Docket: 2012-1897(IT)APP
BETWEEN:
VICKI MONTOUR,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Application heard on March 19, 2013 at Hamilton, Ontario
Before: The Honourable
Mr. Justice Randall Bocock
Appearances:
|
Counsel for the Applicant:
|
G.
James Fyshe
|
|
Counsel for the Respondent:
|
Laurent Bartleman
|
____________________________________________________________________
ORDER
WHEREAS the Applicant made an application
for an Order extending the time within which an appeal from the reassessment
made under the Income Tax Act for the Applicant’s 2010 taxation year may
be instituted;
And
WHEREAS upon reading the material filed, hearing vive voce testimony
of the Applicant and receiving submissions from respective counsel for the
Applicant and for the Respondent;
NOW THEREFORE This Court Orders that:
1.
the Application to file
a Notice of Appeal is granted on the basis that there are reasonable grounds
for the appeal;
2.
the Applicant shall
file within 30 days of the date of this Order a fresh Notice of Appeal
disclosing particular facts and statutory provisions of her appeal; and
3.
the Respondent, should
the Minister elect, may file a fresh Reply within 30 days of the receipt of the
fresh Notice of Appeal.
Signed at Ottawa, Canada, this 5th day of June 2013.
“R.S. Bocock”
Citation: 2013 TCC 178
Date: 20130605
Docket: 2012-1897(IT)APP
BETWEEN:
VICKI MONTOUR,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Bocock J.
I.
Issue
[1]
As noted by the Court
in Reasons for Order in Turcotte v. Her Majesty The Queen, 2013
TCC 171, each taxpayer has an “as of right” prescribed ability to appeal any
reassessment of the Minister to the Tax Court of Canada subject to the filing a
Notice of Appeal within 90 days of receipt of any Notice of Confirmation. As
with Turcotte, no notice of appeal was filed within the 90 day period.
[2]
The Notice of
Confirmation in this matter was sent on February 9, 2012 to Ms. Montour’s
appointed agent, Native Leasing Services.
[3]
No Notice of Appeal was
received until May 14, 2012. The “as of right” deadline expired on May 10,
2012. Under subsection 167(5) of the Income Tax Act (“Act”), once
the “as of right” deadline has expired a taxpayer in order to appeal the
assessment must bring an application to extend the time by filing a Notice of
Application within one year after the expiration of the 90 day “as of right” appeal
period. In this Application, not dissimilar from Turcotte, the sole
objection submitted by the Respondent and also the sole outstanding issue
before this Court is whether the final condition in subparagraph 167(5)(b)(iv)
of the Act has been satisfied. In short, are there “reasonable grounds”
for the Appeal?
II. Proceedings To Date
[4]
This Notice of
Application was filed contemporaneously with many others by Native Leasing
Services (“NLS”), as agent, on behalf of certain status Indians. Consistent
with NLS’ usual practice, the Notice of Application and the attached Notice of
Appeal are identical to many of the other Notices of Application brought before
the Court. It is generous to say that such pleadings lack particulars.
[5]
Counsel for Ms.
Montour, also counsel of record in Turcotte, is requesting that the
Application be allowed and that the Appeal be heard on its merits before a
trial judge. In this case, the Application to extend is noted by the Court to
have been a mere five days after the “as of right” appeal period expired. This
fact is not determinative in any way to the issue of whether there are
reasonable grounds.
III. Facts
[6]
As a result of the
non-descript Application and Notice of Appeal in this matter, the Applicant,
Ms. Montour, testified and demonstrated her intention to Appeal through documentary
evidence. This evidence caused the Respondent to withdraw its previous
secondary objection to the Application on the basis that there was a failure to
disclose a bona fide intention to appeal under clause 167(5)(b)(i)(B).
[7]
Ms. Montour provided
testimony to the Court:
1.
She is a status Indian.
2.
She is presently a
support worker employed by the Native Women’s Centre in Hamilton. The Native
Women’s Centre (the “Centre”) is dedicated to providing shelter for Native
women who have been the victims of family violence. The Centre focuses its
assistance to the native community through original belief systems.
3.
The Six Nations of the
Grand River Reserve (the “Reserve”) is located approximately 30 minutes by car
from downtown Hamilton. An unquantifiable number of women in transit to or from
or resident on the Reserve attend and utilize the services of the Centre.
4.
There is no exclusivity
surrounding the services offered by the Centre for native women who reside on
the Reserve.
5.
Self identification is
the sole method by which the services are provided to native women. In some
instances women who are not status Indians are provided with services from the
Centre.
6.
The Centre does not track
the movement of women pre or post receipt of services at its premises. The women
who attend the Centre are appropriately described as generally being native women
who have been subject to violence or threat of violence within a domestic or a relational
setting.
7.
There was some evidence
provided by Ms. Montour suggesting that the services provided to on-Reserve native
women who utilized the services of the Centre could not easily, nor safely (to
the extent of creating a secure and safe environment) be provided on the
Reserve.
IV. Submissions Regarding Necessity of
off-Reserve Safe Environment
[8]
Counsel for the
Applicant, in his submissions, proffered three broad arguments. The first two
were legal in nature as to the changing dynamic of the connective factors test
and recent case law constituting a “game changer” regarding the appropriateness
of utilizing the connective factors test and its relational concept of the “commercial
mainstream.” The third argument related to the requirement, or at least the optimal
arrangement that the very service provided to native women at the Centre
requires a safe, secure, distant and neutral refuge from abusive domestic and
relational situations. Given the nature of Reserve life and the relatively
compact nature of the Six Nations Reserve, such a refuge may require the
appropriate necessity of having at least one such women’s centre located in an
urban, off-Reserve setting.
[9]
Counsel for the
Respondent directed the Court’s attention to the case of Horn v. Canada
and Horn and Williams v. Canada both as to the trial decision 2007 FC
1052, [2007] F.C.J. No. 1356 and at the appeal decision 2008 FCA 352, [2008]
F.C.J. No. 1553. Counsel indicated that the very issue to be heard before the
Court, should the Application of Ms. Montour be successful, would be identical
to Horn and Williams. Specifically, counsel indicated that the
case, upheld on appeal, considered the delivery of social services to native
women and found that there was no reason to confer preferred tax treatment on
the taxpayer after the proper application of the connective factors test. Since
the facts are identical and the law is clear, unamended or indistinguishable,
the present application need not be heard since no reasonable grounds for
appeal exist. In short, while the work done at the Centre is laudatory, it does
not confer a general benefit to native women resident on the Reserve and, in
the absence of such a connective factor, there are no reasonable grounds for appeal.
[10]
Reply submissions for
the Applicant focused on the dynamic nature of the law as altered by the cases
of Bastien Estate v. Canada, 2011 SCC 38, [2011] 2 S.C.R. 710; Dubé
v. Canada, 2011 SCC 39,
[2011] 2 S.C.R. 764 and Canada v. Robertson, 2012 FCA 94, 348 DLR
(4th) 227. The submission of the Applicant in this case is that the undertaking
or activity in respect of benefiting natives resident on a Reserve by its very
nature cannot always be executed successfully on a Reserve. This exceptional
feature of the service is a reasonable factor to be reviewed by a trial judge
given the dicta in Canada v. Robertson.
V. Analysis
[11]
The factual
underpinnings before the Court in this matter are somewhat different than those
in Turcotte given the off-Reserve Safe Environment issue. That observed,
the legal determination necessary in order to allow the extension and the
Appeal to proceed is nonetheless the same, namely, it requires the existence of
reasonable grounds. Similarly, the pleadings presently before the Court in this
matter are not helpful in this regard.
[12]
Applying the logic of
the decision reached by the Court in the recent decision of Turcotte
requires the application judge to find that there be some untried factual circumstance
or legal argument. In short, the matter cannot be an exact replication of a
matter that has been heard and decided previously by the Court. Legally, to
allow such an application to proceed to trial would quickly debase the common
law system of jurisprudential precedent. Moreover on a procedural basis, the
absence of making such a finding, under the authority of Johnston v. Canada,
2009 TCC 327, 2009 DTC 1198, renders the Court functus since
the Court would lack jurisdiction to grant the Application and allow the
hearing to proceed under subsection 167(5).
[13]
Horn and Williams, cited by the Respondent as being entirely
replicative of the fact situation before the Court, has embedded within it two
matters; namely, that of Williams and that of Horn. The facts in
the case before the Court closely approximate the facts of only one of the fact
situations contained in Horn and Williams. Justice Phelan, at paragraph
112 of the trial level in that case, did assess a factual situation similar to
the present Application before the Court. The outcome of that trial of fact
before Justice Phelan required factual findings and the attachment of weight to
the evidence as a means of applying the connective factors test. This is
further highlighted and reflected in the appeal decision of Horn and
Williams where at paragraph 8 Justice Evans states as follows:
8 It
is primarily the function of a trial judge to assess the relative weight to be
given to the constituent elements of a multi-factored test in the particular
circumstances of a case. Applying the “connecting factors” test is a very fact
specific exercise. This Court may not substitute its view for that of the
judge, absent a palpable and overriding error in the application of the test or
an error of law.
[14]
Given this Court’s
analysis in Turcotte and the above noted precise direction of the
Federal Court of Appeal, the denial of this Applicant’s right to have her
Appeal heard before a trial judge must be based on a finding by the Court of
something approaching the existence of identical facts. Such a finding at the application
level would be based upon an overview and conclusion that the pleadings and viva
voce evidence at the application stage present facts to the application
judge identical to the established authorities – in this case that of Horn
and Williams.
[15]
To that end, the Court
notes that Justice Phelan made findings of fact in relation to the women’s
centre in the matter he heard, which findings: (i) occurred almost six years
prior to the date of the bringing of this Application (making time sensitive
conclusions regarding then current data); (ii) surveyed the then current supply
of substitutable commensurate service providers proximate to the Reserve; and,
conjunctively, (iii) reached a factual finding regarding the number of
off-Reserve versus on-Reserve clients served at that time (finding a largely
off-Reserve clientele). By denying this Application, this Court would be making
a finding that the factual situation assessed and weighed by that trial judge
in 2007 regarding the women’s centre’s then clientele and easily available
substitutable services are factually identical to the present factual situation
in 2013 situate in a municipality located a short car ride from one of Canada’s
most dynamic, densely populated and urbanized reserves. In light of the
direction of the Federal Court of Appeal in Horn and Williams and the
factually dependent, scenario based process required in applying the connective
factors test by a trial judge, this Court, on Application for leave to file a
Notice of Appeal, cannot deny the Applicant the opportunity to place her Appeal
before a trial judge if current facts exist which are potentially distinguishable
at trial from those in the submitted authorities.
[16]
This is specifically
enunciated by this Court at paragraph 24 of the Turcotte decision where
the Court stated:
24 The
potential existence of such “untried” facts and related argument, once revealed
before the application judge gives the Court jurisdiction as mandated by Johnston , and renders the Appeal dissimilar to those previously decided as
required by Keshane. Perhaps as importantly, the facts as alleged
call for a consideration of the submitted ground of appeal where similar, but
not identical facts of this taxpayer require a trial judge to assess and weigh
this Applicant’s/Appellant’s particular facts when applying same to “the
constituent elements of a multi-factored test in the particular circumstances
of a particular case” as described in Rock, which, as noted, references
the Federal Court of Appeal in Horn and Williams.
[17]
Accordingly, it is the
finding of this Court that the similar, but potentially different, changing and
non-identical facts to those contained in the authorities presented by the
Respondent warrant presentation, assessment and weight by a trial judge because
grounds susceptible to and inviting of reason by that trial judge possibly
exist. This dynamic issue related to the shelter service being provided
off-Reserve to Reserve Indians should be heard in the context of this Applicant’s
similar, but possibly distinguishable fact situation at a hearing held for that
sole purpose.
[18]
As with Turcotte,
in order to address the deficiency of the pleadings and assist with the trial,
the Appellant shall be required to file a fresh Notice of Appeal within 30 days
which more fulsomely describes the facts and statutory provisions relied upon.
Concordant Reply rights will be afforded to the Respondent.
Signed at Ottawa, Canada this 5th day of June 2013.
“R.S. Bocock”
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