Citation: 2010 TCC 627
Date: December 7, 2010
Docket: 2007-1899(IT)I
BETWEEN:
ROZELLA JOHNSTON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Little J.
A. FACTS
[1]
The Appellant said that
she wanted to read her statement into the record.
[2]
The
Appellant said that she is a field support worker for the Ontario Federation of
Indian Friendship Centres.
[3]
The
Appellant said that she is a citizen of the Chippewas of Nawash First Nation’s
unceded territory.
[4]
The
Appellant said that she is not a Canadian citizen.
[5]
The
Appellant also said:
a)
While
the Saugeen Ojibway land claim is still ongoing, the issue of taxation has
never been discussed with the Nation nor has it ever been negotiated;
b)
She
said that her lands remain separate while we remain in the treaty process with Canada;
c)
She
said that she understood that I am limited in what I can do here today, and
that I am bound by the government’s policy;
d)
She
then made the following comments:
I only have to say this about the
policies that Canada has made regarding the attempted
taxation on me and my people. To attempt to tax the most impoverished people in
this country is shameful.
(Transcript, page 70,
lines 8 to 12)
I simply do not agree or consent. I
recognize that this act of law was not well thought out. Still to my knowledge,
the issue of taxation has never been discussed with my leadership. I hope that
you will reconsider these actions and return to the Minister and ask them to
respect Treaty rights. It can’t be hard. I do it everyday.
(Transcript,
page 71, lines 13 to 20)
[6]
Mr.
Siegal, counsel for Respondent, said:
The first thing I note is that we are
here today based upon an issue as to whether the appellant is entitled to an
exemption from taxable income by virtue of Section 87 of the Indian Act. This
is the pleading that was filed with the Court, for us, the Amended Notice of
Appeal. Whether that income is exempt or not is a novel issue. There is clear
case law on this issue. There is a test that has been well established called
the Conducting Factors Test. (Note: this should be “Connecting Factors Test”)
(Transcript, page 73,
line 18 to page 74, line 1)
I note that Ms. Johnson chose not to lead
any evidence with respect to her connecting factors, also chose not to lead any
argument with respect to her connecting factors, and made no arguments whatsoever
in accordance with the [Fresh As] Amended Notice of Appeal. Where we are
today is basically dealing with issues
that are not before the Court and are not with respect to her appeal.
(Transcript,
page 74, lines 9 to 17)
B. ANALYSIS AND DECISION
[7]
The
Tax Court of Canada was formed by an Act of Parliament, the Tax Court of
Canada Act, R.S.C. 1985, c. T-2. The Tax Court came into existence in 1983.
[8]
The
jurisdiction of the Tax Court is set out in section 12 of the Tax Court of
Canada Act.
[9]
Subsection
12(1) provides as follows:
12. (1) The Court has exclusive
original jurisdiction to hear and determine references and appeals to the Court
on matters arising under the Air Travellers Security
Charge Act, the Canada Pension Plan, the Cultural Property Export
and Import Act, Part V.1 of the Customs Act, the Employment
Insurance Act, the Excise Act, 2001, Part IX of the Excise Tax
Act, the Income Tax Act, the Old
Age Security Act, the Petroleum and Gas Revenue Tax Act and the Softwood
Lumber Products Export Charge Act, 2006 when references or appeals to
the Court are provided for in those Acts.
(emphasis added)
[10]
The
remedies that this Court may grant in relation to appeals arising under the Income
Tax Act (the “Act”) are set out in subsection 171(1) of the Act
which provides that:
171. (1) Disposal of Appeal. The Tax Court of Canada may dispose of
an appeal by
(a)
dismissing it; or
(b)
allowing it and
(i)
vacating the
assessment,
(ii)
varying the
assessment, or
(iii) referring the assessment back to the
Minister for reconsideration and reassessment.
[11]
The
Tax Court does not have the power to compel the Respondent to pursue any other
process to resolve a dispute related to taxes payable under the Act.
[12]
The
Appellant did not file any evidence or raise any legal arguments in relation to
the Reassessments that were appealed to this Court. Furthermore, the Appellant made
no attempt to distinguish her case from other cases that have been previously
decided in relation to individuals who were employees of Native Leasing
Services or a related company, namely:
1.
The
Queen v. Shilling, 2001 D.T.C. 5420 (FCA). Application for eave to appeal this
decision to the Supreme Court of Canada was dismissed ([2001] S.C.C.A. No.
434);
2.
Horn
et al v.
The Queen et al, 2007 D.T.C. 5589 (FC). Appeals to the FCA were dismissed (2008
FCA 352, 2008 D.T.C 6743). Application for leave to appeal this decision to the
Supreme Court of Canada was dismissed ([2009] S.C.C.A. No. 8);
3.
Roe
et al v.
The Queen, 2008 TCC 667, 2009 D.T.C. 1020, (9 Appellants);
4.
Googoo
et al v.
The Queen, 2009 D.T.C. 1061;
5.
McIvor
et al. v. The Queen, 2009 TCC 469, 2009 D.T.C. 1330, (6 Appellants);
and
6.
Sarah
B. Doxtator/Joanna Wemigwans v. The Queen, 2010 D.T.C. 1291, (indexed
as Lafontaine v. The Queen).
It should be noted that all of the
above Appellants were claiming that their income was exempt from tax by virtue
of section 87 of the Indian Act, R.S.C. 1985, c. I-5. All of the
appeals were dismissed.
(Note: In addition to the 19
appeals referred to above, there were many appeals filed by individuals who
were employees of Native Leasing Services. When these appeals were called for
hearing before the Tax Court, the individuals did not appear and did not have
counsel or an agent represent them. The appeals were dismissed for want of
prosecution.)
C.
CONCLUSION
[13]
Since
the Appellant did not introduce any evidence or legal argument to this Court
with respect to the Reassessment issued under the Income Tax Act for the
2004 and 2005 taxation years, her appeals are dismissed, without costs.
Signed at Toronto, Ontario, this 7th day of December 2010.
“L.M. Little”
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