Robinson v. The Queen

Robinson v. The Queen
Court (s) Database
Tax Court of Canada Judgments
Date
2010-12-22
Neutral citation
2010 TCC 649
File numbers
2007-154(IT)I
Judges and Taxing Officers
Dwayne W. Rowe
Subjects
Income Tax Act
Decision Content
Docket: 2007-154(IT)I
BETWEEN:
JUNE ROBINSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard on common evidence with the appeals of
Douglas Cockburn (2007-499(IT)I); Linda Cockburn (2007-500(IT)I);
Simone Hillier (2007-799(IT)I); Sandra King (2007-807(IT)I);
Jules Koostachin (2007-1026(IT)I); Julie Debassige (2007-1110(IT)I);
Joan Kennedy (2007-1391(IT)I); Leanna Gerrior (2007-1525(IT)I);
Martin John (2007-1526(IT)I); Janet Takata (2007-1897(IT)I);
Bonnie Guarisco (2009-1125(IT)I); John Y Takata (2009-3790(IT)I);
on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Counsel for the Appellant:
Graham Ragan
Jaimie Lickers
Counsel for the Respondent:
Laurent Bartleman
Anne Jinnouchi
____________________________________________________________________
JUDGMENT
The appeal from the assessments made under the Income Tax Act for the 1995, 1996, 1997, 1999, 2005, 2006, 2007 and 2008 taxation years is dismissed in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia this 22nd day of December 2010.
“D.W. Rowe”
Rowe D.J
Docket: 2007-499(IT)I
BETWEEN:
DOUGLAS COCKBURN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard on common evidence with the appeals of
June Robinson (2007-154(IT)I); Linda Cockburn (2007-500(IT)I);
Simone Hillier (2007-799(IT)I); Sandra King (2007-807(IT)I);
Jules Koostachin (2007-1026(IT)I); Julie Debassige (2007-1110(IT)I);
Joan Kennedy (2007-1391(IT)I); Leanna Gerrior (2007-1525(IT)I);
Martin John (2007-1526(IT)I); Janet Takata (2007-1897(IT)I);
Bonnie Guarisco (2009-1125(IT)I); John Y Takata (2009-3790(IT)I);
on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Counsel for the Appellant:
Graham Ragan
Jaimie Lickers
Counsel for the Respondent:
Laurent Bartleman
Anne Jinnouchi
____________________________________________________________________
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 1995 taxation year is dismissed in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia this 22nd day of December 2010.
“D.W. Rowe”
Rowe D.J.
Docket: 2007-500(IT)I
BETWEEN:
LINDA COCKBURN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard on common evidence with the appeals of
Douglas Cockburn (2007-499(IT)I); June Robinson (2007-154(IT)I);
Simone Hillier (2007-799(IT)I); Sandra King (2007-807(IT)I);
Jules Koostachin (2007-1026(IT)I); Julie Debassige (2007-1110(IT)I);
Joan Kennedy (2007-1391(IT)I); Leanna Gerrior (2007-1525(IT)I);
Martin John (2007-1526(IT)I); Janet Takata (2007-1897(IT)I);
Bonnie Guarisco (2009-1125(IT)I); John Y Takata (2009-3790(IT)I);
on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Counsel for the Appellant:
Graham Ragan
Jaimie Lickers
Counsel for the Respondent:
Laurent Bartleman
Anne Jinnouchi
____________________________________________________________________
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 1995 taxation year is dismissed in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia this 22nd day of December 2010.
“D.W. Rowe”
Rowe D.J.
Docket: 2007-799(IT)I
BETWEEN:
SIMONE HILLIER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard on common evidence with the appeals of
Douglas Cockburn (2007-499(IT)I); June Robinson (2007-154(IT)I);
Linda Cockburn (2007-500(IT)I); Sandra King (2007-807(IT)I);
Jules Koostachin (2007-1026(IT)I); Julie Debassige (2007-1110(IT)I);
Joan Kennedy (2007-1391(IT)I); Leanna Gerrior (2007-1525(IT)I);
Martin John (2007-1526(IT)I); Janet Takata (2007-1897(IT)I);
Bonnie Guarisco (2009-1125(IT)I); John Y Takata (2009-3790(IT)I);
on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Counsel for the Appellant:
Graham Ragan
Jaimie Lickers
Counsel for the Respondent:
Laurent Bartleman
Anne Jinnouchi
____________________________________________________________________
JUDGMENT
Upon motion made by counsel for the Respondent for an Order to quash the Appellant’s purported appeal for the 1999 taxation year on the basis no federal tax was payable;
And counsel for the Appellant having not opposed this motion;
The motion is granted and the purported appeal for the 1999 taxation year is hereby quashed in accordance with the attached Reasons for Judgment.
The appeal from the assessments made under the Income Tax Act for the 1995, 1998, 2005 and 2006 taxation years is dismissed in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia this 22nd day of December 2010.
“D.W. Rowe”
Rowe D.J.
Docket: 2007-807(IT)I
BETWEEN:
SANDRA KING,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard on common evidence with the appeals of
Douglas Cockburn (2007-499(IT)I); June Robinson (2007-154(IT)I);
Linda Cockburn (2007-500(IT)I); Simone Hillier (2007-799(IT)I);
Jules Koostachin (2007-1026(IT)I); Julie Debassige (2007-1110(IT)I);
Joan Kennedy (2007-1391(IT)I); Leanna Gerrior (2007-1525(IT)I);
Martin John (2007-1526(IT)I); Janet Takata (2007-1897(IT)I);
Bonnie Guarisco (2009-1125(IT)I); John Y Takata (2009-3790(IT)I);
on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Counsel for the Appellant:
Graham Ragan
Jaimie Lickers
Counsel for the Respondent:
Laurent Bartleman
Anne Jinnouchi
____________________________________________________________________
JUDGMENT
The appeal from the assessments made under the Income Tax Act for the 1999, 2005, 2006 and 2007 taxation years is dismissed in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia this 22nd day of December 2010.
“D.W. Rowe”
Rowe D.J.
Docket: 2007-1026(IT)I
BETWEEN:
JULES KOOSTACHIN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard on common evidence with the appeals of
Douglas Cockburn (2007-499(IT)I); June Robinson (2007-154(IT)I);
Linda Cockburn (2007-500(IT)I); Simone Hillier (2007-799(IT)I);
Sandra King (2007-807(IT)I); Julie Debassige (2007-1110(IT)I);
Joan Kennedy (2007-1391(IT)I); Leanna Gerrior (2007-1525(IT)I);
Martin John (2007-1526(IT)I); Janet Takata (2007-1897(IT)I);
Bonnie Guarisco (2009-1125(IT)I); John Y Takata (2009-3790(IT)I);
on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Counsel for the Appellant:
Graham Ragan
Jaimie Lickers
Counsel for the Respondent:
Laurent Bartleman
Anne Jinnouchi
____________________________________________________________________
JUDGMENT
The appeal from the assessments made under the Income Tax Act for the 2005 and 2006 taxation years is dismissed in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia this 22nd day of December 2010.
“D.W. Rowe”
Rowe D.J.
Docket: 2007-1110(IT)I
BETWEEN:
JULIE DEBASSIGE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard on common evidence with the appeals of
Douglas Cockburn (2007-499(IT)I); June Robinson (2007-154(IT)I);
Linda Cockburn (2007-500(IT)I); Simone Hillier (2007-799(IT)I);
Sandra King (2007-807(IT)I); Jules Koostachin (2007-1026(IT)I);
Joan Kennedy (2007-1391(IT)I); Leanna Gerrior (2007-1525(IT)I);
Martin John (2007-1526(IT)I); Janet Takata (2007-1897(IT)I);
Bonnie Guarisco (2009-1125(IT)I); John Y Takata (2009-3790(IT)I);
on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Counsel for the Appellant:
Graham Ragan
Jaimie Lickers
Counsel for the Respondent:
Laurent Bartleman
Anne Jinnouchi
____________________________________________________________________
JUDGMENT
The appeal from the assessments made under the Income Tax Act for the 1996, 1997, 2002 and 2003 taxation years is dismissed in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia this 22nd day of December 2010.
“D.W. Rowe”
Rowe D.J.
Docket: 2007-1391(IT)I
BETWEEN:
JOAN KENNEDY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard on common evidence with the appeals of
Douglas Cockburn (2007-499(IT)I); June Robinson (2007-154(IT)I);
Linda Cockburn (2007-500(IT)I); Simone Hillier (2007-799(IT)I);
Sandra King (2007-807(IT)I); Jules Koostachin (2007-1026(IT)I);
Julie Debassige (2007-1110(IT)I); Leanna Gerrior (2007-1525(IT)I);
Martin John (2007-1526(IT)I); Janet Takata (2007-1897(IT)I);
Bonnie Guarisco (2009-1125(IT)I); John Y Takata (2009-3790(IT)I);
on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Counsel for the Appellant:
Graham Ragan
Jaimie Lickers
Counsel for the Respondent:
Laurent Bartleman
Anne Jinnouchi
____________________________________________________________________
JUDGMENT
The appeal from the assessments made under the Income Tax Act for the 1995, 1996, 1998, 1999, 2000 and 2001 taxation years is dismissed in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia this 22nd day of December 2010.
“D.W. Rowe”
Rowe D.J.
Docket: 2007-1525(IT)I
BETWEEN:
LEANNA GERRIOR,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard on common evidence with the appeals of
Douglas Cockburn (2007-499(IT)I); June Robinson (2007-154(IT)I);
Linda Cockburn (2007-500(IT)I); Simone Hillier (2007-799(IT)I);
Sandra King (2007-807(IT)I); Jules Koostachin (2007-1026(IT)I);
Julie Debassige (2007-1110(IT)I); Joan Kennedy (2007-1391(IT)I);
Martin John (2007-1526(IT)I); Janet Takata (2007-1897(IT)I);
Bonnie Guarisco (2009-1125(IT)I); John Y Takata (2009-3790(IT)I);
on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Counsel for the Appellant:
Graham Ragan
Jaimie Lickers
Counsel for the Respondent:
Laurent Bartleman
Anne Jinnouchi
____________________________________________________________________
JUDGMENT
The appeal from the assessments made under the Income Tax Act for the 1995, 1996, 1997 and 1998 taxation years is dismissed in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia this 22nd day of December 2010.
“D.W. Rowe”
Rowe D.J.
Docket: 2007-1526(IT)I
BETWEEN:
MARTIN JOHN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard on common evidence with the appeals of
Douglas Cockburn (2007-499(IT)I); June Robinson (2007-154(IT)I);
Linda Cockburn (2007-500(IT)I); Simone Hillier (2007-799(IT)I);
Sandra King (2007-807(IT)I); Jules Koostachin (2007-1026(IT)I);
Julie Debassige (2007-1110(IT)I); Joan Kennedy (2007-1391(IT)I);
Leanna Gerrior (2007-1525(IT)I); Janet Takata (2007-1897(IT)I);
Bonnie Guarisco (2009-1125(IT)I); John Y Takata (2009-3790(IT)I);
on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Counsel for the Appellant:
Graham Ragan
Jaimie Lickers
Counsel for the Respondent:
Laurent Bartleman
Anne Jinnouchi
____________________________________________________________________
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 1996 taxation year is dismissed in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia this 22nd day of December 2010.
“D.W. Rowe”
Rowe D.J.
Docket: 2007-1897(IT)I
BETWEEN:
JANET TAKATA,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard on common evidence with the appeals of
Douglas Cockburn (2007-499(IT)I); June Robinson (2007-154(IT)I);
Linda Cockburn (2007-500(IT)I); Simone Hillier (2007-799(IT)I);
Sandra King (2007-807(IT)I); Jules Koostachin (2007-1026(IT)I);
Julie Debassige (2007-1110(IT)I); Joan Kennedy (2007-1391(IT)I);
Leanna Gerrior (2007-1525(IT)I); Martin John (2007-1526(IT)I) ;
Bonnie Guarisco (2009-1125(IT)I); John Y Takata (2009-3790(IT)I);
on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Counsel for the Appellant:
Graham Ragan
Jaimie Lickers
Counsel for the Respondent:
Laurent Bartleman
Anne Jinnouchi
____________________________________________________________________
JUDGMENT
The appeal from the assessments made under the Income Tax Act for the 2005, 2006, 2007 and 2008 taxation years is dismissed in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia this 22nd day of December 2010.
“D.W. Rowe”
Rowe D.J.
Docket: 2009-1125(IT)I
BETWEEN:
BONNIE GUARISCO,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard on common evidence with the appeals of
Douglas Cockburn (2007-499(IT)I); June Robinson (2007-154(IT)I);
Linda Cockburn (2007-500(IT)I); Simone Hillier (2007-799(IT)I);
Sandra King (2007-807(IT)I); Jules Koostachin (2007-1026(IT)I);
Julie Debassige (2007-1110(IT)I); Joan Kennedy (2007-1391(IT)I);
Leanna Gerrior (2007-1525(IT)I); Martin John (2007-1526(IT)I) ;
Janet Takata (2007-1897(IT)I); John Y Takata (2009-3790(IT)I);
on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Counsel for the Appellant:
Graham Ragan
Jaimie Lickers
Counsel for the Respondent:
Laurent Bartleman
Anne Jinnouchi
____________________________________________________________________
JUDGMENT
The appeal from the assessments made under the Income Tax Act for the 2005, 2006 and 2007 taxation years is dismissed in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia this 22nd day of December 2010.
“D.W. Rowe”
Rowe D.J.
Docket: 2009-3790(IT)I
BETWEEN:
JOHN Y TAKATA,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard on common evidence with the appeals of
Douglas Cockburn (2007-499(IT)I); June Robinson (2007-154(IT)I);
Linda Cockburn (2007-500(IT)I); Simone Hillier (2007-799(IT)I);
Sandra King (2007-807(IT)I); Jules Koostachin (2007-1026(IT)I);
Julie Debassige (2007-1110(IT)I); Joan Kennedy (2007-1391(IT)I);
Leanna Gerrior (2007-1525(IT)I); Martin John (2007-1526(IT)I) ;
Bonnie Guarisco (2009-1125(IT)I); Janet Takata (2007-1897(IT)I);
on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario
Before: The Honourable D.W. Rowe, Deputy Judge
Appearances:
Counsel for the Appellant:
Graham Ragan
Jaimie Lickers
Counsel for the Respondent:
Laurent Bartleman
Anne Jinnouchi
____________________________________________________________________
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 2007 taxation year is dismissed in accordance with the attached Reasons for Judgment.
Signed at Sidney, British Columbia this 22nd day of December 2010.
“D.W. Rowe”
Rowe D.J.
Citation: 2010 TCC 649
Date: 20101222
Docket: 2007-154(IT)I
BETWEEN:
JUNE ROBINSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent;
Docket: 2007-499(IT)I
AND BETWEEN:
DOUGLAS COCKBURN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent;
Docket: 2007-500(IT)I
AND BETWEEN:
LINDA COCKBURN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent;
Docket: 2007-799(IT)I
AND BETWEEN:
SIMONE HILLIER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent;
Docket: 2007-807(IT)I
AND BETWEEN:
SANDRA KING,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent;
Docket: 2007-1026(IT)I
AND BETWEEN:
JULES KOOSTACHIN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent;
Docket: 2007-1110(IT)I
AND BETWEEN:
JULIE DEBASSIGE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent;
Docket: 2007-1391(IT)I
AND BETWEEN:
JOAN KENNEDY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent;
Docket: 2007-1525(IT)I
AND BETWEEN:
LEANNA GERRIOR,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent;
Docket: 2007-1526(IT)I
AND BETWEEN:
MARTIN JOHN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent;
Docket: 2007-1897(IT)I
AND BETWEEN:
JANET TAKATA,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent;
Docket: 2009-1125(IT)I
AND BETWEEN:
BONNIE GUARISCO,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent;
Docket: 2009-3790(IT)I
AND BETWEEN:
JOHN Y TAKATA,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Rowe D.J.
[1] These appeals proceeded on the basis of common evidence. The issue in each of the appeals of Douglas Cockburn – 2007-499(IT)I, Martin John – 2007-1526(IT)I and John Y Takata – 2009-3790(IT)I, is whether any of them is entitled to deduct the personal credit for married status in the relevant taxation year, pursuant to paragraph 118(1)(a) of the Income Tax Act (the “Act”). The reassessment of the Minister of National Revenue (the “Minister”) issued to each Appellant is based on the net income of the spouse having exceeded the maximum allowable in each of the taxation year(s) at issue and as such, none of these Appellants – as spouses – were entitled to deduct the personal credit for married status. Counsel for the Appellants and counsel for the Respondent agreed the result in each of these appeals would depend on the decision rendered in respect of that Appellant’s spouse.
[2] The issue in the remaining group of appeals is whether the employment income earned by the Appellants was exempt from income tax by virtue of paragraph 87(1)(b) of the Indian Act, R.S.C. 1985, c. I-5, which provides that the personal property of an Indian or a band is exempt from taxation if situated on a reserve. The position of each Appellant employed by Native Leasing Services (“NLS”) is that the employment income is exempt from taxation pursuant to paragraph 81(1)(a) of the Act. The relevant period for these appeals is between the years 1995 and 2008. Each of the Appellants is an Indian as defined in the Indian Act. The appeals proceeded on the basis of common evidence, agreed facts and other evidence specific to certain Appellants.
[3] The position of the Respondent is that an application of the “connecting factors test” established by the Supreme Court of Canada in Williams v. Canada, [1992] 1 S.C.R. 877 did not connect the property of any Appellant to a reserve for the purpose of establishing whether the property is situated on a reserve. The Minister reassessed each Appellant on the basis no income was situated on a reserve.
[4] On consent of counsel for the parties, the following exhibits were filed:
· Exhibit R-1 – Joint Book of Documents;
· Exhibit R-2 – Ontario Federation of Indian Friendship Centres Book of Documents;
· Exhibit R-3 – O.I. Employee Leasing/Native Leasing Services New Leased Employee Information;
· Exhibit R-4 – Statement of Agreed Facts.
[5] With respect to Exhibit R-1, the title page displays a different Style of Cause than the one used in the within appeals. Now, the lead Appellant is June Robinson, a member of the group claiming exemption from taxation and other Appellants were named in ascending numerical order according to the docket number assigned to their appeal. The first page of Exhibit R-1 states the documents therein are to be deemed filed as an exhibit in each of the appeals noted below. There is a table containing further information and an explanatory heading that only documents relevant to the individual appeal of an Appellant will be deemed to be in the Joint Book of Documents for purposes of that appeal. Included in Exhibit R-1, is a 5-page Index indicating the location within the binder of certain documents which are arranged in categories according to the particular Placement Organizations involved and those relevant to a particular Appellant.
[6] Various documents and title pages within exhibits filed in the within appeals refer to an Appellant – Julie Pigeon – who advised the Court at the outset of the hearing that she did not wish to be part of the group of Appellants named herein and wanted to represent herself. Her appeal was heard prior to the commencement of the within appeals.
[7] With respect to Exhibit R-2, that binder was originally prepared for the specific appeal of Bonnie Guarisco – 2009-1125(IT)I but the documents therein – by agreement of counsel – are applicable to all Appellants, where relevant.
[8] Exhibit R-4 is a Statement of Agreed Facts, (“Agreed Facts”), the relevant portion of which is reproduced below:
STATEMENT OF AGREED FACTS
The parties to these appeals, for the purposes only of these appeals, and as common evidence, agree to the following facts. The parties agree that each party is free to adduce in evidence additional facts not inconsistent with this Statement of Agreed Facts.
1. The parties adopt the Statement of Agreed Facts filed in the Tax Court of Canada proceeding Roger Obonsawin v. Her Majesty the Queen, Tax Court File 2000-4164 (GST)G. In substance and effect those facts are applicable to years subsequent to the period they describe. Attached as Schedule “A” to this document is the Statement of Agreed Facts as filed in that proceeding and as Schedule “B” the financial statements referred to in Schedule “A”.
I. THE RELEVANT PERIOD
2. The relevant period for these appeals is between the years 1995 and 2008.
II. NATIVE LEASING SERVICES AND OI EMPLOYEE LEASING INC.
3. Roger Obonsawin is a status Indian and a member of the Odanak Indian Band, which has its reserve in Odanak, near Pierreville, east of Montreal. He is not a member of the Six Nations Band.
4. The Appellants were all employed by either Native Leasing Services (NLS) or OI Employee Leasing (OIEL) (together NLS/OIEL).
5. NLS, as an operating unit, was located on a reserve. NLS leased its office premises at the Woodland Cultural Centre on the Six Nations Reserve. NLS and other members of the O.I. Group of companies had offices in Toronto and Winnipeg but it operated primarily out of the Six Nations Reserve.
6. The majority of NLS/OIEL administrative staff in the Six Nations office, numbering from 8 to 15 people depending on the year, were Six Nations members, some of whom lived on the reserve. The key functions of the employee leasing operation – human resources administration, payroll and benefits administration, invoicing and accounting as well as general administrative support – were conducted on the Six Nations Reserve.
7. To the extent that there were any deviations from the procedures to concentrate administrative and business function on the Six Nations Reserve, these instances were minor and insignificant. All NLS/OIEL files including financial and staff records were kept at the Six Nations Reserve office. NLS/OIEL also had a Toronto office where some of NLS/OIEL’s administrative work was carried out. Obonsawin did not work regularly on the Six Nations Reserve, worked principally out of Toronto, and did not reside on the Six Nations Reserve until 2005, after which he still maintained his Toronto residence.
8. Up to 1999, the offices of NLS/OEIL were located in the Woodland Indian Cultural Centre on the Six Nation Reserve. In 2000, the offices were moved to a building known as “Eagle’s Nest”, which was also on Six Nations Reserve. The offices in both locations were rented from the Six Nations Band Council.
9. NLS/OIEL provided certain benefits to the Six Nations Reserve. These include training of personnel who live or may come to live on the reserve; however, this benefit was difficult to quantify. More direct benefit is evident in the rent to the reserve and salary and benefits paid to on-reserve staff during the years 1995 and 1996 was approximately $230,000 to $240,000.
10. The gross revenue of NLS/OIEL is generated off-reserve. It is estimated that OI had approximately 800 employees by 1997, 1000 leased employees by 1999, and as many as 1400 employees in the years between 1999 and 2006. The only functions carried out on the reserve are administrative functions.
11. From a business perspective, the employee leasing business is the sine qua non of NLS’s operations. NLS financial statements show:
a. In 1995 and 1996 respectively, NLS had gross revenue of $15,692,945 and $13,344,801, all of which were derived from the work of NLS employees off-reserve;
b. 95% of NLS’s costs were the wages and benefits paid to its employees who were contracted to off-reserve organizations. These costs of employees’ pay and benefits are funded by the clients in what is essentially a flow through where the employee’s pay and benefits are deposited by the client in NLS’s bank account to be drawn down (less the service fee) to fund NLS’s payroll for those employees leased to the client;
12. Roger Obonsawin does not have financial statements for NLS after 1997 although the business continues to operate.
13. The descriptions of the facts concerning Roger Obonsawin and the operations of NLS/OIEL by Justice Phelan of the Federal Court in the 2007 decision in Horn et al. v. The Queen at paras. 42 - 69 attached as Schedule “C” and Justice Paris of the Tax Court in the 2008 decision in Roe v. The Queen at paras. 6 - 20, attached as Schedule “D”, Associate Chief Justice Rossiter in the 2009 decision in Googoo v. The Queen at paras. 5 - 16, attached as Schedule “E” and Justice Sheridan in the 2009 decision in McIvor v. The Queen at paras. 20 - 31, attached as Schedule “F” fairly reflect the evidence that Roger Obonsawin has given and would give again.
DATED in the city of Toronto, Ontario, this 20th day of October, 2010.
…
[9] Pursuant to paragraph 13 of the Agreed Facts, there are references to specific paragraphs in four decisions – one by the Federal Court and three by the Tax Court of Canada – as cited therein and counsel agreed those findings of fact fairly reflect the evidence that Roger Obonsawin has given in other proceedings and would give again.
[10] In order to minimize repetition in the recital of facts, I have examined the Agreed Facts and the specific paragraphs in the decisions referred to, which are attached as Schedules C, D, E, and F to Exhibit R-4. For the purposes of the within appeals, I have chosen the following:
· from the decision of Phelan J. in Horn et al. v. The Queen et al., 2007 FC 1052, 2007 DTC 5589:
45 Obonsawin had extensive experience and training in the delivery of social services. His evidence was clear, direct and credible. The purpose of his business, aside from profit, was to improve his client organizations by providing training, governance expertise and administrative services including employee leasing.
46 The concept of employee leasing is another aspect of outsourcing. For a fee, an organization hires a leasing company to provide personnel and the administrative support for that personnel who, although employees of the leasing company, work for the hiring organization.
47 The genesis of the aboriginal employee leasing concept arose after Obonsawin and his partner, Ljuba Irwin, formed Obonsawin-Irwin Consulting Inc., a management consulting company focused on aboriginal organizations. Obonsawin saw the need for skills improvement in aboriginal organizations.
48 The original employee leasing operation was conducted by O.I. Employee Leasing Inc. However, in 1991 NLS was formed, as a proprietorship, and the operations of O.I. Employee Leasing Inc. were split. O.I. Employee Leasing Inc. clients were departments and agencies of various levels of government while NLS's clients were aboriginal not-for-profit organizations.
49 Obonsawin testified that NLS was set up originally to deal with GST problems and only later was he made aware of the decision of the Supreme Court in R. v. Nowegijick, [1983] 1 S.C.R. 29. Obonsawin testified that he saw the immediate tax benefits under s. 87 in that it would allow aboriginal organizations the opportunity to offer more competitive salaries and would attract a better skilled work force.
50 This testimony is instructive in that it focuses attention on competitive salaries and raises the question of "with whom is the competition for salaries". It suggests that attention is being paid to the "market place" or "the mainstream of commerce". The implication is that by employees being income tax exempt, NLS's clients could offer employment to Natives through NLS which would be the same net amount to the employee but at a lesser gross cost amount to NLS's client. The NLS fee was less than the applicable tax rate imposed on the native employee's income.
53 A central feature of NLS's business is its employee leasing function. It is not, however, the only feature -- NLS provided benefits to its client native organizations particularly that of training to assist new and existing directors, and training for the development of strategic and financial plans. The evidence is replete with instances of NLS assisting its clients in dealing with structural and governance issues. However, these organizations, such as the Centre and the Shelter, continued to do their own training. NLS training was clearly supplemental to those clients.
55 The structure of the payment to NLS by the client was 5% of each leased employee's income for which the client received the benefits of payroll and benefits management, human resources support, training and shared information between other similar organizations. The leased native employee principally received the benefit of the tax exempt status.
· from the decision of Paris J. in Roe v. Canada, 2008 TCC 667, [2008] T.C.J. No. 509, the following paragraphs:
16 NLS and OI employees were able to access a range of optional benefits such as life and disability insurance and health and dental coverage that might not have been available if the worker had been employed directly by the client organization. Mr. Obonsawin said that NLS and OI also provided training and retreats to evaluate the strategic plans of its employees, thus providing them with stability and direction. NLS and OI also maintained a library of training material on-site that could be accessed by any of the employees. Of the nine appellants in the cases at bar, only one took any training from NLS and none had used the library or participated in a retreat. NLS and OI also sent out newsletters and notices of job postings for different placement organizations to their employees.
18 NLS or OI would invoice the placement organizations four weeks in advance for the wages and fees for the NLS or OI employees working at the placement organization and, after receiving those funds, would pay the employees either by cheque or through direct deposit to their bank account. NLS and OI had bank accounts at an off-reserve bank in Ottawa for receiving direct deposits from clients and on the Hobbema Indian reserve in Alberta for paying employees and bills. No income tax was deducted from the salaries paid to the NLS or OI employees.
20 Mr. Obonsawin testified that one of the goals of NLS and OI was to assist in the development of a self-supporting native network in Canada. He said that the cross-country network of clients and employees that NLS and OI maintained, allowed employees to move between jobs and gain more skills and allowed them to give more back to their communities. He saw this as a means of dealing with native poverty. He said that the NLS and OI services could benefit any community and that the benefits to a reserve would come from the employees moving back to reserves with their new skills. Mr. Obonsawin estimated that NLS and OI had 1000 leased employees in 1999 and as many as 1400 in the years between 1999 and 2006.
· from the decision of Rossiter A.C.J. in Googoo v. Canada, 2008 TCC 589, 2009 DTC 1061, [2009] T.C.J. No. 48:
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.
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.
[11] Unless stated otherwise, reference to tabs hereafter are intended to refer to those located within the Joint Book of Documents, Exhibit R-1.
[12] There are various references in documents and in testimony to OI Employee Leasing, OIEL and OI Group. They will be referred to simply as OI. In some instances, there was a change in the employer of an Appellant from OI to NLS. However, in all the within appeals, the employer is NLS, a sole proprietorship of Roger Obonsawin. Anduhyaun was pronounced by various witnesses as, “En-dye-on”, “An-dye-on” or – in Ojibway – “Awn-dye-on.”
Jules Koostachin: 2007-1026(IT)I
Taxation years: 2005 and 2006
Relevant documents are at tabs 1A, 2B, 3I
[13] Jules Koostachin (“Koostachin”) testified she resides in Toronto. As a result of Bill C-31, her mother – in 1985 – regained status previously been lost through marriage to a non-native. Koostachin grew up in Moosonee and Ottawa and never lived on a reserve. Recently, she graduated from Ryerson University in the Masters Program in Documentary Media. She has extended family on the Attawapiskat First Nation Reserve located in the Kenora district of Ontario and visited there in the autumn of 2009 but not during 2005 and 2006. Koostachin stated she has no real connection to that Reserve but her family hunted and fished in that territory. She is a jingle dress dancer and participates in powwows held at various locations. Koostachin decided to become employed by NLS to exercise her perceived right to an exemption from income tax. As a single mother with two young children, the opportunity to take home more income was important. Koostachin worked as Director at a facility (the “Shelter”) operated by Anduhyaun Inc. (“Anduhyaun”) – a non-profit corporation pursuant to Letters Patent issued by the Province of Ontario on March 12, 1973. The Shelter – located in Toronto – was established to provide a place of refuge for Aboriginal women. Koostachin oversaw programs, handled intake and taught life skills within the context of an overall program designed to assist women fleeing violence in their homes or on the street. Since many Aboriginal people move from one area to another, many women seeking help had left their reserve. There are no reserves located within the geographical boundaries of Toronto. The program at