Citation: 2010 TCC 643
Date: 20101216
Docket: 2007-573(IT)I
BETWEEN:
JULIE PIGEON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Rowe D.J.
[1]
The Appellant – Julie Pigeon
(“Pigeon”) – appealed from assessments of income tax for each of the following
years: 1995, 1998, 1999, 2005, 2006 and 2007. During the relevant years, Pigeon
was employed by Native Leasing Services (“NLS”), a sole proprietorship owned
and operated by Roger Obonsawin who is a status Indian within the meaning of
the Indian Act, R.S.C. 1985, c.I-5, as amended. The head office
of NLS was located on the Six Nations of the Grand River Reserve (“Six Nations
Reserve”), near Brantford, Ontario. Pigeon is a status Indian.
[2]
The Minister of
National Revenue (the “Minister”) reassessed the Appellant’s tax liability for
the years at issue and included in her income certain amounts on the basis that
her salary for those years was not the personal property of an Indian situated
on a reserve within the meaning of section 87 of the Indian Act and –
therefore – was not exempt from income tax by any other enactment of Parliament
within the meaning of paragraph 81(1)(a) of the Income Tax Act
(the “Act”).
[3]
The within appeal was
fixed for hearing in Toronto on October 18, 2010 on the basis it would be heard
– on common evidence – together with 13 other appeals, 10 of which involved
status Indian women who were employed by NLS during various periods. Three of
the appeals within that group were filed by husbands and the issue was whether
any of them is entitled to deduct the personal credit for married status in the
relevant taxation year, pursuant to paragraph 118(1)(a) of the Act. Counsel
for the appellants and counsel for the respondent in those appeals agreed the result
in each of these appeals would depend on the decision rendered in respect of
that appellant’s spouse.
[4]
At the outset of the
hearing, Pigeon advised that she wished to withdraw her appeal from the group
and that she wanted to proceed on her own behalf. Following a discussion
concerning procedural matters including an observation from the Bench that the
Amended Notice of Appeal had not addressed any issue other than the exemption
from income tax by virtue of the relevant provisions of the Indian Act and
the Act. Pigeon was also informed that no constitutional challenge had
been raised in the pleadings and the Reply To The Fresh As Amended Notice of
Appeal (“Reply”) responded only to the issue of the applicability of the tax
exemption. The Appellant was informed that a Notice of Constitutional Question
(“Notice”) had not been served by her former counsel or agent nor by her at any
stage in the proceeding which was required if she was challenging the
constitutional validity of the Act as it applies to Indians. In
response, Pigeon stated she wanted to present her appeal in the form of a
statement that she wished to read to the Court. She declined to call any
evidence and counsel for the Respondent did not adduce any evidence.
[5]
Pigeon read the
following statement:
My name is Julie, and I am an Anishnawbe Kwe within
the Ojibway Nation. I am not a Canadian citizen. I am a citizen of Batchewana
First Nation, on Turtle Island.
My mother was born and raised at Nawash,
unceded, within the Saugeen
Ojibway Territory. I would like
to state that I am a Treaty Indian. Since it is clear that my Nation has never
accepted citizenship we as a nation of people have never become part of Canada and our lands remain separate. But
we remain in the treaty process with Canada.
Our treatment agreements are critical and significant
because it is through this process that Canada entered into Confederation. The issue of taxation has never been
discussed with my nation nor has it been negotiated. While there have been
several attempts at assimilation and genocide, we are and will continue to
exist as a separate nation outside of Canada.
I have worked very hard to ensure that my family does
not live in poverty. I am the first generation in my family to have running
water and electricity. I have no intention to return my family to that kind of
poverty.
My people fought with honour beside your people in every
conflict that Canada’s
government has entered into -- Tecumseh in the War of 1812, and my grandfather
and great-grandfathers in the world wars -- because they respected the treaties
that we have with your government.
So while I do understand that you are limited in what
you can do here today, as you are bound by your government’s policies, I want
to be very clear about this: I do not agree or consent to the injustice that is
being carried out in this Court. This is an infringement of my rights as an
aboriginal citizen and it clearly abrogates and derogates my rights as set out
in the Constitution of 1867.
Then, quoting section 35:
The Government of Canada and the Provincial Governments are
committed to the principle that before any amendment is made to clause 24 of
section 91 of the Constitution Act, 1867, to section 25 of this Act or
to this part, and (a) a constitutional conference that includes in its agenda
an item relating to the proposed amendment comprised of the Prime Minister of
Canada and the First Ministers of the Provinces will be convened by the Prime
Minister of Canada, and (b) the Prime Minister will invite representatives of
the aboriginal peoples of Canada to participate in the discussion of that item.
And further states, in section 25:
The guarantee in this Charter of certain rights and freedoms shall
not be construed so as to abrogate or derogate from any aboriginal treaty or
other rights and freedoms that pertains to the aboriginal people of Canada,
including (a) any rights or freedoms that have been recognized by the Royal
Proclamation of October 7, 1763, and any rights or freedoms that now exist by way
of land claim, agreements or may be so acquired.
The treaty card that I carry is generated under the Indian
Act. It is not given to everyone. These cards reflect the administrative
capacity necessary for the Canadian Government to keep track of those individuals
who have a distinct link to historical treaties in this country.
You cannot say to me that “you are a Canadian citizen,”
any more than I can say to you that “you are an Ojibway citizen.” My
citizenship was determined when the treaties were created. I simply do not
agree or consent. I recognize that this act of law was not well thought out and
still, to my knowledge, the issue of taxation has never been discussed with my
leadership, and it abrogates and derogates my treaty rights as stated in section
25 of the Canadian Constitution.
I hope that you will reconsider these actions and return
to your Minister and carefully reassess this miscarriage of justice. I expect
that you will respect my treaty rights. It is not that hard to do. I respect your
rights everyday as we walk through this treaty process together, side by side.
[6]
Brandon Siegal,
co-counsel for the Respondent submitted that the Notice had to be served on the
Attorney General of Canada and on each Attorney General of the Provinces prior
to any attack on the constitutional validity of the particular provision of the
Act.
[7]
In the case of Bekker
v. The Queen, 2004 DTC 6404, the Federal Court of Appeal dealt with this
issue and at paragraphs 8 and 9 of his judgment, Létourneau J.A. stated:
8 This
Court will not entertain a constitutional challenge in the absence of a Notice
being served on the Attorney General of Canada and on each Attorney General of
the Provinces: see Gitxsan Treaty Society v. Hospital Employees Union et al. (1999),
238 N.R. 73 (F.C.A.); Giagnocavo v. M.N.R. (1995), 95 DTC 5618, where this
Court said that it was without jurisdiction to hear the issue. Such Notice is
not a mere formality or technicality that can be ignored or that the Court can
relieve a party of the obligation to comply with: see The Queen v. Fisher (1996),
96 DTC 6291, where this Court ruled that the Notice must be given in every case
in which the constitutional validity or applicability of a law is brought in
question in the manner described in section 57, including proceedings before
the Tax Court governed by the Informal Procedure. Indeed, a judge cannot,
proprio motu, raise a constitutional issue without giving a notice to the
Attorney General: see Reference re Remuneration of Judges of Provincial Courts,
[1997] 3 S.C.R. 3.
9 The Notice
serves a useful and essential purpose. The Attorney General, whether for Canada or for a province, bears the
responsibility of enforcing legislation and defending the constitutionality of
the laws enacted by Parliament or provincial Legislatures, as the case may be.
The Notice enables them to discharge that duty: on the duty, see Thorson v.
Canada (Attorney General), [1975] 1 S.C.R. 138, at page 146; Finlay v. Canada (Minister of Finance), [1986] 2
S.C.R. 607, at paragraph 28; Miron v. Trudel, [1995] 2 S.C.R. 418. It also
alerts the provincial Attorneys General to challenges made to federal laws that
may have an impact on their provinces although the duty to sustain the
constitutionality of these laws is not theirs. This is why the Notice has to
provide its recipients with adequate and sufficient information in terms of the
material facts giving rise to the constitutional question and the legal basis
for that question, otherwise it will be found insufficient and the Court will
assume that there is no serious question to be addressed: see Gitxsan Treaty
Society v. Hospital Employees Union et al., previously cited. Finally, it
ensures that no injustice is created to the elected representatives who enacted
the law and to the people that they represent: see Eaton v. Brant County Board
of Education, [1997] 1 S.C.R. 241, at pages 264-65 per Sopinka, J.
[8]
In Dumont v. Canada, 2005 TCC 790, [2005] T.C.J. No. 621, Justice
Sheridan considered the appeal of an Indian who had claimed an exemption from
taxation. The issue of the required Notice was dealt with by her at paragraph 2
of the judgment, as follows:
2 The
Appellant represented himself at the hearing. The Court advised him of the
hearing procedure and that he had the onus of proving wrong the assumptions
upon which the Minister based his reassessment. The Appellant's response was
that he had no quarrel with the facts assumed by the Minister; his disagreement
with the reassessment was based solely on his interpretation of Treaty 8 and
certain provisions of the Royal Proclamation of 1763. According to the
Appellant, these documents deprive the federal government of any authority to
tax his income in 2001 or any other year. He further asserted that the province
of British Columbia and all of Canada's coastal waters are Indian land.
While this argument suggests a challenge to the constitutionality of the Income
Tax Act, the Appellant had not given the required notice2;
accordingly, the issue of whether his 2001 income is exempt from taxation has
been considered in the context of paragraph 81(1)(a) of the Income Tax Act and
subsection 87(1) of the Indian Act, the provisions upon which the Minister's
reassessment was based.
[9]
A decision in Rozella
Johnston v. Her Majesty the Queen, 2010 TCC 627, was issued by Little J. on
December 7, 2010. In that instance, the Appellant read a statement into the
record in which she said she was a field support worker for the Ontario
Federation of Indian Friendship Centres and was a citizen of the Chippewas of
Nawash First Nation’s unceded territory and was not a Canadian citizen.
Reproduced below is paragraph 5(a) of the judgment:
[5] The Appellant also said:
a) While the Saugeen Ojibway land
claim is still ongoing, the issue of taxation has never been discussed
with the Nation nor has it ever been negotiated;
[10]
Prior to concluding the
Appellant’s appeals should be dismissed on the basis no evidence was adduced
nor was any valid legal argument submitted to vacate or vary the assessments
for the taxation years at issue, Little J. undertook the following analysis at
paragraphs 7 to 12, inclusive, of his judgment:
B.
ANALYSIS AND DECISION
[7] The Tax Court of Canada was
formed by an Act of Parliament, the Tax Court of Canada Act, R.S.C.
1985, c. T-2. The Tax Court came into existence in 1983.
[8] The jurisdiction of the Tax
Court is set out in section 12 of the Tax Court of Canada Act.
[9] Subsection 12(1) provides as
follows:
12. (1) The Court has exclusive
original jurisdiction to hear and determine references and appeals to the Court
on matters arising under the Air Travellers Security
Charge Act, the Canada Pension Plan, the Cultural Property Export
and Import Act, Part V.1 of the Customs Act, the Employment
Insurance Act, the Excise Act, 2001, Part IX of the Excise Tax
Act, the Income Tax Act, the Old
Age Security Act, the Petroleum and Gas Revenue Tax Act and the Softwood
Lumber Products Export Charge Act, 2006 when references or appeals to
the Court are provided for in those Acts. (emphasis added)
[10] The remedies that this Court
may grant in relation to appeals arising under the Income Tax Act (the “Act”)
are set out in subsection 171(1) of the Act which provides that:
171. (1) Disposal of Appeal. The Tax Court of Canada may dispose of
an appeal by
(a) dismissing it; or
(b) allowing it and
(i) vacating the
assessment,
(ii) varying the assessment,
or
(iii) referring the
assessment back to the Minister for reconsideration and reassessment.
[11] The Tax Court does not have the
power to compel the Respondent to pursue any other process to resolve a dispute
related to taxes payable under the Act.
[12] The Appellant did not file any
evidence or raise any legal arguments in relation to the Reassessments that
were appealed to this Court. Furthermore, the Appellant made no attempt to
distinguish her case from other cases that have been previously decided in
relation to individuals who were employees of Native Leasing Services or a
related company, namely:
1.
The Queen v.
Shilling, 2001 D.T.C.
5420 (FCA). Application for leave to appeal this decision to the Supreme Court
of Canada was dismissed ([2001] S.C.C.A. No. 434);
2.
Horn et al v. The Queen et al, 2007
D.T.C. 5589 (FC). Appeals to
the FCA were dismissed (2008 FCA 352, 2008 D.T.C 6743). Application for leave
to appeal this decision to the Supreme Court of Canada was dismissed ([2009]
S.C.C.A. No. 8);
3.
Roe et al v. The Queen, 2008 TCC 667, 2009
D.T.C. 1020, (9 Appellants);
4.
Googoo et al v. The Queen, 2009 D.T.C. 1061;
5.
McIvor et al. v. The Queen, 2009 TCC 469, 2009
D.T.C. 1330, (6 Appellants); and
6.
Sarah B. Doxtator/Joanna
Wemigwans v.
The Queen, 2010 D.T.C. 1291, (indexed as Lafontaine v. The
Queen).
It should be noted that all of the above
Appellants were claiming that their income was exempt from tax by virtue of
section 87 of the Indian Act, R.S.C. 1985, c. I-5. All of the
appeals were dismissed.
(Note: In addition to the 19
appeals referred to above, there were many appeals filed by individuals who
were employees of Native Leasing Services. When these appeals were called for
hearing before the Tax Court, the individuals did not appear and did not have
counsel or an agent represent them. The appeals were dismissed for want of
prosecution.)
[11]
The assumptions of fact
relied on by the Minister in determining the tax liability of the Appellant for
the relevant years are set forth at paragraph 16 of the Reply:
16. In determining the Appellant’s tax liability for the
relevant taxation years, the Minister made the following assumptions
of fact:
(a) The Appellant is an Indian as defined in the Indian
Act;
(b)
NLS had a head office on the Six Nations;
(c)
The duties of employment, the place of
performance and the services provided by the Appellant were off-reserve; and
(d)
The Appellant did not live on a reserve.
[12]
The sole issue in the
within appeal is whether the employment income received by the Appellant during
the relevant taxations years is taxable pursuant to sections 2, 3 and 5 of the Act.
[13]
Those assumptions were
not challenged in the sense no evidence was adduced by the Appellant. Pigeon
understood the limited jurisdiction of this Court but wanted to make it clear
she did not agree with the policies of the federal government with respect to
the taxation of employment income of status Indians who were working
off-reserve to ensure their family did not live in poverty.
[14]
Each of the assessments
issued by the Minister to the Appellant for each of the taxation years is
correct and the within appeal is hereby dismissed, without costs.
Signed
at Sidney, British Columbia this 16th day of December
2010.
“D.W. Rowe”
Email this Content