The
Chief
Justice
(dissenting):—This
is
a
section
28
application
to
set
aside
a
decision
rendered
by
an
Umpire
under
section
84
of
the
Unemployment
Insurance
Act,
1971.
The
question
involved
in
the
matter
before
the
Umpire
was
whether
employers’
premiums
are
payable
in
respect
of
persons
employed
by
an
Indian
Band
at
a
hospital
and
related
facility
operated
by
the
band
on
the
band’s
reserve.
The
Umpire
held
that
such
premiums
are
not
payable.
The
provision
of
the
Unemployment
Insurance
Act,
1971
that
would
appear
to
be
the
“charging
provision”
in
respect
of
what
were
previously
called
employers’
and
employees’
contributions
and
are
called
“premiums”
under
the
1971
Act
is
subsection
66(2),
which
reads:
66.
(2)
Every
employer
shall,
for
every
week
during
which
a
person
is
employed
by
him
in
insurable
employment,
pay,
in
respect
of
that
person
and
in
the
manner
provided
in
Part
IV,
an
amount
equal
to
such
percentage
of
that
person’s
insurable
earnings
as
is
fixed
by
the
Commission
as
the
employer’s
premium
payable
by
employers
or
a
class
of
employers
of
which
the
employer
is
a
member,
as
the
case
may
be,
for
the
year
in
which
that
week
occurs.
The
principal
basis
put
forward
by
the
respondent
for
supporting
the
correctness
of
the
Umpire’s
decision
was
that
the
premiums
in
question
are
“taxation”
on
“property”
that
falls
within
section
87
of
the
Indian
Act,
which
reads:
87.
Notwithstanding
any
other
Act
of
the
Parliament
of
Canada
or
any
Act
of
the
legislature
of
a
province,
but
subject
to
subsection
(2)
and
to
section
83,
the
following
property
is
exempt
from
taxation,
namely:
(a)
the
interest
of
an
Indian
or
a
band
in
reserve
or
surrendered
lands;
and
(b)
the
personal
property
of
an
Indian
or
band
situated
on
a
reserve;
and
no
Indian
or
band
is
subject
to
taxation
in
respect
of
the
ownership,
occupation,
possession
or
use
of
any
property
mentioned
in
paragraph
(a)
or
(b)
or
is
otherwise
subject
to
taxation
in
respect
of
any
such
property;
and
no
succession
duty,
inheritance
tax
or
estate
duty
is
payable
on
the
death
of
any
Indian
in
respect
of
any
such
property
or
the
succession
thereto
if
the
property
passes
to
an
Indian,
nor
shall
any
such
property
be
taken
into
account
in
determining
the
duty
payable
under
the
Dominion
Succession
Duty
Act,
being
chapter
89
of
the
Revised
Statutes
of
Canada,
1952,
or
the
tax
payable
under
the
Estate
Tax
Act,
on
or
in
respect
of
other
property
passing
to
an
Indian.
As
it
seems
to
me,
it
is
not
necessary,
for
present
purposes,
to
express
any
opinion
as
to
whether
the
imposition
by
statute
on
an
employer
of
liability
to
contribute
to
the
cost
of
a
scheme
of
unemployment
insurance
such
as
is
found
in
the
Unemployment
Insurance
Act,
1971
is
“taxation”
within
the
meaning
of
section
87.*
If
it
is
taxation,
it
is
not,
in
my
view,
taxation
on
“property”
within
the
ambit
of
section
87.
From
one
point
of
view,
all
taxation
is
directl
or
indirectly
taxation
on
property;
from
another
point
of
view,
all
taxation
is
directly
or
indirectly
taxation
on
persons.
It
is
my
view,
however,
that
when
section
87
exempts
“personal
property
of
an
Indian
or
band
situated
on
a
reserve’’
from
“taxation’’,
its
effect
is
to
exempt
what
can
properly
be
classified
as
direct
taxation
on
property.
The
courts
have
had
to
develop
jurisprudence
as
to
when
taxation
is
taxation
on
property
and
when
it
is
taxation
on
persons
for
the
purposes
of
subsection
92(2)
of
the
British
North
America
Act,
1867,
and
there
would
seem
to
be
no
reason
why
such
jurisprudence
should
not
be
applied
to
the
interpretation
of
section
87
of
the
Indian
Act.
See,
for
example,
with
reference
to
subsection
92(2),
Provincial
Treasurer
of
Alberta
v
Kerr,
[1933]
AC
710.
When
the
charging
section
is
clear,
its
terms
must
be
construed
to
decide
what
is
the
subject
matter
of
the
taxation.
See
the
same
case
per
Lord
Thankerton
at
pages
720-21.
Subsection
62(1)
of
the
Unemployment
Insurance
Act,
1971
says
that
an
employer
shall
pay
the
amount
in
question
“in
respect
of’’
an
employee
in
insurable
employment.
As
already
indicated,
this
seems
to
be
the
charging
provision.
That
being
so,
in
my
view,
the
Umpire
erred
in
holding
that
section
87
is
applicable
to
exempt
Indians
or
bands
of
Indians
from
paying
premiums
under
the
Unemployment
Insurance
Act,
1971.
A
subsidiary
submission
of
the
respondent
in
support
of
the
Umpire’s
decision
is
that
the
respondent
is
not
an
“employer”
within
the
meaning
of
paragraph
2(1
)(e)
of
the
Unemployment
Insurance
Act,
1971,
which
reads:
(e)
“employer”
includes
a
person
who
has
been
an
employer;
In
my
view,
it
is
clear
that
the
respondent
does
in
fact
operate
the
institutions
in
question
and
does
employ
the
employees
in
question.
No
evidence
was
led
to
show
that
there
was
not
legal
authority
for
it
to
do
what
it
did
in
fact,
and
I
find
no
basis
for
the
Umpire’s
decision
in
this
contention.
However,
for
the
reasons
that
I
have
given
in
delivering
judgment
this
day
in
MNR
v
Dame
L
H
MacDonald
(Court
No
A-450-76)
(which
was
heard
at
the
same
time
as
this
application),
I
am
of
opinion
that
this
Court
has
no
jurisdiction
under
section
28
to
set
aside
a
decision
of
the
Umpire
under
section
84
of
the
Unemployment
Insurance
Act,
1971.
I
am,
therefore,
of
the
view
that
this
section
28
application
should
be
dismissed
for
lack
of
jurisdiction.
Pratte,
J:—I
have
already
said
in
MNR
v
Dame
L
H
MacDonald
(Court
No
A-450-76)
that,
in
my
view,
this
Court
has
jurisdiction
to
review
and
set
aside
a
decision
pronounced
by
an
Umpire
under
section
84
of
the
Unemployment
Insurance
Act,
1971.
As
I
agree
with
the
Chief
Justice
that
the
Umpire’s
decision
in
this
case
is
wrong,
it
follows
that
I
would
allow
the
section
28
application,
set
aside
the
decision
under
attack
and
refer
the
matter
back
so
that
it
be
decided
by
an
Umpire
on
the
basis
that
(a)
the
respondent
is
an
“employer”
within
the
meaning
of
the
Unemployment
Insurance
Act,
1971,
and
(b)
the
obligation
of
an
employer
to
pay
premiums
under
the
Unemployment
Insurance
Act,
1971
is
not
a
tax
in
respect
of
property
within
the
meaning
of
section
87
of
the
Indian
Act.
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