Docket: T-1737-13
Citation:
2014 FC 1126
Ottawa, Ontario, November 25, 2014
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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LUC DES ROCHES
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Applicant
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and
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WASAUKSING FIRST NATION
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant, Mr. Des Roches, seeks judicial
review with respect to the actions or decisions of the Wasauksing First Nation
which imposed a surcharge on each carton of tax exempt and unmarked cigarettes
allocated to retailers on the First Nation. Mr. Des Roches seeks: a Declaration
that the surcharge imposed in 2012 and 2013 is unlawful; an Injunction to
prohibit the First Nation from levying the surcharge in this fiscal year and in
future fiscal years; and, an Order that the First Nation refund all of the
money collected by the First Nation from him during 2012, 2013 and part of the
current fiscal year.
[2]
For the more detailed reasons that follow, the
application is dismissed. This Court does not have jurisdiction to hear and
determine this application for judicial review; the First Nation was not acting
as a “federal board, commission or tribunal” within the meaning of section 2 of
the Federal Courts Act, RSC 1985, c F-7, when it imposed the surcharge
on the tax exempt cigarettes which it allocated to reserve retailers pursuant
to the Ontario Tobacco Tax Act, RSO 1990, c T 10, and the Tobacco Retailer
Agreement between the First Nation and the Ontario Ministry of Finance.
Background
[3]
Mr. Des Roches is a member of the Wasauksing
First Nation and resides on the Wasauksing reserve on Parry Island, Parry Sound, Ontario. He runs the Rezmart convenience store and sells, among other
things, tax exempt cigarettes to other members of the First Nation.
[4]
The Wasauksing First Nation entered into the
Tobacco Retailer Agreement with the Ontario Ministry of Finance in 1999
regarding the sale of tax exempt, unmarked cigarettes. The First Nation
receives a quota of the cigarettes which it then allocates among the retailers
on the reserve. The quota is 20% greater than what would be available for
allocation directly from the Ministry of Finance if the First Nation had not
entered into the Tobacco Retailer Agreement.
[5]
Mr. Des Roches has received an allocation of the
quota since 2007.
[6]
Beginning in 2012, the Wasauksing First Nation
has imposed a surcharge of $2 on each carton of tax exempt cigarettes allocated
to the reserve retailers.
[7]
The First Nation did not pass a by-law regarding
the imposition of the surcharge. Retailers were advised by letter dated April
10, 2012 that the surcharge would be imposed and payable in instalments. The
First Nation passed a motion on June 18, 2013 that the “tobacco
surcharge be utilized for Sports & Recreation based requests from the youth
(under 30 yrs. old)”.
[8]
The applicant characterizes this as an unlawful
tax.
[9]
In this application for judicial review, the
applicant seeks:
•
A Declaration that, during the years of 2012 and
2013, the First Nation acted without jurisdiction or beyond its jurisdiction
and unlawfully levied a tax of $2.00 upon him for each carton of unmarked
cigarettes allocated to him pursuant to the Retail Agreement;
•
An Injunction prohibiting the First Nation from
levying further tax upon allocations of unmarked cigarettes to the applicant in
the fiscal year ending March 31, 2015 and years following;
•
A Writ of Mandamus or Order that the First
Nation refund all of the taxes paid by the applicant for the fiscal years
ending March 31, 2013 and 2014 and any part paid by the applicant for the
fiscal year ending March 31, 2015 (prior to the date of the hearing of this
application); and
•
The costs of the application.
Issues
[10]
The key issue is whether the Federal Court has
jurisdiction to hear and determine this application for judicial review and, if
so, to grant the relief requested. This depends on whether the Wasauksing First
Nation was acting as a “federal board, commission or tribunal” within the
meaning of section 2 of the Federal Courts Act when it allocated the tax
exempt or unmarked cigarettes among retailers on the First Nation and imposed
and collected the surcharge.
[11]
The related issue is whether the First Nation
was exercising its right to contract when it offered an allocation of the quota
of cigarettes to retailers including Mr. Des Roches and the other retailers who
applied for their allocation and, in doing so, agreed to pay the surcharge. The
Federal Court would not have the jurisdiction to judicially review the actions
or decisions of a First Nation based on its right to contract.
[12]
If the Court has jurisdiction, the issue is
whether the surcharge imposed is a tax, an administrative fee or a fee for the
disposition of the Band’s property subject to an agreement and whether the
First Nation exceeded its authority in imposing the tax or fee.
The relevant statutory
provisions are set out in Annex A
The
applicant’s position
Jurisdiction
[13]
The applicant asserts that the Federal Court has
jurisdiction because the First Nation falls within the definition of “federal board, commission or other tribunal” under
subsection 2(1) of the Federal Courts Act. Accordingly, the exclusive
jurisdiction granted to this Court by subsection 18(1) and section 18.1 of the Federal
Courts Act applies to the actions of the First Nation, including the
imposition of the surcharge.
[14]
The applicant further argues that the Federal
Court has jurisdiction to review the First Nation’s decision to impose the
surcharge because the surcharge was in fact a tax. In the present case, the
First Nation purports to exercise its power to tax under the Indian Act,
RSC 1985, c I-5, but has exceeded its authority.
[15]
The applicant submits that the provincial
legislation, the Ontario Tobacco Tax Act, does not authorize the First
Nation to tax. Nor does the Tobacco Retailer Agreement, which sets out the
responsibilities of the First Nation’s Band Council to allocate the quota of
tax exempt cigarettes, authorize the First Nation to impose a tax or surcharge.
[16]
Therefore, the First Nation has exceeded its
authority under the Ontario Tobacco Tax Act and the Tobacco Retailer
Agreement, and has purported to exercise authority to tax pursuant to the Indian
Act, but has also exceeded this authority.
There is
no contract
[17]
The applicant disputes that the imposition of
the surcharge is a term of the contract between the reserve retailers and the
First Nation. The applicant submits that the First Nation is not exercising its
private right to contract in imposing the surcharge. Rather, it is exercising a
public power that affects retailers and the Band members who purchase the
cigarettes.
[18]
The applicant submits that Gamblin v Norway
House Cree Nation Band Council, 2012 FC 1536, 424 FTR 125 (Eng) [Gamblin],
relied on by the respondent, does not stand for the proposition that only where
the power exercised affects a large portion of the Band would it be public.
Here, any decision that affects any part of the First Nation, i.e., retailers
and their customers, would be a public matter.
[19]
The applicant argues that the power exercised by
the First Nation in allocating the quota is based on the Ontario Tobacco Tax
Act and the Tobacco Retailer Agreement. The First Nation only has the power
to allocate the quota and not to contract with retailers or sell the quota to
them.
[20]
The applicant argues that based on factors set
out in Air Canada v Toronto Port Authority, 2011 FCA 347 at para 60, 211
ACWS (3d) 254 [Air Canada], which guide whether an issue is public or
private in character, the imposition of the surcharge is a public matter. The
applicant submits that: members of the public, i.e., retailers and their
customers, are affected; the First Nation is a public body and its decision to
levy the surcharge is purportedly for the public purpose of youth sports and
recreation; the surcharge is not authorized by statute or regulation; the First
Nation is an agent of the provincial government in allocating the quota; the
surcharge is compulsory because retailers cannot obtain their quota unless they
pay the surcharge; and, the surcharge has an exceptional effect on the
interests of a broad segment because it affects the customers of the retailers.
The
surcharge is a tax
[21]
The applicant submits that the surcharge is a
tax and the First Nation has no authority or exceeds its authority in imposing
this tax on the sale of goods (i.e., cigarettes). Paragraph 83(1)(a) of the Indian
Act only authorizes the Band to tax land or interests in land, and not the
sale of goods. Although paragraph 83(1)(f) allows for the raising of money from
band members to support band projects, this provision does not permit taxation.
[22]
The applicant further submits that, whether or
not the Band has the power to tax the sale of goods, it did not pass a by-law
or obtain the approval of the Minister of Indian Affairs and Northern
Development (now Aboriginal Affairs and Northern Development) to do so in
contravention of subsection 83(1) of the Indian Act.
[23]
The applicant argues that the factors relied on
by the respondent set out in Lawson v Interior Tree Fruit and Vegetable
Committee of Direction, [1931] S.C.R. 357, [1931] 2 DLR 193 [Lawson],
in fact support the applicant’s position that the surcharge is a tax.
[24]
In Lawson, the Court found the levy at
issue to be a tax because: the levy was enforceable by law; the failure to pay
was an offence; the levy was imposed by a public body; and the levy was for a
public purpose.
[25]
The applicant argues that, in this case, the
surcharge is enforceable because: the retailer cannot get their quota unless
they pay the surcharge; the First Nation has imposed its own sanction, i.e., no
allocation if the surcharge is not paid; the First Nation Band Council is
elected by the Band members and given the powers to regulate the Band members;
and, the funds raised are in part for the public purpose of sports and
recreation.
[26]
The applicant adds that in Lawson, the
Court found that a levy that had a tendency to affect the price of the product,
as in the present case, is in the nature of an indirect tax.
[27]
The applicant argues that the surcharge or tax
is not an administrative fee because the First Nation collects far more than
the administrative costs associated with allocation of the quota, which are
approximately $2000 per year as acknowledged by the Chief.
[28]
The applicant also submits that, although the
Band Council considered a motion to use the surcharge for sports and recreation
projects for youth on the reserve, the funds have not been fully used for that
purpose.
[29]
The applicant argues that the respondent’s
reliance on Boniferro Mill Works ULC v Ontario, 2009 ONCA 75, 308 DLR
(4th) 739 [Boniferro], is not applicable. In that case, the
Court applied Lawson to find that Ontario had levied a tax on Boniferro
in the course of selling timber. The Ontario Court of Appeal found that the
levy was not a tax but part of the sale price.
[30]
The applicant submits that the surcharge cannot
be characterized as a fee for the sale or disposition of property because the
First Nation never had any property rights in the cigarettes. Neither the Tobacco
Tax Act nor the Tobacco Retailer Agreement gives any property rights to the
quota to the Band. The First Nation does not dispose of this property; it only
administers the quota as an agent of the province and the cigarettes go
directly to the retailers once the quota is allocated.
[31]
The applicant also argues that, without the Tobacco
Retailer Agreement, the province would allocate the quota directly to the
retailers. The First Nation, as agent for the province, has an obligation to
allocate the quota and cannot offer to allocate in exchange for the payment of
a surcharge.
The
respondent’s position
[32]
The respondent submits that this Court does not
have jurisdiction to consider the application for judicial review; the First
Nation derived its authority from the provincial legislation and/or its
inherent right to contract. In addition, the surcharge is not a tax and the
First Nation did not exceed its authority under the Indian Act in
imposing the surcharge.
Jurisdiction
[33]
The respondent argues that the Federal
Court does not have jurisdiction because the Band was not acting as a “federal
board, commission or tribunal” as defined by subsection 2(1). As such,
subsection 18(1) and section 18.1 would not apply.
[34]
To determine whether the
First Nation falls within section 2, the two-step analysis set out in Anisman
v Canada (Border Services Agency), 2010 FCA 52 at para 29, 185 ACWS (3d)
354 [Anisman], must be applied: it must be determined what jurisdiction
or power the body or person seeks to exercise; and the source or the origin of
the jurisdiction or power which the body or person seeks to exercise must be
determined. While the character of the
institution is a significant factor in the analysis, the character of the power
being exercised is determinative (Devil’s Gap Cottagers (1982) Ltd v Rat
Portage Band No 38B (Wauzhushk Onigum Nation), 2008 FC 812 at para 33,
[2009] 2 FCR 267 [Devil’s Gap]).
[35]
The respondent submits that the First
Nation was acting under authority of the Ontario Tobacco Tax Act. In
order for a federal body or decision-maker to fall within the definition, it is
not sufficient that it sometimes be recognized as a “federal board, commission,
or other tribunal”, as is often the case with Indian Bands (Gamblin,
above, at para 31). It is also necessary to determine that it is “exercising or purporting to exercise jurisdiction or powers
conferred by or under an Act of Parliament or by or under an order made
pursuant to a prerogative of the Crown….” (Federal Courts Act,
subsection 2(1)) and that does not include powers conferred under a provincial
statute.
[36]
In this case, the federal body, i.e., the First
Nation, was acting under the statutory authority of a provincial statute, the Ontario Tobacco Tax Act. Therefore, this Court does not have jurisdiction under
section 18.1 to review the Band’s actions. The Wasauksing First Nation was,
therefore, not acting as a “federal board, commission or other tribunal” within
the meaning of subsection 2(1).
The
surcharge is a term of a private contract
[37]
The respondent submits that the Band was not
acting as a “federal board, commission or tribunal” because it was exercising
its power to contract. The Band’s decision to impose the surcharge is not
related to the exercise of statutory authority under the Indian Act and
does not deal with a matter of public interest and is, therefore, not open to
judicial review.
[38]
The respondent submits that First Nation Band
Councils do not gain all their powers from Parliament. They possess the express
and implied power to contract, without the need for authority under the Indian
Act, and this is not subject to judicial review (Devil’s Gap, above,
at paras 46 and 60). The respondent notes several examples of cases where the
Federal Court and the Federal Court of Appeal have refused to review actions
and decisions made by Band Councils acting under their private power to
contract (Peace Hills Trust Co v Moccasin, 2005 FC 1364 at paras 60-62, 281
FTR 201 (Eng); Cottrell v Chippewas of Rama Mnjikaning First Nation,
2009 FC 261 at paras 82 and 95, 342 FTR 295 (Eng); and Devil’s Gap,
above).
[39]
The agreement between the retailers and the
First Nation is a contract. In exchange for the allocation of cigarettes, the
retailers agree to pay $2 per carton to the First Nation. By submitting his
application for an allocation, the applicant agreed to be bound by the terms
offered by the Band, of which the applicant was fully aware, and which included
paying the surcharge. The contract was formed when the Band accepted the
application.
[40]
The respondent notes that the allocation of
cigarettes by the Ontario Ministry of Finance to the Band is 20% greater when
there is a Tobacco Retailer Agreement in place. Although the retailers could
get an allocation directly from the Ministry of Finance pursuant to section 5
of Ontario Regulation 649/93, if there is no Tobacco Retailer Agreement between
the First Nation and the Ministry of Finance, the retailers would receive a
lesser amount. The Tobacco Retailer Agreement provides a commercial benefit,
which is passed on to the retailers who apply for an allocation and share in
the greater quota.
[41]
The respondent notes that the retailers receive
their allocation and are expected to pay the surcharge in quarterly instalments
during the year. If they do not pay the surcharge, they may be refused an
allocation in the next year or the First Nation could pursue a remedy in
contract Band, but the quota for the current year remains intact.
[42]
The applicant received a benefit of the 20%
increase in the annual quota based on the agreement between the First Nation
and Ontario. The respondent argues that the applicant applied for his
allocation knowing of the surcharge. He received a benefit – a greater amount
of cigarettes and the profits from the sale of the cigarettes. This is a
contractual matter; there is no element of public interest.
[43]
The respondent submits that to determine whether
a power is private in nature, without any public element, flavour or character
(Gamblin, above, at paras 53 and 54), the factors identified by the
Federal Court of Appeal in Air Canada (above, at para 60) must be
considered.
[44]
The respondent argues that applying the Air
Canada factors supports the respondent’s position that this is a private
matter, without any element of public interest. The respondent submits that the
contract, including the surcharge attached to the allocation of the quota, does
not fall within the definition of “federal board, commission or tribunal” under
subsection 2(1) of the Federal Courts Act and would not be subject to
judicial review.
The surcharge is not a tax
[45]
The respondent submits that the surcharge
imposed on each carton of cigarettes allocated to reserve retailers is not a
tax.
[46]
The respondent relies on Lawson, which
established that a tax necessarily consists of four elements (above, at p 363):
enforceable by law; imposed under the authority of the legislature; imposed by
a public body; and, imposed for a public purpose. The respondent submits that
three of the factors are not met. The respondent acknowledges, however, that
First Nation Band Council may sometimes be considered a public body and that a
charge may be considered to be imposed for a public purpose if the money goes
to a purpose other than defraying the costs of administering the program that
imposes the charge (Westbank First Nation v British Columbia Hydro Power
Authority, [1999] 3 S.C.R. 134 at para 37, 176 DLR (4th) 276; Eurig Estate
(Re), [1998] 2 S.C.R. 565 at para 20, 165 DLR (4th) 1).
[47]
The respondent submits that the surcharge is not
enforceable by law. If a retailer applies for a quota of cigarettes for retail,
the retailer agrees to pay the surcharge. There are no legal consequences for
retailers who do not apply for their quota or pay the surcharge (other than
perhaps not receiving their next allocation of cigarettes). The Band’s only
recourse for non payment is to sue for breach of contract. The respondent also
notes that the Chief indicated in cross-examination that, although Mr. Des
Roches had outstanding amounts for the surcharge owing, no efforts had been
made to collect it.
[48]
The surcharge is not a tax because a tax must be
imposed by statute, regulation or by- law, which is not the case here.
[49]
The respondent also argues that, even if all the
criteria of Lawson were met, the surcharge would not be a tax because it
is a fee charged by a public body for disposition of property and such fees are
not considered to be taxes (Boniferro, above, at para 38). The First
Nation should be able to impose a fee for the disposition or allocation of the
quota since the fee is payable only by those who agree to do so by applying for
an allocation.
This Court
has no jurisdiction
[50]
In the related case Luc Des Roches v
Wasauksing First Nation, 2014 FC 1125, I found that this Court does not
have jurisdiction to consider the application for judicial review of an
allocation of tax exempt cigarettes to a retailer that the applicant alleged
did not operate on reserve lands. For similar reasons, I find that the Federal
Court does not have jurisdiction to consider this application for judicial
review.
[51]
While decisions made by a First Nations Band
Council often come within the meaning of subsection 2(1) of the Federal
Courts Act, this is not always the case (Ermineskin First Nation v
Minde, 2008 FCA 52, 168 ACWS (3d) 225). As I noted in 2014 FC 1125, the
two-stage analysis established by the Federal Court of Appeal in Anisman is
necessary and the source of the power or authority being exercised is the determinative
consideration.
[52]
In Anisman the Court of Appeal noted:
[29] The operative words of the s. 2
definition of “federal board, commission or other tribunal” state that such a
body or person has, exercises or purports to exercise jurisdiction or powers “conferred
by or under an Act of Parliament or by or under an Order made pursuant to a
prerogative of the Crown…”. Thus, a two-step enquiry must be made in order to
determine whether a body or person is a “federal board, commission or other
tribunal”. First, it must be determined what jurisdiction or power the body or
person seeks to exercise. Second, it must be determined what is the source or
the origin of the jurisdiction or power which the body or person seeks to
exercise.
[30] In Judicial
Review of Administrative Action in Canada, Vol. 1, looseleaf (Toronto:
Canvasback Publishing, 1998) at para. 2:4310, the learned authors, D.J.M. Brown
and J.M. Evans, state that in determining whether a body or person is a
“federal board, commission or other tribunal”, one must look at “the source of
a tribunal’s authority”. They write as follows:
In the result, the source of a
tribunal’s authority, and not the nature of either the power exercised
or the body exercising it, is the primary determinant of whether it falls in
the definition. The test is simply whether the body is empowered by or
under federal legislation or by an order made pursuant to a prerogative power
of the federal Crown. […]
[53]
The applicant pointed to the decision of the
Ontario Superior Court of Justice in Kozeyah v Serpent River First Nation,
[2007] 2 CNLR 226 (available on CanLII), in support of his argument that the
Federal Court does have jurisdiction. That case also raised the issue of the
allocation of tax exempt cigarettes. However, that case dealt with a motion to
strike the claim for lack of a proper cause of action. The judge’s brief
comment that the Federal Court would otherwise have jurisdiction is clearly obiter
and did not follow from any analysis of the jurisdictional issue. Moreover,
the decision of the Federal Court of Appeal in Anisman is authoritative
and has been relied on by this and other Courts.
[54]
In the present circumstances, the First Nation
was not empowered by any federal legislation; rather, it made the decision to
allocate the quota of tax exempt cigarettes based on the authority provided by
the Tobacco Tax Act of Ontario, the Regulation 649/93 to that Act and
the Tobacco Retailer Agreement with the Ontario Ministry of Finance.
[55]
The First Nation’s imposition of the surcharge
is directly related to and arises from its authority to administer and allocate
the quota of tax exempt cigarettes in accordance with the Ontario Tobacco
Tax Act and the Tobacco Retailer Agreement between the First Nation and the
Ontario Ministry of Finance. The imposition of the surcharge has nothing to do
with the Indian Act. If the First Nation had no cigarettes to allocate,
the surcharge issue would not arise.
[56]
The First Nation’s decision to impose a
surcharge on each carton of cigarettes allocated pursuant to the Tobacco
Retailer Agreement and Ontario Tobacco Tax Act would not fall within the
definition of “federal board, commission or tribunal” in subsection 2(1) of the
Federal Courts Act. The decision would, therefore, not be subject to the
Court’s jurisdiction.
[57]
If I am wrong in my conclusion, that this Court
does not have jurisdiction, because the source of the authority being exercised
by the First Nation is the provincial statute and Tobacco Retailer Agreement, I
would also find that the imposition of the surcharge was a contractual matter.
The First Nation was not acting as a “federal board, tribunal or commission”
when exercising its right to contract and the Court would not have jurisdiction
under subsection 18(1) or section 18.1 to consider this application for
judicial review or grant the relief requested.
[58]
The reserve retailers benefit from the Tobacco Retailer
Agreement between the First Nation and the province because those who apply for
and receive an allocation share in the greater quota the First Nation receives
from the province. Although the respondent is correct that, if there were no Tobacco
Retailer Agreement in place, the retailers would still receive an allocation,
that allocation would be less.
[59]
I disagree with the applicant that this contract
is public in nature and, therefore, subject to judicial review. The applicant
points to the factors set out in Air Canada that support his position,
as does the respondent.
[60]
The Air Canada factors at para 60
include: the character of the matter for which review is sought, whether it is
a private, commercial matter or is of broader import to members of the public;
the nature of the decision-maker and its responsibilities; whether the
decision-maker is public in nature, such as a Crown agent or a statutorily-recognized
administrative body, and charged with public responsibilities; the extent to
which a decision is founded in and shaped by law as opposed to private
discretion (noting that matters based on a power to act that is founded upon
something other than legislation, such as general contract law or business
considerations, are more likely to be viewed as outside of the ambit of
judicial review: Irving Shipbuilding Inc v Canada (Attorney General), 2009
FCA 116, [2010] 2 FCR 488; Devil’s Gap, above, at paras 45‑46);
the decision-makers relationship to other statutory schemes or other
parts of government; the extent to which a decision-maker is an agent of
government or is directed, controlled or significantly influenced by a public
entity; the suitability of public law remedies; the existence of compulsory
power; and an “exceptional” category of cases where the conduct has attained a
serious public dimension.
[61]
In my view, the application of the factors set
out in Air Canada tips the analysis toward the determination that this
was a private matter, including that: it is a
commercial matter, with little or no broader impact to other members of the
public except the four retailers who receive an allocation of the quota;
although the Band does exercise other decision-making powers more in the public
interest of its members, the allocation of the quota is of a different nature;
the Band is not acting as an agent of the Government in imposing the surcharge,
although it does act as middleman or agent for the province in allocating the
tax exempt cigarettes pursuant to an agreement with the provincial government;
public law remedies, although desired by the applicant, are not appropriate;
and, there is no serious or exceptional effect on the rights or interests of the
broader public. There is no evidence that the imposition of the
surcharge is a cost passed on to the customers on the reserve and that the
surcharge impacts the “public” who purchase cigarettes on the reserve in any
way.
[62]
Although not raised by either of the parties, I
would distinguish the recent decision of my colleague, Justice Gleason, in Maloney
v Council of the Shubenacadie Indian Band 2014 FC 129, 237 ACWS (3d) 829 [Maloney].
In Maloney, Justice Gleason, following the factors set out in Air
Canada, found that the distribution by the Shubenacadie Indian Band Council
of an allocated quota for fishing licenses was public rather than
private in nature. However, unlike the present case, that quota was allocated
pursuant to a federal statute (the Aboriginal
Communal Fishing Licences Regulations, SOR/93-332) and the allocation process involved a close
relationship between the Band and the Federal Minister. As such, a majority of
the Air Canada factors pointed strongly to the decision being of a
public nature, which is not be the case here.
The
surcharge does not have the hallmarks of a tax
[63]
If the Court had jurisdiction, which it does
not, the applicant’s argument that the First Nation exceeded its authority
under the Indian Act and imposed a tax would require consideration.
[64]
As noted above, the First Nation imposed the
surcharge as part of its allocation of tax exempt cigarettes pursuant to the
Ontario Tobacco Tax Act and the Tobacco Retailer Agreement and/or as a
matter of contract. I have found that it did not rely on the Indian Act
to impose the surcharge.
[65]
More generally, I disagree with the applicant
that the Lawson factors support his contention that the surcharge is a
tax.
[66]
The surcharge is not enforceable by law and
failure to pay is not an offence. The First Nation could choose to withhold the
quota in future years to retailers who had not paid the amounts owing or it
could pursue remedies for breach of contract. The evidence of the Chief is that
no efforts have been made to collect unpaid surcharge amounts.
[67]
Although a First Nation can be considered a
public body, in these circumstances, its actions are only directed at the four
reserve retailers who apply for an allocation of the quota and agree to the
terms and conditions associated with that allocation. There is no evidence that
the imposition of the surcharge has any impact on the cost of the cigarettes to
the customer. Even Mr. Des Roches indicated that he had not passed on this cost
to his customers.
Conclusion
[68]
The application for judicial review is dismissed
with nominal costs to the respondent.
[69]
Although the applicant has pursued judicial
review to show his disfavour with the surcharge, no doubt there are other ways
for him to voice his concerns within his community.
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