Wetzel v. The Queen, docket 2000-1401-IT-I (Informal Procedure)

Date: 20001102

Docket: 2000-1401-IT-I

BETWEEN:

MICHAEL G. WETZEL,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Order

(Delivered orally from the Bench at St. John's, Newfoundland, on June 21, 2000)

Mogan J.T.C.C.

[1] In this appeal, the Notice of Appeal was filed on March 27, 2000 and the Tax Court of Canada stamp indicates that it was received on March 28, 2000. The Appellant is appealing from assessments for the 1984, 1985 and 1986 taxation years. The basic issue is that the Appellant claims to be a status Indian. At that time, he was a member of the Conne River Band in Newfoundland. Therefore, he claims he was exempt from tax in those years.

[2] The Respondent, on behalf of the Minister of National Revenue and Revenue Canada, has filed a Notice of Motion returnable at St. John's for an order dismissing the appeal or, in the alternative, an order extending the time to file a Reply to the Notice of Appeal. The grounds for the motion are (i) that the Appellant has never made a valid objection as required by the Income Tax Act for the years 1984, 1985 and 1986; and (ii) that the remedies sought by the Appellant are not within the jurisdiction of the Tax Court. In support of the motion is an affidavit sworn by Hélène Dahl of Revenue Canada who states that she could not find Notices of Objection for the years under appeal.

[3] The Notice of Motion was signed on June 13, 2000 by Caitlin Ward, a lawyer with the Department of Justice in Halifax. The motion is made returnable at Cabot Place, St. John's, Newfoundland on June 21 so that there was a bare eight days from the signing of the motion to the returnable date. The Appellant lives in Conne River but also has a law practice in Grand Falls. The Appellant informed the Court that it was about 120 miles from Conne River to Grand Falls. Since it is about a two-hour drive from Grand Falls to Gander, the motion should have been returnable at Gander and not St. John's as a convenience to the Appellant. Because this Court was sitting in both St. John's and Gander in the week of June 19, 2000, there was a significant and unnecessary disadvantage imposed on the Appellant by having the motion returnable in St. John's rather than Gander.

[4] The Appellant contacted the office of the Tax Court of Canada in Ottawa on Tuesday, June 20, asking for an adjournment because he had been away from the reserve and had only learned of the motion on Monday, June 19. I was contacted by the office of the Court at about 5:00 p.m. (St. John's time) on June 20 in my hotel room and informed of the request for an adjournment. I did not have any of the files with me because they were in my Court chambers in St. John's. I told the Registry Officer in Ottawa that I thought the Appellant should attend in Court to ask for the adjournment because it was late in the day and late to be asking for an adjournment when the Notice of Motion had been served more than a week before. I also asked the Registry Officer to fax me at the hotel any material that the Appellant had sent in support of his request for adjournment. That material reached me late in the evening of June 20 and I then realized looking at the material that the Appellant had an office in Grand Falls which was much closer to Gander than St. John's. It was too late in the evening to contact anyone, but I did telephone the Appellant's home at 8:00 on the morning of June 21, to suggest that he need not come to St. John's and that we could hear the motion in Gander on June 22 because I was going to be in Gander on Thursday and Friday, June 22 and 23. The Appellant's wife informed me that he had already left for St. John's and so he appeared when Court opened at 9:30 on June 21.

[5] The Appellant gave a lengthy explanation of the story of the Aboriginal people of Newfoundland; what was changed by the Confederation of Newfoundland into Canada; and the manner in which the Department of Indian Affairs in Ottawa developed a policy with regard to Aboriginal people of Newfoundland. In particular, the Appellant referred to a Remission Order which might apply to members of the band that he claims to be a member of with respect to income earned on the reserve in the period from 1972 to 1984, 1985 and 1986.

[6] I questioned the Appellant as to whether he was in the right Court; whether he should be looking for a declaration, perhaps from the Federal Court, Trial Division, concerning his status as a member of a particular Aboriginal band; and whether in connection with such declaration he might also consolidate a declaration as to whether he falls within a Remission Order that apparently was issued by the Minister of National Revenue with respect to members of the band.

[7] The Appellant informed me that he already had one proceeding in the Federal Court, Trial Division, in which he has retained counsel. From the casual way in which he described the proceeding, it sounded like he was proceeding either under the Charter of Rights and Freedoms or on the basis of discrimination and equity in the manner in which qualifications or eligibility to be a member of the band were developed by the Department of Indian Affairs. The Appellant claims that the eligibility and status criteria were developed in such a way as to specifically exclude him because of his high profile and active role in trying to achieve remedies for his people and himself. I have no way to determine whether the Appellant's statements are true, but he has made serious claims.

[8] I will not grant the motion for three reasons. First, with a motion of this consequence, the Appellant should have been given more time than the bare minimum under the Rules. Sometimes, the consequences of a motion are so significant that serving the notice in accordance with the minimum time is not enough. Second, the Respondent did not have enough consideration for the convenience of the Appellant as to where the motion should be heard. He was given short notice and required to travel six hours when, with very little thought, the motion could have been fixed for Gander later this week in which case he would have had to travel only two hours. Third and most importantly, I am reluctant to cut off any remedies the Appellant may have against Revenue Canada when he stated in Court this morning that he thinks he filed Notices of Objection for certain years in the 1980s, and that he needs more time to look at his documents and his files to see if he has copies of anything that might relate to Tax Returns, Notices of Assessment or Objection he may have filed in those years. Therefore, I will dismiss the motion.

[9] I will also include in my order what I would call a stay of proceedings for at least four months. The Respondent will be prohibited from renewing this motion during that time so that the Appellant may pursue some of the inquiries he described in Court this morning. The Appellant must consider whether he is in the right Court and whether the action that he described as pending in the Federal Court, Trial Division, might be amended to include some of the remedies that were discussed in Court this morning as to whether there should be a declaration concerning his status and perhaps also a declaration that if he is found to be a member of the relevant Aboriginal band, whether he falls within or under the umbrella of the Remission Order he referred to. I do not know anything about that Remission Order nor do I know if it exists but, if it does exist in the manner that the Appellant described, and if it was aimed at certain members of an Aboriginal band in Newfoundland, and if as a result of the proceedings in the Federal Court, Trial Division, the Appellant falls within the band and appears to come within the Remission Order, perhaps it is something that a judge in the Federal Court, Trial Division might direct his mind to as to whether that is included in whatever relief is granted, if it is granted in the Federal Court, Trial Division.

[10] Pending that kind of inquiry on the Appellant's part, I think that it is not fair for the Respondent to renew this motion for four months. If the Respondent is still of the view after four months that this Notice of Appeal is not well founded, a fresh motion can be served, returnable in Gander, unless the Appellant indicates that he wants it heard in some less convenient community. I specifically am not adjourning the motion. I am dismissing it so that, if the Respondent seeks this kind of result after four months, there will have to be a fresh motion. I would suggest in the interest of fairness that more time be given than the minimum days required under the Rules of the Court. Sometimes, in more remote parts of Canada that are far from large cities like Ottawa, Montreal, Toronto, Halifax and Vancouver, it is not always as convenient for people to travel around to suit the convenience of the person who is signing the Notice of Motion.

[11] Also, if the motion is not renewed after four months, then the Respondent shall have six months from the date of this Order to file a Reply to the Notice of Appeal.

[12] The Respondent's motion is dismissed with costs to the Appellant in the fixed amount of $300.

Signed at Ottawa, Canada, this 2nd day of November, 2000.

"M.A. Mogan"

J.T.C.C.