Date: 20020426
Docket: A-47-02
Neutral citation: 2002 FCA 156
CORAM: STRAYER J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
CHARLES JOHN GORDON BENOIT, ATHABASCA TRIBAL
CORPORATION, LESSER SLAVE LAKE INDIAN REGIONAL COUNCIL,
KEE TAS KEE NOW TRIBAL COUNCIL
Respondents
REASONS FOR ORDER
STRAYER J.A.
[1] The Appellant has applied for a stay, pending appeal, of the judgment of Campbell J. of March 7, 2002.
[2] His formal judgment states:
For the reasons provided, I declare that:
(a) the Plaintiffs are entitled to claim the benefits of Treaty No. 8, including the Treaty Right not to have any tax imposed upon them at any time for any reasons;
(b) the Treaty Right was not extinguished prior to April 17, 1982; and is now protected from extinguishment by the Constitution Act, 1982 and is binding on Canada to honour and uphold;
(c) the imposition of any tax by Canada on the Plaintiffs is an unjustified breach of the Treaty Right.
I also declare that:
The application of Federal taxation provisions to Indian beneficiaries of Treaty 8 is inconsistent with s.35 of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.), and is therefore, to the extent of the inconsistency, of no force and effect.
The judgment, as I understand it, may apply to all the current beneficiaries of Treaty 8 which number some 40,000 persons living in the Treaty 8 area. It may be that the judgment could have implications for those living outside that area as well.
[3] The respondents have consented to the stay "on terms which have been agreed between the Appellant and the Respondents". Those terms have not been conveyed to the Court so I need not consider them.
[4] Notwithstanding the consent of the Respondents I have satisfied myself that the criteria for a stay have been met and that there is a proper basis for intervening in the operation of a Trial Division judgment. There is a serious issue to be dealt with on appeal. There could be irreparable harm as the immediate application of the judgment could result in chaos to tax administration, and possible harm to business competitors of those entitled to a supply of tax-free goods. The balance of convenience is in favour of the status quo in which, as the Respondents themselves appear to recognize, taxes can be paid in the interim with records kept for ultimate refund should the appeal not succeed.
[5] The judgment should therefore be stayed pending final disposition of the appeal.
(s) "B.L. Strayer"
J.A.
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: A-47-02
STYLE OF CAUSE: HER MAJESTY THE QUEEN v. CHARLES JOHN GORDON BENOIT et al.
NOTICE OF MOTION DISPOSED OF IN WRITING
REASONS FOR ORDER
OF THE COURT BY: Strayer, J.A.
DATED: April 26, 2002
WRITTEN SUBMISSIONS:
Ms. Bonnie F. MoonFOR APPELLANT
Mr. Aldo Argento & Mr. Everett Bunnell, Q.C.FOR RESPONDENT
Ms. Karin E. Buss FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Morris RosenbergFOR APPELLANT
Deputy Attorney General of Canada
Ottawa, Ontario
MacLeod DixonFOR RESPONDENT
Calgary, Alberta
Ackroyd, Piasta, Roth & Day FOR RESPONDENT
Edmonton, Alberta
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