McDonald v. The Queen

McDonald v. The Queen
Court (s) Database
Tax Court of Canada Judgments
Date
2011-09-20
Neutral citation
2011 TCC 437
File numbers
2007-4956(IT)G, 2007-4958(IT)G, 2007-4959(IT)G, 2007-4960(IT)G, 2007-4962(IT)G, 2007-4963(IT)G, 2007-4964(IT)G, 2007-4965(IT)G, 2007-4966(IT)G, 2007-4967(IT)G, 2007-4970(IT)G, 2007-4975(IT)G
Judges and Taxing Officers
Valerie A. Miller
Subjects
Income Tax Act
Decision Content
Docket: 2007-4956(IT)G
BETWEEN:
JERRETT MCDONALD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard together on common evidence with the appeals of
Kenneth White 2007-4958(IT)G; Darrell Hinks 2007-4975(IT)G;
Jeremy John 2007-4959(IT)G; Gary Drew 2007-4960(IT)G;
Cory Jeddore 2007-4962(IT)G; Patrick Hinks 2007-4963(IT)G;
Barry Benoit 2007-4964(IT)G; Howard Benoit 2007-4965(IT)G;
Adam Drake 2007-4966(IT)G; Thierry McDonald 2007-4967(IT)G;
John Quann 2007-4968(IT)G; Sean Ford 2007-4970(IT)G;
Dean McDonald 2007-4972(IT)G; Dennis Hinks 2007-4973(IT)G; and The Estate of Yvon John 2007-4974(IT)G
on March 30 - 31, 2011,
at St. John's, Newfoundland and Labrador
Before: The Honourable Justice Valerie Miller
Appearances:
Counsel for the Appellant:
Keri-Lynn Power
Counsel for the Respondent:
Catherine McIntyre
____________________________________________________________________
JUDGMENT
The appeal is allowed and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that fishing income and employment insurance benefits received by the Appellant in 2003 and 2004 are exempt from taxation.
The Appellants are entitled to one set of costs.
Signed at Ottawa, Canada, this 20th day of September 2011.
“V.A. Miller”
V.A. Miller J.
Docket: 2007-4958(IT)G
BETWEEN:
KENNETH WHITE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard together on common evidence with the appeals of
Jerrett McDonald 2007-4956(IT)G; Darrell Hinks 2007-4975(IT)G; Jeremy John 2007-4959(IT)G; Gary Drew 2007-4960(IT)G;
Cory Jeddore 2007-4962(IT)G; Patrick Hinks 2007-4963(IT)G;
Barry Benoit 2007-4964(IT)G; Howard Benoit 2007-4965(IT)G;
Adam Drake 2007-4966(IT)G; Thierry McDonald 2007-4967(IT)G;
John Quann 2007-4968(IT)G; Sean Ford 2007-4970(IT)G;
Dean McDonald 2007-4972(IT)G; Dennis Hinks 2007-4973(IT)G; and The Estate of Yvon John 2007-4974(IT)G
on March 30 - 31, 2011,
at St. John's, Newfoundland and Labrador
Before: The Honourable Justice Valerie Miller
Appearances:
Counsel for the Appellant:
Keri-Lynn Power
Counsel for the Respondent:
Catherine McIntyre
____________________________________________________________________
JUDGMENT
The appeal is allowed and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the fishing income and employment insurance benefits received by the Appellant in 2003 and 2004 are exempt from taxation.
The Appellants are entitled to one set of costs.
Signed at Ottawa, Canada, this 20th day of September 2011.
“V.A. Miller”
V.A. Miller J.
Docket: 2007-4975(IT)G
BETWEEN:
DARRELL HINKS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard together on common evidence with the appeals of
Jerrett McDonald 2007-4956(IT)G; Kenneth White 2007-4958(IT)G; Jeremy John 2007-4959(IT)G; Gary Drew 2007-4960(IT)G;
Cory Jeddore 2007-4962(IT)G; Patrick Hinks 2007-4963(IT)G;
Barry Benoit 2007-4964(IT)G; Howard Benoit 2007-4965(IT)G;
Adam Drake 2007-4966(IT)G; Thierry McDonald 2007-4967(IT)G;
John Quann 2007-4968(IT)G; Sean Ford 2007-4970(IT)G;
Dean McDonald 2007-4972(IT)G; Dennis Hinks 2007-4973(IT)G; and The Estate of Yvon John 2007-4974(IT)G
on March 30 - 31, 2011,
at St. John's, Newfoundland and Labrador
Before: The Honourable Justice Valerie Miller
Appearances:
Counsel for the Appellant:
Keri-Lynn Power
Counsel for the Respondent:
Catherine McIntyre
____________________________________________________________________
JUDGMENT
The appeal is allowed and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the fishing income and employment insurance benefits received by the Appellant in 2003 and 2004 are exempt from taxation.
The Appellants are entitled to one set of costs.
Signed at Ottawa, Canada, this 20th day of September 2011.
“V.A. Miller”
V.A. Miller J.
Docket: 2007-4959(IT)G
BETWEEN:
JEREMY JOHN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard together on common evidence with the appeals of
Jerrett McDonald 2007-4956(IT)G; Kenneth White 2007-4958(IT)G; Darrell Hinks 2007-4975(IT)G; Gary Drew 2007-4960(IT)G;
Cory Jeddore 2007-4962(IT)G; Patrick Hinks 2007-4963(IT)G;
Barry Benoit 2007-4964(IT)G; Howard Benoit 2007-4965(IT)G;
Adam Drake 2007-4966(IT)G; Thierry McDonald 2007-4967(IT)G;
John Quann 2007-4968(IT)G; Sean Ford 2007-4970(IT)G;
Dean McDonald 2007-4972(IT)G; Dennis Hinks 2007-4973(IT)G; and The Estate of Yvon John 2007-4974(IT)G
on March 30 - 31, 2011,
at St. John's, Newfoundland and Labrador
Before: The Honourable Justice Valerie Miller
Appearances:
Counsel for the Appellant:
Keri-Lynn Power
Counsel for the Respondent:
Catherine McIntyre
____________________________________________________________________
JUDGMENT
The appeal is allowed and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the fishing income and employment insurance benefits received by the Appellant in 2004 are exempt from taxation.
The Appellants are entitled to one set of costs.
Signed at Ottawa, Canada, this 20th day of September 2011.
“V.A. Miller”
V.A. Miller J.
Docket: 2007-4960(IT)G
BETWEEN:
GARY DREW,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard together on common evidence with the appeals of
Jerrett McDonald 2007-4956(IT)G; Kenneth White 2007-4958(IT)G; Darrell Hinks 2007-4975(IT)G; Jeremy John 2007-4959(IT)G;
Cory Jeddore 2007-4962(IT)G; Patrick Hinks 2007-4963(IT)G;
Barry Benoit 2007-4964(IT)G; Howard Benoit 2007-4965(IT)G;
Adam Drake 2007-4966(IT)G; Thierry McDonald 2007-4967(IT)G;
John Quann 2007-4968(IT)G; Sean Ford 2007-4970(IT)G;
Dean McDonald 2007-4972(IT)G; Dennis Hinks 2007-4973(IT)G; and The Estate of Yvon John 2007-4974(IT)G
on March 30 - 31, 2011,
at St. John's, Newfoundland and Labrador
Before: The Honourable Justice Valerie Miller
Appearances:
Counsel for the Appellant:
Keri-Lynn Power
Counsel for the Respondent:
Catherine McIntyre
____________________________________________________________________
JUDGMENT
The appeal is allowed and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the fishing income and employment insurance benefits received by the Appellant in 2003 and 2004 are exempt from taxation.
The Appellants are entitled to one set of costs.
Signed at Ottawa, Canada, this 20th day of September 2011.
“V.A. Miller”
V.A. Miller J.
Docket: 2007-4962(IT)G
BETWEEN:
CORY JEDDORE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard together on common evidence with the appeals of
Jerrett McDonald 2007-4956(IT)G; Kenneth White 2007-4958(IT)G; Darrell Hinks 2007-4975(IT)G; Jeremy John 2007-4959(IT)G;
Gary Drew 2007-4960(IT)G; Patrick Hinks 2007-4963(IT)G;
Barry Benoit 2007-4964(IT)G; Howard Benoit 2007-4965(IT)G;
Adam Drake 2007-4966(IT)G; Thierry McDonald 2007-4967(IT)G;
John Quann 2007-4968(IT)G; Sean Ford 2007-4970(IT)G;
Dean McDonald 2007-4972(IT)G; Dennis Hinks 2007-4973(IT)G; and The Estate of Yvon John 2007-4974(IT)G
on March 30 - 31, 2011,
at St. John's, Newfoundland and Labrador
Before: The Honourable Justice Valerie Miller
Appearances:
Counsel for the Appellant:
Keri-Lynn Power
Counsel for the Respondent:
Catherine McIntyre
____________________________________________________________________
JUDGMENT
The appeal is allowed and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the fishing income and employment insurance benefits received by the Appellant in 2003 and 2004 are exempt from taxation.
The Appellants are entitled to one set of costs.
Signed at Ottawa, Canada, this 20th day of September 2011.
“V.A. Miller”
V.A. Miller J.
Docket: 2007-4963(IT)G
BETWEEN:
PATRICK HINKS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard together on common evidence with the appeals of
Jerrett McDonald 2007-4956(IT)G; Kenneth White 2007-4958(IT)G; Darrell Hinks 2007-4975(IT)G; Jeremy John 2007-4959(IT)G;
Gary Drew 2007-4960(IT)G; Cory Jeddore 2007-4962(IT)G;
Barry Benoit 2007-4964(IT)G; Howard Benoit 2007-4965(IT)G;
Adam Drake 2007-4966(IT)G; Thierry McDonald 2007-4967(IT)G;
John Quann 2007-4968(IT)G; Sean Ford 2007-4970(IT)G;
Dean McDonald 2007-4972(IT)G; Dennis Hinks 2007-4973(IT)G; and The Estate of Yvon John 2007-4974(IT)G
on March 30 - 31, 2011,
at St. John's, Newfoundland and Labrador
Before: The Honourable Justice Valerie Miller
Appearances:
Counsel for the Appellant:
Keri-Lynn Power
Counsel for the Respondent:
Catherine McIntyre
____________________________________________________________________
JUDGMENT
The appeal is allowed and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the fishing income and employment insurance benefits received by the Appellant in 2003 and 2004 are exempt from taxation.
The Appellants are entitled to one set of costs.
Signed at Ottawa, Canada, this 20th day of September 2011.
“V.A. Miller”
V.A. Miller J.
Docket: 2007-4964(IT)G
BETWEEN:
BARRY BENOIT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard together on common evidence with the appeals of
Jerrett McDonald 2007-4956(IT)G; Kenneth White 2007-4958(IT)G; Darrell Hinks 2007-4975(IT)G; Jeremy John 2007-4959(IT)G;
Gary Drew 2007-4960(IT)G; Cory Jeddore 2007-4962(IT)G;
Patrick Hinks 2007-4963(IT)G; Howard Benoit 2007-4965(IT)G;
Adam Drake 2007-4966(IT)G; Thierry McDonald 2007-4967(IT)G;
John Quann 2007-4968(IT)G; Sean Ford 2007-4970(IT)G;
Dean McDonald 2007-4972(IT)G; Dennis Hinks 2007-4973(IT)G; and The Estate of Yvon John 2007-4974(IT)G
on March 30 - 31, 2011,
at St. John's, Newfoundland and Labrador
Before: The Honourable Justice Valerie Miller
Appearances:
Counsel for the Appellant:
Keri-Lynn Power
Counsel for the Respondent:
Catherine McIntyre
____________________________________________________________________
JUDGMENT
The appeal is allowed and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the fishing income and employment insurance benefits received by the Appellant as a consequence of the qualifying fishing income in 2004 are exempt from taxation.
The Appellants are entitled to one set of costs.
Signed at Ottawa, Canada, this 20th day of September 2011.
“V.A. Miller”
V.A. Miller J.
Docket: 2007-4965(IT)G
BETWEEN:
HOWARD BENOIT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard together on common evidence with the appeals of
Jerrett McDonald 2007-4956(IT)G; Kenneth White 2007-4958(IT)G; Darrell Hinks 2007-4975(IT)G; Jeremy John 2007-4959(IT)G;
Gary Drew 2007-4960(IT)G; Cory Jeddore 2007-4962(IT)G;
Patrick Hinks 2007-4963(IT)G; Barry Benoit 2007-4964(IT)G;
Adam Drake 2007-4966(IT)G; Thierry McDonald 2007-4967(IT)G;
John Quann 2007-4968(IT)G; Sean Ford 2007-4970(IT)G;
Dean McDonald 2007-4972(IT)G; Dennis Hinks 2007-4973(IT)G; and The Estate of Yvon John 2007-4974(IT)G
on March 30 - 31, 2011,
at St. John's, Newfoundland and Labrador
Before: The Honourable Justice Valerie Miller
Appearances:
Counsel for the Appellant:
Keri-Lynn Power
Counsel for the Respondent:
Catherine McIntyre
____________________________________________________________________
JUDGMENT
The appeal is allowed and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the fishing income and employment insurance benefits received by the Appellant in 2003 and 2004 are exempt from taxation.
The Appellants are entitled to one set of costs.
Signed at Ottawa, Canada, this 20th day of September 2011.
“V.A. Miller”
V.A. Miller J.
Docket: 2007-4966(IT)G
BETWEEN:
ADAM DRAKE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard together on common evidence with the appeals of
Jerrett McDonald 2007-4956(IT)G; Kenneth White 2007-4958(IT)G; Darrell Hinks 2007-4975(IT)G; Jeremy John 2007-4959(IT)G;
Gary Drew 2007-4960(IT)G; Cory Jeddore 2007-4962(IT)G;
Patrick Hinks 2007-4963(IT)G; Barry Benoit 2007-4964(IT)G;
Howard Benoit 2007-4965(IT)G; Thierry McDonald 2007-4967(IT)G; John Quann 2007-4968(IT)G; Sean Ford 2007-4970(IT)G;
Dean McDonald 2007-4972(IT)G; Dennis Hinks 2007-4973(IT)G; and The Estate of Yvon John 2007-4974(IT)G
on March 30 - 31, 2011,
at St. John's, Newfoundland and Labrador
Before: The Honourable Justice Valerie Miller
Appearances:
Counsel for the Appellant:
Keri-Lynn Power
Counsel for the Respondent:
Catherine McIntyre
____________________________________________________________________
JUDGMENT
The appeal is allowed and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the fishing income and employment insurance benefits received by the Appellant in 2004 are exempt from taxation.
The Appellants are entitled to one set of costs.
Signed at Ottawa, Canada, this 20th day of September 2011.
“V.A. Miller”
V.A. Miller J.
Docket: 2007-4967(IT)G
BETWEEN:
THIERRY MCDONALD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard together on common evidence with the appeals of
Jerrett McDonald 2007-4956(IT)G; Kenneth White 2007-4958(IT)G; Darrell Hinks 2007-4975(IT)G; Jeremy John 2007-4959(IT)G;
Gary Drew 2007-4960(IT)G; Cory Jeddore 2007-4962(IT)G;
Patrick Hinks 2007-4963(IT)G; Barry Benoit 2007-4964(IT)G;
Howard Benoit 2007-4965(IT)G; Adam Drake 2007-4966(IT)G;
John Quann 2007-4968(IT)G; Sean Ford 2007-4970(IT)G;
Dean McDonald 2007-4972(IT)G; Dennis Hinks 2007-4973(IT)G; and The Estate of Yvon John 2007-4974(IT)G
on March 30 - 31, 2011,
at St. John's, Newfoundland and Labrador
Before: The Honourable Justice Valerie Miller
Appearances:
Counsel for the Appellant:
Keri-Lynn Power
Counsel for the Respondent:
Catherine McIntyre
____________________________________________________________________
JUDGMENT
The appeal is allowed and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the fishing income and employment insurance benefits received by the Appellant as a consequence of the qualifying fishing income in 2003 are exempt from taxation.
The Appellants are entitled to one set of costs.
Signed at Ottawa, Canada, this 20th day of September 2011.
“V.A. Miller”
V.A. Miller J.
Docket: 2007-4968(IT)G
BETWEEN:
JOHN QUANN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard together on common evidence with the appeals of
Jerrett McDonald 2007-4956(IT)G; Kenneth White 2007-4958(IT)G; Darrell Hinks 2007-4975(IT)G; Jeremy John 2007-4959(IT)G;
Gary Drew 2007-4960(IT)G; Cory Jeddore 2007-4962(IT)G;
Patrick Hinks 2007-4963(IT)G; Barry Benoit 2007-4964(IT)G;
Howard Benoit 2007-4965(IT)G; Adam Drake 2007-4966(IT)G;
Thierry McDonald 2007-4967(IT)G; Sean Ford 2007-4970(IT)G;
Dean McDonald 2007-4972(IT)G; Dennis Hinks 2007-4973(IT)G; and The Estate of Yvon John 2007-4974(IT)G
on March 30 - 31, 2011,
at St. John's, Newfoundland and Labrador
Before: The Honourable Justice Valerie Miller
Appearances:
Counsel for the Appellant:
Keri-Lynn Power
Counsel for the Respondent:
Catherine McIntyre
____________________________________________________________________
JUDGMENT
The appeal is allowed and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the fishing income and employment insurance benefits received by the Appellant as a consequence of the qualifying fishing income in 2004 are exempt from taxation.
The Appellants are entitled to one set of costs.
Signed at Ottawa, Canada, this 20th day of September 2011.
“V.A. Miller”
V.A. Miller J.
Docket: 2007-4970(IT)G
BETWEEN:
SEAN FORD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard together on common evidence with the appeals of
Jerrett McDonald 2007-4956(IT)G; Kenneth White 2007-4958(IT)G; Darrell Hinks 2007-4975(IT)G; Jeremy John 2007-4959(IT)G;
Gary Drew 2007-4960(IT)G; Cory Jeddore 2007-4962(IT)G;
Patrick Hinks 2007-4963(IT)G; Barry Benoit 2007-4964(IT)G;
Howard Benoit 2007-4965(IT)G; Adam Drake 2007-4966(IT)G;
Thierry McDonald 2007-4967(IT)G; John Quann 2007-4968(IT)G;
Dean McDonald 2007-4972(IT)G; Dennis Hinks 2007-4973(IT)G; and The Estate of Yvon John 2007-4974(IT)G
on March 30 - 31, 2011,
at St. John's, Newfoundland and Labrador
Before: The Honourable Justice Valerie Miller
Appearances:
Counsel for the Appellant:
Keri-Lynn Power
Counsel for the Respondent:
Catherine McIntyre
____________________________________________________________________
JUDGMENT
The appeal is allowed and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the fishing income and employment insurance benefits received by the Appellant in 2003 and 2004 are exempt from taxation.
The Appellants are entitled to one set of costs.
Signed at Ottawa, Canada, this 20th day of September 2011.
“V.A. Miller”
V.A. Miller J.
Docket: 2007-4972(IT)G
BETWEEN:
DEAN MCDONALD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard together on common evidence with the appeals of
Jerrett McDonald 2007-4956(IT)G; Kenneth White 2007-4958(IT)G; Darrell Hinks 2007-4975(IT)G; Jeremy John 2007-4959(IT)G;
Gary Drew 2007-4960(IT)G; Cory Jeddore 2007-4962(IT)G;
Patrick Hinks 2007-4963(IT)G; Barry Benoit 2007-4964(IT)G;
Howard Benoit 2007-4965(IT)G; Adam Drake 2007-4966(IT)G;
Thierry McDonald 2007-4967(IT)G; John Quann 2007-4968(IT)G;
Sean Ford 2007-4970(IT)G; Dennis Hinks 2007-4973(IT)G; and
The Estate of Yvon John 2007-4974(IT)G
on March 30 - 31, 2011,
at St. John's, Newfoundland and Labrador
Before: The Honourable Justice Valerie Miller
Appearances:
Counsel for the Appellant:
Keri-Lynn Power
Counsel for the Respondent:
Catherine McIntyre
____________________________________________________________________
JUDGMENT
The appeal is allowed and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the fishing income and employment insurance benefits received by the Appellant in 2003 and 2004 are exempt from taxation.
The Appellants are entitled to one set of costs.
Signed at Ottawa, Canada, this 20th day of September 2011.
“V.A. Miller”
V.A. Miller J.
Docket: 2007-4973(IT)G
BETWEEN:
DENNIS HINKS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard together on common evidence with the appeals of
Jerrett McDonald 2007-4956(IT)G; Kenneth White 2007-4958(IT)G; Darrell Hinks 2007-4975(IT)G; Jeremy John 2007-4959(IT)G;
Gary Drew 2007-4960(IT)G; Cory Jeddore 2007-4962(IT)G;
Patrick Hinks 2007-4963(IT)G; Barry Benoit 2007-4964(IT)G;
Howard Benoit 2007-4965(IT)G; Adam Drake 2007-4966(IT)G;
Thierry McDonald 2007-4967(IT)G; John Quann 2007-4968(IT)G;
Sean Ford 2007-4970(IT)G; Dean McDonald 2007-4972(IT)G; and
The Estate of Yvon John 2007-4974(IT)G
on March 30 - 31, 2011,
at St. John's, Newfoundland and Labrador
Before: The Honourable Justice Valerie Miller
Appearances:
Counsel for the Appellant:
Keri-Lynn Power
Counsel for the Respondent:
Catherine McIntyre
____________________________________________________________________
JUDGMENT
The appeal is allowed and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the fishing income and employment insurance benefits received by the Appellant in 2003 and 2004 are exempt from taxation.
The Appellants are entitled to one set of costs.
Signed at Ottawa, Canada, this 20th day of September 2011.
“V.A. Miller”
V.A. Miller J.
Docket: 2007-4974(IT)G
BETWEEN:
THE ESTATE OF YVON JOHN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard together on common evidence with the appeals of
Jerrett McDonald 2007-4956(IT)G; Kenneth White 2007-4958(IT)G; Darrell Hinks 2007-4975(IT)G; Jeremy John 2007-4959(IT)G;
Gary Drew 2007-4960(IT)G; Cory Jeddore 2007-4962(IT)G;
Patrick Hinks 2007-4963(IT)G; Barry Benoit 2007-4964(IT)G;
Howard Benoit 2007-4965(IT)G; Adam Drake 2007-4966(IT)G;
Thierry McDonald 2007-4967(IT)G; John Quann 2007-4968(IT)G;
Sean Ford 2007-4970(IT)G; Dean McDonald 2007-4972(IT)G; and Dennis Hinks 2007-4973(IT)G
on March 30 - 31, 2011,
at St. John's, Newfoundland and Labrador
Before: The Honourable Justice Valerie Miller
Appearances:
Counsel for the Appellant:
Keri-Lynn Power
Counsel for the Respondent:
Catherine McIntyre
____________________________________________________________________
JUDGMENT
The appeal is allowed and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the fishing income and employment insurance benefits received by the Appellant in 2003 and 2004 are exempt from taxation.
The Appellants are entitled to one set of costs.
Signed at Ottawa, Canada, this 20th day of September 2011.
“V.A. Miller”
V.A. Miller J.
Citation: 2011TCC437
Date: 20110920
Docket: 2007-4956(IT)G
BETWEEN:
JERRETT MCDONALD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
Docket: 2007-4958(IT)G
ABD BETWEEN:
KENNETH WHITE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
Docket: 2007-4975(IT)G
AND BETWEEN:
DARRELL HINKS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
Docket: 2007-4959(IT)G
AND BETWEEN:
JEREMY JOHN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
Docket: 2007-4960(IT)G
AND BETWEEN:
GARY DREW,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
Docket: 2007-4962(IT)G
AND BETWEEN:
CORY JEDDORE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
Docket: 2007-4963(IT)G
AND BETWEEN:
PATRICK HINKS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
Docket: 2007-4964(IT)G
AND BETWEEN:
BARRY BENOIT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
Docket: 2007-4965(IT)G
AND BETWEEN:
HOWARD BENOIT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
Docket: 2007-4966(IT)G
AND BETWEEN:
ADAM DRAKE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
Docket: 2007-4967(IT)G
AND BETWEEN:
THIERRY MCDONALD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
Docket: 2007-4968(IT)G
AND BETWEEN:
JOHN QUANN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
Docket: 2007-4970(IT)G
AND BETWEEN:
SEAN FORD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
Docket: 2007-4972(IT)G
AND BETWEEN:
DEAN MCDONALD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
Docket: 2007-4973(IT)G
AND BETWEEN:
DENNIS HINKS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
Docket: 2007-4974(IT)G
AND BETWEEN:
THE ESTATE OF YVON JOHN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
V.A. Miller J.
[1] The issue in these appeals is whether the fishing income and employment insurance benefits received by the Appellants in 2003 and 2004 are exempt from taxation because they were personal property situated on a reserve within the meaning of paragraph 87(1)(b) of the Indian Act[1].
[2] Paragraph 87(1)(b) of the Indian Act provides that:
87. (1) Notwithstanding any other Act of Parliament or any Act of the legislature of a province, but subject to section 83, the following property is exempt from taxation, namely,
(b) the personal property of an Indian or a band situated on a reserve.
[3] The exemption in the Indian Act is incorporated into the Income Tax Act (the “Act”) by paragraph 81(1)(a). The relevant portion of that paragraph reads:
81. (1) There shall not be included in computing the income of a taxpayer for a taxation year,
(a) an amount that is declared to be exempt from income tax by any other enactment of Parliament, …
…
[4] The parties submitted a Partial Agreed Statement of Fact which provides:
(a) The issue in these appeals is whether the Appellants’ fishing income and EI benefits for the 2003 and 2004 taxation years are exempt from taxation pursuant to section 87 of the Indian Act and paragraph 81(1)(a) of the Income Tax Act;
(b) The Appellants, Jerrett McDonald and Darrell Hinks, are Indians as defined in section 2 of the Indian Act;
(c) The Appellants are members of the Miawpukek First Nations (the “Band”);
(d) At all material times, the Appellants were residents of the reserve at Conne River, Newfoundland (the “Reserve”);
(e) During the years at issue, the Department of Fisheries and Oceans (the “DFO”) issued communal commercial fishing licenses [sic] to the Band pursuant to its Allocation Transfer Program (“ATP”);
(f) The communal commercial fishing licenses [sic] are the collective property of the Band;
(g) At all material times, the Band also owned the fishing vessels (the “Vessels”) and equipment used in their commercial fishing enterprise;
(h) The Vessels, licenses [sic] and equipment were all acquired through assistance provided under the ATP;
(i) On December 31, 2001, the band incorporated Netukulimk Fisheries Ltd. (the “NFL”) under the Corporations Act of Newfoundland and Labrador;
(j) NFL’s office and place of business is on reserve;
(k) When not in use, the Vessels are kept at the wharf facilities on reserve and equipment is stored at NFL buildings on reserve;
(l) At all material times, the Band owned all of the shares of NFL and appointed its board of directors comprised of members of the Band;
(m) NFL was responsible for operating the fishing enterprise. NFL hired the crews for the Vessels and maintained the Vessels;
(n) At all material times, the fishing crews were comprised of both status Indians and persons who were not status Indians;
(o) The Appellants fished cod and crab in the area designated by DFO as the 3Ps zone;
(p) All of the crew members on a fishing vessel were paid by NFL based on a share of the catch;
(q) Harbour Breton is situated 90 km. from the Reserve and is not part of the Reserve;
(r) The Vessels unloaded their catch in Harbour Breton and got ice there; and,
(s) The Appellants were paid by cheque issued by NFL.
[5] These appeals were heard on common evidence. The witnesses at the hearing were the Appellants, Jerrett McDonald and Darrell Hinks; Shayne McDonald, the Executive Director of Netukulimk Fisheries Limited and the legal advisor for the Miawpukek First Nation; and, Patricia Williams, a resource manager with the Department of Fisheries and Oceans.
Background
[6] According to Patricia Williams, the Department of Fisheries and Oceans (“DFO”) created an Allocation Transfer Program (“ATP”) whose mandate is to provide economic opportunities for aboriginal communities without increasing the overall pressure on the fishery resources. It does this by purchasing commercial licences from fishermen who wish to retire and it reissues the commercial licences to aboriginal communities.
[7] The licences are called “communal commercial licences” and they are issued to a Band and not the individual members of the Band. As their name denotes, the licences allow a Band to enter the commercial fishery.
[8] In these appeals, the communal commercial licences were held by the Miawpukek First Nation (the “Band”). The Band first entered the commercial fishery in either 1999 or 2000. According to Shayne McDonald, the Band entered the commercial fishery to obtain revenue and to create employment for community members.
[9] Pursuant to the ATP, the Band also applied to receive funding for the purchase of its Vessels and equipment. This funding was limited and priority was given to those aboriginal groups who would contribute to long-term aboriginal employment and community economic development, as well as increased participation of aboriginal people in the fisheries[2]. When an application was accepted and funding was provided by DFO, it was reflected in a Contribution Agreement for Funding. As this funding was limited, it was also necessary for the Band to borrow money to complete its acquisition of Vessels and equipment.
[10] In 2001, the Band had Netukulimk Fisheries Ltd. (the “NFL”) incorporated so that NFL could borrow the necessary funds for the Band to finance its commercial fishery[3]. The Band also entrusted NFL with the authority to operate the Band’s licences and Vessels. NFL hired the crew for the Vessels and developed personnel policies for the management of the Band’s fishing business.
[11] When the Band entered the commercial fishery, the majority of the Appellants had no prior experience in that fishery. Each of the Appellants was required to take various marine courses. The Band paid for these courses. Dean McDonald was the only Appellant who was initially hired as a skipper. All other skippers were non-Indians. The non-Indian fishers who were hired by NFL were required to teach the Appellants their trade. The first position held by most Appellants was that of deckhand. When they learned the job of deckhand, some of the Appellants were promoted to first mate and then to skipper.
[12] Shayne McDonald estimated that in 2003/2004, the ratio of Indian to non-Indian crew members was 50/50.
First Issue Raised by the Appellants
[13] In her written submissions, the first issue raised by counsel for the Appellants relates to subsection 90(1) of the Indian Act. She wrote the following:
… the vessels, licences and equipment purchased were done so with debt financing arranged by the Band, as Shayne McDonald testified, and with funds provided from DFO, which comes from the Government under the AFS and ATP programs specifically for the use and benefit of Indians and therefore pursuant to section 90(1)(a) is situated on a reserve. Furthermore we submit that the same was given to the Band under the Agreement between the Band and DFO and as per section 90(1)(b) is situated on a reserve, there it is exempt from taxation and the appeal should succeed.
[14] Subsection 90(1) of the Indian Act reads:
90. (1) For the purposes of sections 87 and 89, personal property that was
(a) purchased by Her Majesty with Indian moneys or moneys appropriated by Parliament for the use and benefit of Indians or bands, or
(b) given to Indians or to a band under a treaty or agreement between a band and Her Majesty,
shall be deemed always to be situated on a reserve.
[15] Although I believe that the facts in these appeals do not support the application of subsection 90(1), I will not address this issue as it was not raised by the Appellants in their pleadings or at the hearing of these appeals. The first time this issue was raised by the Appellants was in counsel’s written submissions. They cannot now, after the close of the evidence, argue it to support their appeals.
[16] Counsel for the Appellants has argued that because the Canada Revenue Agency (“CRA”) considered subsection 90(1) of the Indian Act at the objection stage of these appeals, the Respondent is not prejudiced. I disagree. The Respondent is prejudiced as she did not have the opportunity to examine witnesses on facts which might have been relevant to this argument.
[17] It was necessary for the Appellants to raise section 90 as an issue in their pleadings if they intended to rely on this section in their appeals.
[18] The primary function of pleadings is to define the issues of fact and law raised by the parties. The pleadings give the parties notice of the case they have to meet and they inform the court of the precise matters in issue between the parties.[4]
Second Issue Raised by the Appellants
[19] The Appellants have been assessed on the basis that they were self-employed fishers and their fishing income was business income.
[20] It is the Appellants’ position that they are self-employed fishers for the purposes of the Employment Insurance (Fishing) Regulations but for the purposes of the Act, they are employees and their fishing income is employment income and not business income.
[21] Counsel for the Appellants submitted that for the purposes of the Record of Employment and in fact, NFL was the employer of the Appellants.
[22] I disagree. NFL was the Appellants’ employer for the purposes of the Record of Employment because section 153 of the Employment Insurance Act (“EI Act”) authorized the Canada Employment Insurance Commission (the “Commission”) to make regulations which would include, as employer, any person with whom the self-employed fisher had a contractual or commercial relationship.
[23] Section 153 of the EI Act reads:
153. (1) Notwithstanding anything in this Act, the Commission may, with the approval of the Governor in Council, make such regulations as it deems necessary respecting the establishment and operation of a scheme of employment insurance for self-employed persons engaged in fishing, including regulations
(a) including as a self-employed person engaged in fishing any person engaged in an activity or occupation related to or incidental to fishing; and
(b) including as an employer of a self-employed person engaged in fishing any person with whom the self-employed person enters into a contractual or other commercial relationship in respect of their occupation as a self-employed person engaged in fishing.
[24] In accordance with section 153 of the EI Act, the Employment Insurance (Fishing) Regulations were made specifically to include self-employed fishermen as insured persons notwithstanding that they are not employees of any person[5]. Likewise, in accordance with paragraph 153(1)(b), the Commission had the authority to include “as an employer a person with whom the fisherman had a contractual or commercial relationship in respect of his occupation as a fisherman, notwithstanding the fact that the person to be included as an employer is not an employer at all”[6].
[25] When a person is self-employed, it means that he is in business for himself. Any income that he earns from self-employment is business income and the profit from that business is taxed under section 9 of the Act.
[26] The Appellants were eligible for employment insurance benefits because they were found to be self-employed fishers. They cannot be both self-employed and employees at the same time from the same activity.
[27] The employment status of an individual is determined from the analysis of the facts in each case against the factors given in the decision Wiebe Door Services Ltd.[7] and affirmed by 671122 Ontario Ltd. v Sagaz Industries Canada Inc.[8] Those factors are the same regardless of the statute at issue.
[28] The Appellants’ employment was established with the intention that they would be self-employed fishers and they would be eligible to receive employment insurance (“EI:) benefits under the Employment Insurance (Fishing) Regulations. The Appellants’ remuneration was based on a negotiated percentage of the revenues from the catch less various expenses. One of the expenses paid by the Appellants was a percentage of the operating costs incurred by the Vessel in making the catch.
[29] The pay arrangement provided the Appellants with a chance of profit from their fishing activities. Likewise, the Appellants had a risk of loss. If there was no fish caught, the Appellants received no remuneration but they did not have to pay the costs incurred by the Vessel. Their loss was limited to the costs they incurred to go fishing. According to Shayne McDonald, if the revenue from the catch for a particular fishing trip was insufficient to cover the cost of the Appellants’ gear, the Appellants suffered a loss.
[30] Furthermore, the CRA assessed the employment status of the Appellants by determining the status of one of the Appellants, Howard Benoit. CRA ruled that he was a self-employed fisher. The ruling was not appealed because Howard Benoit, NFL and the Band agreed with the ruling[9].
[31] On a review of all of the evidence, I conclude that the fishing income earned by the Appellants was business income.
Whether the fishing income was situated on a reserve
[32] Cromwell J. confirmed in Bastien Estate v. Canada[10] that in situations such as the present, where one must determine whether the personal property of an Indian is situated on a reserve and that personal property is intangible, a two-step analysis is required. He stated;
First, one identifies potentially relevant factors tending to connect the property to a location and then determines what weight they should be given in identifying the location of the property in light of three considerations: the purpose of the exemption from taxation, the type of property and the nature of the taxation of that property[11].
[33] The purpose of the exemption, as discussed by LaForest, J. in Mitchell v. Peguis Indian Band[12], is to prevent “one branch of government, through the imposition of taxes, from eroding the benefits given to Indians by that branch of government entrusted with the supervision of Indian Affairs”. In discussing the purpose of the exemption, La Forest added:
The fact that the modern‑day legislation, like its historical counterparts, is so careful to underline that exemptions from taxation and distraint apply only in respect of personal property situated on reserves demonstrates that the purpose of the legislation is not to remedy the economically disadvantaged position of Indians by ensuring that Indians may acquire, hold, and deal with property in the commercial mainstream on different terms than their fellow citizens.[13].
[34] The personal properties in these appeals are intangible. They are business income derived from fishing and employment insurance benefits which resulted from paying employment insurance premiums during the fishing activity.
[35] Both the business income and the employment insurance benefits received by the Appellants are taxable unless they are exempted by the application of section 87 of the Indian Act. Pursuant to section 9 of the Act, the taxation of a taxpayer’s business income is based on his profit from the business. Subparagraph 56(1)(a)(iv) includes employment insurance benefits in a taxpayer’s income.
[36] Some of the relevant factors which connect business income to a location were identified in Southwind v. Canada[14]. I will discuss these same factors in the present case while, at the same time, addressing the concerns noted by the SCC in the Estate of Rolland Bastien with respect to the term “commercial mainstream”. Those factors are (1) the type of business and the location of the business activities; (2) the location of the customers (debtors) of the business and where payment was made; (3) the residence of the business owners; (4) where decisions affecting the business are made; (5) pla