Six controversial decisions that failed to deliver on Canada’s “promise of equality” and have been rewritten by the Women’s Court of Canada.

“SYMES V. CANADA

In this case, the Supreme Court of Canada disallowed Ms. Symes, a self-employed woman, from claiming her childcare expenses as a business deduction for income tax purposes. This decision was in accordance with traditional tax analysis, which characterizes childcare expenses as personal expenses.

The Women’s Court takes a different view. Tax policy must take account of background social context. That context shows that women have suffered, and continue to suffer, social and economic inequities in their paid and unpaid work. The traditional tax treatment of childcare expenses is based on outdated cultural norms that privilege a conception of working life adapted to the needs of businessmen.

The Women’s Court reverses the decision of the Supreme Court and holds that businesspeople who legitimately incur childcare expenses for the purpose of gaining or producing income from business must not be deprived of the benefit of a business deduction for their expenses.

Key to this case is our understanding of substantive equality as a fundamental constitutional principle that requires recognition of the inherent moral worth of each individual and acknowledgment that full realization of this worth cannot be achieved through a simple uniform application of rules. This perspective must inform judicial review of discretionary governmental decisions and statutory interpretation.

Therefore, the Women’s Court finds that the government has a duty not only to refrain from discrimination but also to correct existing disadvantages through the formulation of appropriate law and policy.

Courts, in turn, must ensure that governments are fulfilling their obligations by doing all that is “practically possible” to promote substantive equality. Judgments that account for substantive equality considerations must, by definition, take into account the full context surrounding the law or policy in question. “

[NOTE — Background — “Lawyer Melina Buckley rewrote the 1993 Symes v. Canada decision, a case she knew firsthand and that had troubled her because of the decision’s “lack of acknowledgement of the public good of caring for children.” Essentially, the Supreme Court ruled against allowing the deduction of child care costs as business expenses (like, say, golf club memberships). In her Women’s Court alternative decision — which she says “provided me with an opportunity to explore my initial sense of outrage … in a concrete, disciplined fashion” — Buckley writes that child care expenses must be recognized in the larger context as both gendered and a social responsibility.”]

The Women’s Court of Canada

Gwen Brodsky; Melina Buckley; Marie Chen; Rachel Cox; Shelagh Day;  Mary Eberts; Avvy Go; Jennifer Koshan; Sonia Lawrence; Diana Majury; Sharon McIvor; Teressa Nahanee; Margaret Parsons; Dianne Pothier; Denise Réaume; Kate Stephenson; and Margot Young.

Source:
Toronto Star article
More Background — Ottawa Citizen article

EXCERPTS

“The Women’s Court is a group of Canadian lawyers, law professors and activists who have decided it’s time to get serious about women’s equality.”

“Sure, most civilized Canadians have a fundamental philosophical belief in gender equality (even if old-school male-chauvinist sexism seems, depressingly, to be on the rise again in our popular culture. And that’s another debate). But gender equality is not a fact in Canada’s courts, and the repercussions of that implicit inequality are like shock waves in the daily lives of millions of Canadian women.”

“It’s rewritten six key decisions handed down by the Supreme Court of Canada — decisions with powerful impact, in different ways, on the lives of women. It’s looked carefully at the Supreme Court’s ‘because I said so,’ and, in scrupulous legal detail, asked, ‘But why?'”