Date:
20081209
Dockets: A-157-08
A-158-08
A-159-08
Citation: 2008 FCA 392
CORAM: LINDEN J.A.
SHARLOW J.A.
TRUDEL J.A.
BETWEEN: Docket: A-157-08
BETWEEN:
HER MAJESTY
THE QUEEN
Appellant
and
HENRY BOUBARD
Respondent
Docket:
A-158-08
BETWEEN:
HER MAJESTY
THE QUEEN
Appellant
and
RICHARD
BOUCHIE
Respondent
Docket:
A-159-08
BETWEEN:
HER MAJESTY
THE QUEEN
Appellant
and
CLIFFORD J.
HOUSTON
Respondent
Heard at Vancouver, British Columbia, on December 9, 2008.
Judgment delivered from the Bench at Vancouver, British Columbia, on December 9, 2008.
REASONS FOR JUDGMENT OF THE COURT BY:
SHARLOW J.A.
Date:
20081209
Dockets: A-157-08
A-158-08
A-159-08
Citation:
2008 FCA 392
CORAM: LINDEN J.A.
SHARLOW
J.A.
TRUDEL
J.A.
Docket:
A-157-08
BETWEEN:
HER MAJESTY
THE QUEEN
Appellant
and
HENRY BOUBARD
Respondent
Docket:
A-158-08
BETWEEN:
HER MAJESTY
THE QUEEN
Appellant
and
RICHARD
BOUCHIE
Respondent
Docket:
A-159-08
BETWEEN:
HER MAJESTY
THE QUEEN
Appellant
and
CLIFFORD J.
HOUSTON
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Vancouver, British Columbia, on December 9, 2008)
SHARLOW J.A.
[1]
The
Crown is appealing a judgment of Justice Campbell J. Miller of the Tax Court of
Canada allowing the appeals of Henry Boubard, Richard Bouchie and Clifford J.
Houston from income tax reassessments for 2000, 2001 and 2002 (2008 TCC 133).
The issue in this appeal is whether Justice Miller erred in concluding that the
income earned by Mr. Boubard, Mr. Bouchie and Mr. Houston from their employment
with the Tembec Pulp Mill in Pine Falls, Manitoba was exempt
from income tax by virtue of the combined operation of section 87 of the Indian
Act, R.S.C. 1985, c. I-5, and paragraph 81(1)(a) of the Income Tax Act,
R.S.C. 1985, c. 1 (5th supp.).
[2]
The
Crown argues that, because the Mill is not located on reserve land, the section
87 exemption cannot apply to the employment income of Indians employed at the
Mill. In our view, that argument is based on a rigid approach to section 87
that was rejected by this Court in Canada v. Folster (C.A.), [1997] 3
F.C. 269.
[3]
Whether
section 87 of the Indian Act exempts particular employment income from
income tax must be determined on a case by case basis by applying what has come
to be called the “connecting factors” test from Williams v. Canada,
[1992] 1 S.C.R. 877. There is no single formula or set of questions that can be
applied to determine the result in all cases. We agree with the following
statement of Justice Evans, speaking for this Court in Horn v. Canada, 2008 FCA
352 (at paragraph 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.
[4]
Justice
Miller determined that there were sufficient connecting factors in this case to
afford the respondents the benefit of section 87. In making that determination,
he gave controlling weight to the following factors:
1. the
circumstances in which the Mill came to be built and operated on land that had
once been part of the Fort Alexander Reserve but was surrendered to the Crown
for sale in 1926 to permit the Mill to be built, and
2. the
reasonable expectations of the members of the Fort Alexander Band, when they
reluctantly consented to that surrender, that the Mill would provide them with
employment near the Reserve.
At the same time he gave little or no
weight to the fact that the Mill was not actually located on the Reserve. In
our view, Justice Miller’s reasons disclose that he correctly understood
section 87 and the connecting factors test. We are unable to find any error of
law, or any palpable and overriding factual error, warranting the intervention
of this Court.
[5]
We
would add that, contrary to the submission of counsel for the Crown, Justice
Miller did not determine that the Band’s expectation of employment from the
Mill detracts from the legal effect of the surrender or its finality. Nor did
he determine that the surrendered land was still part of the Reserve.
[6]
For
these reasons, these appeals will be dismissed with one set of costs.
"K.
Sharlow"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKETS: A-157-08
A-158-08
A-159-08
APPEAL
FROM A JUDGMENT OF THE TAX COURT OF CANADA DATED
MARCH
6, 2007 (2008 TCC 133)
STYLE OF CAUSE: HMQ
v. Henry Boubard
HMQ
v. Richard Bouchie
HMQ
v. Clifford J. Houston
PLACE OF HEARING: Vancouver,
British Columbia
DATE OF HEARING: December 9, 2008
REASONS FOR JUDGMENT OF THE
COURT BY: LINDEN, SHARLOW, TRUDEL JJ.A
DELIVERED FROM THE BENCH BY: SHARLOW J.A.
APPEARANCES:
|
Gérald Chartier
Julien
Bédard
|
FOR
THE APPELLANT
|
|
Joe Aiello
Bruce
Gammon
|
FOR
THE RESPONDENTS
|
SOLICITORS
OF RECORD:
|
John H. Sims, Q.C.
Deputy
Attorney General of Canada
|
FOR THE APPELLANT
|
|
Phillips Aiello
Winnipeg, Manitoba
|
FOR THE RESPONDENTS
|
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