Donald Woodside v. Her Majesty the Queen (Informal Procedure), [1993] 2 CTC 2348

Sarchuk, T.C.C.J. (orally):— Mr. Woodside, I could reserve on this matter and write four or five pages of reasons. However, I don’t feel that that is necessary for several reasons. The first is that I am as a matter of law bound by the decisions of the superior courts, in this particular case by the Federal Court of Appeal. Secondly, there is a decision of a judge of this Court, Hertzog v. M.N.R., [1991] 1 C.T.C. 2529, 91 D.T.C. 720 which, although not binding, is a judgment which, as a matter of practice, is to be given substantial consideration. There is a rule which is utilized by the judiciary and that is, very simply, where there is a judgment by a judge or a court of concurrent jurisdiction, of equal jurisdiction, then that judgment acts as a precedent and should not be disregarded unless it can be established that the Court failed to consider all of the law, perhaps because it was not presented fully to that Court, or the circumstances and the facts are so substantially different as to distinguish that particular decision. That is not the case with Hertzog.

If I may summarize the nature of this appeal. Mr. Woodside, who is a Quaker, has paid a portion of his federal tax owing to the Peace Tax Trust Fund in lieu of the average percentage spent by the government on military activities. He argues essentially that the Minister's assessment refusing a deduction in the same amount violates his freedom of conscience and religion guaranteed by the Canadian Charter of Rights and Freedoms, subsection 2(a). He seeks several remedies and for the record I will restate them:

1. To refer the assessment back to the Minister identifying the concerns about infringement of the Charter;

2. He requests the Court to identify the failure of the courts to test the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "Act") against the Charter;

3. To ask Revenue Canada not to collect until the appeal process has been completed and;

4. To allow Mr. Woodside to repay the government the equivalent taxes owed by performing alternative service.

The respondent has brought a motion for an order dismissing the appeal on the ground that the appeal was not properly instituted and, if I can read into the argument, that this Court does not have the jurisdiction to grant the remedies sought or has no right to grant the declaratory order.

I took the opportunity, Mr. Woodside, of re-reading the Prior v. The Queen decision since you raised it in your notice of appeal ([1988] 1 C.T.C. 241, 88 D.T.C. 6207 (F.C.T.D.); aff'd [1989] 2 C.T.C. 280, 89 D.T.C. 5503 (F.C.A.)). That decision was very similar in that Ms. Prior was also a Quaker, also deducted a portion of the tax dollars owing and deposited it to a Peace Tax Fund on essentially the same basis you have chosen to do in your case.

The Tax Court of Canada dismissed that appeal. The matter was taken to the Federal Court-Trial Division where in essence the action was one for declaratory relief. The respondent brought a motion to have the statement of claim in Prior's case struck out on the basis that it disclosed no reasonable cause of action. Again that refers specifically to the Income Tax Act, section 169. Mr. justice Addy held that taxes and military spending were quite unconnected. I do not propose to get any further into that because it has not been argued today. However with respect to the Charter argument he also held that the Charter could not be used to invalidate other sections of the Constitution. He said at page 245 (D.T.C. 6211):

It follows that, if one attempts to attain by means of subsection 2(a) or of subsection 15(1) of the Charter the result sought by the plaintiff, the right of the Parliament of Canada to tax for military purposes, as clearly provided for in the Constitution, would be frustrated, at least insofar as any conscientious objectors are concerned.

This issue then went to the Federal Court of Appeal and in its judgment that Court stated that it agreed, essentially, with the entirety of the analysis of the trial judge, Mr. Justice Addy.

The Court of Appeal further stated that to give effect to the taxpayer's application would require the Court either to amend the relevant provisions of the Income Tax Act or to create a credit scheme exempting Prior from a portion of her tax otherwise payable, neither of which Federal Court has jurisdiction to do.

If the Federal Court does not have the jurisdiction to grant a declaratory order in a similar matter I guarantee you this Court does not have the power to grant a declaratory relief either.

Lastly I rely on the reasons expressed by my colleague Judge Mogan in the Hertzog case referred to by counsel for the Minister. I think the paragraph that was cited by counsel is a carefully crafted explanation of the limits of this Court's jurisdiction. It is not that we cannot hear an appeal that is brought before us where issues like this are raised. It is simply that we do not have the jurisdiction to grant the relief sought.

Insofar as the other points that you raised, Mr. Woodside, that is the suggestion that certain directions could be made by me to the Minister identifying your concerns, I do not think that even if I were of a mind to do so that it would be appropriate. While I cannot disagree with your comment that it is an obligation, perhaps on occasion, of a court of law to identify injustices done by the law, given the fact that these issues have been canvassed at the level of the Federal Court of Appeal and certain statements have been made there, I do not think it would be appropriate for me to make obiter comments which carry no weight and have little impact on those whom you are trying to reach. I am not prepared to do that.

On balance, while I have sympathy with your cause, I simply do not have the jurisdiction to grant the relief sought and accordingly I will follow the same procedure that was taken by my colleague, Mogan, J., and state that the purported appeal which Mr. Woodside has lodged in this Court must be quashed, because not being a valid appeal from an assessment, there is nothing to dismiss under the provisions of section 171 of the Act. The respondent's motion is granted and the purported appeal is quashed.

Appeal quashed.