Date: 19980625
Docket: 97-1154-IT-I
BETWEEN:
GAYLE HENNICK,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Bowman, J.T.C.C.
[1] These are appeals from assessments for the
appellant’s 1993 and 1994 taxation years.
[2] At the opening of trial counsel for the respondent moved
for dismissal of the appeals on the ground that this court did
not have jurisdiction to hear the appeals. I asked the parties to
submit written argument on the question of jurisdiction.
[3] The initial question is whether the appellant is appealing
from assessments made under the federal Income Tax Act or
the OntarioIncome Tax Act. The Crown’s position is
that the appellant is appealing from assessments made under the
Ontario Income Tax Act and that therefore the Tax Court of
Canada is without jurisdiction.
[4] Although no evidence was adduced other than the
appellant’s income tax returns, for the purposes of the
motion the following facts appear to be relevant.
[5] In computing her taxes payable for 1993 and 1994, the
appellant reported a contribution of $2,000 to an Ontario Home
Ownership Savings Plan (OHOSP) and claimed an OHOSP tax credit of
$500. In the original assessments the Minister allowed OHOSP tax
credits of $422 and $360 for the taxation years 1993 and 1994,
but in subsequent assessments for those years he disallowed them.
She had been allowed a tax credit in respect of her OHOSP
contribution for the years 1988, 1989, 1990 and 1992.
[6] The appellant challenges the disallowance on the basis of
estoppel and negligent misrepresentation on the part of the
Minister.
[7] I do not propose to deal with the merits of the
appellant’s claim. There is no evidentiary foundation upon
which I could do so and the reply to the notice of appeal sheds
no particular light on the basis of disallowance.
[8] The sole question with which I am concerned is whether the
Tax Court of Canada has jurisdiction to hear the appeals. I have
concluded that it does not.
[9] The OHOSP tax credit is a credit against Ontario tax and
is granted under section 8 of the Ontario Income Tax Act.
In Ontario the tax imposed under the Ontario Income Tax
Act is assessed by the Minister of National Revenue as agent
for the Government of Ontario. It nonetheless remains a
provincial tax and this court has no jurisdiction in appeals from
assessments of Ontario tax.
[10] The Tax Court of Canada, like the Federal Court, is a
statutory court and its jurisdiction is limited by statute.
Section 12 of the Tax Court of Canada Act provides:
12. (1) The Court has exclusive original jurisdiction to hear
and determine references and appeals to the Court on matters
arising under the Canada Pension Plan, the Cultural
Property Export and Import Act, the Employment Insurance
Act, Part IX of the Excise Tax Act, the Income Tax
Act, the Old Age Security Act and the Petroleum and
Gas Revenue Tax Act, where references or appeals to the Court
are provided for in those Acts.
(2) The Court has exclusive original jurisdiction to hear and
determine appeals on matters arising under the War Veterans
Allowance Act and the Merchant Navy Veteran and Civilian
War-related Benefits Act and referred to in section 33 of the
Veterans Review and Appeal Board Act.
(3) The Court has exclusive original jurisdiction to hear and
determine questions referred to it under section 173 and 174 of
the Income Tax Act or section 310 or 311 of the Excise
Tax Act.
(4) The Court has exclusive original jurisdiction to hear and
determine applications for extensions of time under
section 166.2 or 167 of the Income Tax Act or section
304 or 305 of the Excise Tax Act, or section 33.2 of the
Cultural Property Export and Import Act.
[11] Christie A.C.J. said in Lamash Estate v. M.N.R.,
91 DTC 9 at page 16:
On further reflection I am reinforced in my view that the
court does not have the jurisdiction referred to. The Tax Court
of Canada is a purely statutory creation and its jurisdiction is
confined to what is expressly conferred on it by Parliament and
what is necessarily implied from what is expressly conferred.
[12] The Federal Court is subject to the same limitation. In
The Queen v. Bowater Mersey Paper Company Limited, 87 DTC
5382 (F.C.A.), Pratte J. said at page 5384:
Counsel for the respondent also argued in support of the
judgment that the notices of reassessment of January 4, 1984,
were not superseded by those of March 6 because the latter left
intact the assessment of provincial tax contained in the earlier
ones. This argument has no merit since this Court has no
jurisdiction to entertain an appeal from an assessment of
provincial income tax.
[13] In Andrew Paving & Engineering Ltd. et al. v.
M.N.R., 84 DTC 1157 Christie C.J.T.C. said at page 1161:
The existence of a collection agreement between the Government
of Canada and the Government of Ontario cannot alter this.
Division E of the Ontario Act provides for appeals to the Supreme
Court of Ontario from assessments made under that legislation.
Nothing in the Act, the Tax Court of Canada Act, or any
other legislation enacted by or under the authority of the
Parliament of Canada purports to confer such jurisdiction
on this Court. The Tax Court of Canada is purely statutory in
origin and the scope of its jurisdiction is entirely
circumscribed by express or necessarily implied federal
legislative authority. Moreover, I am of the opinion that if
legislation were enacted by Parliament which purported to confer
jurisdiction on the Tax Court of Canada to hear appeals from
assessments made under the Ontario Act, it would be beyond the
constitutional reach of Parliament. The Tax Court of Canada was
established under the authority of section 101 of the
Constitution Act, 1867.
[14] The proper forum in which to bring an appeal from an
assessment of provincial tax is the Ontario Court, General
Division, upon which jurisdiction is conferred by section 23 of
the Ontario Income Tax Act.
[15] Accordingly, the respondent’s motion is granted and
the appeals are quashed.
Signed at Ottawa, Canada, this 25th day of June 1998.
"D.G.H. Bowman"
J.T.C.C.
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