Walsh,
D.J.:—Plaintiffs
move
for
an
order:
(1)
That
the
income
of
William
Erasmus
no
longer
be
subject
to
garnishee
under
the
terms
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act").
(2)
Such
further
and
other
direction
that
the
Court
deems
meet.
The
background
of
the
motion
is
as
follows:
Plaintiffs
instituted
proceedings
on
January
22,
1991
alleging
that
plaintiff
William
Erasmus
worked
for
the
Dene-Metis
Secretariat,
an
organization
funded
by
the
Dene
Nation
from
moneys
received
pursuant
to
an
agreement
between
the
Dene
Nation
and
Her
Majesty.
From
1980
to
1982
he
was
taxed
on
education
moneys
received
from
the
Territorial
government
which
was
given
money
from
the
federal
government
for
this
purpose.
After
notice
of
objection
he
was
reassessed
so
as
not
to
include
this
in
his
taxable
income.
From
1983-86
he
was
again
taxed
on
these
education
moneys.
Plaintiffs
invoke
sections
87
and
90
of
the
Indian
Act,
R.S.C.
1985,
c.
I-5
and
subsection
91(24)
of
the
Constitution
Act
1867
contending
that
moneys
given
to
Indians
or
bands
pursuant
to
an
agreement
to
be
located
on
a
reserve
are
non-taxable
and
that
duties
of
Dene
Nation
employees
are
an
extension
of
the
agreement.
The
action
seeks
a
declaration
that
moneys
taxed
from
Indian
employees
of
the
Dene
Nation
paid
pursuant
to
an
agreement
between
the
Dene
Nation
and
Her
Majesty
be
repaid
with
interest,
that
lands
set
aside
under
the
Territorial
Lands
Act,
R.S.C.
1985,
c.
T-7
are
reserves
within
the
meaning
of
the
Indian
Act,
that
the
moneys
in
question
are
earned
on
such
lands,
and
that
moneys
received
by
the
Territorial
Government
for
the
education
of
Indian
students
pursuant
to
an
agreement
with
the
Federal
Government
are
also
non-taxable.
Both
plaintiffs
and
defendant
raised
a
number
of
arguments
and
referred
to
extensive
jurisprudence,
including
the
judgments
in
the
Supreme
Court
case
of
Donald
George
Mitchell
v.
Sandy
Bay
Indian
Band,
[1990]
2
S.C.R.
85;
[1990]
3
C.N.L.R.
46
(sub
nom.
Mitchell
v.
Pequis
Indian
Band),
in
the
Court
of
Appeal
in
The
Queen
v.
Williams,
[1990]
2
C.T.C.
124;
90
D.T.C.
6399
(re
situs
of
the
debtor),
the
agreement
with
the
Dene
Nation
which
is
a
loan
agreement,
not
a
giving
and
make
no
mention
of
payment
of
salary
to
Erasmus,
Hay
River
(Town)
v.
R.,
[1980]
1
F.C.
262;
101
D.L.R.
(3d)
184
(re
The
Territorial
Lands
Act
and
creation
of
reserves)
(a
decision
of
Justice
Mahoney,
then
in
the
Trial
Division),
The
Queen
v.
National
Indian
Brotherhood,
[1979]
1
F.C.
103;
[1978]
C.T.C.
680;
78
D.T.C.
6488
at
685
(D.T.C.
6492;
F.C.
111)
(place
of
residence
of
Erasmus
and
place
of
payment
to
him
of
contract
debts
by
Dene
Nation)
and
numerous
other
issues.
Whether
or
not
these
are
serious
issues
to
be
decided
at
the
trial
on
the
merits,
these
issues
cannot
be
decided
on
this
motion,
yet
what
plaintiff
seeks
on
the
motion
would
require
at
least
an
interim
conclusion
that
the
garnishee
should
be
lifted
until
the
determination
is
finally
made.
Plaintiff
Erasmus
made
no
notice
of
objection
to
his
assessment
for
the
1987
taxation
year
which
is
the
assessment
which
led
to
the
requirement
to
pay
and
the
garnishment
in
the
hands
of
the
Dene
Nation,
so
there
is
no
issue
arising
from
the
application
of
section
225.1(2)
of
the
Income
Tax
Act,
and
this
was
not
argued.
From
a
procedural
point
of
view,
the
relief
sought
cannot
be
granted
on
the
present
motion.
If
what
it
seeks
is
an
injunction
against
further
collection
of
the
tax
allegedly
owing
by
way
of
the
garnishee,
it
can
be
said
that
an
injunction
does
not
lie
against
the
Crown
(see
Grand
Counsel
of
the
Crees
of
Quebec
v.
Canada
(1981),
124
D.L.R.
(3d)
574
at
575
;
41
N.R.
257.
If
on
the
other
hand
it
seeks
a
declaration,
this
cannot
be
done
by
way
of
a
motion,
but
must
be
dealt
with
in
the
action
itself
(see,
inter
alia,
Rothmans
of
Pall
Mall
Canada
Ltd.
v.
M.N.R.,
[1976]
2
F.C.
512;
[1976]
C.T.C.
347
(C.A.)
at
349
(F.C.
515)).
In
Sankey
v.
Canada
(Minister
of
Transport),
[1979]
1
EC.
134,
Thurlow,
A.C.].
said:
“I
know
of
no
authority
or
rule
under
which
an
interim
declaration,
which
in
substance
would
accomplish
the
whole
purpose
of
the
action
without
a
trial
on
the
merits,
may
be
made."
Moreover,
in
Optical
Recording
Laboratories
Inc.
v.
Canada,
[1990]
2
C.T.C.
524;
90
D.T.C.
6647,
it
was
held
at
531
(D.T.C.
6652)
that
since
the
Act
provides
for
appeals
from
assessments
made
by
the
Minister:
it
follows
that
section
29
of
the
Federal
Court
Act
precludes
not
only
applications
under
section
28
of
the
Act
in
respect
of
such
assessments
but
also
applications
brought
pursuant
to
section
18,
as
was
done
in
this
case,
to
challenge
not
only
the
assessments
per
se
but
the
collection
proceedings
or
actions
taken
in
respect
of
those
deemed
valid
assessments.
The
relief
sought
by
applicants
in
the
present
motion
therefore
cannot
be
granted
and
the
motion
must
be
dismissed.
Motion
dismissed.
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