Date:
20020726
Docket:
2002-1480-IT-G
BETWEEN:
ELIZABETH
SINCLAIR,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Reasons
for order
Bowie
J.
[1]
These appeals were begun by a
notice of appeal filed on April 16, 2002. The Appellant is a
status Indian; she claims that her employment income for the
years 1996 and 1997 is not subject to taxation by reason of
having been earned on an Indian reserve. Apart from an assertion
that the reassessments appealed from were issued outside the
normal reassessment period, this is the only issue raised by that
notice of appeal.
[2]
On June 5, 2002 an amended notice of appeal
was filed. As the pleadings were not closed this was done as of
right under Rule 54. It added three paragraphs and two
subparagraphs to the previous pleading, as follows:
(c)
4. The Respondent, pursuant
to its Guidelines of June 1994, has applied Section 87 of the
Indian Act to the Appellant in a discriminatory manner by
denying her an exemption which the Respondent recognizes in
favour of taxpayers in the same position as the
Appellant.
(d)
3. Is the administration of
section 87 of the Indian Act by the Respondent contrary to
section 15 of the Canadian Charter of Rights and Freedoms
and section 35 of the Constitution Act, 1982?
(e)
3. The Appellant relies on
the following provisions:
...
3.
Section 15 of the Canadian Charter of Rights and Freedoms;
and
4.
Section 35 of the Constitution Act, 1982.
(f)
4. In spite of the fact
that the tax exemption provided for by section 87 of the
Indian Act has been granted to Indians who are similarly
situated as [sic] the Appellant, she has been denied the
tax exemption. This is discriminatory contrary to section 15 of
the Canadian Charter of Rights and Freedoms and in
violation of section 35 of the Constitution Act,
1982.
[3]
By a notice of motion filed on June 24, 2002,
the Respondent moves now under Rules 53 and 58 for an
Order striking out paragraphs (c)4, (d)3, (f)4 and subparagraphs
(e)3 and 4 on the grounds that they disclose no reasonable ground
for appeal, and that they are scandalous, frivolous and vexatious
and an abuse of the process of the Court, and may prejudice and
delay the fair hearing of the appeals. Only the first and the
last of these grounds were seriously pursued in argument by
counsel for the Respondent. The Respondent also asks for an
extension of the time in which to file the reply.
[4]
The reference in the added
paragraph (c) 4 to "taxpayers in the same position as the
Appellant" and in the added paragraph (f) 4 to "Indians who are
similarly situated as [sic] the Appellant" are at best
vague and lacking particularity. In argument, counsel for the
Appellant accepted this, but took the position that this defect
could and would be cured by furnishing particulars, but should
not lead to the paragraphs being struck out. Perhaps counsel for
the Respondent should have demanded those particulars before
moving, but that is now moot as counsel for the Appellant
furnished them in the course of his argument. He explained that
the Appellant's complaint, and the basis for her invocation
of section 15 of the Charter, rests not upon any
enumerated ground, but upon the assertion that she is
discriminated against on the basis that she lacks the political
influence or power possessed by those other "Indians who are
similarly situated as [sic] the Appellant". It was put
this way by counsel during his argument:
My friend, if says that "discriminatory, I don't know
what you're talking about?".
How was the discrimination committed? Give me the details and
particulars of fact. We'll do that, no problem.
It is the manner that it is applied.
Then the result, if denied the exemption that is recognized under
the Act as a taxpayer.
We have completed our investigation in the meantime since the
amendment was made. And we are now able to show that there are
groups because of political representation or otherwise are being
given exemption of section 87, although they are in the same
category as the Appellant in this case.
Will that not make the assessment invalid?
THE
COURT: I don't know
what "the same category" means?
MR.
BINAVINCE:
In my submission, it would make the provision invalid.
THE
COURT:
Do you mean someone that has all the same personal
characteristics, is that what "the same category"
means?
MR.
BINAVINCE:
Except one. Political power or representation.
THE
COURT:
Political power or representation. Is there any
distinction?
MR.
BINAVINCE:
That is right. That is not a tax privilege, that is not a
constitutional privilege in order to free some taxes.
THE
COURT:
Your argument must be that political power is an analogous ground
for section 15 purposes, is it?
MR.
BINAVINCE:
The ground of discrimination - the discretionary act is the
granting of an exemption to a person of the same position as this
Appellant.
Then the question is: What is the grounds of
discrimination?
THE
COURT:
When you say the same position, do you mean all the same personal
...
MR.
BINAVINCE:
They are all Indians. They are all residing outside of their
reserve, they do the same kind of work for the government; the
Department of Indian and Northern Affairs;
THE
COURT:
And that they differ only by reason that some have political
power and others do not.
MR.
BINAVINCE:
Exactly.
Transcript pages 8, 9 and 10
...
THE
COURT:
And you just told me that there is no difference in the personal
characteristics of these people, their differences lies in their
ability and their success in lobbying government. Is that not
right?
MR.
BINAVINCE:
There is a difference in personal factors.
The personal characteristic is the political weak versus the
political strong, that is of course a personal
characteristic.
The question on the Constitution is whether or not that is an
analogous ground.
The Supreme Court has decided that section 15 is not a closed
concept. They enumerate especially the analogous grounds can
be.
Transcript pages 14 and 15
[5]
The Appellant's proposed
Charter argument, then, is that she is discriminated
against on the basis of political power, or the ability to lobby
government successfully.
[6]
The decision of the Federal Court
of Appeal in Ludmer v. Canada makes it clear that on an
appeal from an assessment to income tax, evidence is not
admissible to show that other taxpayers have been assessed more
favourably in identical circumstances. The Court there quoted
with approval the following passages from the judgment of
Rothstein J., as he then was, in Hokhold v. Canada:
The
plaintiff's concern seems to be that other taxpayers were treated
differently than was he by Revenue Canada. Whatever the reasons
for Revenue Canada's action in respect of other taxpayers, they
are not relevant to the plaintiff's situation. ¼
...
...
While it is understandable that the plaintiff considers it unfair
that Revenue Canada appears to have treated taxpayers in similar
circumstances differently, that cannot be the basis for the
plaintiff's appeal. The plaintiff is either entitled on a
reasonable interpretation of the words of ¼ the Act, to the social assistance deduction or he is
not.
The Court
of Appeal dismissed the appeal from the decision of the Trial
Division, struck out the offending part of the notice of appeal,
and noted in doing so the invidious consequences that would flow
from letting an issue proceed to trial that would inevitably
become an inquiry into the tax treatment of persons who were not
parties to the appeals before the Court.
[7]
Does the fact that the Appellant
would invoke the Charter in support of her position
entitle her to make this argument based upon the different
treatment of other taxpayers? If it does not then I am bound to
apply Ludmer and strike out the paragraphs which the
Respondent attacks.
[8]
Section 15 of the Charter
provides:
15(1) Every individual
is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination
and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental
or physical disability.
15(2) Subsection (1)
does not preclude any law, program or activity that has as its
object the amelioration of conditions of disadvantaged
individuals or groups including those that are disadvantaged
because of race, national or ethnic origin, colour, religion,
sex, age or mental or physical disability.
[9]
The Appellant does not rely on an
enumerated ground of discrimination, but says that she belongs to
a group of individuals that is less able than others to persuade
government to respond favourably to her arguments. Neither of
these supposed groups could be defined with any precision
whatsoever. Even if they could, the former could hardly be
described as discrete and insular, nor could the differentiation
between them reasonably be said to violate the human dignity of
those who are members of that group, or to tend to exclude them
from mainstream society. Nor could the members of such a group be
said to have in common any immutable personal characteristic.
Indeed, the inability to obtain favourable rulings from
government officials at the administrative level is frequently
simply the result of the inability of one's advisors and
advocates to persuade effectively. The answer to the suggestion
that section 15 can be applied to the kind of distinction
suggested here by counsel is found in the judgment of Mitchell
J.A., speaking for the Prince Edward Island Court of Appeal, in
P.E.I. (Registrar of Motor Vehicles) v. Rankin:
The
Charter neither provides protection for all human
activities nor a remedy for every grievance.
It was
of arguments like this one that Zuber J.A. spoke when he said in
R. v. Altseimer:
In view of the number of cases in Ontario trial courts in which
Charter provisions are being argued, and especially in
view of some of the bizarre and colourful arguments being
advanced, it may be appropriate to observe that the
Charter does not intend a transformation of our legal
system or the paralysis of law enforcement. Extravagant
interpretations can only trivialize and diminish respect for the
Charter which is a part of the supreme law of this
county.
It is
clear that if all the facts alleged in the paragraphs under
attack were established at trial, they could not assist the
Appellant in her appeal. It would do a disservice to our
Constitution to let such an argument proceed to
trial.
[10]
Paragraph 4 of part (c), paragraph
3 of part (d), and paragraph 4 of part (f) of the amended notice
of appeal will be struck out. The Minister of National Revenue
will have until August 30, 2002 to deliver a reply. Costs of this
motion shall be in the cause.
Signed at
Ottawa, Canada, this 26th day of July, 2002.
J.T.C.C.
COURT FILE
NO.:
2002-1480(IT)G
STYLE OF
CAUSE:
Elizabeth Sinclair & Her Majesty the Queen
PLACE OF
HEARING:
Ottawa, Ontario
DATE OF
HEARING:
July 17, 2002
REASONS FOR
ORDER
BY:
The Honourable Judge E.A. Bowie
DATE OF
ORDER:
July 26, 2002
APPEARANCES:
Counsel
for the Appellant: Emilio S. Binavince
Counsel
for the
Respondent:
Richard Gobeil & Jade Boucher
COUNSEL OF
RECORD:
For the
Appellant:
Name:
Emilio S. Binavince
Firm:
Binavince Smith
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2002-1480(IT)G
BETWEEN:
ELIZABETH
SINCLAIR,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Motion heard
on July 17, 2002, at Ottawa, Ontario, by
the
Honourable Judge E.A. Bowie
Appearances
Counsel
for the
Appellant:
Emilio S. Binavince
Counsel
for the
Respondent:
Richard Gobeil and Jade Boucher
ORDER
UPON motion by the Respondent for an Order striking out or
expunging paragraph 4 of part(c), paragraph 3 of part (d) and
paragraph 4 of part (f) of the amended notice of appeal and for
an extension of time to file a reply and for costs of this
motion;
AND UPON reading the pleadings and the affidavit of Linda Urgolo,
filed;
AND UPON hearing counsel for the parties;
IT IS ORDERED THAT:
1.
the Respondent's motion is granted and paragraph 4 of part (c), paragraph 3 of
part (d), and paragraph 4 of part (f) of the amended notice of
appeal are struck out;
2.
the Respondent shall file and serve a reply to the notice of
appeal on or before August 30, 2002; and
3.
costs of this motion shall be in the cause.
Signed at
Ottawa, Canada, this 26th day of July, 2002.
J.T.C.C.
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