Date: 20110503
Docket: A-207-10
Citation: 2011 FCA 152
CORAM: BLAIS C.J.
LÉTOURNEAU J.A.
SEXTON J.A.
BETWEEN:
ROGER
OBONSAWIN
Appellant
and
HER
MAJESTY THE QUEEN
Respondent
Heard at Ottawa,
Ontario, on May 3, 2011.
Judgment delivered from the Bench at Ottawa, Ontario, on May 3, 2011.
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU
J.A.
Date:
20110503
Docket:
A-207-10
Citation:
2011 FCA 152
CORAM: BLAIS
C.J.
LÉTOURNEAU
J.A.
SEXTON
J.A.
BETWEEN:
ROGER
OBONSAWIN
Appellant
and
HER MAJESTY
THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Ottawa, Ontario, on May 3, 2011)
LÉTOURNEAU J.A.
[1]
The
appellant appeals against a decision of Webb J. of the Tax Court of Canada
(judge) whereby he dismissed with costs the appellant’s appeal against the
assessments made by the Minister of National Revenue under Part IX of the Excise
Tax Act, R.S.C. 1985, c. E-15 (ETA).
[2]
The
appellant was assessed on the ETA for his failure to collect and remit the GST
owed by his clients on the supplies he provided to them. He claimed that,
pursuant to section 87 of the Indian Act, R.S.C. 1985, c. I-5, he was
exempt from taxation and the GST assessments against him amounted to a tax on
his property situated on a reserve or a tax on him in respect of that property.
[3]
Section
87 reads:
Property
exempt from taxation
87. (1) Notwithstanding any
other Act of Parliament or any Act of the legislature of a province, but
subject to section 83 and section 5 of the First Nations Fiscal and
Statistical Management Act, the following property is exempt from taxation:
(a)
the interest of an Indian or a band in reserve lands or surrendered lands;
and
(b)
the personal property of an Indian or a band situated on a reserve.
Idem
(2)
No Indian or band is subject to taxation in respect of the ownership,
occupation, possession or use of any property mentioned in paragraph (1)(a)
or (b) or is otherwise subject to taxation in respect of any such
property.
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Biens
exempts de taxation
87. (1) Nonobstant toute autre
loi fédérale ou provinciale, mais sous réserve de l’article 83 et de
l’article 5 de la Loi sur la gestion financière et statistique des premières
nations, les biens suivants sont exemptés de taxation :
a) le droit d’un Indien ou
d’une bande sur une réserve ou des terres cédées;
b) les biens meubles d’un
Indien ou d’une bande situés sur une réserve.
Idem
(2)
Nul Indien ou bande n’est assujetti à une taxation concernant la propriété,
l’occupation, la possession ou l’usage d’un bien mentionné aux alinéas (1)a)
ou b) ni autrement soumis à une taxation quant à l’un de ces biens.
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[4]
After
a careful analysis of the evidence, the contracts with placement organizations
and the relevant jurisprudence, the judge drew the following conclusions:
a) the appellant provided taxable
supplies in the nature of services for which an administrative fee was charged;
b)
no personal property of the appellant was being taxed or taken;
c) the appellant was not taxed in
respect of the ownership, occupation, possession or use of any of his personal
property;
d) the appellant was the supplier
of the services and it was the purchaser, not the vendor, of these services
which was taxed;
e) none of the purchasers of the
services were Indians and would qualify for an exemption from taxation under
the Indian Act: the appellant cannot pass to a person who is not an
Indian or a Band an exemption that he may or could have under section 87 of the
Indian Act;
f) since the GST was not imposed
on the appellant but on his clients, it did not erode the appellant’s property;
g) subsection 87(2) of the Indian
Act does not apply since the appellant is not taxed because the tax is due
by the purchaser, not the appellant; and
h) the appellant was assessed for
the GST that he failed to collect from his client: he is not taxed, he is
assessed for his failure to collect and remit the GST.
[5]
We
are in agreement with the factual and legal findings and conclusions of the
judge. There was ample evidence and legal authorities to support them. This
appeal is without merit and will be dismissed with costs.
“Gilles
Létourneau”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-207-10
STYLE OF CAUSE: ROGER
OBONSAWIN v.
HER MAJESTY THE QUEEN
PLACE OF HEARING: Ottawa,
Ontario
DATE OF HEARING: May 3, 2011
REASONS FOR JUDGMENT BLAIS C.J.
OF THE COURT BY: LÉTOURNEAU
J.A.
SEXTON J.A.
DELIVERED FROM THE BENCH BY: LÉTOURNEAU J.A.
APPEARANCES:
Maxime Faille
Jaimie
Lickers
Mark
Siegel
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FOR
THE APPELLANT
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Gordon Bourgard
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FOR
THE RESPONDENT
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SOLICITORS
OF RECORD:
Gowling Lafleur Henderson LLP
Ottawa, Ontario
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FOR THE APPELLANT
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Myles J. Kirvan
Deputy
Attorney General of Canada
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FOR THE RESPONDENT
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