Galligan, J. [Orally]:—Argued together were two motions which were many branched attacks on the action instituted by the plaintiffs. At the conclusion of the argument by counsel for the plaintiffs I indicated that I did not have to hear counsel for the defendants on the issue of whether or not the statement of claim disclosed a cause of action.
I must say at the outset that a very substantial argument and indeed a very interesting argument was addressed to me on many points. These brief reasons Will not in any way do justice to the very competent arguments that were made. I feel that because of the nature of this case it is appropriate to give judgment immediately. It seems to me that the essential issue upon which all others turn is a relatively narrow one. The crucial issue in the case and which must be resolved in the plaintiff's favour before it becomes necessary to consider the other issues is whether the statement of claim discloses a cause of action that has any chance of success.
While it has several facets, the plaintiffs’ action is based essentially on alleged Charter violations. In the absence of any such violations I cannot find in the statement of claim any conceivable cause of action. For example, even the plaintiffs’ claim to recover taxes is based upon the suggestion that the tax laws under which certain deductions are allowable are invalid because they violate the Charter. The same is true of the action in so far as it is said to be an action for discovery, because the wrong alleged is a Charter violation.
The essence of the plaintiff's claim that there are violations of the Charter is found in paragraphs 10 and 11 of the statement of claim. I quote those paragraphs:
10. The Minister of National Revenue and the Minister of Revenue for Ontario have, subsequent to April 15, 1982 when the Charter of Rights and Freedoms came into effect, permitted certain taxpayers to deduct payments to the NCC as allowable business expenses under Section 9 of the Income Tax Act and Section 12 of the Ontario Corporations Tax Act, in computing income for 1982 and subsequent taxation years, so as to reduce taxes otherwise payable on business income.
11. The Income Tax Act, S.C. 1970-71-72, c. 63 and the Income Tax Act, R.S.O. 1980 c. 213 do not permit taxpayers with employment income but no business income, including the Plaintiffs, to deduct contributions to organizations whose primary objective is the advocacy of political or ideological views, so as to reduce taxes otherwise payable on employment income.
Obviously, on a motion such as this, I must and do accept that those allegations are capable of being proved. I also keep in mind the certainty which a court must have that an action cannot succeed before it can be dismissed at this stage.
The plaintiffs' submission is that the circumstances set out in paragraphs 10 and 11 of the statement of claim are capable of showing violations of the fundamental freedoms of expression and association guaranteed by section 2 of the Charter and equality rights provided for under section 15.
Section 2 of the Charter provides that everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communications;
(d) freedom of association.
Subsection 15(1) provides:
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.
I will consider first the submission that the circumstances disclosed in paragraphs 10 and 11 of the statement of claim show a possible violation of freedom of expression. I have given the matter as careful thought as I am The National Citizens Coalition Inc. et al.
able to and I cannot see how different tax treatment of certain taxpayers as alleged in those paragraphs could affect the freedom of a taxpayer to express herself or himself. The same really holds true about the allegation of a violation of the freedom of association. I am unable to understand how different treatment under the Income Tax Act or other taxing statutes in any way affects a person's freedom of association. Shortly stated, I can find nothing in those allegations which could in any way impinge upon the freedoms guaranteed by section 2 of the Charter.
The argument advanced with respect to subsection 15(1) is that the circumstances disclosed in paragraphs 10 and 11 of the statement of claim show that certain taxpayers could be disentitled to equal benefit of the tax laws. I have some difficulty in understanding how tax laws can be said to bestow benefits on taxpayers. But, having said that, it is clear that some taxpayers are entitled to certain deductions from their income while others are not. The Income Tax Act is full of examples where one taxpayer for certain reasons has certain deductions which another taxpayer does not have. Also, certain taxpayers are called upon to pay more taxes than others. Some taxpayers are called upon to pay taxes at a higher rate than others.
The Charter, as it has been said in many, many cases, too numerous to mention, is an important piece of legislation which constitutionally protects important rights and freedoms of people who live in this country. It seems to me that it comes very close to trivializing that very important constitutional law, if it is used to get into the weighing and balancing of the nuts and bolts of taxing statutes.
I am prepared to hold, and do hold that the fact that a taxpayer who earns his living by operating a business is entitled to a deduction which is not available to a taxpayer whose income is earned by way of wages or salary does not amount to that denial of equal benefit under the law which is contemplated by section 15 of the Charter.
I am convinced that the allegations contained in paragraphs 10 and 11 of the statement of claim do not show even the possibility of a Charter violation. Since violation of the Charter is the cornerstone of any conceivable cause of action, I have come to the conclusion that the statement of claim discloses no cause of action. I think that the plaintiffs have no chance of success and, thus, their action must be dismissed.
At the conclusion of Mr. McGilp’s capable and I may say, very interesting argument, he made the submission that in these early days of Charter litigation it might be next to impossible for a court on a motion such as this to say that a piece of Charter litigation has no chance of success. The ingenuity of the people of this country and of their legal advisors is such that there is a substantial amount of Charter litigation. Some may call it a flood tide. I think that in order to prevent the courts from being completely bogged down in Charter litigation, it behooves a judge if he or she is convinced that there is no Charter violation to say so at the earliest time possible. If a judge comes to the conclusion that Charter violations cannot possibly be established, it seems to me that the appropriate time to stop the litigation is at this stage of the proceedings.
In addition to claiming that the statement of claim did not disclose a cause of action, the defendants made their motions on the basis that this action is frivolous, vexatious and an abuse of process. The fact that I do not agree with the plaintiffs about whether there has or has not been a Charter violation does not mean that they acted improperly, frivolously, vexatiously or abusively in putting their views before the court for determination. While I am dismissing the action, I am dismissing it on the ground that no cause of action is disclosed in the statement of claim. I am not dismissing it on the basis that it was frivolous, vexatious or an abuse of the process of the court.
Motion granted; action dismissed.