Date: 20120229
Docket: A-472-10
Citation: 2012 FCA 67
CORAM: SHARLOW
J.A.
DAWSON J.A.
TRUDEL
J.A.
BETWEEN:
CECIL BELLROSE
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR
JUDGMENT
DAWSON J.A.
[1]
At
all material times the appellant, Mr. Bellrose, was an elected official of the
Métis Nation of Alberta Association (MNAA). He was first elected in 1996 as
vice-president of the Zone IV Métis Regional Council. From 2005 to 2011 he
served as the elected President of the Zone IV Métis Regional Council. In each
of the 2000, 2003, 2004 and 2005 taxation years, Mr. Bellrose claimed an
exemption for a municipal officer’s expense allowance under the Income Tax
Act, R.S.C. 1985, c. 1 (5th Supp.) (Act) in the amount of one
third of his remuneration from MNAA on the ground that his elected role with
the Zone IV Métis Regional Council was equivalent to that of an elected officer
of an incorporated municipality. The Minister of National Revenue (Minister)
reassessed Mr. Bellrose for each of these taxation years on the basis that he was
not entitled at law to the exemption claimed.
[2]
For
reasons cited as 2011 TCC 32, a judge of the Tax Court of Canada dismissed
Mr. Bellrose’s appeals from the reassessments. This is an appeal from the
judgment of the Tax Court.
[3]
On
this appeal, the essence of Mr. Bellrose’s argument is that he is entitled to a
tax-free allowance under subsection 81(3) of the Act as an officer of an
incorporated municipality. Subsection 81(3) of the Act provides:
|
Where
a person who is
(a) an elected officer
of an incorporated municipality,
(b) an officer of a
municipal utilities board, commission or corporation or any other similar
body, the incumbent of whose office as such an officer is elected by popular
vote, or
(c) a member of a public
or separate school board or similar body governing a school district,
has
been paid by the municipal corporation or the body of which the person was
such an officer or member (in this subsection referred to as the person’s
“employer”) an amount as an allowance in a taxation year for expenses
incident to the discharge of the person’s duties as such an officer or
member, the allowance shall not be included in computing the person’s
income for the year unless it exceeds 1/2 of the amount that was paid to
the person in the year by the person’s employer as salary or other
remuneration as such an officer or member, in which event there shall be
included in computing the person’s income for the year only the amount by
which the allowance exceeds 1/2 of the amount so paid to the person by way of
salary or remuneration. [emphasis added]
|
Lorsque
l’une des personnes suivantes :
a) un conseiller élu
d’une administration municipale dotée de la personnalité morale;
b) un conseiller d’une
commission ou société municipale de services publics ou de tout autre
organisme administratif similaire qui est élu par la population;
c) un membre d’une
commission scolaire publique ou séparée ou de tout organisme similaire
administrant un district scolaire,
a
reçu de la municipalité
ou de l’organisme dont il est conseiller ou membre (appelé « employeur » au
présent paragraphe) une allocation, au cours d’une année d’imposition,
pour les dépenses occasionnées par l’exercice de ses fonctions comme
conseiller ou membre, l’allocation n’est pas incluse dans le calcul de son
revenu pour l’année; toutefois, si elle dépasse la moitié du montant qui
lui a été versé au cours de l’année par son employeur à titre de traitement
ou autre rémunération comme conseiller ou membre, seul est inclus, dans le
calcul de son revenu pour l’année, l’excédent de cette allocation sur la
moitié du montant ainsi versé à titre de traitement ou de rémunération. [Non
souligné dans l’original.]
|
[4]
Mr.
Bellrose argues that the Judge erred in his appreciation of the evidence by not
giving sufficient weight to certain evidence. He also submits that the Judge
committed a number of errors of law that caused the Judge to dismiss Mr.
Bellrose’s appeals.
[5]
To
properly consider Mr. Bellrose’s submission, it is necessary to review the nature
of the MNAA and the duties performed by Mr. Bellrose.
[6]
The
MNAA was incorporated under the Societies Act, R.S.A. 2000, c. S-14. Its
objectives, as framed in its bylaws, are as follows:
1.1
To promote
the cultural, economic, educational, political and social development of Métis
in Alberta and Canada;
1.2
To stand
as the political representative of all Métis in Alberta and to promote self-determination and
self-government for Métis in Alberta and Canada;
1.3
To
promote, pursue and defend aboriginal, legal, constitutional, and other rights
of Métis in Alberta and Canada;
1.4
Re-establish
land and resource bases;
1.5
To create
awareness of the proud heritage of the Métis Nation of Alberta and to promote
the history, values, culture, languages and spiritual traditions of the Métis
Nation of Alberta;
1.6
To develop
prosperity and economic self-sufficiency within the Métis Nation of Alberta;
1.7
To promote
and ensure participation of Métis Elders, Métis Women, Métis Youth and Métis
persons with disabilities in the educational, cultural, political and social
development of the Métis Nation of Alberta.
[7]
Approximately
one ninth of the Métis people in Alberta live in Métis
Settlements established under the Métis Settlements Accord. The balance of the
Métis people live in other urban or rural communities. Mr. Bellrose submits
that due to economic realities, social pressures, the abandonment of
traditional lifestyles and various societal factors, members of the MNAA have
fallen “through the cracks of modern Canadian society and its municipal forms
of government”. The MNAA was formed in response to this situation. He points to
the bylaws of the MNAA and submits that its governance, which includes
provisions for Provincial, Regional and Local Councils, is sophisticated and on
a par with the bylaws of any village, town or city in Alberta. In sum, he
argues that through the MNAA “the Métis have formed a government best suited to
meet the challenges they face.”
[8]
Mr.
Bellrose points to the fact that in June 2008, the government of Alberta entered into
a Framework Agreement with the MNAA. The agreement aims to promote Métis
economic and community well-being and to improve Métis access to provincial
services. In 2009, Alberta and the MNAA entered into a Framework Funding
Agreement under which the MNAA received funding to implement the objectives of
the Framework Agreement.
[9]
Mr.
Bellrose described his duties with the MNAA as follows:
2.
I was
first elected to my position, in the Métis Nation of Alberta, in the fall of 1996.
3.
My first
three terms were in the position of Vice President of Zone IV which covers an
area of the Alberta/BC border to Waskateneau and from the Grand Prairie region to just north of Red
Deer/Rocky Mountain House.
4.
I served
as President of Zone IV for the last two terms, which are 2005 – 2008 and 2008
– 2011.
5.
I attended
multiple meetings in Alberta in my capacity as President
of Zone IV.
…
9.
In a
provincial perspective, my portfolio is Métis Rights and Registry for the Province of Alberta; and, this is a very broad
office and obligation.
10.
My job is
to make recommendations to the Board of Governors of Métis National Council in
respect of issues coming before this Métis Rights Panel.
11.
I attend
Provincial Council Meetings for the MNA bi-monthly, usually in Edmonton but
also elsewhere in the Province
of Alberta.
[10]
Additional
evidence was adduced which the Judge described in the following terms:
Karen Collins, a
President of Métis Regional Council, Zone II, from Bonnyville, Alberta, testified on the appellant’s
behalf. She spoke of her duties as Zone II president, I infer that Ms. Collins’
duties were similar to those of the appellant’s. She has a modest office where
she acts primarily as a liaison officer. Métis come to her office for
assistance in completing forms and being directed and referred to the likes of
provincially assisted housing, school boards, rehab centres, children’s aid,
women’s shelter, and the assistance with gambling and drug and alcohol
problems.
She finds
programs to address her constituents’ needs. Her zone is funded by the Province of Alberta – a variable amount, but now
approximately $169,000 annually – from which she pays salaries, travel costs,
office expenses and even advances $50 plus or minus now and then in emergency
circumstances. She traveled 400 kilometers to Edmonton in her truck for the hearing.
[11]
The
Judge was impressed with the evidence of Mr. Bellrose and Ms. Collins. The
Judge wrote:
In conclusion,
both the appellant and Ms. Collins were impressive witnesses. I admire and
commend them for their good works amongst their fellow Métis in need. It is not
exaggerated to state that they literally save lives. They are deserving tax
payers.
[12]
It
is on the basis of this evidence that Mr. Bellrose argues that the MNAA is a de
facto municipality on a par with other municipalities and similar bodies.
It follows, he submits, that the exemption from taxation of an allowance given
to an elected officer of a municipality was intended by Parliament to be
extended to elected officials of his stature.
[13]
Notwithstanding
the submissions of counsel for Mr. Bellrose, I have not been persuaded that the
Judge erred as Mr. Bellrose asserts.
[14]
I
begin by noting that the Judge carefully reviewed the evidence concerning the
objectives, structure, membership and activities of the MNAA and the evidence
that described Mr. Bellrose’s duties. The Judge correctly noted that the
term “municipality” is not defined in the Act, and that it should be given its
ordinary meaning: a community having and exercising the powers of
self-government and providing the type of services customarily provided by such
a body. The Judge reasoned that because the Zone IV Métis Regional Council does
not have the powers of self-government and does not provide services that are
typically provided by a municipality, Mr. Bellrose was not by virtue of
his office entitled to a tax-free allowance under subsection 81(3) of the Act.
[15]
I
can detect no palpable and overriding error of fact or mixed fact and law, and
no error of law in the Judge’s reasons. I agree with the Judge’s conclusion for
the reasons that he gave.
[16]
In
so concluding, I have considered Mr. Bellrose’s argument that the Judge erred
by relying upon the fact that the MNAA does not provide many of the services
that are traditionally provided by a municipality. He points to the evidence
establishing that the absence of services was only due to the lack of
resources. In my view, the reason for the limitation on the capacity of the
MNAA to provide services is not germane. A body that, for whatever reason, does
not govern or provide municipal-like services cannot be said to be a
municipality.
[17]
Further,
in my view the Judge did not err by failing to apply the principle, articulated
in cases such as R. v. Nowegijick, [1983] 1 S.C.R. 29, that ambiguities
in the interpretation of treaties and statutes relating to aboriginal peoples
are to be resolved in favour of the aboriginal peoples. The Act is neither a
treaty nor a statute directly related to aboriginal peoples.
[18]
Nor,
in my view, did the Judge err by failing to apply the connecting factors test
as set out in Williams v. Canada, [1992] 1 S.C.R. 877. This test was
developed to determine the situs of intangible personal property and has
no application in the present context.
[19]
Moreover,
the Judge’s rejection of the appellant’s submissions with respect to Williams
was not fatal to his analysis for the following reason. The Act is to be
interpreted according to a textual, contextual and purposive analysis in order
to find a meaning that is harmonious with the Act as a whole (Canada Trustco
Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601 at paragraph 10).
This required the Judge to consider a number of factors which are substantially
the same as those which the appellant argued would have been relevant under the
connecting factors test.
[20]
I
have also considered Mr. Bellrose’s argument that the Judge erred “in applying
a geographical standard to the definition of municipality when none exists within
the [Act]”. However, in Canada, the law of municipalities is premised upon
a geographic standard. Certainly that is true of Alberta’s Municipal
Government Act, R.S.A. 2000 c. M-26, under which municipal districts,
villages, towns, cities and specialized municipalities are to be formed “for an
area”. The present structure of the Municipal Government Act is
inconsistent with a municipality not defined by a geographic area. It may be
possible to envision a different legal model, in which a municipality may be
established on some basis other than a geographic standard. However, as counsel
for the Minister observed, legislative change would be required to permit such
an outcome.
[21]
Mr.
Bellrose also placed some reliance upon paragraph 81(3)(b) of the Act.
However, as the MNAA is not an incorporated municipality Mr. Bellrose is not by
virtue of his position in the MNAA an officer of a municipal utilities board,
commission or corporation or similar body.
[22]
Finally,
I have noted the Minister’s argument that because the MNAA was incorporated
under the Societies Act, R.S.A. 2000, c. S-14, by virtue of subsection
3(2) of that Act the MNAA cannot exercise the powers of local government that
are granted to municipalities. In view of my conclusions above, it is not
necessary for me to consider this argument and I decline to do so.
[23]
It
follows that I would dismiss the appeal with costs.
“Eleanor R.
Dawson”
“I agree
K. Sharlow”
“I agree
Johanne Trudel”
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