Docket: 2007-579(IT)I
BETWEEN:
JACQUELINE DALE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal
heard on March 15, 2011, at Toronto, Ontario
Before: The Honourable N. Weisman, Deputy Judge
Appearances:
|
For the Appellant:
|
The
Appellant herself
|
|
Counsel for the Respondent:
|
Brandon Siegal
|
____________________________________________________________________
JUDGMENT
The
appeals from the assessments made under the Income Tax Act for the 2002
and 2003 taxation years are dismissed, without costs, in accordance with the attached Reasons for Judgment.
Signed at Toronto, Ontario, this 12th day of April 2011.
“N. Weisman”
Citation: 2011 TCC 206
Date: April 12, 2011
Docket: 2007-579(IT)I
BETWEEN:
JACQUELINE DALE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Weisman D.J.
[1]
Jacqueline Dale (the “Appellant”)
is a status Indian and a member of the Six Nations of the Grand Territory band whose reserve is situated at Ohsweken, Ontario.
[2]
At all material times,
the Appellant lived off the reserve in Hamilton, Ontario. There she worked as a fundraiser and then as a tenant
counsellor assistant. In both positions, her clients were Native American
Indians, some of whom resided on reserves.
[3]
While her daily duties
were assigned and supervised by a placement agency called Urban Native Homes
Corporation (“UNH”), she entered into a contract of employment with, and
received her remuneration from, an entity named OI Employee Leasing (“OIEL”),
which has its offices on the Six Nations reserve. It seems that she also
received direction and advice from one David Martin, an employment consultant
at Grand River Employment and Training (“GREAT”), which is also situated on the
Six Nations reserve.
[4]
Representatives of OIEL,
GREAT and UNH all assured her that, as an employee of OIEL, leased to UNH to
help status Indians living either on or off reserves, she would be exempt from
payment of income taxes. She was also advised that her husband could claim the
spousal deduction provided for in paragraph 118. (1)(a) of the Income
Tax Act (the “Act”)
since she had no taxable income.
[5]
When she was assessed
by the Respondent for the 2002 and 2003 taxation years because her salary was
not personal property of an Indian situated on a reserve, she brought this
appeal.
[6]
From her testimony, it
became apparent that her grievance was not so much with the Respondent as it
was with the three organizations that were in positions of authority over her
and in whom she placed her trust. She feels they should be held accountable for
their mistakes. While she willingly contributed to a legal fund, she was never
told that it was required to defend people in her position against the jeopardy
she was in from the Respondent, as a result of the employment scheme of which
she was a part.
[7]
Accordingly, she did
not reply when asked by the Respondent if her case was factually comparable to
the test cases covering this area of the law, such as Shilling v M.N.R.
and Horn v M.N.R..
[8]
She also declined to
identify the relevant factors connecting her income to a reserve so that they
could be given appropriate weight in the circumstances, and a determination
made as to whether her salary qualified for the exemption from taxation
contained in paragraph 87(1)(b) of the Indian Act,
pursuant to Williams v The Queen.
[9]
She gave the following
explanation: “To me this is not a native issue, as much as my putting trust in
authority figures. This is an act of neglect for which someone should be held
accountable.” Interestingly, these sentiments resonate with the comments
expressed by Associate Chief Justice Rossiter in Googoo et al v The Queen.
[10]
She apparently now
looks to this Court for protection against OIEL, GREAT and UNH. She relies on
subsection 1. (a) of the Canadian Bill of Rights,
which guarantees “the right of the individual to equality before the law and
the protection of the law”, and on the Canadian Charter of Rights and
Freedoms.
Presumably, she invokes subsection 15. (1) which provides as follows:
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, with discrimination based on race, national
or ethnic origin, colour, religion, sex, age, or mental or physical disability.
Unfortunately, this Court does not have the
jurisdiction to redress her grievances against OIEL, GREAT or UNH.
[11]
As far as the nature
and location of the work performed by the Appellant and the circumstances
surrounding it are concerned,
the evidence establishes that, in 2002 and 2003, she was a status Indian
working off the reserve to assist other Indians residing both on and off
reserves, to obtain housing. Those living on reserves comprised a small portion
of her caseload, which portion she estimates to be about ten percent.
Unfortunately for the Appellant, it has been held in Shilling
that the fact that the nature of the employment is to provide services to Indians
does not connect that employment to an Indian reserve as a physical place.
[12]
The chief factor
connecting the Appellant’s income to a reserve is that her employer, OIEL, has
its offices on the Six Nations reserve. Shilling also established,
however, that the location of the employer on a reserve will be afforded little
weight in the absence of evidence regarding how the reserve benefits from the
Appellant’s employment contract, the scope of the employer’s activities on the
reserve and whether any residents of the reserve are employed by OIEL.
[13]
Counsel for the Respondent
adduced evidence that OIEL employed approximately ten people on the reserve,
that little of their income was spent there and that OIEL paid minimal rent to
the reserve. This connecting factor will accordingly be afforded little weight.
[14]
The Appellant is
employed in the commercial mainstream. Subjecting her remuneration to taxation
under the Act does not in any way erode her entitlement as an Indian to
personal property on the reserve.
[15]
She is clearly an
honourable person. She found employment so as to be able to “stand on her own
two feet”. She is currently an Aboriginal Cultural Advisor on Aboriginal parole
hearings. She feels that Indian rights should be the same whether they are
working on or off the reserve. The jurisprudence, however, establishes that to
exempt her income from taxation would afford her an advantage over others
working in the commercial mainstream, be they Indian or not.
[16]
In the result, it is
ordered that the Appellant’s appeal from the assessments made under the Act
for the 2002 and 2003 taxation years is dismissed without costs.
Signed at Toronto, Ontario, this 12th day of April 2011.
“N. Weisman”
Email this Content