Docket: A-573-14
Citation: 2015 FCA 234
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CORAM:
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DAWSON J.A.
STRATAS J.A.
DE MONTIGNY J.A.
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BETWEEN:
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LUC DES ROCHES
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Appellant
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and
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WASAUKSING
FIRST NATION
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Respondent
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Heard
at Toronto, Ontario, on October 28, 2015.
Judgment delivered from the Bench at Toronto, Ontario, on October
28, 2015.
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REASONS FOR JUDGMENT OF THE COURT BY:
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DE
MONTIGNY J.A.
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Docket: A-573-14
Citation:
2015 FCA 234
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CORAM:
|
DAWSON J.A.
STRATAS J.A.
DE MONTIGNY J.A.
|
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BETWEEN:
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LUC DES ROCHES
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Appellant
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and
|
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WASAUKSING
FIRST NATION
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on
October 28, 2015).
DE MONTIGNY J.A.
[1]
The Wasauksing First Nation (the First Nation)
concluded an agreement with the province of Ontario in 1999 under the Tobacco
Tax Act, R.S.O. 1990, c. T-10 and the Sales of Unmarked Cigarettes on
Indian Reserves, O.Reg. 649/93, whereby the First Nation agreed to manage
the allocation of the tax exempt cigarettes quota to retailers and monitor compliance
with the regulations on its reserve. In return, the province increased by 20%
the quota that would have been available for allocation directly from the Ministry
of Finance if the First Nation had not entered into the Tobacco Retailer
Agreement.
[2]
On April 10th, 2012, on-reserve
retailers were advised by the First Nation that a “surcharge”
of $2 on each carton of tax exempt cigarettes would be imposed and payable in
instalments. Mr. Des Roches filed an application for judicial review in the
Federal Court seeking a declaration that the surcharge imposed in 2012 and 2013
was an unlawful tax, as well as an injunction prohibiting the First Nation from
levying the surcharge in the future and an order compelling the First Nation to
refund the money collected from him previously.
[3]
For reasons cited as 2014 FC 1126, a Judge of
the Federal Court dismissed the application for a number of reasons, including
that the Court did not have jurisdiction since the First Nation was not acting
as a “federal board, commission or tribunal”
within the meaning of subsection 2(1) of the Federal Courts Act, R.S.C.
1985, c. F-7, when it imposed the surcharge on the tax exempt cigarettes.
[4]
We are all in agreement that this appeal must be
dismissed, for the following reason.
[5]
There is no dispute between the parties that a
First Nation Band Council often acts as a “federal
board, commission or other tribunal” pursuant to subsection 2(1) of the Federal
Courts Act; this is not to say, however, that they come within the purview
of that definition for all intents and purposes.
[6]
In the end, we are not persuaded that the
Federal Court committed any reviewable error on this factual record in
construing the relationship between tobacco retailers and the First Nation as
one governed by private contract made under the authority of an agreement
between the First Nation and Her Majesty the Queen in right of Ontario.
[7]
As such, the First Nation was not acting by or
under federal law. Accordingly under subsection 2(1) of the Federal Courts
Act, the First Nation was not a “federal board,
commission or other tribunal”. Thus, the Federal Court correctly found
it did not have jurisdiction to entertain the appellant’s application for
judicial review.
[8]
This is sufficient to dispose of this appeal. We
express no comment on the remainder of the Federal Court’s reasons for its
conclusion.
[9]
For this reason, the appeal will be dismissed
with costs to the respondent.
"Yves de Montigny"
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