Date: 20030924
Docket: A-489-02
Citation: 2003 FCA 348
CORAM: LINDEN J.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
ELIZABETH SINCLAIR
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Ottawa, Ontario, on September 24, 2003.
Judgment delivered from the Bench at Ottawa, Ontario, on September 24, 2003.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Date: 20030924
Docket: A-489-02
Citation: 2003 FCA 348
CORAM: LINDEN J.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
ELIZABETH SINCLAIR
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on September 24, 2003)
EVANS J.A.
[1] This is an appeal by Elizabeth Sinclair, a status Indian and a member of the Peguis Band, against an order of Judge Bowie of the Tax Court of Canada, now reported as Sinclair v. Canada, [2002] 4 C.T.C. 2392. The order struck part of her notice of appeal against the reassessments of her income tax liability for the years 1996 and 1997. The paragraphs in question alleged that the reassessments were invalid because they were in breach of subsection 15(1) of the Canadian Charter of Rights and Freedoms, and section 35 of the Constitution Act, 1982.
[2] In her original notice of appeal, Ms. Sinclair had alleged that she was exempt from income tax for the relevant years because her income constituted personal property of an Indian situated on a reserve. As such, it was not subject to tax by virtue of paragraph 87(1)(b) of the Indian Act, R.S.C. 1985, c. I-5 and paragraph 81(1)(a) of the Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1.
[3] The amended notice of appeal added allegations that denying the benefit of the section 87 exemption to Ms. Sinclair was a breach of subsection 15(1) of the Charter, on the ground that others who were similarly situated to Ms. Sinclair were given the benefit of the exemption, because they were politically influential and she was not. Counsel stated that this argument would be relevant in the event that the Tax Court held that Ms. Sinclair was not otherwise entitled to an exemption under paragraph 87(1)(b).
[4] Judge Bowie struck the paragraphs dealing with the Charter under sections 53 and 58 of the Tax Court of Canada Rules (General Procedure), SOR/99-209, as frivolous, vexatious or an abuse of the process of the Court, and as disclosing no reasonable grounds for an appeal. Before us, counsel for Ms. Sinclair advanced two reasons why the appeal should be allowed.
[5] First, the Judge was premature in striking the paragraphs. In so far as they lacked particulars or were vague, the Judge should have given counsel an opportunity to amend them. In our opinion, this argument must fail. The Judge did not strike the paragraphs because they lacked particulars or were vague. It is apparent from his reasons that Judge Bowie considered on its merits the constitutional argument that counsel intended to raise on behalf of Ms. Sinclair.
[6] Second, counsel says that it is not plain and obvious that the section 15 argument must fail and that, accordingly, Ms. Sinclair must be allowed to make it before the Tax Court when it hears her appeal. We do not agree.
[7] In our view, it is not open to the Tax Court to set aside a tax reassessment on the ground that the taxpayer ought to have been given the same favourable treatment as others who are similarly situated. The issue before the Tax Court in this case is whether Ms. Sinclair is entitled to an exemption under section 87. This must be decided on the basis of the interpretation of the section and its application to her situation: that others are given the benefit of the exemption is simply not relevant to Ms. Sinclair's appeal. See Hokhold v. Canada, [1993] 2 C.T.C. 99 (F.C.T.D.); Ludmer v. Canada, [1995] 2 F.C. 3 (C.A.); Hawkes v. The Queen, [1997] 2 C.T.C. 5060 (F.C.A.). Apart from the allegation that some similarly situated taxpayers receive more favourable treatment, Ms. Sinclair does not suggest that section 87 is unconstitutional, either as interpreted or as applied to her case.
[8] If Ms. Sinclair wishes to challenge the validity of the Guidelines issued by the Minister with respect to the interpretation and application of section 87 on the ground that they are contrary to section 15 by virtue of their under inclusiveness, she might seek a declaration of invalidity in the Federal Court.
[9] For these reasons, the appeal will be dismissed with costs fixed in the sum of $500, inclusive of disbursements.
"John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-489-02
APPEAL FROM AN ORDER OF THE TAX COURT OF CANADA
DATED JULY 26, 2003
STYLE OF CAUSE: Elizabeth Sinclair v. Her Majesty The Queen
PLACE OF HEARING: Ottawa
DATE OF HEARING: September 24, 2003
REASONS FOR JUDGMENT
OF THE COURT: Linden, Evans and Pelletier JJ.A.
DELIVERED FROM
THE BENCH BY: Evans J.A.
APPEARANCES:
|
Mr. Emilio Binavince
|
FOR THE APPELLANT
|
|
Ms. Helen Lanctôt
Mr. Richard Gobeil
Ms. Jade Boucher
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Binavince Smith
Ottawa, Ontario
|
FOR THE APPELLANT
|
|
Morris Rosenberg
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
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