Date: 20020726
Docket: 2002-1480-IT-G
BETWEEN:
ELIZABETH SINCLAIR,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for order
Bowie J.
[1] These appeals were begun by a notice of appeal filed on April 16, 2002. The Appellant is a status Indian; she claims that her employment income for the years 1996 and 1997 is not subject to taxation by reason of having been earned on an Indian reserve. Apart from an assertion that the reassessments appealed from were issued outside the normal reassessment period, this is the only issue raised by that notice of appeal.
[2] On June 5, 2002 an amended notice of appeal was filed. As the pleadings were not closed this was done as of right under Rule 54. It added three paragraphs and two subparagraphs to the previous pleading, as follows:
(c) 4. The Respondent, pursuant to its Guidelines of June 1994, has applied Section 87 of the Indian Act to the Appellant in a discriminatory manner by denying her an exemption which the Respondent recognizes in favour of taxpayers in the same position as the Appellant.
(d) 3. Is the administration of section 87 of the Indian Act by the Respondent contrary to section 15 of the Canadian Charter of Rights and Freedoms and section 35 of the Constitution Act, 1982?
(e) 3. The Appellant relies on the following provisions:
...
3. Section 15 of the Canadian Charter of Rights and Freedoms; and
4. Section 35 of the Constitution Act, 1982.
(f) 4. In spite of the fact that the tax exemption provided for by section 87 of the Indian Act has been granted to Indians who are similarly situated as [sic] the Appellant, she has been denied the tax exemption. This is discriminatory contrary to section 15 of the Canadian Charter of Rights and Freedoms and in violation of section 35 of the Constitution Act, 1982.
[3] By a notice of motion filed on June 24, 2002, the Respondent moves now under Rules 53 and 58 for an Order striking out paragraphs (c)4, (d)3, (f)4 and subparagraphs (e)3 and 4 on the grounds that they disclose no reasonable ground for appeal, and that they are scandalous, frivolous and vexatious and an abuse of the process of the Court, and may prejudice and delay the fair hearing of the appeals. Only the first and the last of these grounds were seriously pursued in argument by counsel for the Respondent. The Respondent also asks for an extension of the time in which to file the reply.
[4] The reference in the added paragraph (c) 4 to "taxpayers in the same position as the Appellant" and in the added paragraph (f) 4 to "Indians who are similarly situated as [sic] the Appellant" are at best vague and lacking particularity. In argument, counsel for the Appellant accepted this, but took the position that this defect could and would be cured by furnishing particulars, but should not lead to the paragraphs being struck out. Perhaps counsel for the Respondent should have demanded those particulars before moving, but that is now moot as counsel for the Appellant furnished them in the course of his argument. He explained that the Appellant's complaint, and the basis for her invocation of section 15 of the Charter, rests not upon any enumerated ground, but upon the assertion that she is discriminated against on the basis that she lacks the political influence or power possessed by those other "Indians who are similarly situated as [sic] the Appellant". It was put this way by counsel during his argument:
My friend, if says that "discriminatory, I don't know what you're talking about?".
How was the discrimination committed? Give me the details and particulars of fact. We'll do that, no problem.
It is the manner that it is applied.
Then the result, if denied the exemption that is recognized under the Act as a taxpayer.
We have completed our investigation in the meantime since the amendment was made. And we are now able to show that there are groups because of political representation or otherwise are being given exemption of section 87, although they are in the same category as the Appellant in this case.
Will that not make the assessment invalid?
THE COURT: I don't know what "the same category" means?
MR. BINAVINCE: In my submission, it would make the provision invalid.
THE COURT: Do you mean someone that has all the same personal characteristics, is that what "the same category" means?
MR. BINAVINCE: Except one. Political power or representation.
THE COURT: Political power or representation. Is there any distinction?
MR. BINAVINCE: That is right. That is not a tax privilege, that is not a constitutional privilege in order to free some taxes.
THE COURT: Your argument must be that political power is an analogous ground for section 15 purposes, is it?
MR. BINAVINCE: The ground of discrimination - the discretionary act is the granting of an exemption to a person of the same position as this Appellant.
Then the question is: What is the grounds of discrimination?
THE COURT: When you say the same position, do you mean all the same personal ...
MR. BINAVINCE: They are all Indians. They are all residing outside of their reserve, they do the same kind of work for the government; the Department of Indian and Northern Affairs;
THE COURT: And that they differ only by reason that some have political power and others do not.
MR. BINAVINCE: Exactly.
Transcript pages 8, 9 and 10
...
THE COURT: And you just told me that there is no difference in the personal characteristics of these people, their differences lies in their ability and their success in lobbying government. Is that not right?
MR. BINAVINCE: There is a difference in personal factors.
The personal characteristic is the political weak versus the political strong, that is of course a personal characteristic.
The question on the Constitution is whether or not that is an analogous ground.
The Supreme Court has decided that section 15 is not a closed concept. They enumerate especially the analogous grounds can be.
Transcript pages 14 and 15
[5] The Appellant's proposed Charter argument, then, is that she is discriminated against on the basis of political power, or the ability to lobby government successfully.
[6] The decision of the Federal Court of Appeal in Ludmer v. Canada[1] makes it clear that on an appeal from an assessment to income tax, evidence is not admissible to show that other taxpayers have been assessed more favourably in identical circumstances. The Court there quoted with approval the following passages from the judgment of Rothstein J., as he then was, in Hokhold v. Canada:[2]
The plaintiff's concern seems to be that other taxpayers were treated differently than was he by Revenue Canada. Whatever the reasons for Revenue Canada's action in respect of other taxpayers, they are not relevant to the plaintiff's situation. ¼
...
... While it is understandable that the plaintiff considers it unfair that Revenue Canada appears to have treated taxpayers in similar circumstances differently, that cannot be the basis for the plaintiff's appeal. The plaintiff is either entitled on a reasonable interpretation of the words of ¼ the Act, to the social assistance deduction or he is not.[3]
The Court of Appeal dismissed the appeal from the decision of the Trial Division, struck out the offending part of the notice of appeal, and noted in doing so the invidious consequences that would flow from letting an issue proceed to trial that would inevitably become an inquiry into the tax treatment of persons who were not parties to the appeals before the Court.
[7] Does the fact that the Appellant would invoke the Charter in support of her position entitle her to make this argument based upon the different treatment of other taxpayers? If it does not then I am bound to apply Ludmer and strike out the paragraphs which the Respondent attacks.
[8] Section 15 of the Charter provides:
15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
15(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[9] The Appellant does not rely on an enumerated ground of discrimination, but says that she belongs to a group of individuals that is less able than others to persuade government to respond favourably to her arguments. Neither of these supposed groups could be defined with any precision whatsoever. Even if they could, the former could hardly be described as discrete and insular, nor could the differentiation between them reasonably be said to violate the human dignity of those who are members of that group, or to tend to exclude them from mainstream society. Nor could the members of such a group be said to have in common any immutable personal characteristic. Indeed, the inability to obtain favourable rulings from government officials at the administrative level is frequently simply the result of the inability of one's advisors and advocates to persuade effectively. The answer to the suggestion that section 15 can be applied to the kind of distinction suggested here by counsel is found in the judgment of Mitchell J.A., speaking for the Prince Edward Island Court of Appeal, in P.E.I. (Registrar of Motor Vehicles) v. Rankin:[4]
The Charter neither provides protection for all human activities nor a remedy for every grievance.
It was of arguments like this one that Zuber J.A. spoke when he said in R. v. Altseimer:[5]
In view of the number of cases in Ontario trial courts in which Charter provisions are being argued, and especially in view of some of the bizarre and colourful arguments being advanced, it may be appropriate to observe that the Charter does not intend a transformation of our legal system or the paralysis of law enforcement. Extravagant interpretations can only trivialize and diminish respect for the Charter which is a part of the supreme law of this county.
It is clear that if all the facts alleged in the paragraphs under attack were established at trial, they could not assist the Appellant in her appeal. It would do a disservice to our Constitution to let such an argument proceed to trial.
[10] Paragraph 4 of part (c), paragraph 3 of part (d), and paragraph 4 of part (f) of the amended notice of appeal will be struck out. The Minister of National Revenue will have until August 30, 2002 to deliver a reply. Costs of this motion shall be in the cause.
Signed at Ottawa, Canada, this 26th day of July, 2002.
|
"E.A. Bowie" |
J.T.C.C.
COURT FILE NO.: 2002-1480(IT)G
STYLE OF CAUSE: Elizabeth Sinclair & Her Majesty the Queen
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: July 17, 2002
REASONS FOR ORDER BY: The Honourable Judge E.A. Bowie
DATE OF ORDER: July 26, 2002
APPEARANCES:
Counsel for the Appellant: Emilio S. Binavince
Counsel for the Respondent: Richard Gobeil & Jade Boucher
COUNSEL OF RECORD:
For the Appellant:
Name: Emilio S. Binavince
Firm: Binavince Smith
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2002-1480(IT)G
BETWEEN:
ELIZABETH SINCLAIR,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on July 17, 2002, at Ottawa, Ontario, by
the Honourable Judge E.A. Bowie
Appearances
Counsel for the Appellant: Emilio S. Binavince
Counsel for the Respondent: Richard Gobeil and Jade Boucher
ORDER
UPON motion by the Respondent for an Order striking out or expunging paragraph 4 of part(c), paragraph 3 of part (d) and paragraph 4 of part (f) of the amended notice of appeal and for an extension of time to file a reply and for costs of this motion;
AND UPON reading the pleadings and the affidavit of Linda Urgolo, filed;
AND UPON hearing counsel for the parties;
IT IS ORDERED THAT:
1. the Respondent's motion is granted and paragraph 4 of part (c), paragraph 3 of part (d), and paragraph 4 of part (f) of the amended notice of appeal are struck out;
2. the Respondent shall file and serve a reply to the notice of appeal on or before August 30, 2002; and
3. costs of this motion shall be in the cause.
Signed at Ottawa, Canada, this 26th day of July, 2002.
|
"E.A. Bowie" |
J.T.C.C.