Citation: 2013TCC303
Date: 20131002
Docket: 2010-478(IT)I
BETWEEN:
JUDY SACKANEY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Docket: 2007-1523(IT)I
AND BETWEEN:
MARY ANN SHOEFLY-DEVRIES,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
AMENDED REASONS FOR ORDER
Paris J.
[1]
The respondent has
applied for orders striking the appellants’ Amended Notices of Appeal and
Notice of Constitutional Question on the basis that they disclose no reasonable
cause of action. Since the appellants filed identical Amended Notices of Appeal
and a joint Notice of Constitutional Question, the respondent’s motions were
heard together and these reasons will apply in both cases.
[2]
Both appeals have
been brought by the appellants under the Informal Procedure. While the Tax Court of Canada Rules (Informal
Procedure) SOR/90-688b do not specifically provide for the matter
of striking pleadings, it falls within the Court’s inherent jurisdiction to
control its own process: Garber v The Queen, 2005 TCC 635. Therefore, this
Court has the power to dismiss any appeal which discloses no reasonable cause
of action.
[3]
The test for striking
pleadings was set out by the Supreme Court of Canada in Hunt v Carey Canada
Inc., [1990] 2 S.C.R. 959 in the following terms:
33 ... Thus, the test in Canada … is …:
assuming that the facts as stated in the statement of claim can be proved, is
it "plain and obvious" that the plaintiff's statement of claim
discloses no reasonable cause of action?
[4]
The Court went on in
the same paragraph to caution, that :
… if there is a
chance that the plaintiff might succeed, then the plaintiff should not be
"driven from the judgment seat". Neither the length and complexity of
the issues, the novelty of the cause of action, nor the potential for the
defendant to present a strong defence should prevent the plaintiff from
proceeding with his or her case …
[5]
The issue, then, in these
applications is whether, even assuming the facts alleged in the appellants’
pleadings are true, it is plain and obvious that their claims disclose no
reasonable cause of action.
Facts relied
upon by the appellant
[6]
The Court has given the
appellants a number of opportunities to amend both their Notices of Appeal and
Notices of Constitutional Question to ensure that they have included all facts
upon which they intend to rely, as well as to clarify the arguments they wish
to make. In total, Ms. Shoefly-Devries has amended her Notice of Appeal four
times and her Notice of Constitutional Question twice. Ms. Sackaney has amended
both her Notice of Appeal and Notice of Constitutional Question twice. Still,
the latest Amended Notices of Appeal and the Notice of Constitutional Question
set out few facts. Those documents consist almost exclusively of the appellants’
arguments. Each appellant also file an affidavit (dated January 27 in the case
of Ms. Shoefly-Devries and dated January 30, 2012 in the case of Ms. Sackaney)
which appear to have been intended to supplement their Amended Notices of
Appeal. Both affidavits contain several exhibits, including a
“Declaration of Inherent Rights” for each of them, correspondence from various
parties concerning the conduct of the Native Leasing Services tax appeals and a
press release for the Prime Minister’s apology concerning Residential Schools.
[7]
The Declarations of Inherent
Rights consist generally of argument and the views of the appellants on the
effects of taxation on Aboriginal peoples. Ms. Shoefly-Devries Declaration also
sets out her family background and employment history. The following facts also
appear in the Declarations.
1) Ms. Shoefly-Devries is a
member of the Chippewas of Nawash First Nation and is from the Bear Clan.
2) Ms. Sackaney is from Fort Albany and is a member of the Mushkwegowuk Cree Nation. She is from the Wolf Clan.
3) Both appellants are
registered Status Indians.
4) Ms. Shoefly-Devries was an
aboriginal support worker (part-time) in Toronto in 2007 and 2008.
5) Ms. Sackaney was employed
at Aboriginal Legal Services of Toronto.
6) There has been no constitutional
conference between the Government of Canada and the Aboriginal peoples of Canada concerning taxation, nor has there been any consultation with the Aboriginal peoples of Canada on the matter.
[8]
By way of background, during
the years under appeal each appellant worked off-reserve as an employee of
Native Leasing Service. In filing their tax returns, the appellants did not
report their income from that employment. The Minister of National Revenue
reassessed them to include the amounts they earned from that employment in their
income on the basis that it was not situated on a reserve and therefore was not
exempted from tax by paragraph 87(1)(b) of the Indian Act. Paragraph
87(1)(b) reads as follows:
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:
…
(b) the personal
property of an Indian or a band situated on a reserve.
Arguments of the appellants
[9]
The appellants’
pleadings are somewhat rambling and do not contain a concise statement of the
issues they are raising. However the essence of their arguments is that:
(i)
they have an inherent aboriginal and treaty right to immunity from
taxation which is protected by subsection 35(1) of the Constitution Act,
1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] and section 25
of the Canadian Charter of Rights and Freedoms (Part I of the Constitution
Act, 1982).
(ii)
the application of paragraph 87(1)(b) of the Indian Act violates
section 35.1 of the Constitution Act,
1982 because no constitutional conference was held prior to the “implementation
of the Income Tax Act in 1985”. Furthermore, Canada has failed to carry out its
fiduciary responsibility to aboriginals and its duty to consult with
aboriginals and its obligation pursuant to to the United Nations Declaration
on the Rights of Indigenous Peoples GA Res. 61/295 (Annex), UN GAOR, 61st
Sess., Supp. No. 49, Vol. III, UN Doc. A/61/49 (2008) 15 by not calling a
constitutional conference prior to the enactment and enforcement of paragraph 87(1)(b).
(iii) paragraph 87(1)(b) of
the Indian Act, R.S.C., 1985, c. I-5 violates the Appellants’ equality
rights guaranteed by section 15(1) of the Charter.
(iv) taxation
of their off-reserve income violates their mobility rights guaranteed by
section 6 of the Charter.
(v)
the Court does not have jurisdiction to hear this matter and lacks
judicial procedures required to recognize the inherent rights of aboriginals.
Tax immunity
[10]
The appellants’ first
argument is predicated on the existence of an inherent aboriginal or treaty
right to tax immunity. The appellants do not explicitly set out the basis of
this alleged immunity, but from other statements in their Amended Notices of
Appeal and Notice of Constitutional Question, I understand them to be claiming
that the Crown does not have jurisdiction to impose tax on aboriginals because
they have never agreed to pay tax and have not been consulted on the issue.
[11]
Counsel for the
respondent argued that it is clear aboriginals do not have general immunity
from taxation in Canada. The appellants have not put forward any authorities to
support this position, and the jurisprudence is overwhelmingly against it.
[12]
The appellants’
position amounts to a denial of the sovereignty of the Crown over aboriginal
people in relation to taxation. The contrary view, that aboriginals are subject
to the provisions of the Income Tax Act, flows from the fact of Canadian
sovereignty over aboriginal peoples living in Canada. In Nowegijick v The
Queen, [1983] 1 SCR 29, Dickson J. wrote at paragraph 24
that:
Indians are citizens and, in affairs of life not governed by
treaties or the Indian Act, they are subject to all of the
responsibilities, including payment of taxes, of other Canadian citizens.
[13]
Similarly, in R v
Sparrow, [1990] 1 S.C.R. 1075
the Supreme Court stated at
page 1103 that:
It is worth
recalling that while British policy towards the native population was based on
respect for their right to occupy their traditional lands, a proposition to
which the Royal Proclamation of 1763 bears witness, there was from the
outset never any doubt that sovereignty and legislative power, and indeed the
underlying title, to such lands vests in the Crown . . .
(underlining
added)
[14]
In light of these
pronouncements of the Supreme Court, it is clear that the appellants’ claim of
an inherent aboriginal right to tax immunity, based on a claim that aboriginals
did not agree to pay tax and have not been consulted on the matter, is
incompatible with the Crown’s sovereignty over Canadian territory.
[15]
Since the claim of an
inherent aboriginal right to tax immunity is unfounded, it is clear that the appellants’
arguments relating to section 25 of the Charter and subsection 35(1)
of the Constitution Act, 1982 cannot succeed.
[16]
Section 25 of the Charter
reads:
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 or freedoms that pertain to the
aboriginal peoples of Canada including
(a)
any rights or freedoms that have been recognized by the Royal Proclamation of
October 7, 1763; and
(b)
any rights or freedoms that now exist by way of land claims agreements or may
be so acquired.
[17]
Subsection 35(1) reads:
35(1).
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 or freedoms that pertain to the
aboriginal peoples of Canada including
(a)
any rights or freedoms that have been recognized by the Royal Proclamation of
October 7, 1763; and
(b)
any rights or freedoms that now exist by way of land claims agreements or may
be so acquired.
[18]
In Mitchell v
M.N.R., 2001 SCC 33 McLachlin C.J. explained that the effect of the
enactment of subsection 35(1) of the Constitution Act, 1982 was to elevate
existing common law aboriginal and treaty rights to constitutional
status.
[19]
It is also clear that
the aboriginal rights protected by section 25 of the Charter are those
rights recognized by the Royal Proclamation or those existing by way of land
claims at the time the Constitution Act, 1982 came into force or rights
acquired by way of land claims after that point. In R.v Kapp, 2008 SCC 41 McLachlin C.J., writing for the majority,
stated that “not every aboriginal interest or program falls within the
provision’s scope” and that “only rights of a constitutional character are
likely to benefit from s. 25.”
[20]
Since the appellants have
not set out any facts that would support a finding that tax immunity existed for
aboriginal people in Canada prior to the coming into force of section 25 of the
Charter and subsection 35(1) of the Constitution Act, 1982 and
since the appellants do not refer to any land claim agreement in their
pleadings there can be no basis for finding that those provisions were breached
by imposing tax on the income of an aboriginal person.
[21]
Even if the appellant had
pled facts to show that tax immunity for aboriginals existed at some point
prior to 1982, it is apparent that the those rights would have been
extinguished when income tax was imposed in 1917 on “every person residing or
ordinarily resident in Canada”: Income War Tax Act, 1917, S.C. 1917,
c.28 subsection 4(1). In
Mitchell, McLachlin C.J. explained that prior to 1982, aboriginal rights
could be unilaterally abrogated by the Crown:
10… aboriginal interests and customary laws were presumed to
survive the assertion of sovereignty, and were absorbed into the common law as
rights, unless (1) they were incompatible with the Crown’s assertion of
sovereignty, (2) they were surrendered voluntarily via the treaty process, or
(3) the government extinguished them
[22]
Finally, the appellant
has not alleged any facts that would support a treaty right, as distinct from
an inherent aboriginal right, to immunity from taxation.
Failure to convene
a constitutional conference
[23]
The appellants’ second argument
is that the application of paragraph 87(1)(b) of the Indian Act violates
section 35.1 of the Constitution Act, 1982 and that the Crown breached
its fiduciary duty to aboriginal peoples and its duty to consult by failing to hold
a constitutional conference with aboriginal leaders “prior to enactment of the Income
Tax Act” and prior to the imposition of income tax on aboriginal peoples
employed off-reserve.
[24]
Section 35.1 of the Constitution
Act, 1982 sets out the commitment of the government of Canada to convene a constitutional conference with aboriginal representatives prior to amending
Class 24 of section 91 of the Constitution Act, 1867, section 25 of the Charter
or to Part II of the Constitution Act, 1982.
[25]
Section 35.1 reads as
follows:
35.1. The government of Canada and the provincial governments are
committed to the principle that, before any amendment is made to Class 24 of
section 91 of the “Constitution Act, 1867”, to section 25 of this Act or
to this Part,
(a) a constitutional
conference that includes in its agenda an item relating to the proposed
amendment, composed 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 of
Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item.
[26]
Part 24 of section 91 of
the Constitution Act, 1867 reads as follows:
It
shall be lawful for the Queen, by and with the Advice and Consent of the Senate
and House of Commons, to make Laws for the Peace, Order, and good Government of
Canada, in relation to all Matters not coming within the Classes of Subjects by
this Act assigned exclusively to the Legislatures of the Provinces; and for
greater Certainty, but not so as to restrict the Generality of the foregoing
Terms of this Section, it is hereby declared that (notwithstanding anything in
this Act) the exclusive Legislative Authority of the Parliament of Canada
extends to all Matters coming within the Classes of Subjects next hereinafter
enumerated; that is to say,
…
24. Indians, and Lands reserved for
the Indians.
[27]
Part II of the Constitution
Act, 1982 contains sections 35 and 35.1 which deal with the rights of the
aboriginal peoples of Canada. The text of those sections has been set out earlier
in these reasons.
[28]
The respondent’s
counsel maintains that there have never been any “active constitutional amendment
proposals relating to Class 24 of section 91 of the Constitution Act, 1867,
or to section 25 of the Charter or Part II of the Constitution Act,
1982,” and therefore no need to call a constitutional conference pursuant
to section 35.1.
[29]
The appellants did not allege
that any such amendments have ever been proposed, and therefore the respondent
is correct in asserting that section 35.1 has no application in this case. On a
plain reading, the enactment and enforcement of tax legislation affecting aboriginals
are not government actions that would engage section 35.1.
[30]
The respondent’s
counsel also submitted that the case law demonstrates that the Crown has no
fiduciary duty to aboriginal people in respect of paragraph 87(1)(b) of the Indian
Act and had no duty to consult prior to enacting or applying that provision.
[31]
These same issues were
considered by Lax J. of the Ontario Superior Court of Justice in Hester v The Queen et al, [2007] O.J. No. 4719, aff’d:
Hester v. Canada 2008 ONCA 634 (Ontario Court of Appeal). In that case, the
plaintiff alleged that the Crown owed aboriginal taxpayers a fiduciary duty and
had a duty to consult in respect of the application of paragraph 87(1)(b). Lax
J. held that neither duty was owed to aboriginals by the Crown and allowed the
Crown’s application to strike those claims. She dealt firstly with the
fiduciary duty claim, at paragraphs 29 to 35 of her reasons. The relevant
portions of her analysis follow:
[29] …In Wewaykum Indian Band v. Canada, 2002 SCC 79 (CanLII),
[2002] 4 S.C.R. 245 at paras. 72-85, Binnie J. traces the development of the
‘sui generis fiduciary duty’ pointing out that since R. v. Guerin, 1984 CanLII 25 (SCC),
[1984] 2 S.C.R. 335, Canadian courts have experienced a flood of fiduciary duty
claims by Indian bands. In reaffirming the principle from Lac Minerals Ltd.
v. International Corona Resources Limited, 1989 CanLII 34 (SCC),
[1989] 2 S.C.R. 574, per Sopinka J. at 597 that not all obligations
existing between parties to a fiduciary relationship are themselves fiduciary
in nature, Binnie J. states that this principle applies to the relationship
between the Crown and aboriginal people and that, “It is necessary, then, to
focus on the particular obligation or interest that is the subject matter of
the particular dispute and whether or not the Crown has assumed discretionary
control in relation thereto to ground a fiduciary obligation.” (para. 83).
He continues:
I do not suggest that the existence of a
public law duty necessarily excludes the creation of a fiduciary relationship. The
latter, however, depends on identification of a cognizable Indian interest,
and the Crown’s undertaking of discretionary control in relation thereto
in a way that invokes responsibility “in the nature of a private law duty” …
[34] In Ludmer, which was an appeal by a taxpayer
allowing a motion to strike certain paragraphs of the statements of claim, the
court considered the role of tax officials and whether equitable principles
applied under the Canadian system of tax collection and said:
… Neither the Minister of National Revenue
nor his employees have any discretion whatever in the way in which they must
apply the Income Tax Act.
They are required to follow it absolutely, just as taxpayers are also required
to obey it as it stands … In determining whether their decisions are valid, the
question is not whether they exercised their powers properly or wrongfully, but
whether they acted as the law governing them required them to act. (para. 44)
[35] … In issuing notices of assessment under the Income Tax Act and
administering tax exemption rights under the Indian Act, CRA is
carrying out the statutory duty discussed in Ludmer. There is no
discretionary control exercised by the Crown that invokes responsibility in the
nature of a private law duty. In my view, it is plain and obvious that
the alleged failure of the Crown and its servants to administer s.87 of the Indian Act in a manner that protects
the tax exemption rights of native peoples cannot give rise to a claim for
breach of fiduciary duty. I conclude that this is not a tenable claim and
should be struck.
(underlining
added)
[32]
At paragraphs 36 to 38,
she dealt with the plaintiff’s argument regarding the existence of a duty to
consult:
[36] In Haida Nation v. British Columbia (Minister of
Forests), 2004 SCC 73 (CanLII),
[2004] 3 S.C.R. 511, McLachlin C.J.C. described the duty to consult with
aboriginal peoples and accommodate their interests as being grounded in the
principle of the honour of the Crown, which must be understood generously. The
duty arises when the Crown has knowledge, real or constructive of the potential
existence of the aboriginal right or title and contemplates conduct that might
adversely affect it.
…
[38] … It is clear from Haida and the academic
commentary (see, for example, Professor Chrisitie’s article, paras. 3, 17, 24,
30, 120, 121) that the duty to consult and accommodate arises when there is
contemplated Crown conduct to exploit resources that are the subject of
potential, but as yet proved land or treaty claims. It is doubtful that any
such duty arises in the context of personal property, but assuming it does,
there can be no contemplated Crown conduct on the facts pleaded as the Crown
exercises no discretion in its administration of tax exemption rights.
(underlining
added)
[33]
I agree with the conclusions
of Lax J. and find that they are applicable as well in this case. Neither the
enactment nor the application of paragraph 87(1)(b) relate to land or treaty
claims that are under negotiation, or to any discretionary control exercised by
the Crown. I have already held, as well, that the appellant has not pled
sufficient facts to support the existence of an inherent aboriginal or treaty
right to tax immunity and the case law is clear that there is no general tax
immunity for aboriginals in Canada. Therefore, in my view, the appellants’
claims concerning fiduciary duty and a duty to consult cannot succeed.
[34]
The appellants also
argue that the failure of the Crown to hold a constitutional conference on the
issue of aboriginal taxation is contrary to article 40 of the UNDRIP.
Article 40 reads:
Indigenous peoples have the right to access to and prompt decision
through just and fair procedures for the resolution of conflicts and disputes
with States or other parties, as well as to effective remedies for all
infringements of their individual and collective rights. Such a decision shall
give due consideration to the customs, traditions, rules and legal systems of
the indigenous peoples concerned and international human rights.
[35]
The UNDRIP is an
international instrument regarding the rights and treatment of indigenous
peoples, adopted in 2007 by the United Nations. As pointed out by counsel for
the respondent, it is not legally binding under international law and, although
endorsed by Canada in 2010, it has not been ratified by Parliament. It does not
give rise to any substantive rights in Canada. International instruments such
as the UNDRIP may help inform the contextual approach to statutory
interpretation, but no issue of statute interpretation has been raised in this
case. The appellants argument relating to the UNDRIP also has no chance
of success.
Mobility
Rights:
[36]
The appellants’
third argument is that their mobility rights under section 6 of the Charter have
been infringed by paragraph 87(1)(b) of the Indian Act. They say that paragraph
87(1)(b) infringes their right to earn their livelihood off-reserve.
[37]
Section 6 of the Charter
reads:
6.(1) Every citizen of Canada has the right to enter, remain in and leave Canada.
(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
(a) to move to and
take up residence in any province; and
(b) to pursue the
gaining of a livelihood in any province.
(3) The rights specified
in subsection (2) are subject to
(a) any laws or
practices of general application in force in a province other than those that discriminate
among persons primarily on the basis of province of present or previous
residence; and
(b) any laws
providing for reasonable residency requirements as a qualification for the
receipt of publicly provided social services.
(4) Subsections (2) and (3) do not
preclude any law, program or activity that has as its object the amelioration
in a province of conditions of individuals in that province who are socially or
economically disadvantaged if the rate of employment in that province is below
the rate of employment in Canada.
[38]
The thrust of the appellants’
argument is that, by virtue of oral and written treaties entered into between their
tribes and the Crown, they enjoy the same rights both on and off their reserves
and, in particular, they have a right to earn their livelihood both on and off
reserve. I understand their position to be that the imposition of tax on their
income earned off-reserve restricts their right to earn a livelihood and
therefore violates their section 6 Charter mobility rights.
[39]
I agree again with
respondent’s counsel that, even assuming that the facts set out by the
appellants in their Notices of Appeal and Notice of Constitutional Question are
true, their argument relating to section 6 does not have any chance of success.
[40]
Subsection 6(2) sets
out the right of an individual to move freely and work anywhere within Canada and is subject to the limits contained in subsections 6(3) and (4). In particular,
the rights guaranteed by subsection 6(2) are subject to any laws of general
application in a province
other than those that discriminate among
persons primarily on the basis of province of present or previous residence.
[41]
As the respondent’s
counsel points out, the Income Tax Act is a law of general application
in all provinces and territories. Therefore, even if the Income Tax Act
could be said to interfere with an individual’s right to pursue the gaining of
a livelihood, (which I do not believe it does), section 6 mobility rights are
subject to its operation.
[42]
Nor can I see any basis
for holding that paragraph 87(1)(b) of the Indian Act restricts or
interferes with a right to work in any province. That provision exempts
property (including income) of an Indian from tax if that property is situated
on a reserve. It is one of a number of
provisions in the Indian Act designed to protect Indians in various ways from the
erosion of their economic base, namely reserve lands and personal property
there belonging to an Indian:
Mitchell v Peguis Indian Band, [1990] 2 S.C.R. 85. It does not deal with an Indian’s
right to work or to earn income.
Section 15
[43]
The appellants’ fourth
argument is that the limitation of the tax exemption provided by paragraph
87(1)(b) of the Indian Act to income situated on a reserve results in
discrimination against Indians who work off-reserve and therefore violates subsection
15(1) of the Charter.
[44]
The focus of section 15(1) of
the Charter is on preventing governments from making distinctions based
on enumerated or analogous grounds that have the effect of perpetuating
disadvantage or prejudice or imposing disadvantage on the basis of stereotyping:
Law v Canada (Minister of Employment and
Immigration), [1999] 1 S.C.R. 497.
[45]
Subsection 15(1) reads
as follows:
15. (1) Every individual is equal
before and under the law and has the right to the equal protection and equal
benefit of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion, sex,
age or mental or physical disability.
[46]
The respondent’s
counsel points out that a similar argument was made and rejected in Horn v Canada, [2007] FCJ No. 1356. The appeal of that decision was dismissed and leave to
appeal to the Supreme Court of Canada was denied.
[47]
In Horn, the
appellant claimed that the application of paragraph 87(1)(b) of the Indian
Act in accordance with guidelines prepared by the CRA amounted to discrimination
and breached her rights under section 15(1) of the Charter. Phelan J. of
the Federal Court found, however, that distinction drawn by paragraph 87(1)(b) of
the Indian Act and the CRA guidelines is between property located on a
reserve and property located elsewhere and that this was not an enumerated or analogous
ground for the purpose of section 15(1). He said:
136 There
is nothing immutable like race, religion or a characteristic which can only be
changed at an unacceptable cost to personal liberty, involved in the
distinctions as to situs of property. The distinction as to the situs of
personal property on a reserve is not therefore an analogous ground.
139 None
of the distinctions in the 1994 Guidelines are based on personal traits or
circumstances or impact on the Plaintiffs' human dignity. The location of one's
personal property is not per se the type of matter which could reasonably be said to impact
human dignity. There is no evidence that either Horn or Williams have lessened,
or been viewed as having lessened, their status as Indian qua Indian, nor viewed as less
integral to the life of their reserve by virtue of not qualifying for the tax
exemption.
[48]
In my view, the appellants’
section 15(1) Charter argument cannot be distinguished from the position
taken by the appellant in Horn. Since that position was rejected at all
levels, I see no chance that the argument in this case could succeed.
Tax Court
Jurisdiction
[49]
The appellants’ fifth
argument is that this Court lacks jurisdiction to address the application of
the Income Tax Act to aboriginal people and lacks judicial procedures
for the recognition of inherent aboriginal rights. This is simply not the case.
Section 12 of the Tax Court of Canada Act, R.S.C., 1985, c.T-2 gives this Court exclusive original jurisdiction to hear and determine
references and appeals provided for in the Income Tax Act. In determining whether an assessment is
correct or not, the Court will take into account any relevant aboriginal right
the existence of which is established on the evidence.
[50]
To the extent that the appellants
are challenging the Court’s jurisdiction over aboriginals, this raises the same
sovereignty issue that I have dealt with earlier in these reasons, and as I
have already concluded, this argument cannot succeed.
[51]
I would also point out
that it is the appellants who have brought their appeals in this Court, which
is seemingly inconsistent with a claim that the Court lacks jurisdiction to
deal with them.
Other
submissions
[52]
The appellants submit
that allowing the motion to strike would be an abuse of authority because it
would deny them the right to present their arguments in relation to their
aboriginal rights. They also argue that if the motion is granted they would
suffer great hardship.
[53]
It is true that
striking the appellants’ Notice of Appeal and Notice of Constitutional Question
will prevent them from making their arguments relating to alleged violations of
their rights and may result in hardship to them. However, if their arguments
have no chance of success, the Court is bound to strike them in order to
maintain the integrity of the Court’s process.
[54]
The appellants also
argued that the motion to strike amounts to prosecutorial discrimination. It is
not entirely clear to me what the appellants meant by this. The appellants are
not being prosecuted in these proceedings. They have filed an appeal from
reassessments of income tax and the respondent is defending those
reassessments. Furthermore, I find nothing in any of the material before me to
suggest that in bringing this motion, the respondent’s counsel is
discriminating against the appellants.
[55]
The appellants also
submit that the presentation of their case has been hampered by their inability
to obtain proper legal advice. This is, of course, regrettable but it can have no
bearing on the outcome of this application. The Supreme Court of Canada has held that in Canada there is no general constitutional right to counsel: British Columbia (Attorney
General) v Christie, [2007] SCC 21.
Conclusion
[56]
I note that the
appellants have already been given a number of opportunities to amend their
Notice of Appeal and Notice of Constitutional Question in order to clarify their
arguments and to set out all relevant facts. Even after those amendments, I
find that it is plain and obvious that the arguments they are raising have no
chance of success.
[57]
For all of these
reasons, the respondent’s application is granted and the Amended Notices
of Appeal and Notice of Constitutional Question are struck.
Signed at Ottawa, Canada, this 2nd day of October 2013.
“B.Paris”
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