Googoo v. The Queen

Googoo v. The Queen
Court (s) Database
Tax Court of Canada Judgments
Date
2009-01-30
Neutral citation
2008 TCC 589
File numbers
2007-49(IT)I
Judges and Taxing Officers
Eugene P. Rossiter
Subjects
Income Tax Act
Decision Content
Docket: 2007-49(IT)I
BETWEEN:
MAUREEN GOOGOO,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
____________________________________________________________________
Appeals heard on September 8, 9, 10, 11 and 12, 2008
at Halifax, Nova Scotia
By: The Honourable Associate Chief Justice E. P. Rossiter
Appearances:
Counsel for the Appellant:
Eric Lay
Counsel for the Respondent:
Gordon Bourgard
John Shipley
____________________________________________________________________
JUDGMENT
It is ordered that the appeals from the reassessments made under the Income Tax Act for the 2000 and 2001 taxation years are dismissed, without costs, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 2nd day of February, 2009.
“E.P. Rossiter”
Rossiter, A.C.J.
Docket: 2007-496(IT)I
BETWEEN:
DELORES JOYCE MAGUIRE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
____________________________________________________________________
Appeals heard on September 8, 9, 10, 11 and 12, 2008
at Halifax, Nova Scotia
By: The Honourable Associate Chief Justice E. P. Rossiter
Appearances:
Counsel for the Appellant:
Eric Lay
Counsel for the Respondent:
Gordon Bourgard
John Shipley
____________________________________________________________________
JUDGMENT
It is ordered that the appeals from the reassessments made under the Income Tax Act for the 1999 and 2001 taxation years are dismissed, without costs, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 2nd day of February, 2009.
“E.P. Rossiter”
Rossiter, A.C.J.
Docket: 2007-1710(IT)I
BETWEEN:
ELIZABETH GRANT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
____________________________________________________________________
Appeal heard on September 8, 9, 10, 11 and 12, 2008
at Halifax, Nova Scotia
By: The Honourable Associate Chief Justice E. P. Rossiter
Appearances:
Counsel for the Appellant:
Eric Lay
Counsel for the Respondent:
Gordon Bourgard
John Shipley
____________________________________________________________________
JUDGMENT
It is ordered that the appeal from the reassessment made under the Income Tax Act for the 2001 taxation year is dismissed, without costs, in accordance with the Reasons for Judgment.
Signed at Ottawa, Canada, this 2nd day of February, 2009.
“E.P. Rossiter”
Rossiter, A.C.J.
Docket: 2007-4037(IT)I
BETWEEN:
BRIDGET A. SMITH,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
____________________________________________________________________
Appeals heard on September 8, 9, 10, 11 and 12, 2008
at Halifax, Nova Scotia
By: The Honourable Associate Chief Justice E. P. Rossiter
Appearances:
Counsel for the Appellants:
Eric Lay
Counsel for the Respondent:
Gordon Bourgard
John Shipley
____________________________________________________________________
JUDGMENT
It is ordered that the appeals from the reassessments made under the Income Tax Act for the 1998, 1999, 2000 and 2001 taxation years are dismissed, without costs, in accordance with the Reasons for Judgment.
Signed at Ottawa, Canada, this 2nd day of February, 2009.
“E.P. Rossiter”
Rossiter, A.C.J.
Docket: 2007-846(IT)I
BETWEEN:
TRINA ROACHE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
____________________________________________________________________
Appeal heard on September 8, 9, 10, 11 and 12, 2008
at Halifax, Nova Scotia
By: The Honourable Associate Chief Justice E. P. Rossiter
Appearances:
Counsel for the Appellants:
Eric Lay
Counsel for the Respondent:
Gordon Bourgard
John Shipley
____________________________________________________________________
JUDGMENT
It is ordered that the appeal from the reassessment made under the Income Tax Act for the 2001 taxation year is dismissed, without costs, in accordance with the Reasons for Judgment.
Signed at Ottawa, Canada, this 2nd day of February, 2009.
“E.P. Rossiter”
Rossiter, A.C.J.
Docket: 2007-2116(IT)I
BETWEEN:
B. RENEE MASHING,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
____________________________________________________________________
Appeal heard on September 8, 9, 10, 11 and 12, 2008
at Halifax, Nova Scotia
By: The Honourable Associate Chief Justice E. P. Rossiter
Appearances:
Counsel for the Appellants:
Eric Lay
Counsel for the Respondent:
Gordon Bourgard
John Shipley
____________________________________________________________________
JUDGMENT
It is ordered that the appeal from the assessment made under the Income Tax Act for the 2005 taxation year is dismissed, without costs, in accordance with the Reasons for Judgment.
Signed at Ottawa, Canada, this 2nd day of February, 2009.
“E.P. Rossiter”
Rossiter, A.C.J.
Docket: 2007-53(IT)I
BETWEEN:
NOEL KNOCKWOOD,
Appellants,
and
HER MAJESTY THE QUEEN,
Respondent,
____________________________________________________________________
Appeals heard on common evidence on September 8, 9, 10, 11 and 12, 2008
at Halifax, Nova Scotia
By: The Honourable Associate Chief Justice E. P. Rossiter
Appearances:
Counsel for the Appellants:
Eric Lay
Counsel for the Respondent:
Gordon Bourgard
John Shipley
____________________________________________________________________
JUDGMENT
It is ordered that the appeals from the reassessments made under the Income Tax Act for the 2000 and 2001 taxation years are dismissed, without costs, in accordance with the Reasons for Judgment.
Signed at Ottawa, Canada, this 2nd day of February, 2009.
“E.P. Rossiter”
Rossiter, A.C.J.
Citation: 2008TCC589
Date: 20090130
Docket: 2007-49(IT)I
BETWEEN:
MAUREEN GOOGOO,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
Docket: 2007-496(IT)I
AND BETWEEN:
DELORES JOYCE MAGUIRE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
Docket: 2007-1710(IT)I
AND BETWEEN:
ELIZABETH GRANT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
Docket: 2007-4037(IT)I
AND BETWEEN:
BRIDGET A. SMITH,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
Docket: 2007-846(IT)I
AND BETWEEN:
TRINA ROACHE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
Docket: 2007-2116(IT)I
AND BETWEEN:
B. RENEE MASCHING,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
Docket: 2007-53(IT)I
AND BETWEEN:
NOEL KNOCKWOOD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Rossiter, A.C.J.
[1] These appeals concern different taxation years for each of the Appellants, ranging from 1998 to 2005. At issue is the right to the exemption of income tax for Indians, pursuant to s. 87(1)(b) of the Indian Act and s. 81(1)(a) of the Income Tax Act. These appeals proceeded on the basis that some evidence was introduced as common evidence, while other evidence was introduced as specific only to certain Appellants.
Introduction
[2] The Appellants were status Indians and employees of Native Leasing Services (“NLS”). As employees of NLS they performed work and services which were thought to be for predominantly Aboriginal purposes with various placement organizations.
[3] The Appellants claimed their personal property, employment income, was exempt from taxation by virtue of paragraph 87(1)(b) of the Indian Act, R.S.C. 1985, c.I-5. The Respondent disputed the exemption alleging that an application of the “connecting factors test” does not connect the property of the Appellants to a reserve and therefore is not exempt from taxation. The Appellants assert the property is situated on a reserve and therefore exempt from taxation. The Appellants were reassessed by the Minister of National Revenue (“Minister”) on the basis their income was not situated on a reserve.
Issue
[4] The issue common to all appeals is whether the employment income earned by the Appellants is “the personal property of an Indian… situated on a reserve” within the meaning of paragraph 87(1)(b) of the Indian Act, and therefore exempt from taxation pursuant to paragraph 81(1)(a) of the Income Tax Act, R.S.C. 1985, c. I (5th Supplement) (“ITA”).
Facts
1. Facts Common To All Appeals:
[5] Mr. Roger Obonsawin is a status Indian member of the Odanak Band of the Wabenaki Nation which has a membership in Quebec and the United States. He has never lived on a reserve. Mr. Obonsawin lives with Ms. Ljuba Irwin, his life partner, in both personal and business aspects. Ms. Irwin is a non‑Aboriginal person and is the Executive Director of NLS. Ms. Irwin resides in Toronto as does Mr. Obonsawin to some extent. As a non‑Aboriginal person, Ms. Irwin cannot live on a reserve and Mr. Obonsawin does not and cannot live on the Six Nations Reserve as he is not a member of the Six Nations Reserve. The NLS Administrative office is located on the Six Nations Reserve. All of the Appellants were members of reserves or nations different than Mr. Obonsawin’s and all of the Appellants, except for Renee Masching, were members of different reserves other than the Six Nations Reserve.
[6] Mr. Obonsawin became involved with Native Friendship Centres (“NFC”) while attending Ryerson College. NFC’s are mainly located in urban areas and as such most of their services, such as cultural activities, day care centres and private counseling for Aboriginals, are provided off reserve. He eventually became Executive Director of a NFC in Red Lake, Ontario, from 1972 to 1974, working in housing advocacy delivered in an Aboriginal, cultural, and relevant manner. He later became President of the National Association of Friendship Centres in Ottawa, followed by a term as Executive Director of the Association, and then seven years as Executive Director of the Toronto Indian Centre working with youth on educational initiatives and becoming involved in a task force for urban services. In 1981, Mr. Obonsawin formed a consulting company, O.I. Employment Leasing Inc. (“O.I.”) which provided consulting to Native communities, with financial support from federal and provincial grants. In 1987, Mr. Obonsawin decided to enter into Native leasing and established NLS as a sole proprietorship. NLS provides services to the Native sector while O.I. provides services to the non-Native sector, with both entities being owned by Mr. Obonsawin.
[7] The concept of the leasing services allowed Native persons employed with a placement organization to become employees of NLS. NLS would then lease their services back to the placement organization. NLS accepted responsibility for and liability of the employee but the employee worked in and reported to the placement organization and received work assignments from the placement organization. NLS would invoice the placement agency for the salary and benefits of the employee and be paid a service fee of approximately 5%, which was sometimes paid by the placement organization and or by the latter and the employee.
[8] Mr. Obonsawin used his contacts with placement organizations to promote NLS. Because of his long history with NFCs, Mr. Obonsawin targeted them as clients. In his recruiting publicity he stated that if the services of NFC’s were mainly provided off the reserve, one of the features that NLS could provide was a link to a reserve for tax exemption purposes. In marketing to prospective NLS employees, Mr. Obonsawin would emphasize the advantages he thought were offered by NLS including support services, a benefit package, training and the tax exempt status for Indian employees. Mr. Obonsawin felt that there was a need for strengthening of the NFC’s programs, by providing a better system for training and for educating staff. Taxation exemption was one way to accomplish the purposes.
[9] The NLS advantage that caught the attention of a placement organization and its employees was indeed tax exemption for status Indians employees. In effect, the placement organization’s Native employees would become employees of NLS and provide the same services to the placement organization as they did previously but with a different legal employer, NLS. The placement organization could provide a salary level higher in reality, than others, because the employees, if status Indians, were getting their salary exempt of tax. NLS completed all employee paperwork, including the payroll and source deductions and provided human resources support. If an employee became problematic the placement organization would inform NLS, would attempt to resolve the issue(s) and, if the issue(s) could not be resolved, then the employee was terminated. NLS would then follow through with employment counseling.
[10] Once a Native employee of a placement organization became an employee of NLS, the employee would provide an executed release of liability form to the placement organization. A standard placement agreement was generated by NLS Human Resources defining the lease position, the annual cost, the relationship, notices if there was termination of the relationship, as well as confidentiality and conflict of interest issues. The Agreement would be sent to a placement organization for signature and returned to NLS for the signature of Mr. Obonsawin. The contractual obligations by NLS to the placement organizations were basically to provide payroll services, training, and some benefits as well as some human resources services. Once the placement agreement completed, a contract of employment was also completed for each of the employees.
[11] The contract of employment is particular with respect to the benefits chosen by the employee. Employment Insurance and Canada Pension Plan deductions were not options of the employee as NLS was responsible for source deductions. NLS handled all remittances, did all the filings, dealt with modified work and return to work, kept track of vacation pay as well as paid leave or time off and was responsible for compliance with all employer standards legislation.
[12] Mr. Obonsawin obtained a business address for NLS where it performed most of its business operations on Six Nations Reserve because he thought the location of the employer may be of significance in the cases presently before the courts with respect to the potential tax exemption available to status Indians. All NLS files including financial and staff records were kept at the Six Nations Reserve office. NLS also had an office in Toronto where some of NLS’s administrative work was carried out.
[13] If a placement organization wanted to terminate its relationship with NLS, the employees were paid up to the final day with NLS including vacation pay. If an employee was terminated, NLS would try to place the employee with another organization depending on what was available. The assistance provided to terminated employees was limited to information about Native employment opportunities. NLS issued bi-weekly newsletters which showed opportunities that were available for employees.
[14] In any dispute between leased employees and the placement organization the initial contact would be with a NLS Human Resources staff. They would receive the complaint, define the issues, and speak with the employee and the placement organization. If the issue was straightforward, they dealt with it, if not they would go to a labour lawyer.
[15] Mr. Obonsawin felt that training was a benefit to NLS employees as it was provided free by NLS. According to Mr. Obonsawin this made it attractive for the placement organizations to do business with NLS. In 1996 NLS only paid $3,979 in training and in 1997, $5,910, even though NLS had hundreds of employees. Training was contracted out by NLS and provided by non‑Native entities (except for the Ojibuay Language Conference and a Counseling Workshop). No training was provided on a reserve and attendees could be Native or non-Native. None of the Appellants took any of the training offered. NLS would pay for the training registration but the wages and travel of the employees would be paid by the placement organization and the training would be treated as a work day. Also, the placement organizations provided some training to their own employees. The training provided by the placement organization was specific to the job services provided while the training provided by NLS through non-Native entities was more generic in nature. NLS did not know what training was needed by employee X or if employee X would benefit from any particular training. Employees would have an opportunity to file a training registration form, with their placement organization supervisor’s approval.
[16] NLS was generally paid four weeks in advance by the placement organizations and this payment was NLS’ only source of revenue. The placement organization would deposit invoice payments at a CIBC via a Rapidtrans Account which allowed the invoice payments to go into the account of NLS through a nearby CIBC close to the placement organization. NLS would receive time cards from placement organizations and then pay the employees of NLS accordingly, the following week. Payroll services by NLS to their employees were initially contracted out by NLS to CIBC, then to ComCheque and then to Certidian, all of which were non-Native and all of which operated off the reserve. The NLS benefit package was out‑sourced to Great‑West Life and Rice Financial, both non-Native institutions who also perform their business off the reserve.
2. Facts Applicable to Delores Joyce Maguire – 2007-496(IT)I
[17] The taxation years at issue are 1999 and 2001. Ms. Delores Joyce Maguire was born and raised on the Glooscap First Nation Reserve. At the age of 19 she married into another culture and lost her Indian status under the Indian Act. Since her marriage, Ms. Maguire has not lived on a reserve but she ultimately regained her Indian status.
[18] Ms. Maguire became an addictions counselor in and about the Native community. As such she was responsible for members of the community who wanted to pursue addiction treatment workshops and counseling. She became a band employee of Native Alcohol Drug Abuse Counseling Association of Nova Scotia (“NADA”) headquartered at the Eskasoni Reserve with her office on the Glooscap First Nation reserve. Ms. Maguire became interested in Fetal Alcohol Syndrome (FAS) and became a FAS Coordinator in NADA, bringing FAS programs to thirteen First Nation communities.
[19] In May 1999, Ms. Maguire took a leave of absence from her employment with NADA to become FAS Coordinator for a conference sponsored by the Mi’kmaq Native Friendship Society (“MMNFS”). This conference, in October 1999 in Halifax, Nova Scotia, was organized in part by Ms. Maguire. Aboriginal and non‑Aboriginal people from all over Canada attended the conference.
[20] From October 1999 to June 2000, Ms. Maguire acted as an FAS Coordinator, developing FAS programs accessibility to the community. She developed pamphlets and resources for the communities and presented workshops. Although she was based out of Halifax, Nova Scotia, she conducted workshops across Canada. The program was funded by MMNFS which had obtained funding through the NFCS, Health Canada and other groups in Halifax.
[21] From September 2000 to August 2001, Ms. Maguire worked under the Aboriginal Healing Foundation providing programs for workshops so communities could understand the link between FAS and residential schools, and how residential schools impacted the Natives. The programs were intended to develop healing tools and offer resources for the community.
[22] Ms. Maguire was involved in a total of five workshops including:
1) What was a residential school?
2) FAS and its connection to residential schools;
3) Welcome home reception;
4) Women celebrating;
5) Healing.
Most of the workshops were delivered at separate times under no particular schedule in various communities. When not giving workshops she was dealing with FAS issues upon request, which was about 50% of her time.
[23] Ms. Maguire paid 4% of her earnings as a service fee to NLS to become an employee of NLS. She felt that for the service fee she was paying to NLS, she received access to training but she did not take any, nor did she receive any extra benefits per se because she already had certain medical benefits through Health Canada. There were source deductions for Employment Insurance, Canada Pension Plan, Worker’s Compensation and vacation pay so the only benefit for her was the promised tax exemption status.
[24] The MMNFS had presented NLS as an option to her in terms of employment while she was their employee. NLS officials were not members of the Glooscap First Nation nor did NLS have any offices at the Glooscap First Nation. Ms. Maguire had never been at the Six Nations Reserve nor was she a member of the Six Nations Reserve where NLS’ offices were located.
[25] The Appellant Maguire gave a release to MMNFS for her employment in May 1999. She provided employment information to NLS on April 19, 1999, with a scheduled start date with NLS of May 3, 1999; her contract of employment with NLS showed her start date to be September 18, 2000. Even though her employment contract with NLS was dated September 18, 2000, the NLS signed a placement agreement with MMNFS on May 3, 1999 for the position that she was to occupy.
[26] In 1999, Ms. Maguire received T4’s from MMNFS showing employment income of $29,240 which she declared in her 1999 T1. The Minister reassessed her adding $5,687 to her 1999 income as T4 income from NLS. In 2001, her declared income was adjusted by the Minister to include income from NLS of $27,541.
3. Facts Applicable to Maureen Googoo – 2007-49(IT)I:
[27] The taxation years at issue are 2000 and 2001. Ms. Maureen Googoo was born in Truro, Nova Scotia and raised by her parents on the Indian Brook First Nation Reserve. She was trained as a journalist receiving a B.A. with a Major in Political Science from St. Mary’s University in May 1992. She received a Bachelor of Applied Arts in Journalism at Ryerson University in Toronto in June 1994 and obtained a Masters in Journalism at Columbia University in 2006.
[28] Ms. Googoo has worked in journalism for most of her life, initially as a CBC reporter in Saskatchewan, then as a reporter with the Chronical‑Herald Newspaper in Halifax, and from January 31, 2000 to 2006, with the Aboriginal Peoples Television Network (“APTN”).
[29] The Government of Canada had established the Northern Broadcasting Policy and Northern Native Broadcast Access Program (“NNBAP”), which was introduced in a fund called the Northern Distribution Program (“NDP”) for the purposes of establishing and maintaining extensive radio networks since television groups still lacked an effective means of distribution. APTN was launched on September 1, 1999 as an established non-profit corporation, distributing broadcast national services to Aboriginal and northern audiences of over 9 million homes via cable television direct home and wireless service distributors.
[30] APTN’s funding was provided for by NDP, maintaining services for 96 northern communities for Aboriginal language programs and satellite channels. APTN was the sole recipient of funding under NDP and transmitted CBC programming on the system to communities not served by CBC. It currently receives revenues from service subscribers; with a 21 member board almost half of whom are appointed to the board by the NNBAP, APTN is headquartered in Winnipeg with presentation centres in Yellowknife, Whitehorse and Iqualuit and newsrooms in Ottawa, Toronto, Halifax and Vancouver.
[31] In 2003, APTN employed a staff of 84 of whom 72% were Aboriginal. It is the first and only national Aboriginal broadcaster in the world with the programming by, for and about Aboriginal peoples, shared with all Canadians as well as viewers around the world. APTN programs are aimed at both Aboriginal and non‑Aboriginal audiences, the programming including documentaries, news magazines, dramas, entertainment specials, children’s series, cooking shows and education programs, youth, cultural and traditional programming, music, drama, news and current affairs, Hollywood movies, as well as live coverage of special events and interactive programming.
[32] When Ms. Googoo started her employment at APTN, she was to establish an APTN bureau in Halifax, but she did the job out of her parent’s home on the Indian Brook First Nation Reserve until October 2000 from which time she operated the APTN bureau in Halifax, until May 2005. Ms. Googoo was a status Indian with the Shubenacadie Reserve. She lived on the Indian Brook First Nation Reserve throughout as she thought it was good to cultivate sources in the community and she wanted to be near her parents.
[33] Ms. Googoo was basically a one-person show for APTN in Halifax. She covered Aboriginal events and news of Aboriginal peoples; she would go into the field, shoot video, conduct and tape interviews, edit the script when and if required, record same and then ship it to Winnipeg, Manitoba, for additional editing. During any given week she would usually spend a day lining up a story and then doing the story the next day, the following day returning from the site, and doing the story line and necessary editing before shipping the story to Winnipeg.
[34] In carrying out her duties, Ms. Googoo would attend at various locations in Atlantic Canada where there would be major news stories. In following the major news stories, there would be other news outlets also on‑site including CTV and CBC. There was an arrangement made between APTN and CTV to the effect that CTV paid APTN $300,000 for five years to set up bureaus across the country; APTN would share facilities and feed news items to CTV, upon request.
[35] In addition to traveling to various places in Atlantic Canada for major news stories, Ms. Googoo would also seek out and develop her own Aboriginal news stories. She would prepare and pitch a story to her APTN supervisor for approval and then shoot the story herself. She would send her video to APTN’s office in Winnipeg for viewing, editing and publication and APTN would use the video for its weekly news broadcast.
[36] Ms. Googoo became aware of NLS when she was taking her training with APTN. There was a presentation by Mr. Obonsawin and Ms. Dianne Irwin, the Executive Director of NLS, to APTN employees. The most appealing part of the presentation was the possibility that status Indians could receive their pay tax-exempt. She was told about the risk of signing up as an employee of NLS (that is, that the income may not be tax‑exempt) but she signed up with NLS in any event. Her feeling was that she was a status Indian and she was entitled to receive a tax‑free salary. She was paid electronically by NLS and would receive pay stubs in the mail along with newsletters, information with respect to other employment opportunities, and updates on court cases regarding tax exemption.
[37] Ms. Googoo was an employee of NLS from March 2000 to October 31, 2001. In July 2001, employees of APTN were told that APTN would be terminating their agreement with NLS because the Minister had informed APTN that they could very well be liable for taxes of the employees. Once NLS’ agreement was terminated, Ms. Googoo received an immediate offer of employment from APTN and continued to work with APTN upon termination with NLS in the same position. When she signed her initial contract with NLS she declined the health benefits package.
[38] As an NLS employee, she continued to fill in APTN timesheets for her APTN supervisor’s signature. She would accumulate her overtime and by December 29, 2000 had accumulated 18 days of overtime. Rather than being paid for overtime, the APTN supervisor told her to take the time in lieu. Training and development had to be approved by her APTN supervisor, with the course fee being paid for by APTN.
[39] Ms. Googoo made a request for, and received a salary increase during her employment with NLS. She filled out a request for salary increases with APTN after her performance was evaluated by her supervisor at APTN, Bruce Spence, with the salary increase being retroactive to January 31, 2001. While working with APTN, Ms. Googoo used her own personal telephone, the telephone bills being reimbursed by APTN.
[40] When she became an employee of NLS, she signed a release as employee of APTN, as well as an information sheet for NLS. This information sheet provided the particulars in relation to her full-time position, pay and start date. She agreed to pay a service fee (amount unknown to her) to NLS through payroll deductions.
[41] Ms. Googoo found her arrangement with NLS both positive and beneficial because she was able to use NLS to get income tax‑free money; she felt that since she was raised on a reserve, section 87 of the Indian Act should apply to her.
[42] The Minister reassessed Ms. Googoo for income earned from NLS and added $31,384 and $34,898 to her 2000 and 2001 taxation years respectively.
4. Facts Applicable to Renee Masching – 2007-2116(IT)I:
[43] The taxation year at issue is 2005. Ms. Renee Masching was born in Welland, Ontario and raised in St.Catharines and Mississauga, Ontario, in a non‑Aboriginal family, having been adopted when she was three months old. She is a status Indian and a member of the Six Nations Reserve with the Deleware First Nation. She was not aware of her Aboriginal background until the age of 18 at which time she pursued her ancestry and eventually was awarded her status under the Indian Act.
[44] Ms. Masching had earned a Masters in Social Worker, a Bachelor of Social Worker and a Bachelor of Arts in Psychology, all from McMaster University in 2003 and 1994, respectively.
[45] During her pursuit of Aboriginal status and her training, Ms. Masching became interested in the Aboriginal peoples, their problems and particularly the HIV/AIDS problems within the Aboriginal population.
[46] In 2005, as a Research Technical Assistant with the Canadian Aboriginal AIDS Network Inc. (CAAN), she encouraged community based HIV/AIDS research. The research was conceived by management and directed by the community, working with academics and people in the communities with AIDS. The community representatives would include staff of Aboriginal AIDS organizations, Inuit organizations including nurses from the north, elders, family members and persons involved in Aboriginal addictions. Some of the organizations involved both Aboriginal and non‑Aboriginal peoples. Ms. Masching assisted in developing research skills in the community by doing community workshops and promoting cultural understanding through role modeling.
[47] Ms. Masching has never lived on a reserve and at all times, worked from her home in Lawrencetown, Nova Scotia. In her employment she has traveled to Regina, Ottawa and Toronto to attend annual meetings as well as to her employer’s head office.
[48] She had heard of the NLS through the MMNFS in Halifax. She says that in 2005 she was an employee of NLS, not the CAAN, her original employer. In 2005 all CAAN employees (Aboriginal and non-Aboriginal) were leased to NLS with all payroll for CAAN in 2005 being processed by NLS. It was NLS that oversaw her work in the broad context but the day-to-day instructions and work was with CAAN. In her evidence, Ms. Masching said if asked who she worked for, she would probably answer CAAN but technically her employer was NLS.
[49] She had signed an employment contract with NLS and declined most benefits from NLS other than the statutory source deductions. She had given a variety of information to NLS and had instructed NLS not to deduct any income tax from her pay cheques. In 2005 she did not work on a reserve with CAAN. The work that she did was meant to be applicable across the country and was provided both on and off reserve throughout Canada, regardless of residency but always in the context of Aboriginals. CRA reassessed Ms. Masching with $15,084 in additional income from NLS for the 2005 taxation year.
5. Facts Applicable to Trina Roache – 2007-846(IT)I:
[50] The taxation year at issue is 2001. Ms. Trina Roache was born and raised in Halifax. She is a status Indian with the Glooscap First Nation. She obtained a B.A. in 1999 from Mt. St. Vincent University and a Bachelor of Journalism in 2000 from King’s College. She was a CBC radio reporter in Prince Edward Island from April 2000 to March 2001.
[51] Ms. Roache began employment with APTN in March 2001 and immediately with NLS at that time, until October 31, 2001. Ms. Roache, became aware of NLS when she was taking training at the APTN, where Ms. Dianne Irwin and Mr. Obonsawin made a presentation regarding the fact that a status Indian could receive their pay tax-exempt. She admits being aware at the time that there was a risk to signing on with NLS, as an employee, since the tax‑exempt status may not hold up — in any event, she did sign on to be an employee with NLS. Under her employment contract with NLS, she paid them a service fee. She simultaneously held a consulting contract with APTN for the same pay, conducting the same services.
[52] In July 2001, when APTN was told by the Minister that it could be liable for the income taxes of the employees of NLS, Ms. Roache terminated her contract and received an employment offer from APTN, continuing in the same position.
[53] Like Ms. Googoo, Ms. Roache would accumulate overtime but was paid by APTN in time in lieu.
[54] Ms. Roache was also a video‑journalist doing her own research, reporting and shooting. She was expected to do two stories per week but she did not do any editing at the time. She worked out of the APTN office in Halifax. No stories were handed to her; she had to generate her own story ideas, do her own research, line up the interviews, pursue with the filming, write up the stories and then ship the report out to APTN in Winnipeg, Manitoba. The coverage was focused on the Aboriginal peoples. She would pitch stories to her supervisor Bruce Spence and receive instructions from him. Other news outlets were present, including CBC, CTV and newspapers, but most of the stories were hers, concerning the Aboriginal communities in the Indian Brook Reserve, Esconia Reserve and Big Cove Reserve in Nova Scotia. She felt she was making a contribution to the life on the reserves with APTN, reporting stories about Aboriginal people to Aboriginal people.
[55] Ms. Roache was reassessed for the 2001 year, where the Minister added $25,223 to her income gained from her NLS employment.
6. Facts Applicable to Elizabeth Grant - 2007-1710(IT)I:
[56] The taxation year at issue is 2001. Ms. Elizabeth Grant is a status Indian, born in St. John, New Brunswick where she was raised for ten years until she moved to Toronto, Ontario.
[57] From 1975 to 1980, Ms. Grant, was employed as recreation director with the Native Council of Nova Scotia in Truro, Nova Scotia. For a brief period of time she was employed at a Friendship Centre in Toronto, Ontario, and then worked at the Native Council of Canada in 1985 in an administrative position. She took a leave from employment returning to the Native Council of Canada in 1994. In 1999, she moved to Nova Scotia and received some business ownership training on the Millbrook Reserve in Truro.
[58] On January 8, 2001 Ms. Grant accepted a position with the Native Women’s Association of Canada (“NWAC”) at its Ottawa offices as Executive Assistant to the then President. The position ended with the resignation of the President on January 31, 2001 but because NWAC advised NLS that there was other employment for Ms. Grant, she continued to work with the NWAC as a research assistant, helping on a variety of ongoing projects, including research and statistics with respect to the Native women in Canada, until April 30, 2001.
[59] The NWAC was founded to enhance, promote and foster the social, economic, cultural and political well-being of First Nations and Métis women within First Nation Métis and Canadian societies. The objectives of NWC included developing solutions for problems unique to Native women and promoting their interests across Canada, as well as studying, in conjunction with the Native organizations, problems confronting Native women. This also included making representations to the government on behalf of members of the provincial and territorial women’s organizations.
[60] While working with NWAC, Ms. Grant was under a contract of employment dated January 8, 2001 with the NLS. When Ms. Grant signed her contract of employment with NLS, she agreed to pay a 4% service fee to NLS and to have this deducted from her payroll. Ms. Grant resided in Ottawa throughout the relevant period of time and her employment functions were not performed on a reserve.
[61] Ms. Grant, was familiar with the services offered by NLS because she had been employed with them prior to her employment with NWAC. As a status Indian, she was able to acquire health benefits through Health Canada and as a result declined those offered to her by NLS. She was happy to be employed by NLS because of the benefits, particularly the possible tax exemption status, and being made aware of employment opportunities as they became available.
[62] Once Ms. Grant’s employment with NWAC ended in April 30, 2001, she moved to Nova Scotia and obtained employment with the Nova Scotia Native Women’s Association on her own, without any assistance from NLS.
[63] The Minister assessed Ms. Grant with an additional $13,039 in employment income from her employment with NLS in 2001.
7. Facts Applicable to Noel Knockwood – 2007-53(IT)I:
[64] The taxation years at issue are 2000 and 2001. Mr. Noel Knockwood is a status Indian, member of the Shubenacadie Band and was at all material times residing in Dartmouth, Nova Scotia, but not on a reserve.
[65] Mr. Knockwood, worked at MMNFS as a language and cultural instructor performing his duties at the Child Development Centre and Friendship Centre in Halifax, Nova Scotia. The MMNFS is a not for profit Friendship Center which promotes social based programming for urban Aboriginal peoples while serving as a focal point for them, in a variety of community functions and events, and practicing an open door policy for all its programs and events. Its services were available to all people regardless of their background or cultural affiliation.
[66] One of MMNFS’ objectives was to benefit the Native people in promoting education and cultural advancement for them, in and about the Halifax and Dartmouth areas. The MMNFS operated in downtown Halifax. It offered family support and counsel services for alcohol and drug abuse, as well as child care and programs such as a child development centre and health education and care of the elders, but these were not exclusively for Aboriginal people. There were also youth programs, youth training, adult training, employment support, computer training and other recreational programs.
[67] The Child Development Centre where Mr. Knockwood was employed offered a variety of sub-programs including the Aboriginal day care program which provided children with opportunities to engage in play activities promoting their physical, social, emotional linguistic and cultural development with priority given to Aboriginal children but any remaining spaces being offered to non‑Aboriginal children.
[68] The Community Action Plan for children was a mission to provide “family” based programming for the local urban Aboriginal community and the Aboriginal Head Start Program, which had for mission the preparation of urban Aboriginal children for entry into the public school system in the Halifax Regional Municipality. Mr. Knockwood taught anyone interested in the Aboriginal culture and language, both adults and children.
[69] Mr. Knockwood had an initial contract of employment with NLS which commenced on June 15, 2000 and provided for statutory source deductions but not for group life or health insurance. A second contract of employment between Mr. Knockwood and NLS became e