Date: 1998026 Docket: T-222-97
BETWEEN:
RACHEL SHILLING
Plaintiff
- and -
HER MAJESTY THE QUEEN in RIGHT OF CANADA as represented by the MINISTER OF NATIONAL REVENUE
Defendant
REASONS FOR ORDER AND ORDER
GILES,-A.S.P.:
[1] Before me was a motion inter alia for an order that a question of law be determined. At issue is whether income tax is payable by the plaintiff on income paid to her by an organization based on a certain Indian reservation. The plaintiff is an Indian, but does not live on the reservation on which the unit of which she is a member is based. That reservation is different from the first reservation.
Page: 2
[2] The plaintiff earns the income in question doing things for Indians, who also are not
on a reserve when benefiting from the plaintiffs work. It alleged that as a result of the decision of the Supreme Court of Canada in Williams v. Canada, [1992] 1 S.C.R. 877, the Department of National Revenue issued certain guidelines indicating how the income of Indians would be taxed. The plaintiff, by this action seeks to "challenge the guidelines". I was advised that at this stage, the plaintiffs income earned in the foregoing manner has not been assessed. It may be that what was meant was that, the notices of objection were in abeyance.
[3] In the course of the hearing, I questioned the jurisdiction of this Court and further questioned, whether, given jurisdiction, the matter should have been raised by application (originating notice of motion) under s. 18.1 of Federal Court Act because what are sought are declarations. After discussion, I decided to proceed with the hearing of the motion, but would reserve any decision pending my decision on jurisdiction. At the end of the day, I requested written submissions of the jurisdictional matter. I have now received written submissions and issued a fiat to allow the filing of a set of submissions received late. Unfortunately, the submissions of the defendant were submitted by a solicitor whose affidavit had been filed for use on this motion. Rule 82 applies and the submission must be ignored.
[4] Because the guidelines apparently have not resulted in taxes being levied in this case, and it is not sought to challenge an assessment, I conclude that the Tax Court of Canada does not have exclusive jurisdiction at this stage, and that this Court has jurisdiction for reasons set
Page: 3 out in Erasmus v. Canada, [1993] 1 C.N.L.R. 59 namely, that nothing in the Income Tax Act limits the jurisdiction of the Trial Division in an appropriate case to issue a direction as to the taxability of certain revenues.
[5] Having so decided, it is necessary to decide whether to order the determination of a question of law. Such a determination is only ordered when the applicable facts are agreed, and the question would decide the issue or one of the issues. It is quite apparent to me, that at one time, the parties were agreed to make this one of 4 test cases, because the facts alleged to exist here, were useful for test case purposes and might have formed the basis for a definitive determination of the question of law. However, the Crown is not prepared to agree that the facts alleged actually apply in this case, and the plaintiff has not supplied evidence acceptable to the Crown that the facts actually exist as alleged. Sufficient agreed facts are therefore not available.
[6] The remaining relief sought by the plaintiff was in essence supplementary to the motion for determination of a question of law, or dealt with delaying tax assessments, which last presumably will be delayed if this matter is diligently proceeded with.
[7] There are not at the moment sufficient agreed facts upon which to frame a question of law, which would determine any part of the issue. The plaintiffs motion must therefore be dismissed. The defendant has indicated a wish for case management to hasten the test case found. Case management might well enable the parties to resolve some of the non-productive
Page: 4
disputations as to which counsel said what and when.
[8] 1 believe it may be possible at some future date to frame a question of law, or questions forming a special case under Rule 320. So the motion today will be dismissed without prejudice to a further motion on agreed facts. Any application for case management may be made under Rule 369. The matter of a stay of notice of objection procedure will have to be the subject of a different motion when and where advised.
ORDER
Motion dismissed without prejudice to plaintiff's right to reapply for determination of a question of law on agreed facts.
"Peter A.K. Giles"
Toronto, Ontario May 26, 1998
A.S.P.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-222-97
STYLE OF CAUSE: RACHEL SHILLING
-and
HER MAJESTY THE QUEEN in RIGHT OF CANADA
as represented by the
MINISTER OF NATIONAL REVENUE
DATE OF HEARING: MAY 7, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: GILES, A.S.P.
DATED: MAY 26, 1998
APPEARANCES: Ms. Leslie G. Pinder For the Plaintiff
Ms. Karen Cooper
For the Defendant
SOLICITORS OF RECORD: Mandell Pinder Barristers and Solicitors 500-1080 Mainland Street Vancouver, B.C. V6B 2T4
For the Plaintiff
George Thomson Deputy Attorney General of Canada
For the Defendant