Federal Court of Appeal Decisions

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