Docket: 2012-943(IT)G
BETWEEN:
ALLAN BARRY LABOUCAN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Respondent’s
motion heard on October 18, 2013
at Vancouver, British Columbia
Before: The Honourable
Justice Patrick Boyle
Appearances:
|
For the Appellant:
|
The
Appellant himself
|
|
Counsel for the Respondent:
|
Raj Grewal
|
____________________________________________________________________
ORDER
Upon motion made by the Respondent for an
order that the Appellant’s Notice of Appeal be struck out and the appeal be
dismissed, with costs:
And upon hearing the parties;
IT IS ORDERED THAT:
1. The Respondent’s
motion striking the Appellant’s Notice of Appeal is allowed in accordance with
the attached Reasons for Order.
2. The appeal from the
assessments made under the Income Tax Act with respect to the
Appellant’s 2004, 2005, 2006 and 2007 taxation years is quashed.
3. There is no award as to costs.
Signed at Ottawa, Canada this 18th day of
November 2013.
"Patrick Boyle"
Citation: 2013 TCC 357
Date: 20131118
Docket: 2012-943(IT)G
BETWEEN:
ALLAN BARRY LABOUCAN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Boyle J.
[1]
The Respondent has
brought a motion to strike the Appellant’s Notice of Appeal on the basis that
the Notice of Appeal fails to disclose reasonable grounds for appeal and is
also, in part, outside the jurisdiction of this Court.
[2]
Mr. Laboucan filed a
Notice of Appeal in respect of his income tax assessments for the 2004, 2005,
2006 and 2007 taxation years. By earlier order of this Court, his attempt to
file an amended Notice of Appeal adding the years 2008, 2009, 2010 and 2011 was
quashed by Justice Hogan.
[3]
The taxpayer’s Notice
of Appeal claims that Treaty 8 provides an exemption to aboriginals covered by
that treaty from taxes of any kind whether or not they reside on a reservation.
In addition, the taxpayer’s Notice of Appeal refers to The Royal
Proclamation of 1763, the Charter of Rights and Freedoms, the United
Nations Declaration on the Rights of Indigenous Peoples and the Supreme
Court of Canada mandated duty to consult on issues relating to the rights of native
peoples, all in support of his claimed income tax exemption.
1. The Federal Court of
Appeal has decided that Treaty 8 does not include a tax exemption:
[4]
The Federal Court of
Appeal has decided in Canada v. Benoît, 2003 FCA 236 that
Treaty 8 does not contain or give rise to an income tax exemption. In Benoît
the taxpayers sought leave to appeal to the Supreme Court of Canada which was
denied. This decision of the Federal Court of Appeal is clear and is binding
upon this Court.
[5]
Mr. Laboucan has not
been able to identify that his particular circumstances are in any relevant manner
different from those under consideration in Benoît. Mr. Laboucan has not
been able to find any additional evidence, oral or otherwise, that relates to
Treaty 8 and its proper interpretation or understanding, though he hopes to
when he sets out to search for it. In essence, having heard from Mr. Laboucan
at the hearing of this motion, it is his position that the decision of the
Federal Court of Appeal is simply incomplete and incorrect.
[6]
In these circumstances,
a judge of the Tax Court of Canada would be bound to follow the Federal Court
of Appeal’s decision in Benoît and it is therefore plain and obvious
that Mr. Laboucan’s appeal to this Court can not succeed.
[7]
Justice Sheridan of this
Court has followed and applied the Benoît decision in her decision in Dumont v. The Queen, 2005 TCC 790; her decision was upheld and affirmed by
the Federal Court of Appeal (2008 FCA 32). Most recently, Justice Bocock of
this Court again followed and applied Benoît in Tuccaro v. The Queen,
2013 TCC 300.
2. The Royal Proclamation
of 1763 and the duty to consult:
[8]
The only apparent
support for Mr. Laboucan’s appeal that can be found in The Royal
Proclamation of 1763 would be, arguably, the duty to consult. The Royal
Proclamation of 1763 does not support any income tax exemption for
aboriginal people generally that are not grounded in their treaty rights.
[9]
The Crown’s duty to
consult arises where contemplated Crown conduct may adversely affect potential
or established aboriginal or treaty rights. Since the Federal Court of Appeal
has conclusively determined in Benoît that there is no income tax
exemption in Treaty 8, neither the assessments of Mr. Laboucan for income tax,
nor anything else he has referred to in his Notice of Appeal or in the hearing,
can adversely affect his treaty rights. For this reason, the duty to consult
can not arise.
[10]
I would also note that
a breach by the Crown of any duty to consult would not in any event be
something that the Tax Court of Canada appears to have jurisdiction to remedy.
[11]
Further, I would highly
doubt that a contemplated or actual assessment of an individual aboriginal
person, in accordance with the terms of the generally applicable Income Tax Act,
can even arguably be said to give rise to a duty to consult that individual by
the Crown beyond any ordinary Canada Revenue Agency audit review and proposed
reassessment letter procedures. See for example, the decision of Justice Paris
of this Court in Sackaney v. The Queen, 2013 TCC 303 which quotes from
the Ontario Superior Court’s decision in Hester v. The Queen et al,
[2007] O.J. No. 4719, aff’d: Hester v. Canada, 2008 ONCA 634 (Ontario
Court of Appeal):
… there
can be no contemplated Crown conduct on the facts pleaded as the Crown
exercises no discretion in its administration of tax exemption rights.
[12]
On the issue of the
absence of this Court’s jurisdiction to review an alleged failure by the Crown
of its duty to consult, regard may be had to the Supreme Court of Canada’s
decision in Haida Nation v. British Columbia (Minister of Forests),
[2004] 3. R.C.S. 511 (SCC) at paragraphs 60 and following where general
administrative law principles are set out for the review of an alleged failure
by the Crown to fulfill its duty to consult. Reference can also be made to Acadia
Band v. M.N.R., 2007 FC 259 wherein the Federal Court describes the
parallel processes for a judicial review application to the Federal Court in
respect of the duty to consult at the same time as a substantive appeal to the
Tax Court of Canada on the merits of the assessment under the tax laws.
3. United Nations
Declaration on the Rights of Indigenous Peoples:
[13]
I can not see how the United
Nations Declaration can either support Mr. Laboucan’s claimed Treaty 8
income tax exemption as a matter of law, nor how it can ground such an
exemption in its own right. While Canada may be a signatory to the United
Nations Declaration, it has not been ratified by the Parliament of Canada. This
was also considered by Justice Paris in paragraph 35 of his decision in Sackaney.
[14]
As the Federal Court of
Appeal in Benoît has decided clearly that Treaty 8 does not include an
income tax exemption, the United Nations Declaration can not assist in
finding one there.
[15]
To the extent the
taxpayer’s position is that the United Nations Declaration obliges the
Crown to have meaningful consultation on the rights of indigenous people when
disputes arise, and takes the position that the Crown has not fulfilled that
obligation, the Tax Court of Canada does not have jurisdiction to determine and
remedy his alleged concern. As with an alleged failure of the duty to consult,
this would be within the jurisdiction of the Federal Court.
[16]
For these reasons, I am
allowing the Crown’s motion and striking the Notice of Appeal and thereby
quashing Mr. Laboucan’s appeal to this Court.
[17]
In the circumstances, I
am making no award as to costs.
Signed at Ottawa, Canada this 18th day of November 2013.
"Patrick Boyle"
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