items, like major things or significant in a particular sense that would lead to a grant because they are clearly linked to a disability, certified by some association or practitioner or whatever and they were not recognized on the medical expense credit, I would say that's a problem. I would like to see what the issue is. That would be -- if I were the Director of Personal Income tax still, I would say show me an example, because on a principle basis, we would like to have as much correlation as possible between the two.

            Because obviously if a grant is being given by some authority somewhere, somebody certified that this is something that is useful and needed by persons with disabilities. If that is the case, from a policy perspective, I don't see why we would not want to cover them under the medical expense credit.

            So at a very basic level -- and I am pretty sure that if there were expenses that were identified and clearly would meet those criteria, like that they are needed by students with disabilities and they would not be covered, I would say it wouldn't be difficult to convince the Department or the government to proceed. And I am sure there won't be huge costs. We would have to have the discussion on a factual basis, like do you have an expense for which a grant is given and that is currently not covered, and we would have to have a factual discussion.

            My understanding is that if there were such an expense, and maybe there is a technological change and some new gizmo is available now that was not available, the Department would be more than willing, the government generally, to listen and say, Yes, we should include that, and to provide adequate safeguards that it is not a personal consumption item that has a tiny link with disability, that this is really something that is needed by people with disabilities. And I see no reason why the government would not want to do that. So that is at the very general level.

[24]     Counsel for the appellant read in the following question and answer:

Q.         What is the purpose of the disability tax credit?

A.         Generally speaking, as it said here, to recognize costs that are not easily itemizable, the basic assumption being, and it is an assumption, that once you reach a certain level of disability, you are facing costs and many of them are large and itemizable and many of them will not be easily itemizable.

[25]     Counsel for the respondent read in the remainder of the answer:

            This provision is somewhat akin to income support, because it is not linked to a particular expense. And if you read the Scott Task Force recommendations, you can see that there is -- the general thrust of the Task Force recommendations was to move away from income support type measures and to focus more on compensation for disability-related costs.

            So in terms of the arsenal of recommendations that would move you towards we should do more on the medical expense front, maybe make it refundable, which was made in part, and increase the rate of the refund in terms of the proportion of expense, and give less, everything else being equal, on such things as the disability tax credit that are not actually linked to a particular expense, that was the general gist of it.

            On that, I would add that, again, the decisions by the government are constrained or affected by a number of factors, including the fact that we obviously live in the federal country where the federal role in respect to disability is limited by the fact that a lot of programs are delivered at the provincial level, and that is concerning the tax collection agreements, and the things we do under tax collection agreements give rise to leverage because a lot of the measures we do are mirroring provincial tax legislation.

[26]     Counsel for the appellant read in the following question and answer:

Q.         My next question was going to refer to your correspondence with Andy Scott, and of course, I have already covered that, so I am just going to see where things stand right now.

            Here is a general question for you. If the effect on Mr. Simser of taxing the Bursary for Students with Disabilities is to increase his education costs, if that is the effect, then why do it?

A.         Well, just from a policy perspective, the government has a left arm and a right arm. You cannot take government action and look at one side of the action and say it has this effect.

[27]     Counsel for the respondent read in the remainder of the answer:

The government action is providing Mr. Simser with a significant amount of assistance on the bursary side. The tax side of the government is looking at that as income. So to say that it is increasing his education costs while at the same time both public programs in terms of the general availability of public programs for education plus specific programs directed at people with disabilities are increasing his costs, it is a little bit, I would say, difficult for me to sustain on a policy basis.

[28]     Counsel for the appellant also read in some questions and answers of Patti Cooper - a CCRA employee - pertaining to reasons for issuing the assessment but I have chosen not to reproduce them since counsel for the respondent conceded - in argument - that the assessment by the Minister was based solely on the premise that the SOG funding had been paid in the form of a bursary and, therefore, the amount was required to be included into the appellant's taxable income pursuant to paragraph 56(1)(n) of the Act.

[29]     Counsel for the appellant re-stated the issues in the within appeal. First, the appellant's position is that the SOG was not income within the meaning of paragraph 56(1)(n) of the Act. Second, if the SOG received by the appellant does fall within the meaning of that paragraph, the appellant argues that the decision of CCRA to include the grant amount into his income contravenes s. 15(1) of the Charter based on a physical disability and that this infringement is not a reasonable limit envisaged under s. 1.

[30]     Although counsel argued the merits of both issues in the course of their respective submissions, at this point I will deal with the first issue - whether inclusion of the SOG amount into income is required under paragraph 56(1)(n) of the Act - and will refer to those portions of the arguments - together with the relevant jurisprudence - related to this question.

[31]     Counsel referred to the testimony of Professor Philipps in which she noted there is no definition of "income" contained in the Act and that in the usual sense a payment must be tied to a source producing a regular stream of income. Counsel referred to evidence adduced for the purpose of demonstrating that the grant received by the appellant did not permit him to spend the funds except in strict accordance with the enumerated purposes, unlike other SOGs available to members of other groups. Another form of student funding, a research grant - with certain conditions and terms attached - permitted a recipient to deduct certain expenses associated with carrying out the specified research. Counsel submitted the financial assistance received by the appellant - in the form of the BSWD - was not an amount received to allow him to pursue an education, per se, but was funding specifically provided to accommodate his individual disability, profound deafness. In this instance, counsel argued the restrictions placed on the grant provided to Simser eliminated any ability to enhance his own financial position in the same manner as one would customarily regard an ordinary bursary as constituting a benefit to the recipient. As discussed by Professor Philipps, counsel suggested the SOG payment to the appellant was based on financial need -in addition to his disability - and could fit readily within the category of social assistance payments so that the value thereof could be added into income pursuant to paragraph 56(1)(u) of the Act and then taken out under paragraph 110(1)(f) in the same manner as Revenue Canada had treated the funding for the basic education and life skills program undertaken by the Province of Alberta. Counsel submitted it is not sufficient to merely assume the SOG funding to the appellant was a bursary in the usual sense. Instead, CCRA and/or the Minister should have recognized that the funds provided to the appellant were solely to cover the cost of expenditures associated with attending a mandatory course of study in a classroom setting. As such, it represented a payment obviously designed to remove a barrier so the appellant could participate on an equal footing. Counsel submitted it is inappropriate to tax this sort of accommodation funding because it has the effect of artificially inflating the income of persons with disabilities, thereby having an impact on certain refundable, income-tested credits under the Act. Counsel submitted modern rules of interpretation should be applied in order that the context and intent of a taxing statute - rather than its literal wording - be considered. Since none of the four types of payments listed in paragraph 56(1)(n) are defined within the Act, nor is the grant received by the appellant defined in the legislation governing student financial assistance, counsel argued it becomes evident the SOG received by the appellant was different from other types of payments to students. In terms of income - not defined in the Act - counsel submitted the modern approach recognized in jurisprudence is that to be taxable as a benefit, the receipt must increase the taxpayer's net worth and not merely compensate for an expense. In terms of the sum of $2,000 received as a bursary for a student with disability, counsel suggested the appellant merely acted as a conduit to permit money from the funding program to flow to the ASL interpreters and real-time captioners and did not improve his own financial position - overall - in relation to his participation in the Bar Admission Course. Counsel submitted the appellant was able to improve his position only to the point where he was more or less on an equal footing with fellow students in terms of being able to comprehend the content of lectures, workshops and seminars integral to the course. Counsel reiterated that, absent considerations of the Charter, the primary relief sought by the appellant was for this Court to find that the BSWD paid to Simser was accommodation funding and - therefore - substantially different from a scholarship, fellowship, bursary or prize otherwise mentioned within paragraph 56(1)(n) of the Act. As a result, the appellant requested the Court to refer the assessment back to the Minister for reassessment on the basis the SOG payment - designed to accommodate a specific disability within the context of a course of study - should be deleted from his income.

[32]     Counsel for the respondent submitted the sum of $2,000 paid to the appellant was in the form of a bursary pursuant to the program whereby grants were paid to individuals who were members of three groups, one of which pertained to disabled students pursuing post-secondary education. The respondent's position is that ordinary usage of the term "bursary" and its common definition in dictionaries, makes it evident that the money received by the appellant fell within the ambit of paragraph 56(1)(n) of the Act even though the word "grant" is not specifically used therein because those two words are basically interchangeable. With respect to the use of funds received by the appellant, counsel submitted there is no authority for the proposition that an essential element of a bursary is that the funds must be within the discretionary use of the recipient. In response to the appellant's suggestion that a grant or bursary is not a true source of income within the ordinary meaning of the Act, counsel submitted the clear intent of Parliament was to include such amounts into income and the obvious purpose of the relevant paragraph at issue was to accomplish that goal. Counsel submitted the appellant - in asking the Court to exclude the bursary amount - on the basis it was different from other funding under the SOG program because it had different administrative requirements - was seeking relief based on what the state of the law - perhaps - should be rather than on the existing provision of the Act which clearly set out the intent of the legislators.

[33]     The relevant portion of paragraph 56(1)(n) reads as follows:

SECTION 56: Amounts to be included in income for year.

(1) Without restricting the generality of section 3, there

shall be included in computing the income of a taxpayer

for a taxation year,

(n) Scholarships, bursaries, etc - the amount, if any, by which

(i) the total of all amounts ... received by the taxpayer in the year, each of which is an amount received by the taxpayer as or on account of a scholarship, fellowship or bursary, or a prize for achievement in a field of endeavour ordinarily carried on by the taxpayer, other than a prescribed prize,

exceeds the greater of $500 ...

[34]     The position of the appellant is that this provision contains no definition of bursary. In addition, the payment received by the appellant is described in the Canada Student Financial Assistance Act, S.C. 1994, c. 28 and in the Regulations made under that legislation and, in subsequent materials prepared for use by students, that type of payment is referred to as a Special Opportunity Grant and - in later years - as a Canada Student Grant.

[35]     Obviously, Parliament did not deem it necessary to define the term "bursary", although there is additional detail provided with respect to a "prize" in the sense that in order to be taxable it has to have a nexus with the taxpayer's usual discipline, unless it is a prescribed prize. A separate provision - paragraph 56(1)(o) was utilized to deal with the matter of research grants including a method for identifying those expenses deductible from income received by the recipient. The lack of a special provision prevented the Minister from including strike pay into the income of the taxpayer in the case of Fries (W.) v. Canada, [1990] 2 C.T.C. 439, a decision of the Supreme Court of Canada allowing an appeal from a decision of the Federal Court of Appeal. In his brief judgment, Sopinka J. (Per Curiam) stated:

We are not satisfied that the payments by way of strike pay in this case come within the definition of "income ... from a source" within the meaning of section 3 of the Income Tax Act. In these circumstances the benefit of the doubt must go to the taxpayers...

[36]     There are numerous decisions wherein courts decided that a particular receipt did not constitute taxable income from an unenumerated source. In the case of Schwartz v. Canada, [1996] 1 S.C.R. 254, the Supreme Court of Canada held that s. 56(1)(a)(ii) of the Act did not provide for the taxation of settlements for loss of intended employment. La Forest J. stated at p. 257:

... While s. 3(a) of the Act contemplates the possibility that income arising from sources other than those enumerated in s. 3(a) and in Subdivision d of Division B of Part 1 of the Act may nonetheless be taxable, to find that the damages received by the appellant are taxable under the general provision of s. 3(a) would disregard the fact that Parliament, in amending the Income Tax Act in 1983, has chosen to deal with the taxability of such payments in the provisions relating to retiring allowances. Such an approach would amount to giving precedence to a general provision over the detailed provisions enacted by Parliament. This would be inconsistent with basic principles of interpretation.

The damages received by the appellant cannot be considered a "retiring allowance" within the meaning of s. 248(1) of the Act - and therefore are not taxable under s. 56(1)(a)(ii) - because they were not received "in respect of a loss of ... employment". When one considers the ordinary meaning to be given to the words found in the definition of "employment" in s. 248(1), a distinction must be made between the start of the contractual relationship agreed upon by the employer and the employee and the moment, according to the terms of the contract, at which the employee is bound to start providing services to the employer. The statutory requirement that one must be "in the service" of another person to be characterized as an "employee" excludes any notion of prospective or intended employment. An employee is thus only "in the service" of his employer from the moment he becomes under obligation to provide services under the terms of the contract. It follows that "loss of employment" cannot occur before an employee becomes under obligation to provide services to his future employer because he cannot, before that moment, be "in the service" of that employer.

[37]     The appellant also relied on a line of authorities supporting the proposition that to constitute income under the Act, a receipt must confer an economic benefit in the sense that it must increase the recipient's net worth. In the case of Krull v. Canada (Attorney-General), [1996] 1 C.T.C. 131, the Federal Court of Appeal considered the payment to five taxpayers each of whom were required by the employer to relocate from Calgary to Toronto. In order to offset the differential in housing costs between those two cities, the employer paid any increase in interest charges on mortgages taken on the more expensive Toronto homes to a certain maximum calculated in accordance with a formula prepared by real estate experts. The entire subsidy plan was directed to defraying increased interest costs and could not be applied to principal. It also ended upon termination of employment by any employee participating in the plan. Relevant to the analysis in the within appeal, is that portion of the judgment of Linden J.A. dealing with the issue whether the mortgage interest subsidy was taxable under paragraph 6(1)(a) of the Act. At pp. 134-137 of his judgment, he stated:

Is the mortgage interest subsidy taxable under paragraph 6(1)(a)?

Paragraph 6(1)(a) reads as follows:

6(1) Amounts to be included as income from office or employment - There shall be included in computing the income of the taxpayer for a taxation year as income from an office or employment such of the following amounts as are applicable:

(a) value of benefits - the value of board, lodging and other benefits of any kind whatever received or enjoyed by him in the year in respect of, in the course of, or by virtue of an office or employment...

Four of the five Tax Court Judges decided that the interest subsidy was not a taxable benefit pursuant to paragraph 6(1)(a). The sole question hinged on whether the receipt was a "benefit" within the meaning of paragraph 6(1)(a). The matter of whether it was "in respect of", "in the course of" or "by virtue of" employment did not cause any difficulty; all agreed that the receipt was sufficiently linked to the employment.

The first issue to consider therefore, is whether there was a "benefit".

The classic statement of what comprises a taxable benefit derives from the Supreme Court of Canada case, R. v. Savage (sub nom. The Queen v. Savage), [1983] 2 S.C.R. 428, [1983] C.T.C. 393, 83 D.T.C. 5409. In that case Mr. Justice Dickson, as he then was, explained in clear and simple terms the principle which distinguishes taxable from non-taxable receipts:

If it is a material acquisition which confers an economic benefit on the taxpayer and does not constitute an exemption, eg. loan or gift, then it is within the all-embracing definition of section 3.

According to the Supreme Court of Canada, then, to be taxable as a "benefit", a receipt must confer an economic benefit. In other words, a receipt must increase the recipient's net worth to be taxable. Conversely, a receipt which does not increase net worth is not a benefit and is not taxable. Compensation for an expense is not taxable, therefore, because the recipient's net worth is not increased thereby.

Our jurisprudence has long accepted the focus on net gain as the basis for determining whether a receipt is a "benefit" and whether it is therefore taxable. In the 1967 decision of the Exchequer Court of Canada, Ransom v. Minister of National Revenue, [1967] C.T.C. 346, 67 D.T.C. 5235, Noël J. applied the net gain concept to circumstances not too dissimilar from the present. An employee was transferred by the employer company to a different city and was reimbursed by that company for losses incurred on the sale of a house. In deciding that these reimbursements were not income, Noël J. stated:

In a case such as here, where the employee is subject to being moved from one place to another, any amount by which he is out of pocket by reason of such a move is in exactly the same category as ordinary travelling expenses. His financial position is adversely affected by reason of that particular facet of his employment relationship. When his employer reimburses him for any such loss, it cannot be regarded as remuneration, for if that were all that he received under his employment arrangement, he would not have received any amount for his services. Economically, all that he would have received would be the amount that he was out of pocket by reason of the employment.

This is merely another way of describing the net gain idea that a receipt is not taxable if it does not improve the economic situation of the taxpayer; if it only reimburses for an amount for which an employee would otherwise be "out of pocket", it is not a "benefit". He treats relocation costs in the same way as ordinary travelling expenses. Reimbursement for out of pocket expenses incurred as a result of a move, explains Noël J., cannot be considered a benefit because it adds nothing of value to the recipient's economic situation. He states:

It appears to me quite clear the reimbursement of an employee by an employer for expenses or losses incurred by reason of the employment (which as stated by Lord McNaughton in Tenant v. Smith, (1892) A.C. 162, puts nothing in the pocket but merely saves the pocket) is neither remuneration as such or a benefit "of any kind whatsoever". ...

The approach of Savage and Ransom was adopted by this Court in Huffman v. Canada where the issue was whether a clothing expense which was reimbursed to a plain clothes police officer was a benefit. Heald J.A., quoting from the Tax Court Judge and echoing Mr. Justice Dickson in Savage, held that it was not, describing the applicable test as follows:

It is therefore necessary to consider whether the facts here show that there was a material acquisition in conferring an economic benefit on the taxpayer.

Mr. Justice Heald went on to conclude:

...the taxpayer was simply being restored to the same economic situation he was in before his employer ordered him to incur the expenses.

This Court once again applied this principle in affirming the decision of Cullen J. in Splanev. R. (sub nom. Splane v. Canada), [1990] 2 C.T.C. 199, 90 D.T.C. 6442 (F.C.T.D.), at page 6446 (affirmed 92 D.T.C. 6021 (F.C.A.)). There, a relocated employee was reimbursed for costs pertaining to an increased interest rate on a mortgage. Deciding that such reimbursement does not constitute a benefit, Cullen J. stated:

The taxpayer gained no extra money in his pocket. Instead the payments only allowed him to maintain the same position as that which he occupied prior to his transfer, and prevented him from having accepted the lateral transfer position at a loss.

At another point in the case, Cullen J., in characterizing the economic effects of the receipt, explained that "the plaintiff was simply restored to the economic situation he was in before he undertook to assist his employer by relocating. ..."

Therefore, the question to be decided in each of these instances is whether the taxpayer is restored or enriched. Though any number of terms may be used to express this effect - for example, reimbursement, restitution, indemnification, compensation, make whole, save the pocket - the underlying principle remains the same. If, on the whole of a transaction, an employee's economic position is not improved, that is, if the transaction is a zero-sum situation when viewed in its entirety, a receipt is not a benefit and, therefore, is not taxable under paragraph 6(1)(a). It does not make any difference whether the expense is incurred to cover costs of doing the job, of travel associated with work or of a move to a new work location, as long as the employer is not paying for the ordinary, every day expenses of the employee. [footnotes excluded]

[38]     The Concise Oxford English Dictionary - Tenth Edition, Revised, Oxford University Press - defines bursary as:

1. a grant, especially one awarded to a student.

[39]     The New Collegiate Dictionary - Thomas Allen & Son Limited, Toronto - defines: bursary as:

2. a monetary grant to a needy student.

[40]     The Canadian Oxford Paperback Dictionary - Oxford University Press - contains the following definition of bursary:

a financial award to a university student made primarily on the basis of financial need or some other criterion in addition to academic merit.

[41]     The same dictionary defines "grant" in this manner:

2a: a sum of money given by the state for any of various purposes, e.g. to finance education.

[42]     The French version of the paragraph in question uses the term, "bourse d'études" and "bourse", although having other definitions, is also defined by Larousse - Dictionnaire Général - 1994 - as follows:

3. Pension accordée par l'État ou par une institution à un élève, à un étudiant ou à un chercheur pour l'aider à poursuivre ses études.

[43]     In the case of Ong (C.A.) v. Canada, 1994 CarswellNat 1350, The Honourable Judge O'Connor - Tax Court of Canada - considered the timing of the inclusion of a grant in the taxpayer's income. At paragraph 7 of his judgment, he stated:

Paragraph 56(1)(n) of the Income Tax Act includes in income all amounts received in the year as or on account of a bursary. A bursary is equivalent to a grant. ...

[44]     In the Ong case, there had been some confusion over the nature of the financial assistance provided to assist the taxpayer in meeting the cost of her university tuition because the assistance could have taken the form of either a loan or a grant. The loan would not have been taxable. The amount was originally received under that category but the Ministry of Colleges and Universities subsequently decided the funds were a grant since the taxpayer had been qualified to receive assistance on that basis.

[45]     The appellant's application - Exhibit A-1, tab 2 - for financial assistance was undertaken using a form provided by the Ontario Ministry of Education and Training. At several places, there are references to "bursary funds", a "bursary cheque", and a "bursary plan". It is also clear the assistance was provided to cover the cost of the educational accommodations and services related to the appellant's disability. The specific services required were real-time captioning and sign language interpretation. Relevant correspondence between Simser and the administrators of the program referred to the funds as constituting "bursary assistance" pursuant to an Ontario Student Assistance Program, Bursary for Students with Disabilities. In the context of the provision of funds - under that particular program - for the specific purpose of affording the appellant the means by which he could participate in the mandatory Bar Admission Course, it is difficult to regard the questioned payment as other than the sort of receipt that ordinarily - and readily - falls within the definition of "bursary" in the context in which that word is used in paragraph 56(1)(n) of the Act. I do not see any inherent ambiguity to be resolved in favour of the taxpayer. Utilizing the term "accommodation services", although an apt description of the true purpose of the funding from a social science perspective, does not change the nature of the payment that was described as a bursary and paid to the appellant pursuant to a program designed to provide financial assistance to students with disabilities. There was no definition of "grant" contained in the umbrella federal student funding legislation. Perhaps, if a definition had existed and was at odds with dictionary definitions of "bursary" - which include a grant of financial assistance to a needy student - that discrepancy might have provided some significant leverage to the appellant, considering the specific paragraph of the Act did not define "bursary" nor did it mention a "grant" other than in the context of a research grant in subsequent paragraphs within subsection 56(1).

[46]     The SOG provided to the appellant had a specific purpose and Simser abided by the rigid conditions imposed in respect of requisite expenditures and the provision of adequate documentation in support thereof. Prior to receiving the sum of $2,000, he would have had to bear the entire cost of real-time captioning and/or sign language interpretation. The first $500 of that bursary payment was not taxable. The appellant spent the entire grant in the manner intended and - fortunately - his employer paid the balance of the cost related to provision of those required services in order to enable the appellant to complete the Bar Admission Course. The appellant received a grant of $2,000 and $1,500 of that amount was included into his income by the Minister's assessment. Had that sum not been received, he would have been compelled to bear the total cost of the accommodation services on his own. The marginal tax rate is still not 100%, even at the highest income levels. The payment was not made on the basis it would merely restore him to some prior position or compensate him for some sort of lateral movement within an educational financial assistance program in which he was registered and - as a result - already entitled to receive certain benefits. In that sense, the cases pertaining to the relocation of employees and payment of a subsidy for certain related costs are not applicable to the within appeal. Those decisions deal with fact situations arising from an employer-employee relationship and the emphasis throughout is to restore those taxpayers to a financial situation more or less equal to that enjoyed prior to undertaking the mandatory relocation. It is apparent that Parliament specifically intended to include receipt of a bursary amount into taxable income pursuant to paragraph 56(1)(n) of the Act without restricting the generality of section 3. By doing so, that sort of payment became an enumerated source of income. In my view, there is no justification for regarding the SOG payment to the appellant as other than a bursary as contemplated by that provision. It does not meet the criteria associated with a social assistance payment in the ordinary sense in which that term is employed within various pieces of legislation. It would require one to ignore the context of the SOG payment and its purpose which is inextricably linked to a facet of post-secondary education and - instead - to prefer a definition that is generally applicable to a program of broad-based, generic government funding more appropriately associated with ameliorating the effects of lower income levels on individuals and families over a longer term. The fact that the grant paid to the appellant contained more restrictions than those provided to other students within the SOG program does not disqualify this payment from inclusion into his income in accordance with the definition of bursary. It would not be unusual for a bursary or scholarship to be provided in a manner whereby the recipient was merely given credit for a reduction in tuition and/or associated educational costs under circumstances where the granting party paid a certain sum directly to the educational institution. Or, if the bursary or scholarship was provided by the institution itself, accounting entries could record a notional payment and offsetting receipt. Any payment of a bursary or scholarship is made within the context of an educational pursuit or achievement. Indeed, funds are provided by a grantor for that specific overall purpose. Depending on the precise nature of the payment, there may be more or less strings attached in accordance with the wishes of the payor. The degree of discretionary use of the funds does not change the nature of the payment. In my view, all relevant definitions contain the linkage of payment of money to a recipient who is engaged in some sort of educational pursuit. As an example, a level of government or an educational institution might confer a sum of money on a qualified recipient for the express purpose of defraying exceptional transportation costs to and from that individual's ordinary residence in order that personal funds can be otherwise expended directly on those goods and/or services normally associated with pursuing a course of study involving classroom attendance. The end result - from the perspective of the recipient - is an enhancement of that person's global financial position even if every cent of the transportation bursary or grant is expended merely in travelling to and from the educational facility. In that situation and - in the within appeal - the receipt of money has the effect of assisting both recipients within the context of a pursuit of study. In the example used, the financial assistance enabled the student to arrive at the door of the classroom. In the appellant's case, it permitted him to purchase services in order to comprehend the content of the study material and to participate fully in the Bar Admission Course within the usual classroom setting.

[47]     The Supreme Court of Canada has instructed courts not to undertake a process of statutory interpretation without having regard to the statement contained in Driedger, Construction of Statutes, 2^nd ed. (Toronto: Butterworths, 1983) at 87:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament...

[48]     In my view, when Parliament has provided certain pigeon holes into which various pigeons readily fit, it is not a fruitful exercise to use routers, drills and saws - or bits of extraneous material - to either enlarge or reduce the dimensions of those prescribed entrances.

[49]     To answer the first question at issue in the within appeal, I find the Special Opportunities Grant for Students with Disabilities paid to the appellant is a bursary within the meaning of paragraph 56(1)(n) of the Act.

[50]     As stated earlier, I referred to submissions of counsel as they related specifically to the above issue, now decided. I will now deal with their submissions in respect of the alternative positions taken by the appellant. The oral argument of both counsel was supplemented with written submissions. In addition, at the conclusion of the hearing of the within appeal, counsel for the respondent was granted permission to submit additional written submissions relating to arguments raised in relation to the Charter and counsel for the appellant was afforded the opportunity to respond - in writing - to that additional material.

[51]     Counsel for the appellant argued that paragraph 56(1)(n) of the Act is an infringement of Simser's rights under s. 15(1) of the Charter and seeks a remedy of "reading down" that provision - pursuant to s. 52(1) of the Charter - so as to render said paragraph of the Act inapplicable to students with a disability who receive grant monies intended solely to provide accommodation towards ameliorating - or eliminating - a barrier created by said disability.

[52]     In the alternative, the appellant requested the Court to declare paragraph 56(1)(n) of the Act to be of no force and effect - pursuant to s. 52(1) of the Charter - when applied to his receipt of the disability grant - in 1997 - or to any other members of the group of persons with a disability who receive grant monies under the Canada Study Grant - intended solely to provide accommodation toward a disability - in order to prevent an inconsistency with s. 15(1) of the Charter.

[53]     In the further alternative, the appellant submitted the appellant is entitled to claim the METC with respect to all receipts for sign language interpretation submitted to the Ontario Ministry of Education - as required by the terms of his grant - and requested that this Court refer his assessment back to the Minister for reassessment on that basis.

[54]     Counsel for the appellant submitted the Supreme Court of Canada has confirmed the Charter is to be read purposively so that its objects may be given effect. With respect to the matter of discrimination experienced by persons with disabilities, counsel submitted that a law of general application often fails to take into account special circumstances encountered by these individuals. Unlike other enumerated prohibited grounds within s. 15(1) of the Charter, counsel submitted any analysis of disability discrimination requires an individualized approach because that specific ground is capable of variation depending on the particular individual and the nature of the disability. As disclosed by the testimony and expert reports of Professor Philipps and Dr. Musselman, counsel referred to the effects of discrimination encountered by deaf persons who must deal with marginalization and unequal treatment as part of their daily lives. The proposition advanced through the opinions of those expert witnesses is that deaf persons experience unequal treatment in Canadian society primarily as a result of a failure to accommodate and render oral communication accessible to them. That failure is exacerbated in the context of education where it is even more important for barriers to be removed because the historical consequence for persons with disabilities has been that they have not received an adequate education or have been required to become educated in a segregated setting. Counsel submitted the appellant has the right to accessible education without incurring extra costs - personally - whether the subsequent expense attributable to providing necessary accommodation services is paid for by the particular educational institution or by programs funded by one or more levels of government. With regard to the document entitled "In Unison: A Canadian Approach to Disability Issues" - Exhibit A-9 - counsel referred to page 11 (lower left column) where it was recognized that "[P]ersons with disabilities are more likely, for example, to have lower educational levels and to be socially isolated and discriminated against in the workplace". At page 13 (middle right column) counsel quoted from the report wherein the joint federal/ provincial (except Québec)/territorial panel recognized that "[C]urrently, persons with disabilities face significant barriers to work because access to disability supports is tied rigidly to eligibility for specific programs such as income support, training and employment". At page 22 of the report, there was an acknowledgement that "[A]t all educational levels, students with disabilities often report that they find themselves at a disadvantage. Many have difficulty gaining access to the supports they require to enter or remain at school". Counsel submitted the report made it plain that disabled persons face systemic barriers and the joint study group recognized that relatively limited assistance is available to offset the costs of living with a disability. Counsel referred to the Canada Student Financial Assistance Regulations - contained at tab 15 of Volume 111 of the Appellant's Brief of Authorities - at paragraph 34 - where the language used therein made it evident that a special opportunity grant was available to a qualifying student who "is in need of exceptional education-related services or equipment that are required for the student to perform the daily activities necessary to participate in studies at a post-secondary school level ..."

[55]     Counsel for the appellant further submitted the current tax policy of the federal government has the effect of increasing the educational costs of persons living with disabilities compared to other students who are not disabled. As a consequence of adding the sum of $1,500 to the appellant's income - in 1997 - counsel referred to evidence which established that his total tax bill was increased by the sum of $588.90 even though all funds received in the form of the disability grant pursuant to the SOG program were spent on the accommodation services of real-time captioning and sign language interpretation. Counsel submitted the end result of that funding was to discriminate against the appellant because he was required to use his disabled student grant for specialized services in order to gain access to a classroom for the sole purpose of participating in a mandatory course of study. By way of contrast, counsel suggested that a student without a disability is entitled to receive a bursary and could use the funds as he or she saw fit within broad permissible limits applicable to the specific category under which it was provided. In that sense, counsel submitted the tax policy enforced by the Minister created an unjustifiable difference in wealth between persons with disabilities and non-disabled persons. By erecting such a barrier, it affected the rights of persons with disabilities - generally - and had an adverse impact upon the appellant, an individual profoundly deaf since birth. Counsel urged the Court should apply a "purposive and contextual" approach to s. 15(1) of the Charter and take into account all circumstances relevant to a person with a particular disability. Because only persons with disabilities are eligible for the Bursary for Students with Disabilities, the effect of including any receipt into income is to require persons - including the appellant - to pay more for their education than persons without disabilities. The additional tax burden imposed upon those recipients serves as a further barrier and becomes a deterrent to education by withholding equal access to education. In that manner, the two-tier effect constituted an affront to the appellant's dignity as a human being. As Simser stated in his testimony, he could not understand why he should have to beg for equal access to a classroom. Counsel submitted there is no justification for taxing payments to students with disabilities that are clearly identifiable as accommodation funding designed to remove a barrier preventing fair and equal access to education. However, the current tax policy is to impose upon recipients of a disabled student grant an extra burden not borne by non-disabled students who can use their funding for broader purposes within the context of pursuing an education at the post-secondary level rather than merely using all the money for the restricted purpose of gaining access to a classroom or simply in order to be placed in a position where they are able to comprehend the content of a course of study. Counsel submitted the obvious Charter violation is not saved by s. 1 because any limit has to be reasonable and demonstrably justified in a free and democratic society. In that sense, counsel argued the respondent has failed to discharge the onus of demonstrating what justification exists for compelling Simser to pay more for his education than the rest of his non-disabled classmates. As revealed by undertakings obtained in the course of the examination for discovery of Louis Lévesque, counsel stated the amount of tax revenue generated through the taxation of SOGs - in 1997 - was approximately $300,000, representing approximately 2 millionths of one per cent of total federal revenues of approximately $132.1 billion for the 1996-1997 fiscal year and $145.9 billion for the following year. In 2000, the tax-free portion of a bursary was increased to $3,000. Counsel pointed out that if the appellant had received his $2,000 grant that year - instead of 1997 - he would have paid no tax on it. Counsel submits the subsequent amendment to the relevant provision of the Act makes it evident the federal government possessed the ability - in 1997 - to reduce the so-called "minimal impairment" of the appellant's rights pursuant to s. 15(1) of the Charter by recognizing that inclusion of the bursary amount into his income had a discriminatory effect when compared with educational funding provided to non-disabled students. Since the failure to do so could not possibly have been motivated by any pressing financial need on the part of the government that might otherwise compel it to collect the minuscule amount of income tax raised through taxation of SOGs, counsel submitted any justification based on that premise is not plausible.

[56]     Counsel for the respondent - in the form of written argument - submitted there is a tripartite test to establish whether discrimination has taken place within the context of s. 15(1) of the Charter. As a result, it is necessary to resolve these questions:

a)          does the impugned law draw a formal distinction between the claimant and others on the basis of one or more personal characteristics or fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics;

b)       if so, is the differential treatment on the basis of one or more of the enumerated or analogous grounds; and

c)        does the differential treatment discriminate in a substantive sense such that s. 15(1) of the Charter is appropriate to remedy such ills as prejudice, stereotyping and historical disadvantage.

[57]     Counsel for the Respondent also submitted the Court must make a comparison between the appellant and an appropriate comparator group in order to determine whether discrimination has taken place. As a result, the comparison must be made with other people to whom the impugned provision applies and not with other groups not affected by that rule. As such, counsel submitted the appellant was a member of a group identified as disabled students who were eligible to received an SOG specific to that category. Disabled persons who received grants other than the particular one at issue in the within appeal - and used the funds for the same purpose as proceeds of the disability grant were used by the appellant - must include those grants into income pursuant to paragraph 56(1)(n) of the Act. Counsel referred to the argument - advanced on behalf of the appellant - to the effect that he was treated in a substantively different manner than other SOG recipients because his grant was used to purchase sign language interpretation and real-time captioning services without which he would not have been able to access the Bar Admission Course. Further, the appellant argued that in order to obtain the grant he had to provide cost estimates to substantiate his need for funding and was required to verify - subsequently - the use of the grant proceeds. Counsel for the respondent submitted it must be the nature of the expenses for which the funds are used that must be examined to determine substantively differential treatment. Therefore, the receipt of funds for a particular purpose cannot constitute differential treatment because two individuals who receive the same amount of money are both required to include the receipt into income under paragraph 56(1)(n) of the Act. In addition, verification requirements relating to expenditure of a grant could only be distinguished from those applicable to other grant recipients if it could be established they were not required to use their funds to purchase services or items that also assist in overcoming some barriers that would otherwise interfere with their access to education. The SOG program also provided grants to students with dependent children and certain eligibility requirements were associated with that specific funding and various other rules applied to other SOGs. The purpose of the grant for students with dependents is to compensate for the loss of income - otherwise available for expenditures relating to care of children - incurred as a result of attending an educational institution. In that sense, counsel submitted this type of SOG enabled a recipient charged with the care of children to use grant funds for food, shelter or services in order to permit the student to attend the classroom. Referring to the expert opinion offered by Professor Philipps, counsel noted there are other examples of disadvantaged students who utilize bursaries or grants in order to assist them in the pursuit of education. Although their circumstances may differ, many students are affected by poverty and limitations on the ability to generate adequate income, but still utilize a bursary, grant or scholarship in order to be afforded the opportunity to attend an educational institution. Once there, they must still pay for books, supplies and other expenses related to obtaining an education. If each SOG recipient used the funds for the intended purpose and in each case the qualification process was based - in part - on establishing financial need, then the fact the appellant had to provide receipts for approved expenses - and others did not - does not amount to a substantive difference between the categories of students. Counsel referred to the evidence of Frank Smith - provided at the Wignall, supra, hearing before the Canadian Human Rights Tribunal - in which Smith stated there were hundreds of funding sources available to disabled students designed to provide the support necessary to permit them access to education. Counsel conceded - as stated by Dr. Musselman in her testimony and discussed in her report - that some disabled persons rely on the same services as those purchased by the appellant in the within appeal to the extent that if those services are not available, those students will not be able to pursue an education. Counsel submitted that disabled students who do not qualify for a grant pursuant to the SOG program may receive a grant from another source in order to purchase the same services while others will receive no financial assistance in the form of a bursary or similar funding but will still purchase the services because they are necessary. In these scenarios, counsel contended one student will pay tax on the bursary because it falls within paragraph 56(1)(n) of the Act, and the other will be paying for vital services with after-tax income which - if they qualify for inclusion as a medical expense - can be utilized in the calculation of the METC. Counsel submitted the appellant was not subject to differential treatment - on an enumerated ground - in respect of taxation on SOG funding related to accommodation for his physical disability. Instead, the appellant was being taxed on his source of income which he chose to access in order to overcome an otherwise insurmountable barrier to his continuing legal education. Counsel conceded the appellant - as a profoundly deaf person - is a member of a group that has been subject to historical disadvantage. However, with respect to the criterion whether there is correspondence between the ground of disability and the actual need, capacity and circumstances relevant to the appellant, counsel acknowledged that paragraph 56(1)(n) might not specifically take into account the actual needs of the appellant but the Act - taken as a whole - did recognize extraordinary costs associated with living with a disability through those provisions relevant to claiming the METC and/or DTC and in permitting the full education credit to be claimed by disabled students even though they are not attending an educational institution on a full-time basis. Even with these provisions, counsel acknowledged the Act was not designed with the intent to offset the entire costs incurred by persons living with a disability, although there is a concerted effort made on a regular basis to expand the category of eligible medical expenses relevant to the METC - generally - and specifically as it pertains to disabled persons who purchase new devices and apparatus made available by advances in technology. Counsel addressed the issue arising from the nature of the interest affected by the legislation at issue and submitted the Courts have recognized that - intrinsic to taxation policy - there are distinctions created that recognize divergent and/or competing interests while discharging the primary purpose of generating revenue. Counsel submitted that inclusion into income of a disability grant under the SOG program does not have the effect of restricting access to an educational institution, particularly in view of the evidence that the vast majority of students have little or no taxable income. At a lower income level, inclusion of the cost of sign language interpretation into the METC category would offset any tax liability resulting from inclusion of an SOG payment. For the foregoing reasons, counsel submitted the inclusion of the disability grant into the appellant's income did not constitute substantively differential treatment on the basis of an enumerated ground and - in any event - paragraph 56(1)(n) of the Act, does not amount to discrimination within the meaning of s. 15 of the Charter.

[58]     Counsel for the respondent then addressed the issue as to whether paragraph 56(1)(n) of the Act - if it is found to violate the appellant's s. 15 rights - could be saved by s. 1 of the Charter. With respect to the criterion requiring the rights violation be rationally connected with the aim of the legislation, counsel submitted the object of the Act is to raise revenue for the government and that such objective is obviously necessary and substantial. The purpose of the impugned paragraph is to capture income based on the fundamental principle that all sources of income should be recognized in the process of determining the extent of taxable income. Regarding the condition that the impugned provision must minimally impair the Charter guarantee, counsel referred to the evidence adduced in the course of the hearing as it pertained to the operation of the DTC, METC and education tax credit, all of which were designed to function as an offset to any income inclusion pursuant to paragraph 56(1)(n) of the Act. Qualification for the DTC does not depend on whether or not bursary income is included pursuant to said paragraph and counsel noted the appellant had chosen not to claim sign language interpretation expenses as part of his METC - even though they were eligible for inclusion - and as a result of this omission was not able to receive the ameliorative effect of that provision. Counsel referred to the evidence of Rosaria Zompanti - Chartered Accountant - and Donald Wilson - an official with Department of Finance - which demonstrated the appellant - in 1997 - because of his employment had income at a level far beyond that of the overwhelming majority of students. As a result, the appellant - even had he chosen to claim the eligible medical expenses - would not have been able to offset - totally - the effect of inclusion into income of the grant by utilizing the METC as would be the case for the vast majority of his fellow students. Counsel submitted it was the method of filing his tax return that caused the appellant to incur a greater tax liability than required because he could have obtained a credit - to offset the effect of inclusion of the grant - had he utilized provisions of the METC to recognize his expenditure for sign language interpretation services during the Bar Admission Course. Counsel submitted the combined operation of the DTC, METC and special education credit calculation for disabled students serves to reduce any impairment of the appellant's Charter rights to a minimum as contemplated by relevant jurisprudence. Further, counsel submitted that to permit the appellant to choose between not claiming the eligible expenses as part of the METC regime and to ignore - for reporting purposes - certain income that was expended in order to access the Bar Admission Course would not only subvert the intention of Parliament but such course of action is not relevant within the context of a comparative concept of equality.

[59]     In conclusion, counsel for the respondent submitted this Court does not have jurisdiction to grant any relief to the appellant other than by finding the SOG funding did not fall within the meaning of bursary under paragraph 56(1)(n) of the Act. Even though the Court - pursuant to section 24 of the Charter - could declare that provision to be of no force or effect, any additional relief such as reading down said provision to - in effect - amend the legislation by not having it apply to the particular type of bursary received by the appellant, is beyond the authority of the Court because it would constitute declaratory relief.

[60]     In reply to the written submissions of counsel for the respondent, counsel for the appellant submitted a Memorandum of Fact and Law in a volume also containing further reported cases and other reference material. First, counsel submitted the Tax Court of Canada has several options by which the Charter rights of the appellant can be protected. Pursuant to the Tax Court of Canada Act, R.S.C. 1985 c. T-2, as amended, the Tax Court has the exclusive, original jurisdiction to hear and decide the tax appeal of the appellant. The appellant, as required by section 57 of the Federal Court Act, followed the procedure of serving a Notice of Constitutional Question to every Attorney General in Canada and none elected to intervene in the within appeal. Further, counsel submitted that at no point in the 3½ year-history of these proceedings had the respondent ever questioned the jurisdiction of the Tax Court of Canada to award the Charter remedies sought by the appellant. Counsel submitted this Court is the only forum in which a constitutional argument - made in the course of a taxpayer's appeal - can be given consideration. In that sense, it would have been obvious to Parliament that this Court would have the right to award constitutional remedies in situations in which the Court had found violations of the Charter. The remaining content of the above-mentioned reply submissions are summarized, as follows:

1.        It is an established principle that where different interpretations of a statute are available, the courts should choose the one most consistent with the Charter.

2.        In the within appeal, this Court is a court of competent jurisdiction and, therefore, a source of remedial jurisdiction as envisaged by s. 24(1) of the Charter and has the authority to allow the appellant's appeal by vacating or varying that part of the assessment that found the BSWD/SOG grant to constitute income and/or to refer the assessment back to the Minister for reassessment in accordance with the directed remedy.

3.        Awarding a personal remedy to the appellant, pursuant to s. 24 of the Charter, does not necessarily require the making of a declaration; instead, the Court would refer the assessment back to the Minister for reassessment based upon the Court's Charter analysis which is not to be construed as judicial amendment of a legislative provision.

4.        The Tax Court of Canada is a court of competent jurisdiction for the purpose of s. 52 of the Constitution Act, 1982 and has the power to strike down paragraph 56(1)(n) of the Income Tax Act on the basis it is an unconstitutional provision. However, the appellant does not seek that remedy and - instead - requests the Court to "read down" that provision as it pertains to the appellant's receipt of the SOG payment at issue because to do otherwise is to offend his rights under s. 15(1) of the Charter.

[61]     Section 15(1) of the Charter reads as follows:

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.

[62]     In the case of Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, the Supreme Court of Canada decided that the failure of the Medical Services Commission and hospitals to provide necessary sign language interpretation - in order that deaf persons could effectively communicate with medical professionals - constituted a denial of s.15 (1) of the Charter and was not a reasonable limit under s. 1. The judgment of the Court was delivered by La Forest J. At pp. 667-669 he stated:

As deaf persons, the appellants belong to an enumerated group under s. 15(1) - the physically disabled. While this fact is not contested, it is nonetheless relevant. As Wilson J. held in Turpin, the determination of whether a law is discriminatory is a contextual exercise. It is important, she explained, at p. 1331, "to look not only at the impugned legislation ... but also to the larger social, political and legal context".

It is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization. Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement, subjected to invidious stereotyping and relegated to institutions; see generally M. David Lepofsky, "A Report Card on the Charter's Guarantee of Equality to Persons with Disabilities after 10 Years - What Progress? What Prospects?" (1997), 7 N.J.C.L. 263. This historical disadvantage has to a great extent been shaped and perpetuated by the notion that disability is an abnormality or flaw. As a result, disabled persons have not generally been afforded the "equal concern, respect and consideration" that s. 15(1) of the Charter demands. Instead, they have been subjected to paternalistic attitudes of pity and charity, and their entrance into the social mainstream has been conditional upon their emulation of able-bodied norms; see Sandra A. Goundry and Yvonne Peters, Litigating for Disability Equality Rights: The Promises and the Pitfalls (1994), at pp. 5-6. One consequence of these attitudes is the persistent social and economic disadvantage faced by the disabled. Statistics indicate that persons with disabilities, in comparison to non-disabled persons, have less education, are more likely to be outside the labour force, face much higher unemployment rates, and are concentrated at the lower end of the pay scale when employed; see Minister of Human Resources Development, Persons with Disabilities: A supplementary Paper (1994), at pp. 3-4, and Statistics Canada, A Portrait of Persons with Disabilities (1995), at pp. 46-49.

Deaf persons have not escaped this general predicament. Although many of them resist the notion that deafness is an impairment and identify themselves as members of a distinct community with its own language and culture, this does not justify their compelled exclusion from the opportunities and services designed for and otherwise available to the hearing population. For many hearing persons, the dominant perception of deafness is one of silence. This perception has perpetuated ignorance of the needs of deaf persons and has resulted in a society that is for the most part organized as though everyone can hear; see generally Oliver Sacks, Seeing Voices: A Journey Into the World of the Deaf (1989). Not surprisingly, therefore, the disadvantage experienced by deaf persons derives largely from barriers to communication with the hearing population.

[63]     After discussing the concept of adverse effects discrimination in the context of provincial human rights legislation, La Forest J - at p. 672 commented:

Adverse effects discrimination is especially relevant in the case of disability. The government will rarely single out disabled persons for discriminatory treatment. More common are laws of general application that have a disparate impact on the disabled. This was recognized by the Chief Justice in his dissenting opinion in Rodriguez, supra, where he held that the law criminalizing assisted suicide violated s. 15(1) of the Charter by discriminating on the basis of physical disability. There, a majority of the Court determined, inter alia, that the law was saved by s. 1 of the Charter, assuming without deciding that it infringed s. 15(1). While I refrain from commenting on the correctness of the Chief Justice's conclusion on the application of s. 15(1) in that case, I endorse his general approach to the scope of that provision, which he set out as follows, at p. 549:

Not only does s. 15(1) require the government to exercise greater caution in making express or direct distinctions based on personal characteristics, but legislation equally applicable to everyone is also capable of infringing the right to equality enshrined in that provision, and so of having to be justified in terms of s. 1. Even in imposing generally applicable provisions, the government must take into account differences which in fact exist between individuals and so far as possible ensure that the provisions adopted will not have a greater impact on certain classes of persons due to irrelevant personal characteristics than on the public as a whole. In other words, to promote the objective of the more equal society, s. 15(1) acts as a bar to the executive enacting provisions without taking into account their possible impact on already disadvantaged classes of persons.

[64]     The Supreme Court of Canada in the case of Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, reviewed the decision of the Ontario Court of Appeal wherein the school board was ordered not to place a disabled child in a segregated classroom unless it had obtained the consent of the parents or could demonstrate the probable inadequacy of less exclusionary forms of placement within the mandate of meeting the special educational needs of the child. Sopinka J. - writing the opinion for the Court on the s. 15(1) Charter issue - concluded the rights of the child had not be violated by the decision of the Special Education Tribunal permitting her to be placed in a special education class because her needs were not being met in the usual classroom setting. Commencing at p. 272, Sopinka J. stated:

The principles that not every distinction on a prohibited ground will constitute discrimination and that, in general, distinctions based on presumed rather than actual characteristics are the hallmarks of discrimination have particular significance when applied to physical and mental disability. Avoidance of discrimination on this ground will frequently require distinctions to be made taking into account the actual personal characteristics of disabled persons. In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 169, McIntyre J. stated that the "accommodation of differences ... is the essence of true equality". This emphasizes that the purpose of s. 15 (1) of the Charter is not only to prevent discrimination by the attribution of stereotypical characteristics to individuals, but also to ameliorate the position of groups within Canadian society who have suffered disadvantage by exclusion from mainstream society as has been the case with disabled persons.

The principal object of certain of the prohibited grounds is the elimination of discrimination by the attribution of untrue characteristics based on stereotypical attitudes relating to immutable conditions such as race or sex. In the case of disability, this is one of the objectives. The other equally important objective seeks to take into account the true characteristics of this group which act as headwinds to the enjoyment of society's benefits and to accommodate them. Exclusion from the mainstream of society results from the construction of a society based solely on "mainstream" attributes to which disabled persons will never be able to gain access. Whether it is the impossibility of success at a written test for a blind person, or the need for ramp access to a library, the discrimination does not lie in the attribution of untrue characteristics to the disabled individual. The blind person cannot see and the person in a wheelchair needs a ramp. Rather, it is the failure to make reasonable accommodation, to fine-tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which results in discrimination against them. The discrimination inquiry which uses "the attribution of stereotypical characteristics" reasoning as commonly understood is simply inappropriate here. It may be seen rather as a case of reverse stereotyping which, by not allowing for the condition of a disabled individual, ignores his or her disability and forces the individual to sink or swin within the mainstream environment. It is recognition of the actual characteristics, and reasonable accommodation of these characteristics which is the central purpose of s. 15(1) in relation to disability.

[65]     At p. 273, Sopinka J. commented:

It follows that disability, as a prohibited ground, differs from other enumerated grounds such as race or sex because there is no individual variation with respect to these grounds. However, with respect to disability, this ground means vastly different things depending upon the individual and the context...

[66]     In 1999, the Supreme Court of Canada decided the case of Law v. Canada, [1999] 1 S.C.R. 497, involving a claim that a widow's s. 15(1) Charter rights were being violated because certain provisions of the Canada Pension Plan discriminated against her on the basis of age because surviving spouses under 35 - unless they become disabled - are precluded from receiving the survivor's pension until they reach age 65. The judgment of the Court was delivered by Iacobucci J. who undertook an extensive analysis of earlier judgments of the Court concerning the interpretation of s. 15(1) and the development of the concept of equal treatment of individuals. In his judgment, Iacobucci J. reviewed the decision of McIntyre J. in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, and at p. 520 commented:

In summary, then, the Andrews decision established that there are three key elements to a discrimination claim under s. 15(1) of the Charter: differential treatment, an enumerated or analogous ground, and discrimination in a substantive sense involving factors such as prejudice, stereotyping, and disadvantage. Of fundamental importance, as stressed repeatedly by all of the judges who wrote, the determination of whether each of these elements exists in a particular case is always to be undertaken in a purposive manner, taking into account the full social, political, and legal context of the claim.

[67]     The purpose of s. 15(1) of the Charter was discussed by Iacobucci J, at pp. 524-525, as follows:

As was emphasized in early Charter decisions such as Hunter v. Southam Inc., [1984] 2 S.C.R. 145, and R. v. Big M. Drug Mart Ltd., [1985] 1 S.C.R. 295, and re-iterated by McIntyre J. in Andrews, supra, the proper approach to the definition of rights guaranteed by the Charter is a purposive one. The purpose of s. 15(1) is to be sought, in the words of Dickson J. (as he then was) in Big M, supra, at p. 344, "by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and ... to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter".

Since the beginning of its s. 15(1) jurisprudence, this Court has recognized that the existence of a conflict between an impugned law and the purpose of s. 15(1) is essential in order to found a discrimination claim. This principle holds true with respect to each element of a discrimination claim. The determination of whether legislation fails to take into account existing disadvantage, or whether a claimant falls within one or more of the enumerated and analogous grounds, or whether differential treatment may be said to constitute discrimination within the meaning of s. 15(1), must all be undertaken in a purposive and contextual manner.

What is the purpose of the s. 15(1) equality guarantee? There is great continuity in the jurisprudence of this Court on this issue. In Andrews, supra, all judges who wrote advanced largely the same view. McIntyre J. stated, at p. 171, that the purpose of s. 15 is to promote "a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration". The provision is a guarantee against the evil of oppression, he explained at pp. 180-81, designed to remedy the imposition of unfair limitations upon opportunities, particularly for those persons or groups who have been subject to historical disadvantage, prejudice, and stereotyping.

[68]     Iacobucci J. discussed in considerable detail several opinions of the purpose of s. 15(1) as variously expressed by members of the Court in the course of deciding several cases concerning matters in which claims of discriminatory treatment had been asserted. Continuing with his analysis, at pp. 529-531, he stated:

All of these statements share several key elements. It may be said that the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration. Legislation which effects differential treatment between individuals or groups will violate this fundamental purpose where those who are subject to differential treatment fall within one or more enumerated or analogous grounds, and where the differential treatment reflects the stereotypical application of presumed group or personal characteristics, or otherwise has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society. Alternatively, differential treatment will not likely constitute discrimination within the purpose of s. 15(1) where it does not violate the human dignity or freedom of a person or group in this way, and in particular where the differential treatment also assists in ameliorating the position of the disadvantaged within Canadian society.

As noted above, one of the difficulties in defining the concepts of "equality" and "discrimination" is the abstract nature of the words and the similarly abstract nature of words used to explain them. No single word or phrase can fully describe the content and purpose of s. 15(1). However, in the articulation of the purpose of s. 15(1) just provided on the basis of past cases, a focus is quite properly placed upon the goal of assuring human dignity by the remedying of discriminatory treatment.

What is human dignity? There can be different conceptions of what human dignity means. For the purpose of analysis under s. 15(1) of the Charter, however, the jurisprudence of this Court reflects a specific, albeit non-exhaustive, definition. As noted by Lamer C.J. in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 at p. 554, the equality guarantee in s. 15(1) is concerned with the realization of personal autonomy and self-determination. Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law?

The equality guarantee in s. 15(1) of the Charter must be understood and applied in light of the above understanding of its purpose. The overriding concern with protecting and promoting human dignity in the sense just described infuses all elements of the discrimination analysis.

[69]     In this area of jurisprudence, it has become accepted that the guarantee of equality is a comparative concept requiring a court to identify treatment which can be seen as differential when compared to one or more other persons or groups. In the course of that necessary exercise, finding the apt comparator is important when proceeding to evaluate matters - described as contextual factors - in order to determine whether discrimination is present. In this context, Iacobucci J. continued as follows at pp. 531-532:

To locate the appropriate comparator, we must consider a variety of factors, including the subject-matter of the legislation. The object of a s. 15(1) analysis is not to determine equality in the abstract; it is to determine whether the impugned legislation creates differential treatment between the claimant and others on the basis of enumerated or analogous grounds, which results in discrimination. Both the purpose and the effect of the legislation must be considered in determining the appropriate comparison group or groups. Other contextual factors may also be relevant. The biological, historical, and sociological similarities or dissimilarities may be relevant in establishing the relevant comparator in particular, and whether the legislation effects discrimination in a substantive sense more generally: see Weatherall, supra, at pp. 877-78.

When identifying the relevant comparator, the natural starting point is to consider the claimant's view. It is the claimant who generally chooses the person, group, or groups with whom he or she wishes to be compared for the purpose of the discrimination inquiry, thus setting the parameters of the alleged differential treatment that he or she wishes to challenge. However, the claimant's characterization of the comparison may not always be sufficient. It may be that the differential treatment is not between the groups identified by the claimant, but rather between other groups. Clearly a court cannot, ex proprio motu, evaluate a ground of discrimination not pleaded by the parties and in relation to which no evidence has been adduced: see Symes, supra, at p. 762. However, within the scope of the ground or grounds pleaded, I would not close the door on the power of a court to refine the comparison presented by the claimant where warranted.

[70]     Commencing at p. 532, Iacobucci J. discussed the approach to be taken in establishing discrimination in a purposive sense with regard to the appropriate perspective to be applied to any consideration of the contextual factors. He stated:

D.      Establishing Discrimination in a Purposive Sense: Contextual Factors

            (1) The Appropriate Perspective

The determination of the appropriate comparator, and the evaluation of the contextual factors which determine whether legislation has the effect of demeaning a claimant's dignity must be conducted from the perspective of the claimant. As applied in practice in several of this Court's equality decisions, and as neatly discussed by L'Heureux-Dubé J. in Egan, supra, at para. 56, the focus of the discrimination inquiry is both subjective and objective: subjective in so far as the right to equal treatment is an individual right, asserted by a specific claimant with particular traits and circumstances; and objective in so far as it is possible to determine whether the individual claimant's equality rights have been infringed only by considering the larger context of the legislation in question, and society's past and present treatment of the claimant and of other persons or groups with similar characteristics or circumstances. The objective component means that it is not sufficient, in order to ground a s. 15(1) claim, for a claimant simply to assert, without more, that his or her dignity has been adversely affected by a law.

As stated by L'Heureux-Dubé J. in Egan, supra, at para. 56, the relevant point of view is that of the reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances, as, the claimant. Although I stress that the inquiry into whether legislation demeans the claimant's dignity must be undertaken from the perspective of the claimant and from no other perspective, a court must be satisfied that the claimant's assertion that differential treatment imposed by legislation demeans his or her dignity is supported by an objective assessment of the situation. All of that individual's or that group's traits, history, and circumstances must be considered in evaluating whether a reasonable person in circumstances similar to those of the claimant would find that the legislation which imposes differential treatment has the effect of demeaning his or her dignity.

I should like to emphasize that I in no way endorse or contemplate an application of the above perspective which would have the effect of subverting the purpose of s. 15(1). I am aware of the controversy that exists regarding the biases implicit in some applications of the "reasonable person" standard. It is essential to stress that the appropriate perspective is not solely that of a "reasonable person" - a perspective which could, through misapplication, serve as a vehicle for the imposition of community prejudices. The appropriate perspective is subjective-objective. Equality analysis under the Charter is concerned with the perspective of a person in circumstances similar to those of the claimant, who is informed of and rationally takes into account the various contextual factors which determine whether an impugned law infringes human dignity, as that concept is understood for the purpose of s. 15(1).

[71]     In analyzing the relationship between the grounds of discrimination and the particular characteristics and circumstances of the claimant, Iacobucci J. expressed his views in the following extract of his judgment, from p. 538:

It is thus necessary to analyze in a purposive manner the ground upon which the s. 15(1) claim is based when determining whether discrimination has been established. As a general matter, as stated by McIntyre J. in Andrews, supra, and by Sopinka J. in Eaton, supra, and referred to above, legislation which takes into account the actual needs, capacity, or circumstances of the claimant and others with similar traits in a manner that respects their value as human beings and members of Canadian society will be less likely to have a negative effect on human dignity. This is not to say that the mere fact of impugned legislation's having to some degree taken into account the actual situation of persons like the claimant will be sufficient to defeat a s. 15(1) claim. The focus must always remain upon the central question of whether, viewed from the perspective of the claimant, the differential treatment imposed by the legislation has the effect of violating human dignity. The fact that the impugned legislation may achieve a valid social purpose for one group of individuals cannot function to deny an equality claim where the effects of the legislation upon another person or group conflict with the purpose of the s. 15(1) guarantee. In line with the reasons of McIntyre J. and Sopinka J., I mean simply to state that it will be easier to establish discrimination to the extent that impugned legislation fails to take into account a claimant's actual situation, and more difficult to establish discrimination to the extent that legislation properly accommodates the claimant's needs, capacities, and circumstances.

[72]     While recognizing that the relevant factors will vary from case to case, Iacobucci J. noted - at p. 541:

... The general theme, though, may be simply stated. An infringement of s. 15(1) of the Charter exists if it can be demonstrated that, from the perspective of a reasonable person in circumstances similar to those of the claimant who takes into account the contextual factors relevant to the claim, the legislative imposition of differential treatment has the effect of demeaning his or her dignity: see Egan, supra, at para. 56, per L'Heureux-Dubé J. Demonstrating the existence of discrimination in this purposive sense will require a claimant to advert to factors capable of supporting an inference that the purpose of s. 15(1) of the Charter has been infringed by the legislation.

[73]     In discussing the nature and extent of a claimant's burden under s. 15(1), Iacobucci J. made it clear that there was no onus to adduce data, social science evidence in order to demonstrate there had been a violation of that person's freedom or dignity. There was a recognition that courts may use judicial notice and logical reasoning to arrive at an appropriate determination of a portion or all of the circumstances on which such a claim is based. In addition, Iacobucci J. reiterated earlier positions taken by the Court that it was not necessary for a claimant to establish that the intent of the legislation was discriminatory in nature. Instead, the important aspect is to consider whether a claimant has proven that the purpose of the legislation has infringed s. 15(1) or that the effect of the offending provision has been to discriminate. Either one will suffice. In instances where the law has drawn a distinction upon an enumerated ground - as argued by the appellant in the within appeal - the issue will revolve around whether the law discriminates in such a manner that it can be regarded as having an adverse impact on the claimant's human dignity. At pp. 545-547, Iacobucci J. reviewed the matters earlier discussed in his reasons and stated:

Taking these three points into account, it should be clear that in some cases it will be relatively easy for a claimant to establish a s. 15(1) infringement, while in other cases it will be more difficult to locate a violation of the purpose of the equality guarantee. In more straightforward cases, it will be clear to the court on the basis of judicial notice and logical reasoning that an impugned law interferes with human dignity and thus constitutes discrimination within the meaning of the Charter. Often, but not always, this will be the case where a law draws a formal distinction in treatment on the basis of enumerated or analogous grounds, because the use of these grounds frequently does not correlate with need, capacity, or merit. It may be sufficient for the court simply to take judicial notice of pre-existing disadvantage experienced by the claimant or by the group of which the claimant is a member in order for such a s. 15(1) claim to be made out. In other cases, it will be necessary to refer to one or more other contextual factors. In every case, though, a court's central concern will be with whether a violation of human dignity has been established, in light of the historical, social, political, and legal context of the claim. In order to succeed under s. 15(1), it is up to the claimant to ensure that the court is made aware of this context in the appropriate manner.

I should pause at this juncture to comment briefly upon an alternative method of articulating the approach to be taken under s. 15(1). I have reviewed in these reasons the general approach taken to s. 15(1) by this Court, which involves three broad elements, namely (1) the existence of differential treatment, (2) the presence of enumerated or analogous grounds, and (3) discrimination which brings into play the purpose of s. 15(1). However, it is possible to understand the third element of the s. 15(1) inquiry as really being a restatement of the requirement that there be substantive rather than merely formal inequality in order for an infringement of s. 15(1) to have been made out. Under this alternative view, the definition of "substantive inequality" is "discrimination" within the meaning of the Charter, bringing into play the claimant's human dignity. No substantive inequality would exist where the claimant's human dignity was not brought into play by his or her treatment by the state.

I agree with the general idea that, in practice in some cases, it may well be duplicative to determine first whether differential treatment exists, and then to determine whether the purpose of s. 15(1) has been brought into play. As I mentioned above, this will particularly be the case where adverse effects discrimination is at issue, since the analysis of whether the claimant's difference has been effectively ignored by an impugned law will usually bring into play issues of human dignity. In such cases, there may be no real difference in analysis or result regardless of whether one or the other approach is used.

I do have some reservations, however, which lead me to prefer the approach which I have reviewed in these reasons, involving three main elements rather than two. To take the adverse effects discrimination example again, there may be cases where a law which applies identically to all fails to take into account the claimant's different traits or circumstances, yet does not infringe the claimant's human dignity in so doing. In such cases, there could be said to be substantively differential treatment between the claimant and others, because the law has a meaningfully different effect upon the claimant, without there being discrimination for the purpose of s. 15(1). Thus, by changing the formal structure of analysis under s. 15(1) from that expressed in the previous jurisprudence, the alternative approach referred to above might detract in practice from the importance placed by courts upon contextual factors and the purpose of s. 15(1). I believe it is easier and more effective for a court to apply an approach which distinguishes conceptually between differential treatment, on the one hand, and the discriminatory quality of that differential treatment, on the other.

Accordingly, I have continued this Court's practice of articulating s. 15(1) analysis as having the three distinct elements which have been reviewed in these reasons. At the same time, I do not disagree with the idea that the concept of substantive inequality could be defined in terms of its discriminatory purpose or effect, nor do I mean to suggest that a court which articulated its analysis using a different structure would err in law simply by doing that, provided it addressed itself properly and thoroughly to the purpose of s. 15(1) and the relevant contextual factors.

[74]     In the process of concluding that the impugned legislative provisions found in the Canada Pension Plan did not infringe s. 15(1) of the Charter, Iacobucci J. stated at pp. 560-561:

In referring to the existence of a correspondence between a legislative distinction in treatment and the actual situation of different individuals or groups, I do not wish to imply that legislation must always correspond perfectly with social reality in order to comply with s. 15(1) of the Charter. The determination of whether a legislative provision infringes a claimant's dignity must in every case be considered in the full context of the claim. In the present case, the appellant is more advantaged by virtue of her young age. She is challenging the validity of legislation with an egalitarian purpose and function whose provisions correspond to a very large degree with the needs and circumstances of the persons whom the legislation targets. There are no other factors suggesting that her dignity as a younger adult is demeaned by the legislation, either in its purpose or in its effects.

[75]     Turning to the specific facts of the case, he continued at pp. 561-562:

In conclusion with respect to the particular circumstances of the appellant's case, I would also note that people in the position of the appellant are not completely excluded from obtaining a survivor's pension, although it is delayed until the person reaches age 65 unless they become disabled before then. The availability of the pension to the appellant strengthens the conclusion that the law does not reflect a view of the appellant that suggests she is undeserving or less worthy as a person, only that the distribution of the benefit to her will be delayed until she is at a different point in her life cycle, when she reaches retirement age.

In these circumstances, recalling the purposes of s. 15(1), I am at a loss to locate any violation of human dignity. The impugned distinctions in the present case do not stigmatize young persons, nor can they be said to perpetuate the view that surviving spouses under age 45 are less deserving of concern, respect or consideration than any others. Nor do they withhold a government benefit on the basis of stereotypical assumptions about the demographic group of which the appellant happens to be a member. I must conclude that, when considered in the social, political, and legal context of the claim, the age distinctions in ss. 44(1)(d) and 58 of the CPP are not discriminatory.

[76]     In the Law, supra, decision and other earlier cases before the Supreme Court of Canada, the approach taken by the Court has been to focus upon three main issues in the course of undertaking an analysis concerning the applicability of s. 15(1) of the Charter. In the within appeal, as the examination affects the particular circumstances relevant to the appellant, these central issues may be stated, as follows:

1.        does paragraph 56(1)(n) of the Act impose differential treatment between the appellant and others students, in purpose or effect;

2.        is the enumerated ground of disability the basis for the differential treatment;

3.        does paragraph 56(1)(n) of the Act have a purpose or effect that is discriminatory within the meaning of the equality guarantee.

[77]     As a consequence, the first matter to be resolved depends on providing answers to the following questions:

1.        Does paragraph 56(1)(n) of the Act draw a formal distinction between the appellant - and other students receiving bursaries - on the basis of one or more personal characteristics?

2.        Was the appellant subject to differential treatment based on his physical disability?

3.        Did the differential treatment discriminate by imposing a burden upon the appellant or withholding a benefit in a manner reflective of the stereotypical application of presumed group or personal characteristics; or, did it have the effect of promoting the view that the appellant was less capable or worthy of recognition or value as a human being or as a member of Canadian society deserving concern, consideration and respect?

[78]     With respect to the first question, in order to determine whether or not discrimination has taken place, this Court has to make a comparison between the appellant and an appropriate comparator group. The position of the appellant is that only students with disabilities were eligible for the bursary paid to students under that part of the SOG program. The appellant submitted an application for funding - in the sum of $3,625 - in order to pay the estimated cost of sign language interpretation and real-time captioning services required for participation in the Bar Admission Course. The Ontario Ministry of Education and Training, as the ministry responsible for provincial participation in the federal/provincial program, responded by approving a grant in the sum of $2,000 on the basis this was the maximum amount available. Conditions of the grant included the requirement that the funds be expended for the purpose stated in the application and receipts for monies paid for those services had to be provided within a stated time limit. As a consequence of the appellant expending the grant money solely for the purpose of obtaining accommodation services within the classroom so he could comprehend the course content, counsel for the appellant submitted Simser had to pay more for his education than a person without a disability because he was taxed on $1,500 of the bursary proceeds without recognizing that the funds had not been expended in a general sense to pursue a goal in the context of acquiring a post-secondary education but were utilized for the sole purpose of giving the appellant equal access to the classroom in order that he could participate on an equal footing with his fellow law students. The comparator chosen by the appellant is that group comprising all non-disabled students receiving bursaries, grants, fellowships, or scholarships who are not required to incur expenses for accommodation services merely to access the classroom either from a physical standpoint or in order to comprehend course material. Even within the group qualifying for the SOGs, the position taken by the appellant is that he was subject to certain conditions and restrictions on the use of the granted funds that were not applicable to the other two categories within that program. The position of the respondent is that it is equally important to compare the appellant to disabled persons who receive grants other than the particular SOG funding at issue in the within appeal to ensure that a comparison to similarly situated persons is effected.

[79]     The Supreme Court of Canada in Granovsky v. Canada, [2000] 1 S.C.R. 703, heard an appeal in which the plaintiff had argued that the drop-out provision under the Canada Pension Plan made an unlawful distinction between individuals with permanent disabilities and persons - like herself - who suffered from a temporary disability. The Court considered whether that distinction constituted a violation of s. 15(1) of the Charter. The judgment of the Court was delivered by Binnie J. who - at pp. 722-724 - stated:

This case presents the first opportunity for the Court to consider the disability ground of s. 15(1) since rendering its decision in Law, supra. In that decision, Iacobucci J., speaking for a unanimous Court at para. 39, set out what he called "a synthesis" of "various articulations" of the s. 15(1) test. I propose at the outset to highlight some of the relevant themes from the Court's earlier Charter treatment of disability, in so far as those themes bear on the proper resolution of the present appeal, and then, in light of that earlier jurisprudence, to turn to the application of the guidelines summarized in Law commencing at para. 88.

The respondent is somewhat dismissive of the appellant's physical impairment, suggesting disbelief that a severe backache could rise to the level of a constitutional challenge. The respondent argues that s. 15(1) protection

is for serious disabilities. ...Human Right Boards and Tribunals in Canada have held that absences from work because of temporary illnesses or injuries are not ordinarily characterized as disabilities. ...

This perspective puts too much focus on the impairment itself and not enough focus on the government's response to it. I therefore propose to discuss what at this stage appear to be circumstances that signal the enumerated ground of disability while underlining the obvious fact that the analysis will undergo further refinement in future cases as they arise.

The Charter is not a magic wand that can eliminate physical or mental impairments, nor is it expected to create the illusion of doing so. Nor can it alleviate or eliminate the functional limitations truly created by the impairment. What s. 15 of the Charter can do, and it is a role of immense importance, is address the way in which the state responds to people with disabilities. Section 15(1) ensures that governments may not, intentionally or through a failure of appropriate accommodation, stigmatize the underlying physical or mental impairment, or attribute functional limitations to the individual that the underlying physical or mental impairment does not entail, or fail to recognize the added burdens which persons with disabilities may encounter in achieving self-fulfilment in a world relentlessly oriented to the able-bodied.

It is therefore useful to keep distinct the component of disability that may be said to be located in an individual, namely the aspects of physical or mental impairment, and functional limitation, and on the other hand the other component, namely the socially constructed handicap that is not located in the individual at all but in the society in which the individual is obliged to go about his or her everyday tasks. ...

[80]     Later in his judgment, while dealing with the issue of the comparative approach, Binnie J. commented at pp. 729-730:

The identification of the group in relation to which the appellant can properly claim "unequal treatment" is crucial. The Court established at the outset of its equality jurisprudence in Andrews, supra, that claims of distinction and discrimination could only be evaluated "by comparison with the conditions of others in the social and political setting in which the question arises" (p. 164). See also Law, supra, at para. 24:

This comparison determines whether the s. 15(1) claimant may be said to experience differential treatment, which is the first step in determining whether there is discriminatory inequality for the purpose of s. 15(1).

The appellant contends that he ought to be compared to an ordinary member of the workforce who was able-bodied during the contribution period because the appellant was being required to satisfy the level of contribution expected of an ordinary member of the workforce with insufficient regard for periods of temporary disability. However, while a s. 15 complainant is given considerable scope to identify the appropriate group for comparison, "the claimant's characterization of the comparison may not always be sufficient. It may be that the differential treatment is not between the groups identified by the claimant, but rather between other groups" (Law, supra, at para. 58).

Such identification has to bear an appropriate relationship between the group selected for comparison and the benefit that constitutes the subject matter of the complaint. As was pointed out in Law, supra, at para. 57:

Both the purpose and the effect of the legislation must be considered in determining the appropriate comparison group or groups.

[81]     Prior to arriving at the conclusion there had been no infringement of s. 15 of the Charter, Binnie J. focused directly on the issue of disability. At p. 747 he commented:

The "purposive" interpretation of s. 15 puts the focus squarely on the third aspect of disabilities, namely on the state's response to an individual's physical or mental impairment. If the state's response were, intentionally on through effects produced by oversight, to stigmatize the underlying physical or mental impairment, or to attribute functional limitations to the appellant that his underlying physical or mental impairment did not warrant, or to fail to recognize the added burdens which persons with temporary disabilities may encounter in achieving self-fulfilment, or otherwise to misuse the impairment or its consequences in a discriminatory fashion that engages the purpose of s. 15, an infringement of equality rights would be established. But neither Parliament in the design of the CPP, nor the Minister in his administration of the CPP in relation to the appellant, did any of these things, in my opinion.

While I have every sympathy for the appellant's injured back and the problematic employment history to which it may have contributed, I do not believe that a reasonably objective person, standing in his shoes and taking into account the context of the CPP and its method of financing through contributions, would consider that the greater allowance made for persons with greater disabilities in terms of CPP contributions "marginalized" or "stigmatized" him or demeaned his sense of worth and dignity as a human being.

[82]     Ms. Ena Chadha - co-counsel for the appellant in the within appeal - participated in the Wignall, supra, hearing before the Canadian Human Rights Commission, appearing on behalf of the Council of Canadians with Disabilities, an interested party in the proceedings. Counsel for the respondent in the within appeal - Ms. Tracey Harwood-Jones - acted as counsel for the Department of National Revenue. The complainant - Wignall - appeared on his own behalf. The decision is located at tab 6 of Volume I of Respondent's Book of Authorities. The facts comprising the complaint before Chairperson Guy A. Chicoine are remarkably similar to the circumstances relevant to the appellant in the within appeal. Understandably, counsel may have experienced that peculiar sensation so aptly defined - by that great philosopher, Yogi Berra - as "déja vu all over again". The basis of the complaint was that Wignall - a 22-year old deaf student attending the University of Manitoba's Social Work Program in the fall term of 1995 received an SOG for students with disabilities in the amount of $3,000. The University of Manitoba had provided Wignall with sign language interpreters - free of charge - for classroom lectures during the regular session but had requested that he seek out other sources of funding for these services. As a result, the SOG was obtained from the Government of Canada. The funds were turned over to the University of Manitoba to help defray a portion of the cost of the interpreter services. In 1996, Wignall received a T4A Supplementary indicating the amount of the SOG was to be considered as income for purposes of his 1995 taxation year. Wignall regarded the characterization of the SOG as a bursary - subject to taxation - as unfair, discriminatory and contrary to s. 5 of the Canadian Human Rights Act which makes it a discriminatory practice in the provision of services ordinarily available to the public at large to differentiate adversely in relation to an individual on the basis of a prohibited ground of discrimination including physical disability. In filing his complaint before the Commission, Wignall asserted the grant merely enabled him to deal with his disability rather than providing him with any actual benefit and that to subject the receipt to taxation - like an ordinary bursary - was unfair. In the Wignall matter, the position of Revenue Canada was that the receipt of the bursary amount fell squarely within the confines of paragraph 56(1)(n) of the Act. Unlike the appellant's situation in the within appeal, the inclusion of the particular SOG into Wignall's income had no impact on his 1995 income tax return since he was entitled to a refund of all taxes paid at source. The only effect of the income inclusion was to reduce Wignall's provincial tax credit by the sum of $25. The witness - called by counsel for Revenue Canada - stated it was not the policy of the federal government to remove one particular source of funding within the category of scholarships, bursaries etc., as enumerated in paragraph 56(1)(n) of the Act and - instead - the government had chosen to take all sources of income into account for purposes of taxation and to provide tax assistance in specific areas by means of the tax credit system. As in the within appeal, the SOG paid to Wignall was linked to the Student Loan Program and was dependent on the applicant having demonstrated financial need. The position of the complainant - supported by counsel to the Commission - was that the SOG had been awarded to Wignall on the basis it would be used to cover the exceptional cost of sign language interpreters and, as such, the funds took on the nature of an accommodation specifically designed to alleviated the barriers created by deafness. In the course of undertaking his analysis, Chairman Chicoine - at paragraph 44 of his reasons - chose the comparator group proposed by the claimant as "constituting all other students who receive grants, bursaries, etc." At paragraph 45 of his reasons, Chairman Chicoine stated:

The first question to be answered is whether the taxation of the Special Opportunity Grant, in the same manner as any other grant or bursary, "draws a formal distinction between the claimant and others on the basis of one or more personal characteristics." In my view, the answer is that it does not. The Special Opportunity Grant is taxed, according to Mr. Rector, the witness called by Revenue Canada, because one of the fundamental principles of the income tax system is to take into consideration all sources of income in determining a person's ability to pay. Revenue Canada has not given the Special Opportunity Grant any special status, but treats it like any other grant, bursary or scholarship. It should be noted that grants, bursaries and scholarships are given to students based on a myriad of considerations including financial need, academic achievement, association with a particular group, as an attraction to a particular course of study, and even on the basis of gender, race, national or ethnic origin, religion, marital status and age. According to Revenue Canada's policy, all of these grants, bursaries and scholarships must be declared as income whether or not they were awarded based on a personal characteristic of the recipient.

[83]     Chairman Chicoine decided Wignall had not been subjected to differential treatment by the inclusion of the SOG into his income.

[84]     Turning to the facts relevant to the within appeal, the SOG was made available to the appellant only after he had demonstrated financial need, the overarching component within the particular structure designed in accordance with the overall program concerned with financing students through loans and grants. All students receiving financial aid in a form satisfying the ordinary definitions of the words used within paragraph 56(1)(n) of the Act, were required to include the taxable portion thereof into income. This requirement applied whether the grant was for the specific purpose of enabling a student to receive funds to cover the cost of transportation to and from the educational institution or to pay tuition and related fees, purchase books and supplies, compensate tutors or acquire specialized equipment and services. In terms of specific expenditures, there will, of course, be differences depending on the nature and intent of the financial aid and the needs of the recipient as recognized by the awarding of a particular bursary, fellowship or scholarship. The specificity of the purpose of the bursary does not amount to differential treatment nor does verification of the amounts expended. The other groups eligible for SOGs were female doctoral students and students with dependent children. There is no cogent evidence concerning the nature of restrictions imposed upon the recipients but it is safe to assume the terms under which their grants were provided were substantially broader in nature than those applicable to Simser. He applied for funding in order to obtain certain services - real-time captioning and sign language interpretation - and the bursary was awarded - albeit in a lesser amount than he had sought - in order that those necessary services could be obtained for the purpose of permitting him to attend the Bar Admission Course. However, all three categories required potential recipients to demonstrate financial need and to submit the appropriate documentation to support the claim of eligibility on that ground as well as to demonstrate conformity with several other terms and conditions. In the case of an SOG paid to a student with dependents, the recipient probably did not have to account for specific purchases of baby food, diapers, and other ordinary items acquired for the benefit of the children but it is reasonable to assume there were certain conditions - applicable both before and after the awarding of the grant - which were binding upon that student in a general sense. Obviously, the purpose of aiding students with their education - by making funds available to alleviate burdens created by financial need - is not to provide funds to purchase items considered as recreational in nature or to enable a student to participate in activities not having a reasonable and demonstrable link with the particular educational pursuit. Frank Smith, in the course of his testimony (Exhibit A-7) in the Wignall, supra, hearing stated that in order to obtain an SOG relating to permanent disability, the student must provide adequate documentation to demonstrate his or her particular disability together with written confirmation by a qualified individual at the post-secondary institution to verify that the specified services - enumerated in the grant application - were needed. In addition, the applicant had to provide two cost estimates of the services required. Smith testified that other students who were eligible for SOGs including high-need part-time students, women in doctoral studies, and the newest category - students with dependents - did not have to submit cost estimates nor receipts for expenditures. Smith stated that in 1997-1998, 2,500 SOGs for students with disabilities were approved.

[85]     The Federal Court of Appeal in the case of Kasvandv. Canada, [1994] F.C.J. No. 510 considered a challenge to the constitutionality of paragraph 146(1)(c) of the Act which defined earned income upon which the deductible amount of RRSP premiums is determined. At para. 3 of his judgment, Mahoney J.A. stated:

The Applicant's perception is that paragraph 146(1)(c) denies a deduction in respect of income from sources on which many elderly, disabled persons disproportionately depend while allowing it in respect of income from sources usually more accessible to younger, able bodied persons. That may be so, but it remains that the distinction among taxpayers is drawn on the basis of sources of income. It is not drawn on any basis of discrimination proscribed by subsection 15(1). Elderly and disabled persons who have "earned income" are as entitled as any other taxpayer to a deduction while the young and able bodied are identically limited.

[86]     In the within appeal, the taxable nature of the SOG received by the appellant is due to the nature of the funding without reference to any personal characteristics. The specific provision of the Act - paragraph 56(1)(n) - does not draw any formal distinction between Simser and other students - whether they were disabled, recipients of another category of SOG or non-disabled students obtaining financial aid by way of a bursary, scholarship or fellowship. The legislation seeks to tax money provided through various sources to persons who - by ordinary definition of those terms - are engaged in the pursuit of education. The paragraph draws a distinction between the aforementioned categories in that an amount received as a prize is only taxable if awarded for achievement in a field of endeavour ordinarily carried on by the taxpayer.

[87]     The second part of the question is whether the impugned provision fails to take into account the appellant's already disadvantaged position within Canadian society resulting in substantively different treatment between him and others on the basis of his disability.

[88]     Returning to the Wignall, supra, hearing, with regard to this point as raised by the complainant in that matter, Chairman Chicoine stated:

[46]       The alternative question is whether the taxation of the Special Opportunity Grant "fails to take into account the claimant's already disadvantaged position within society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics." [Emphasis added.] Counsel for the Commission suggested in argument that because of the fact that the Special Opportunity Grant is only available to disabled persons, it should not be lumped with all other scholarships, fellowships, bursaries, prizes and research grants which "all other students" might receive. I am unable to find, based on the evidence presented at the hearing, that the inclusion of the Special Opportunity Grant in the income of the recipient for taxation purposes results in "substantively differential treatment" based on the Complainant's personal characteristics. Mr. Wignall did not receive the grant based on his disability only, but also because he was able to meet the means test of the Canada/Manitoba Student Loan program and because he agreed to use the funds to purchase services that would assist him in accommodating his disability in the classroom setting.

[47]       Answering the part of the question whether the policy to treat the Special Opportunity Grant like any other grant, bursary or scholarship fails to take into account "the claimant's already disadvantaged position within Canadian society" requires an examination of the larger issue of society's responsibility to assist persons with disabilities generally. The creation of the Special Opportunity Grant in the first place was obviously a recognition by the Government of Canada that students with disabilities were in need of special financial assistance to access education at the post-secondary level. The amount which any particular student would receive was determined, at least to some extent, according to the student's own ability to pay. A student could only access these funds if he met the qualifications of the Canada/Manitoba Student Loan program.

[89]     Chairman Chicoine went on to discuss the insignificant impact on the federal treasury if SOGs were tax free and noted the Scott Task Force report had made that specific recommendation but the government had declined to implement it in order to exempt this category of financial assistance from the taxing provision.

[90]     There is no doubt the appellant has been in a difficult position since birth. His hearing loss is profound in the most profound meaning of that word. He testified it has required the combined energy flowing from a life-long struggle by his devoted parents and his own concerted efforts in order that he could obtain proper elementary schooling, secondary and post-secondary education in a non-segregated educational environment. He outlined some of the costs associated with living with his particular disability and expressed the frustration experienced on a regular basis at not being able to communicate with others in a variety of ordinary settings that most people take for granted. He described the disadvantage suffered by any student when unable to participate fully in the classroom and - equally important - thereafter in study groups with fellow students. Dr. Musselman, in the course of her testimony as an expert, explained the nature of the severe difficulties faced by students with disabilities in accessing post-secondary education and making the transition from school to the workplace following graduation. As part of her study, she reported that - in 1992 - only 2% of deaf Canadians held university degrees compared to 15% of males - and 12.2% of females - without disabilities. Students with disabilities - other than deafness - were able to obtain university degrees at the rate of 6.2% for males and 5.6% for females. In Dr. Musselman's opinion, this significant difference in university graduation rates - including those applicable to other disabled students as compared to the deaf and hard-of-hearing students - is attributable to the extreme disadvantages arising from barriers to communication. While students with disabilities will experience additional costs - both direct and indirect - deaf students must expend considerable sums of money solely for the purpose of addressing communication barriers and even the best sign language interpretation can convey only about 85% of the information being communicated in an oral classroom environment so that additional accommodation supports such as note takers are required.

[91]     Professor Philipps testified as an expert in issues pertaining to tax policy and social equality and observed that the Medical Expense Tax Credit - METC - was designed to reduce the tax payable by taxpayers who incurred certain enumerated medical expenses. Within the context of the provision, those persons making the payments were referred to as "patients" and - for the most part - were not individuals with disabilities. She stated that many expenditures - including real-time captioning - were not recognized within the framework of the METC and would not be available to offset the tax paid on a bursary to a disabled student. In addition, the METC may not apply if an individual student's qualifying medical expenses are less than the amount established as a threshold. Professor Philipps explained that - in 1997 - sign language interpretation was included as an eligible expense for purposes of the METC but it was not clear whether such expenditure for this service - in a classroom setting as opposed to having some nexus with medical treatment - would necessarily qualify upon closer examination by the Minister. The Disability Tax Credit - DTC - was considered by Professor Philipps to be unavailable to help offset the tax payable on a bursary to a student with disabilities because of the nature of the multiple restrictive criteria contained in the relevant provision of the Act. Further, she stated the purpose of the DTC was to offset general costs of living with disability on a daily basis and noted many costs are difficult to itemize. Since many students qualifying for a grant based on disability would never be able to obtain a DTC and - because the DTC was calculated at the lowest tax rate while inclusion into income of any bursary would be taxed at the appropriate marginal rate - Philipps concluded the DTC would never offset the increase in tax resulting from inclusion of the bursary amount into income because even if there is a match in a strict accounting sense, the DTC will not be otherwise available to counteract the effect of the individual's indirect costs of living with the disability. In the course of her work in the field of taxation and social equality, Philipps ascertained that a "barrier" can be defined as anything in the environment that makes it impossible for an individual with a disability to participate on an equal footing with a non-disabled person. In order to compensate for the disability with a view to surmounting the barrier, Philipps considered that "accommodation funding" embraces whatever remedial measure is employed to either eliminate - or to reduce as much as possible - that particular set of circumstances constituting the barrier. In her view, taxing people on amounts received purely by way of accommodation funding is unfair and merely reinstates the prior condition of being in an unequal position when compared to non-disabled students who receive funding.

[92]     The student loan program as it applied to students with disabilities provided loans to part-time disabled students if their course load represented 40% of a full-time course load. This option was not available to non-disabled students. Other students not qualifying for a grant based on a disability - perhaps, because of an inability to demonstrate financial need - would have been required to purchase the same sort of accommodation services as those obtained by the appellant in the within appeal. The appellant faced a communication barrier due to his profound deafness and required financial assistance to overcome that hurdle. Other students whether disabled or not and whether eligible for SOGs or a myriad of other forms of financial assistance - based on a multitude of criteria - also required funding to overcome some circumstance that created an otherwise seemingly insurmountable barrier to that important pursuit. Some students might belong to a disadvantaged group within Canadian society as in the case of an aboriginal student living in an area of extremely high unemployment affected by a devastatingly low per capita annual income. As discussed earlier in another context, the requirement that the receipt of need-based funding must be included into income is based on the premise that all students will be treated equally rather than attempting to create specialized categories within that broad group even though the downstream effect will vary from person to person - at tax time - depending on a multitude of other factors including the amount of other taxable income received during that taxation year. Even in 1997, there was recognition that recipients of amounts included within paragraph 56(1)(n) of the Act were entitled to a $500 exemption from taxation. That amount - appropriately so - has since been increased to $3,000. The position of the appellant is that the Minister should have looked beyond the mere form of the payment issued pursuant to the BSWD portion of the SOG program which - in turn - was part of the overall student financing framework of the Canada Student Loans Program. By delving deeper into the true nature of the bursary, the appellant argues the Minister could have ascertained that it was expended - as required - for the sole purpose of purchasing those accommodation services enabling him to access the classroom on an equal basis. The appellant submitted the omission of that second step fails to take into account his lifelong disadvantaged position - as a deaf person - and that the refusal to refine the meaning of a bursary so as to exclude accommodation funding - as defined by experts - results in substantively differential treatment between himself and other students at the Bar Admission Course based solely on his personal characteristic, namely, deafness.

[93]     Taking all of the relevant evidence into account, I cannot find that the Minister was required to interpret paragraph 56(1)(n) of the Act in such a manner as to create a difference between the appellant and other recipients of bursaries, fellowships, scholarships and taxable prizes, in order that the payment to the appellant could be exempted from taxation. The appellant argued that even in the event the SOG amount was initially included into income under that paragraph on the basis it was a bursary in accordance with ordinary usage of that term - as I have found earlier in these reasons - then, the Minister should have analyzed all of the circumstances surrounding that grant and categorized it as more appropriately constituting a social assistance payment. By undertaking that action, the relevant sum could be removed from income and the net effect would be zero for purposes of taxation. In my view, such subsequent exclusion from income would be based on differential treatment because it would re-define the payment on the basis of the intended - and actual - purpose of the expenditure - purchasing real-time captioning and sign language interpretation services - rather than taxing the payment because it was one of those forms of financial assistance for students - disabled or not - that attracts taxation by virtue of the relevant paragraph of the Act. The provisions of the Act pertaining to the DTC and METC and certain special terms defining full-time attendance on the part of disabled students could be utilized in order to ameliorate the effects of an increased amount of tax caused by inclusion of a bursary amount into income.

[94]     In my view, the appellant has failed to demonstrate that paragraph 56(1)(n) of the Act failed to take into account his position within the category of already disadvantaged persons in a manner that resulted in substantively differential treatment between himself and other bursary recipients on the basis that he was deaf and required certain specialized services in order to pursue his education.

[95]     If the appellant was subject to differential treatment between himself and other students who receive grants, the question to be determined is whether the difference is based on his physical disability, an enumerated ground within s. 15(1) of the Charter. The requisite examination necessarily involves considerable overlapping of issues in terms of analysis and general discussion. In the Wignall, supra, hearing, Chairman Chicoine stated:

[49]       The second question is whether the claimant is subject to differential treatment based on one or more enumerated and analogous grounds. Having already decided that Mr. Wignall was not subjected to differential treatment by the inclusion of the Special Opportunity Grant in his income, it does not really matter that the grant was ear-marked for interpreter services in the classroom. Its characterization as income to the recipient did not depend on the personal characteristics of the recipient. Mr. Wignall was not being taxed because he was disabled. He was taxed because he received a grant given to assist him with some of the exceptional costs he would incur in his pursuit of an education. Whether or not tax would be payable on the amount of the grant depended on numerous other factors, not the least of which was the amount of income which Mr. Wignall received from other sources.

[96]     In the within appeal, Simser was not taxed because he was deaf. He was not taxed because the grant required him to expend the funds on the captioning and interpretation services or because he was required to provide receipts while other SOG recipients were not subject to this condition. Again, the appellant was taxed on the basis of the source of his income which was comprised of the $1,500 taxable portion of his $2,000 bursary. The differential effect upon him was due - in part - to his decision not to claim the amount paid for the ASL interpretation portion of the overall accommodation services for purposes of calculating the METC credit and the significant impact of his total income in the 1997 taxation year. The overwhelming majority of students - whether receiving bursaries, etc. or not - traditionally have little or no taxable income. If the appellant had been in that category, then by claiming the DTC and the appropriate METC, the inclusion of the bursary amount into his income would have had little or no effect. The particular circumstances relevant to the appellant placed him in a higher tax bracket so that the amount of the METC - had it been claimed - was less than the marginal tax rate on the sum of $1,500 that had been included into income. In 1997, the tax-exempt amount of $500 was applicable to all persons receiving payments within the ambit of paragraph 56(1)(n). The effect of the exemption was to reduce the overall rate of taxation - albeit, notionally - attributable to the entire amount of the receipt. Again, the appellant required financial assistance to overcome a barrier to education and received a bursary to assist him in attending the Bar Admission Course. Without that SOG funding, he faced an insurmountable barrier which would have prevented him from becoming a fully qualified lawyer unless he made the decision either to spend his own resources or seek out another form of financial assistance. He utilized the bursary to purchase services to overcome the specific barrier created by his deafness. There is, however, no evidence to support the conclusion that deaf students rely more on grants as a source of funding than other disabled students. The finding of a study referred to by Frank Smith in his testimony at the Wignall, supra, hearing was that 44% of the participating students with disabilities reported their total income from all sources was not sufficient to cover their costs. The particular study concluded that an additional sum of $3,000 was required - on average - by a disabled student and recommended this funding become available in the form of grants as opposed to loans. The report - prepared in 1993 - was submitted to the Disabled Persons Participation Program, Secretary of State. The grant component of the Canada Student Loans Program was introduced - in 1995 - to support the exceptional costs incurred by groups identified as requiring additional assistance including students with permanent disabilities, high-needs part-time students and women in doctoral programs, followed by another category composed of students with dependents. The relevant taxing provision at issue - paragraph 56(1)(n) of the Act - is applicable to all recipients of those grants and no discrimination arises because of the appellant's particular disability nor is taxability of the SOG receipt dependent on membership within the group of students with disabilities or the wider group of students eligible to receive SOGs. Instead, it applies to the entire community of students who receive certain kinds of financial assistance designed to aid them in the pursuit of higher education.

[97]     Another requisite branch of inquiry is to examine whether the impugned paragraph has a purpose or effect that is discriminatory within the meaning of the equality guarantee. One must determine whether there is differential treatment which discriminates by imposing a burden or withholding a benefit from the claimant in a manner which is stereotypical when applied to a presumed group or personal characteristics. The analysis requires consideration whether the differential treatment has the effect of perpetuating or promoting the view that the appellant is less capable and worthy of recognition or value as a human being or as a member of Canadian society deserving - in equal measure - concern, respect and consideration. Referring again to the decision of Chairman Chicoine in Wignall, supra, with respect to this issue, he stated:

[51]       On the facts of this case, the question becomes: "Does the inclusion of a Special Opportunity Grant as income of the recipient for the purpose of calculating taxable income impose a burden upon or withhold a benefit from a disabled person in a manner that reflects a stereotypical attitude toward persons with disabilities or which would perpetuate the view that a disabled person is less capable or worthy of recognition as a human being or member of society?" In order to answer this question in the affirmative, one would have to conclude that Revenue Canada was obligated to treat the recipient of this particular grant differently from all other recipients of grants, bursaries or scholarships because it was intended to cover certain costs associated with a person's disability. This Tribunal is not prepared to impose upon Revenue Canada the obligation to exempt from taxation all income which might be used to alleviate a person's disability. In fact, Revenue Canada is treating the recipient of this grant like any other recipient of a grant, bursary or scholarship. Disabled persons are not exempted from paying personal income tax. In fact, s. 2 of the Canadian Human Rights Act recognized that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on the enumerated prohibited grounds. The taxation of the Special Opportunity Grant does not, in my view, impose a burden or withhold a benefit in the manner contemplated in the Law analysis. In fact, the inclusion of the grant in income is consistent with the duties and obligations of all persons to pay a fair share of tax on income. The burden imposed on Mr. Wignall in this case was minimal. It was not an affront to his dignity as a human being to test his entitlement to the grant against the yardstick of total income from all other sources.

[98]     The evidence relevant to the within appeal makes it clear that the appellant - as a deaf person - is part of a larger group of disabled persons within our society that has been historically marginalized and treated unequally. Despite the appellant's amazing academic success in obtaining degrees and professional designations - in several disciplines - he testified that he is not able to generate the level of income ordinarily attributable to a person with his specialized qualifications and experience. In Simser's opinion, the primary reason for this difference is his particular disability because the need to understand and communicate effectively is one of the most important requirements for persons seeking to earn a living as an administrator engaged in business or as an accountant or lawyer. On a daily basis, the appellant incurs extraordinary costs for various devices and ongoing maintenance of apparatus and equipment. He had to pay for expensive surgery in order to obtain an implant in the hope it would provide a lasting improvement to his hearing ability. The appellant is required to function within a society that is designed on the basis that he - like nearly everyone else - can hear. With regard to accessing post-secondary institutions, his position is that he is entitled to receive educational services - like medical services - as a right and that any accommodation provided to achieve that goal is integral rather than ancillary. In order to be truly equal, the appellant argued that taxing a bursary designed to pay for specialized accommodation services - in order to alleviate the effects of a disability - is to ignore the historical disadvantage suffered by deaf people. The appellant's submission is that taxing such forms of assistance as other income - in the ordinary sense - perpetuates the problem and reduces further the likelihood that deaf persons will pursue advanced education. The Act, as mentioned earlier, does attempt to take into account unusual costs associated with living with a disability by utilizing DTC and METC provisions. Although not perfect, the METC provision undergoes constant revision in an attempt to keep up with advancing technology and the development of new treatments and devices. The specific paragraph at issue does not take into account the actual circumstances of the appellant. He is treated as a student receiving a form of financial assistance that required him to pay tax on any amount in excess of $500. The real-time captioning expenditure was not an eligible expense for purposes of the METC but it appears as though the Minister would have allowed - initially, at least - the cost of sign language interpretation had it been claimed in that category. From the standpoint of the appellant, he considers the effect of the federal government's tax policy is to increase the educational costs of students living with disabilities compared to those without a disability. The proposition advanced by the appellant is that since able-bodied persons do not require accommodation services, taxing a bursary designed to provide such services to disabled students has the effect of forcing persons with disabilities to pay more for their education. In my view, the appellant fails to appreciate that there are others within the comparator - composed of all students receiving financial assistance as envisaged by paragraph 56(1)(n) of the Act - who are required, either by conditions attached to the bursary, scholarship or fellowship - or in a practical sense - to expend the proceeds thereof in an appropriate manner that will alleviate the burden imposed upon them by the particular hindrance confronting them when the application for financial assistance was submitted to the grantor. As mentioned earlier in another context, the Act provides for a full education credit even though a disabled student is taking less than a full load of courses. Within the SOG program, each of the grants had its own set of conditions and all were tailored to meet the needs of the target group whether applicable to women in doctoral studies - in order to correct an imbalance within certain disciplines - or to students with dependents who required financial assistance in order to care properly for their children while pursuing higher education.

[99]     The purpose of paragraph 56(1)(n) of the Act is to generate revenue. At this juncture, there is little doubt that various taxing schemes of governments are closely tied with development of social policy. Inherent in that undertaking is a search for appropriate mechanisms to ensure fair and equal treatment within broad classes of persons affected by taxing legislation. By way of example, in the Act, there have been distinctions based on age, marital status, source of income, number of dependents, nature and/or location of employment, residence, type of investment, earned income in terms of definition and amount, eligibility for tax credits and other differences regarded as an inevitable consequence of passing laws for the purpose of generating revenue required by the fisc. In a country with as much geography as Canada and, considering its diversity, it is unreasonable to expect a taxing statute to take into account every possible distinction that could have the effect of conferring a benefit or causing a disadvantage to some taxpayers. As instructed in Law, supra, one must look at these contextual factors in order to decide whether the impugned legislation had the effect of demeaning the dignity of the appellant, an inquiry that was stated by Iacobucci J. to be both subjective and objective regarded from the standpoint of the reasonable person in similar circumstances who takes into account those factors.

[100] The evidence disclosed that local school boards provided - without charge - the accommodation services required by the appellant during his primary and secondary education. Later, while pursuing his undergraduate and Master's degree from the University of Ottawa and York University, respectively, a variety of disability-related accommodation services were provided to the appellant including note takers, ASL interpretation and - subsequently - real-time captioning. Simser did not pay for these services nor was any amount added to his tax as a result of receiving this benefit. Following graduation, Simser became employed by the Ontario Ministry of the Environment and - while working - obtained his CMA designation. Simser's employer funded the ASL interpretation services in order that he could participate in the workshop component of the program. There was no tax consequence accruing to him as a result of receiving this assistance. In 1994, when the appellant entered Osgoode Hall Law School, York University paid for a variety of needed accommodation services including note taking, ASL interpretation and real-time captioning so he could attend class and participate in lectures and group discussions. After finishing law school, the appellant had to complete the Bar Admission Course in order to become eligible for admission to the Ontario Bar. Attendance was mandatory and the appellant requested that the Law Society of Upper Canada (Law Society) provide him with needed accommodation services for Phase I of the course which lasted one month. When the Law Society refused, the appellant applied for financial assistance in the form of an SOG applicable to students with disabilities. He received the sum of $2,000 for the purpose of purchasing the ASL interpretation and real-time captioning services. While attending Phase I of the Bar Admission Course, the appellant was employed by the Department of Justice which paid the balance of the accommodation expenses - in excess of $2,300 - directly to his service providers. Phase II of the Bar Admission Course was completed by articling at the Department of Justice and the cost of necessary accommodation services required for Phase III - involving substantive law and examinations - was paid by the Law Society. The appellant regarded the receipt of his T4A - issued by the Ontario Ministry of Education and Training - identifying the amount of the bursary as "other income" as inappropriate considering the purpose for which the funds were used. In his view, as expressed later in the course of correspondence with employees of that Ministry and with officials at Revenue Canada and the Department of Finance, inclusion of the bursary amount into income was counter-productive and constituted a deterrent to any disabled student wanting to apply for an SOG. His position was that if he had been a student with normal hearing, he would not have required a bursary for purposes of attending the Bar Admission Course because there would have been no exceptional demand upon personal financial resources. However, by being deaf and in need of the specialized services in order to participate in the classroom, Simser had to apply for SOG funding available to students with permanent disability. From his perspective, the end result was that he was faced with an increased tax bill arising from a receipt that had only placed him in the same position as a student with normal hearing. With respect to the appellant's considerable ability and taking into account his particular situation, it seems to me that Simser and his counsel have trained their awesome firepower on the wrong target. Throughout, while pursuing his education at all levels, there had been accommodation services provided - without cost - by the educational institutions or - when the education had a component significantly linked to employment - by an employer. The Eldridge, supra, decision issued by the Supreme Court of Canada recognized that, while hospitals were not "government", they carried out a specific government objective in providing medically necessary services under the relevant legislation. It was held that the failure to provide sign language interpretation amounted to discrimination since it was closely connected with the medical service delivery system. For other reasons, and in another context, it appears as though the educational institutions attended by the appellant throughout his extensive academic career had already adopted the approach later taken by the Supreme Court as it pertained to the delivery of educational services within the framework of a system receiving governmental assistance in one form or another. The refusal of the Law Society to pay for the appellant's accommodation funding in order that he might purchase necessary accommodation services was the impetus for his application for funding in the form of an SOG based on his disability and - not to be overlooked - his concurrent financial need. When the SOG was received, it was considered by the Minister to have been received as a bursary and was taxed in accordance with the provisions of paragraph 56(1)(n) of the Act. It was not the inclusion of that amount into income which could have had the effect of restricting the appellant from gaining access to the Bar Admission Course. Instead, it was the refusal of the Law Society to place him in a position where he was equal with other students attending that mandatory course of study preparatory to becoming a member of the Ontario Bar. Taxing the non-exempt portion of the bursary did not - in my view - discriminate against him based on his disability. The applicability of the impugned paragraph to the receipt was based on the source and also by taking into account the general purpose of the funding which was to assist a student in the pursuit of advanced specialized education. As Simser stated in his testimony, he did not feel as though he should have been forced to beg for services that were designed solely to eliminate a barrier to regular participation in a classroom environment. In my view, any slight suffered in that regard was due to the rejection - by the Law Society - of his application for assistance in terms of accommodating his disability. As an individual who had graduated from law school and was articling as part of the overall Bar Admission Course, he had every reason to assume that - as had happened throughout his education - the necessary specialized services would be provided to him at no cost. That expectation, and the perceived unequal treatment - when compared to non-disabled articling students - however, does not have a nexus with subsequent taxation of the funding received for the particular purpose of attending that specialized course of study deemed mandatory by a self-regulating profession. The appellant was employed during the 1997 taxation year and had a taxable income in the sum of $31,825. I fail to comprehend how his dignity as a human being was demeaned or why he would perceive himself as someone regarded as unworthy or less capable in the eyes of Canadian society because he - like all other recipients of bursaries - had to pay tax on the non-exempt portion thereof. The paragraph of the Act at issue does not stigmatize disabled students nor does it cause any reason to regard them as different from non-disabled students. Indeed, it does the exact opposite in that it draws no distinction and merely looks to the nature of the payment received. I cannot see that the federal government has withheld any government benefit on the basis of any stereotypical assumptions about disabled people who are pursuing higher education and receive financial assistance for one or more purposes.

[101] These reasons are lengthy. I have attempted to deal with various issues and have referred to testimony, documents, written articles, references, transcripts, and binders of authorities which played a role in permitting me to arrive at the conclusions stated herein. The analysis often involved consideration of various alternatives and sometimes there is duplication because some facts and circumstances were utilized in a different context. Attempting to arrive at the core issues in this highly-refined field of Charter jurisprudence is akin to peeling onions; the degree of subtlety and attention to detail required to examine correctly the nuances and shades of meaning inherent in this complex process can sometimes bring tears to one's eyes.

[102] For the reasons stated herein, I do not find there has been any infringement of s. 15(1) of the Charter as a result of the Minister having included the non-exempt portion of the bursary into the appellant's income for his 1997 taxation year. As a result, there is no need to consider s. 1.

[103] There is one remaining matter to address. Although it was not raised by the appellant in his Notice of Objection, and it does not form any portion of the subject matter of the pleadings and is only referred to in the Examinations for Discovery - and during the hearing - for comparative purposes or otherwise in a general sense, counsel for the appellant - in written submissions - did request that this Court refer the assessment back to the Minister for reassessment on the basis that all receipts for sign language interpretation submitted to the Ontario Ministry of Education pursuant to the terms of the appellant's bursary be utilized in order to calculate the relevant amount of the METC. This relief was not sought specifically in the Notice of Appeal but under the heading, Remedy Sought, at paragraph (e) thereof, there was a request for "[S]uch further and other relief as counsel may request, and the Honourable Court may permit".

[104] The evidence disclosed the appellant made a conscious choice not to use the amount paid for sign language interpretation in order to claim his METC. In correspondence - Exhibit A-1 at tab 10 - with Louis Lévesque - at paragraph 4 of his letter dated November 3, 1997, Simser stated:

... I am presently employed at a high enough income and would not be entitled to any medical credit. As you know very well, 3% of net income must be deducted from the medical credit. Secondly, my services are provided in a classroom in a program of my own accord. This has nothing to do with my everyday basic activities. Therefore, I do not think I can declare it under medical expenses (I still don't know if you answered that point which you raised yourself in the first place). Thirdly, I am arguing under s. 15 of the Charter. I want the whole bursary to be exempt. I do not want to claim the expenses under another category.

[105] In a letter - Exhibit A-1 at tab 14 - dated April 7, 1998 sent by the appellant to the assessing official at Revenue Canada, Simser - at paragraph 5 of his letter - stated:

... I will appeal this decision to the Tax Court, even if you use the medical expense provision...

[106] A recent case that touches on the issue of relief not pleaded is Dupont Canada Inc. v. R., 2002 DTC 7226, 2002 FCA 307, [2002] 4 C.T.C. 59. In this case, the appellant asked the Federal Court of Appeal for "costs" in its pleadings. The Court allowed the appellant's appeal and overturned the Tax Court of Canada. The judgment granted the appellant costs incurred in the Federal Court of Appeal. After the judgment came out, the Appellant filed a motion to change the order such that it could also be awarded costs incurred in the trial before the Tax Court. Looking at the Federal Court rules, Sharlow J.A. stated that rules 399 and 397(2) did not apply. The only rule that the appellant could utilize was rule 397(1) but that rule can only change an order such as to remedy the Court's mistake, not counsel's.

[107] This case is sufficiently distinguishable from the case at bar such that it is not of much assistance. Although both situations involve a prayer for relief absent from the Notice of Appeal, the stage at which the court considered the request in Dupont, supra, is post-judgment as opposed to pre-judgment, which is the case in the within appeal.

[108] A recent case but in a broader sense is Zelinski v. the Queen, 2002 DTC 1204 (T.C.C.), aff'd 2002 DTC 7395 (F.C.A.). The Honourable Judge Bowie - Tax Court of Canada - stated at paragraph 4:

The purpose of pleadings is to define the issues in dispute between the parties for the purposes of production, discovery and trial. What is required of a party pleading is to set forth a concise statement of the material facts upon which she relies. Material facts are those facts which, if established at the trial, will tend to show that the party pleading is entitled to the relief sought. Amendments to pleadings should generally be permitted, so long as that can be done without causing prejudice to the opposing party that cannot be compensated by an award of costs or other terms, as the purpose of the Rules is to ensure, so far as possible, a fair trial of the real issues in dispute between the parties.

[109] S. Goulding, Odgers on Civil Court Actions, 24th ed. (London: Sweet & Maxwell, 1996), at 225 is supportive of Judge Bowie's view on the purpose of pleadings:

A statement of claim should state the material facts upon which the plaintiff relies and then claim the relief or remedy he desires. Costs need not be specifically pleaded. As "pleadings now are to be merely concise statements of the facts which the party pleading deems material to his case," it is unnecessary to particularize the form of action in which the relief would in former days have had to be sought. To state what form the plaintiff's right takes is to state a conclusion of law; and it is always unnecessary now for either party to state conclusions of law in his pleading - the court will draw the proper inference from the facts alleged.

[110] Odgers examines the requirements for prayers for relief at page 235:

... It should be noted also that Order 18, r. 15(1) requires the statement of claim to specify at least one form of relief which the plaintiff claims; however, on proof of the necessary facts the court is not confined to granting that particular form of relief, but has jurisdiction to grant any relief it thinks appropriate to the facts as proved. But if in the course of the trial a party seeks to raise a new claim for relief not adumbrated or stated in his pleading, the court should not give such relief without first offering the opposite party, if taken by surprise, an opportunity for an adjournment.

[111] The Tax Court is created by statute. As such, sestion 171 of Act confers power upon the Tax Court to grant only specific types of relief.

Disposal of appeal.

(1) The Tax Court of Canada may dispose of an appeal by

(a)    dismissing it; or

(b)    allowing it and

(i)     vacating the assessment,

(ii)    varying the assessment, or

(iii)    referring the assessment back to the Minister for reconsideration and reassessment.

[112] Although it was often assumed in the course of argument that the sign language receipts would have been allowed by the Minister in the course of calculating the METC, I agree with the caveat of Simser as it appears in his letter - referred to earlier - wherein he comments on the ambiguous sense of the word "patient" as it is used in subsection 118.2(2) of the Act. That aspect of the provision was also mentioned by Professor Philipps in the course of her testimony. Merely because the person spending funds on sign language interpretation - or his or her spouse or qualified dependent - is referred to within the subsection as a "patient", that does not deem it to be so; as a result, it constitutes a particularized expenditure within the overall context of medical services. It may be the Minister would take a closer look at the nature of the expenses and come to the conclusion that the expense of purchasing sign language services for the purpose of attending a Bar Admission Course is too far removed from the object and spirit of the medical expense provisions when regarded in the overall context of granting relief to persons who make certain expenditures in order to improve their health and well-being. It is apparent the appellant chose the battle ground. His strategy from the outset - and as refined during subsequent stages of litigation - did not rely on this particular aspect except for collateral purposes while advancing the proposition that the grant received under the SOG program was not taxable, first, because it was for the purchase of accommodation services and - therefore - was not a bursary in the ordinary sense and second, because it infringed his Charter rights. Taking these factors into account, I decline to make any finding with regard to the entitlement of the appellant to the METC in relation to the payments for sign language interpretation services, as to do so would be to grant relief on the basis of certain untested assumptions in respect of a minor issue that was not intended by the parties to be sufficiently significant as to require a determination by this Court. In addition, Simser specifically requested that this particular issue be exempted from consideration by the Minister when assessing his tax return and the question of the METC - as it related to the cost of the ASL interpretation - never re-surfaced in the subsequent Notice of Objection or in the Notice of Appeal.

[113] For the foregoing reasons, the appeal is dismissed. The respondent is entitled to costs on a party-party basis.

Signed at Sidney, British Columbia, this 22nd day of May 2003.

"D.W. Rowe"

D.J.T.C.C.

CITATION:

2003TCC366

COURT FILE NO.:

1999-3963(IT)G

STYLE OF CAUSE:

Scott Irwin Simser and H.M.Q.

PLACE OF HEARING:

Toronto, Ontario

DATE OF HEARING:

November 12 to 15, 2002

REASONS FOR JUDGMENT BY:

Honourable Deputy Judge D.W. Rowe

DATE OF JUDGMENT:

May 22, 2003

APPEARANCES:

Counsel for the Appellant:

Ena Chadha William Holder

Counsel for the Respondent:

Tracey Harwood-Jones

COUNSEL OF RECORD:

For the Appellant:

Name:

Ena Chadha William Holder

Firm:

A Legal Resource Centre Toronto, Ontario

For the Respondent:

Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada