Chaya v. Canada

Chaya v. Canada Court (s) Database Federal Court of Appeal Decisions Date 2004-10-04 Neutral citation 2004 FCA 327 File numbers A-9-03 Decision Content Date: 20041004 Docket: A-9-03 Citation: 2004 FCA 327 CORAM: RICHARD C.J. LÉTOURNEAU J.A. ROTHSTEIN J.A. BETWEEN: AREF CHAYA Applicant and HER MAJESTY THE QUEEN Respondent Heard at Winnipeg, Manitoba, on September 30, 2004. Judgment delivered at Ottawa, Ontario, on October 4, 2004. REASONS FOR JUDGMENT BY: ROTHSTEIN J.A. CONCURRED IN BY: RICHARD C.J. LÉTOURNEAU J.A. Date: 20041004 Docket: A-9-03 Citation: 2004 FCA 327 CORAM: RICHARD C.J. LÉTOURNEAU J.A. ROTHSTEIN J.A. BETWEEN: AREF CHAYA Applicant and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT ROTHSTEIN J.A. [1] The applicant applies for judicial review of a decision of the Tax Court which denied him a "wholly dependent person" credit under subparagraph 118(1)(b)(ii) of the Income Tax Act. [2] The applicant says that he supported his daughter abroad in the year 2000. However, to be entitled to a credit under subparagraph 118(1)(b)(ii), the applicant, at any time in the year, must have maintained a self contained domestic establishment in which he lived and actually supported his daughter in that establishment. [3] The applicant concedes that he did not at any time in the year 2000 live in a domestic establishment with his daughter. He therefore does not qualify for the credit under subparagraph 118(1)(b)(ii). [4] The applicant says that the law is unfair and he asks the Court to make an exception for him. However the Court does not have that power. The Court must take the statute as it finds it. It is not open to the Court to make exceptions to statutory provisions on the grounds of fairness or equity. If the applicant considers the law unfair, his remedy is with Parliament, not with the Court. [5] The application should be dismissed. "Marshall Rothstein" J.A. "I agree J. Richard C.J." "I agree Gilles Létourneau J.A." FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-9-03 (APPEAL FROM A DECISION OF THE TAX COURT OF CANADA DATED DECEMBER 10, 2002, DOCKET NO. 2002-3095(IT)1) STYLE OF CAUSE: Aref Chaya v. Her Majesty the Queen PLACE OF HEARING: Winnipeg, Manitoba DATE OF HEARING: September 30, 2004 REASONS FOR JUDGMENT BY: Rothstein J.A. CONCURRED IN BY: Chief Justice Richard Létourneau J.A. DATED: October 4, 2004 APPEARANCES: Mr. Aref Chaya ON HIS OWN BEHALF Winnipeg, Manitoba Mr. Michael Van Dam FOR THE RESPONDENT Department of Justice Winnipeg, Manitoba SOLICITORS OF RECORD: Mr. Aref Chaya ON HIS OWN BEHALF Winnipeg, Manitoba Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada