Roe v. The Queen

Roe v. The Queen
Court (s) Database
Tax Court of Canada Judgments
Date
2008-12-05
Neutral citation
2008 TCC 667
File numbers
2007-170(IT)I
Judges and Taxing Officers
Brent Paris
Subjects
Income Tax Act
Decision Content
Docket: 2007-170(IT)I
BETWEEN:
WAYNE ROE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard in part on common evidence with the appeals of
Delores Jim (2007-1835(IT)I), Jonathan Labillois (2007-2213(IT)I), Pauline Janyst (2007-2978(IT)I), Lisa Gagnon (2007-3013(IT)I),
Barbara Matilpi (2007-974(IT)I), Tanya McKenzie (2007-975(IT)I), Alegha Van Hanuse (2007-118(IT)I) and Catherine Wherry (2007-306(IT)I) on July 21 to 31, 2008, at Victoria, British Columbia.
Before: The Honourable Justice B. Paris
Appearances:
Counsel for the Appellant:
Eric Lay
Meredith Rose
Counsel for the Respondent:
John Shipley
Gordon Bourgard
____________________________________________________________________
JUDGMENT
The appeal from the reassessments made under the Income Tax Act for the 1999, 2000, 2001, 2002, 2003, 2004, 2005 and 2006 taxation years is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 5th day of December 2008.
“B. Paris”
Paris J.
Docket: 2007-1835(IT)I
BETWEEN:
DELORES JIM,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard in part on common evidence with the appeals of
Wayne Roe (2007-170(IT)I), Jonathan Labillois (2007-2213(IT)I), Pauline Janyst (2007-2978(IT)I), Lisa Gagnon (2007-3013(IT)I),
Barbara Matilpi (2007-974(IT)I), Tanya McKenzie (2007-975(IT)I), Alegha Van Hanuse (2007-118(IT)I) and Catherine Wherry (2007-306(IT)I) on July 21 to 31, 2008, at Victoria, British Columbia.
Before: The Honourable Justice B. Paris
Appearances:
Counsel for the Appellant:
Eric Lay
Meredith Rose
Counsel for the Respondent:
John Shipley
Gordon Bourgard
____________________________________________________________________
JUDGMENT
The appeal from the reassessments made under the Income Tax Act for the 1999, 2000 and 2001 taxation years is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 5th day of December 2008.
“B. Paris”
Paris J.
Docket: 2007-2213(IT)I
BETWEEN:
JONATHAN LABILLOIS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard in part on common evidence with the appeals of
Wayne Roe (2007-170(IT)I), Delores Jim (2007-1835(IT)I),
Pauline Janyst (2007-2978(IT)I), Lisa Gagnon (2007-3013(IT)I),
Barbara Matilpi (2007-974(IT)I), Tanya McKenzie (2007-975(IT)I), Alegha Van Hanuse (2007-118(IT)I) and Catherine Wherry (2007-306(IT)I) on July 21 to 31, 2008, at Victoria, British Columbia.
Before: The Honourable Justice B. Paris
Appearances:
Counsel for the Appellant:
Eric Lay
Meredith Rose
Counsel for the Respondent:
John Shipley
Gordon Bourgard
____________________________________________________________________
JUDGMENT
The appeal from the reassessments made under the Income Tax Act for the 2000, 2001 and 2002 taxation years is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 5th day of December 2008.
“B. Paris”
Paris J.
Docket: 2007-2978(IT)I
BETWEEN:
PAULINE JANYST,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard in part on common evidence with the appeals of
Wayne Roe (2007-170(IT)I), Delores Jim (2007-1835(IT)I),
Jonathan Labillois (2007-2213(IT)I), Lisa Gagnon (2007-3013(IT)I),
Barbara Matilpi (2007-974(IT)I), Tanya McKenzie (2007-975(IT)I), Alegha Van Hanuse (2007-118(IT)I) and Catherine Wherry (2007-306(IT)I) on July 21 to 31, 2008, at Victoria, British Columbia.
Before: The Honourable Justice B. Paris
Appearances:
Counsel for the Appellant:
Eric Lay
Meredith Rose
Counsel for the Respondent:
John Shipley
Gordon Bourgard
____________________________________________________________________
JUDGMENT
The appeal from the reassessments made under the Income Tax Act for the 2000 and 2001 taxation years is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 5th day of December 2008.
“B. Paris”
Paris J.
Docket: 2007-3013(IT)I
BETWEEN:
LISA GAGNON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard in part on common evidence with the appeals of
Wayne Roe (2007-170(IT)I), Delores Jim (2007-1835(IT)I),
Jonathan Labillois (2007-2213(IT)I), Pauline Janyst (2007-2978(IT)I),
Barbara Matilpi (2007-974(IT)I), Tanya McKenzie (2007-975(IT)I), Alegha Van Hanuse (2007-118(IT)I) and Catherine Wherry (2007-306(IT)I) on July 21 to 31, 2008, at Victoria, British Columbia.
Before: The Honourable Justice B. Paris
Appearances:
Counsel for the Appellant:
Eric Lay
Meredith Rose
Counsel for the Respondent:
John Shipley
Gordon Bourgard
____________________________________________________________________
JUDGMENT
The appeal from the reassessments made under the Income Tax Act for the 2001, 2002, 2003, 2004 and 2005 taxation years is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 5th day of December 2008.
“B. Paris”
Paris J.
Docket: 2007-974(IT)I
BETWEEN:
BARBARA MATILPI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard in part on common evidence with the appeals of
Wayne Roe (2007-170(IT)I), Delores Jim (2007-1835(IT)I),
Jonathan Labillois (2007-2213(IT)I), Pauline Janyst (2007-2978(IT)I),
Lisa Gagnon (2007-3013(IT)I), Tanya McKenzie (2007-975(IT)I),
Alegha Van Hanuse (2007-118(IT)I) and Catherine Wherry (2007-306(IT)I) on July 21 to 31, 2008, at Victoria, British Columbia.
Before: The Honourable Justice B. Paris
Appearances:
Counsel for the Appellant:
Eric Lay
Meredith Rose
Counsel for the Respondent:
John Shipley
Gordon Bourgard
____________________________________________________________________
JUDGMENT
The appeal from the reassessments made under the Income Tax Act for the 2001 and 2002 taxation years is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 5th day of December 2008.
“B. Paris”
Paris J.
Docket: 2007-975(IT)I
BETWEEN:
TANYA MCKENZIE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard in part on common evidence with the appeals of
Wayne Roe (2007-170(IT)I), Delores Jim (2007-1835(IT)I),
Jonathan Labillois (2007-2213(IT)I), Pauline Janyst (2007-2978(IT)I),
Lisa Gagnon (2007-3013(IT)I), Barbara Matilpi (2007-974(IT)I),
Alegha Van Hanuse (2007-118(IT)I) and Catherine Wherry (2007-306(IT)I) on July 21 to 31, 2008, at Victoria, British Columbia.
Before: The Honourable Justice B. Paris
Appearances:
Counsel for the Appellant:
Eric Lay
Meredith Rose
Counsel for the Respondent:
John Shipley
Gordon Bourgard
____________________________________________________________________
JUDGMENT
The appeal from the reassessments made under the Income Tax Act for the 2002 and 2004 taxation years is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 5th day of December 2008.
“B. Paris”
Paris J.
Docket: 2007-118(IT)I
BETWEEN:
ALEGHA VAN HANUSE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard in part on common evidence with the appeals of
Wayne Roe (2007-170(IT)I), Delores Jim (2007-1835(IT)I),
Jonathan Labillois (2007-2213(IT)I), Pauline Janyst (2007-2978(IT)I),
Lisa Gagnon (2007-3013(IT)I), Barbara Matilpi (2007-974(IT)I),
Tanya McKenzie (2007-975(IT)I) and Catherine Wherry (2007-306(IT)I) on July 21 to 31, 2008, at Victoria, British Columbia.
Before: The Honourable Justice B. Paris
Appearances:
Counsel for the Appellant:
Eric Lay
Meredith Rose
Counsel for the Respondent:
John Shipley
Gordon Bourgard
____________________________________________________________________
JUDGMENT
The appeal from the reassessments made under the Income Tax Act for the 2000 and 2001 taxation year is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 5th day of December 2008.
“B. Paris”
Paris J.
Docket: 2007-306(IT)I
BETWEEN:
CATHERINE WHERRY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard in part on common evidence with the appeals of
Wayne Roe (2007-170(IT)I), Delores Jim (2007-1835(IT)I),
Jonathan Labillois (2007-2213(IT)I), Pauline Janyst (2007-2978(IT)I),
Lisa Gagnon (2007-3013(IT)I), Barbara Matilpi (2007-974(IT)I),
Tanya McKenzie (2007-975(IT)I) and Alegha Van Hanuse (2007-118(IT)I) on July 21 to 31, 2008, at Victoria, British Columbia.
Before: The Honourable Justice B. Paris
Appearances:
Counsel for the Appellant:
Eric Lay
Meredith Rose
Counsel for the Respondent:
John Shipley
Gordon Bourgard
____________________________________________________________________
JUDGMENT
The appeal from the reassessments made under the Income Tax Act for the 2002, 2003 and 2004 taxation years is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 5th day of December 2008.
“B. Paris”
Paris J
Citation: 2008 TCC 667
Date: 20081205
Dockets: 2007-170(IT)I, 2007-1835(IT)I,
2007-2213(IT)I, 2007-2978(IT)I,
2007-3013(IT)I, 2007-974(IT)I,
2007-975(IT)I, 2007-118(IT)I,
2007-306(IT)I
BETWEEN:
WAYNE ROE, DELORES JIM,
JONATHAN LABILLOIS, PAULINE JANYST,
LISA GAGNON, BARBARA MATILPI,
TANYA MCKENZIE, ALEGHA VAN HANUSE,
CATHERINE WHERRY
Appellants,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Paris, J.
[1] The issue in each of these appeals is whether 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 it is situated on a reserve.
[2] The applicable test for determining whether intangible personal property such as employment income is situated on a reserve within the meaning of paragraph 87(1)(b) is the “connecting factors test” laid down by the Supreme Court of Canada in Williams v. The Queen, [1992] 1 S.C.R. 877. That test analyses the factors that connect the personal property of an Indian to a reserve in order to establish whether the property is situated on the reserve.
[3] The appellants were reassessed by the Minister of National Revenue (the “Minister”) for the years in issue on the basis that their employment income was not situated on a reserve, and therefore was required to be included in calculation of their income under the Income Tax Act (the “Act”). The appellants are disputing those reassessments.
[4] The appellants maintain that the Minister erred in his appreciation of the factors which connected their employment income with a reserve, and that in each case their employment income was situated on a reserve.
[5] The appeals were heard together, in part on common evidence. The taxation years in issue for each appellant are set out in the appendix to these reasons.
Facts
[6] All of the appellants are Indians as defined in the Indian Act.
[7] All of the appellants, except Wayne Roe, were employed by Native Leasing Services (“NLS”), an employee leasing business whose head office was located on the Six Nations Indian Reserve in Brantford, Ontario. NLS leased their services to various non-profit native organizations across Canada. NLS is a sole proprietorship operated by Roger Obonsawin.
[8] Mr. Roe was employed by another employee leasing business, O.I. Employee Leasing Inc. (“OI”), which is wholly owned by Mr. Obonsawin. OI’s head office was also located on the Six Nations Reserve. OI leased the services of Mr. Roe to two trucking businesses operating in Canada and the U.S.
[9] Mr. Obonsawin is a status Indian and is a member of the Abenaki First Nation whose reserve is at Odanak, Quebec. He has had extensive experience working with native non-profit organizations and was the first president of the National Association of Friendship Centres.
[10] In 1981 he and his partner, Ljuba Irwin, formed O.I. Consulting to provide services to native groups and government departments working on projects affecting natives. Their goal was to enhance the capacity of native groups and to create a network of resources to support the work of those groups.
[11] Later on, Mr. Obonsawin set up NLS and OI. Both NLS and OI provide workers to clients (referred to in the evidence as “placement organizations”) on a contract basis. NLS leases the services of native workers to native organizations, while OI leases the services of native workers to businesses in general. Most, if not all, of NLS and OI clients were located off-reserve.
[12] Mr. Obonsawin said that the advantage to the placement organization of using the services of NLS or OI was that NLS or OI would free up client resources by taking over responsibility for personnel administration and human resource functions. Mr. Obonsawin also said that the NLS and OI employees had greater job security than if the worker had been employed directly by the placement organization. If employment at one placement organization did not work out, the worker could be moved to another more suitable position. No evidence was given as to how often this occurred.
[13] Up to 1999, the offices of NLS and OI were located in the Woodland Indian Cultural Centre on the Six Nations Reserve. In 2000 the offices were moved to a building known as the “Eagle’s Nest” which was also on the Six Nations Reserve. The offices in both locations were rented from the Six Nations Band Council.
[14] Mr. Obonsawin said that NLS and OI did not carry on any business elsewhere than on the Six Nations Reserve and that all of its records were kept there and all of its contracts were signed there. NLS and OI had approximately 14 staff on those premises who handled finance, sales, legal, human resource and training matters for the businesses. Mr. Obonsawin said that Ms. Irwin handled the day-to-day operations of the businesses, while he was responsible for overall operations and strategic planning and promotion and did some training. Both worked from the offices at the Eagle’s Nest.
[15] NLS and OI recruited employees through information sessions held by Roger Obonsawin at various sites across Canada, including the offices of many aboriginal organizations. In most cases, at the time a person became an NLS or OI employee, he or she was already directly employed by the placement organization to which they were subsequently leased back by NLS or OI. Where a placement organization and any of its workers wished to use the services of NLS or OI, the worker would sign a document prepared by NLS or OI terminating his or her employment with the placement organization and execute an employment contract with NLS or OI. The placement organization would enter into a placement agreement with NLS or OI for the worker and NLS or OI would arrange to have another worker (usually also an NLS or OI employee) at the placement organization act as the on-site supervisor on behalf of NLS or OI.
[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.
[17] NLS and OI charged a fee that varied between 5 and 7% of the placed worker’s gross pay for the services they supplied. In some cases the fee was paid by the placement organization, in some cases it was split between the organization and the worker and in others it was paid entirely by the employee. For some of the years in issue, NLS and OI levied an additional charge of 1.5% of gross pay to set up a fund used to pay legal fees to challenge tax reassessments that denied employees’ claims for the exemption from income tax on their salary.
[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.
[19] Mr. Obonsawin agreed that the tax exemption was a benefit that NLS and OI marketed to potential clients. He said that the net effect of the exemption was to give the worker a higher salary. This was important to NLS and OI workers, who were mostly single mothers. He said the exemption helped stabilize families and had a positive effect on aboriginal youth.
[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.
[21] The background and employment circumstances of the appellants are as follows:
Catherine Wherry
[22] Ms. Wherry is a member of the Chippewas of Mnjikaning First Nation, whose reserve is located approximately 160 kilometres north of Toronto. Her grandfather elected to give up his status when he was young in order to be able to vote, to move about freely and to avoid having his children sent to residential schools. Ms. Wherry was born in Port Hope, Ontario and has never lived on a reserve. A change in federal legislation enabled her to obtain status in 1986.
[23] In 1996 Ms. Wherry was hired on a contract basis by the First Peoples’ Heritage, Language and Cultural Council (“FPHLCC”) in Victoria, B.C. to work in the organization’s arts grant program.
[24] The FPHLCC is a B.C. Crown corporation with a mandate to preserve and enhance Aboriginal heritage, language and culture, to increase understanding and sharing of knowledge both within Aboriginal and non-Aboriginal communities, and to heighten appreciation and acceptance of the wealth of cultural diversity among all British Columbians. The FPHLCC is governed by an Advisory Committee composed of representatives of the 24 Tribal Councils of B.C. Its board of directors is chosen largely from the Committee. It carries out its mandate in part by providing grants to Aboriginal organizations and individuals for language preservation and revitalization and for arts and cultural development.
[25] Ms. Wherry worked directly for the FPHLCC until August 2001. At that point, she entered into an employment contract with NLS, and NLS contracted to provide her services to the FPHLCC as a special projects coordinator.
[26] The commencement of Ms. Wherry’s employment with NLS coincided with the move of the FPHLCC office from a reserve near Victoria to downtown Victoria. When the office of the FPHLCC had been located on the reserve, Ms. Wherry’s employment income and that of the other FPHLCC workers was accepted by the Minister to be exempt from tax under section 87 of the Indian Act.
[27] According to Ms. Wherry, prior to the move the management and workers at FPHLCC realized that the move off the reserve would put the tax exempt status of their employment income at risk, and they sought a way to retain the exemption. They came to the conclusion that the only way to maintain their tax exemption and level of income after the move was to use the services of NLS.
[28] Ms. Wherry’s main duties while employed by NLS at the FPHLCC were the oversight and administration of the FPHLCC art grants program. She also provided support to the language program and was also involved in fundraising and communications.
[29] Under the art grants program, the FPHLCC provided funding of up to $10,000 to native artists for projects involving all means of artistic expression including painting, carving, weaving, dance, music and literature. The FPHLCC also provided development programs for native artists.
[30] Over her years at the FPHLCC, Ms. Wherry worked to increase awareness of the grant program among native artists, and to provide assistance in preparing applications for the grants. She said that the FPHLCC did not distinguish between applicants living on or off reserve or between status or non-status Indians or Métis applicants. A significant number of grants did go to native artists living and working on a reserve and Ms. Wherry felt that these grants would have had an impact on those reserves and that the grants benefited everyone on the reserves.
[31] Ms. Wherry worked mainly in the FPHLCC office but occasionally traveled in the course of her work. According to the exhibits entered at the hearing, she visited reserves on three occasions in 2003 and 2004 each lasting one or two days.
[32] She terminated her employment with NLS and became an employee of FPHLCC when the FPHLCC moved its office to another reserve near Victoria in 2006.
Jonathan Labillois
[33] Jonathan Labillois is a member of the Listuguj Mi’Gmaq (Micmac) First Nation. The Listuguj Reserve is located in Quebec, close to the New Brunswick border. The nearest town is Campbellton, New Brunswick.
[34] Mr. Labillois lived on the reserve until he was 18, when he left to go to college. While in college, he spent his summers on reserve with his family. After graduation, he worked for a time at the Victoria Aboriginal Friendship Centre, where he developed and taught a computer skills course.
[35] In September 2000, Mr. Labillois was hired by the Micmac Friendship Centre in Halifax to teach the computer course he had developed in Victoria. In October 2000 he chose to terminate his employment with the Centre and to become an employee of NLS. His services as a computer instructor were then leased by NLS to the Centre until May 2002.
[36] Mr. Labillois taught the computer course to nine students at a time at the Centre from September 2000 to May 2001 and from September 2001 to May 2002. All of his students were natives and four of them each year lived on a reserve.
[37] The Micmac Friendship Centre is not located on a reserve, and Mr. Labillois did not reside on a reserve while working at the Centre. He did say that he considered the Centre like a reserve because of the environment there. He also said that he returned to his reserve in the summer of 2001 and 2002 after he finished teaching.
[38] The Micmac Friendship Centre was operated by the Micmac Aboriginal Friendship Society for the use and benefit of people of Aboriginal descent. It promoted the educational and cultural advancement of Aboriginal people in the Halifax-Dartmouth area and assisted people of Aboriginal descent newly arrived in Halifax-Dartmouth to adjust to an urban environment and to take an active part in urban society. It also promoted mutual understanding and improved relations between people of Aboriginal descent and others. Specifically, the Centre offered the following services: family support and counseling for drug and alcohol abuse, child care and children’s programs, health education, a needle exchange and methadone program, youth programs, literacy training, employment support and computer training, various adult education and recreation programs, and a marketplace for aboriginal crafts.
Wayne Roe
[39] Wayne Roe is a member of the Thessalon First Nation. The Thessalon Reserve is located east of Sault Ste. Marie, Ontario. Mr. Roe’s mother was native. Mr. Roe’s parents separated when he was young and he only learned of his heritage when he was an adult. He has never lived on a reserve.
[40] Mr. Roe is a commercial truck driver. In about 1998 he was hired by B.N Dulay Trux Ltd. (“Trux”) to transport commercial cargo throughout Canada and the U.S. Trux had its offices in Richmond and Delta B.C. Those offices were not on a reserve and the principals of Trux were not natives.
[41] At some point while working for Trux, Mr. Roe attended a native rights seminar in Vancouver where Mr. Obonsawin was speaking and learned about OI’s services. In September 1999, at Mr. Roe’s request, Trux ceased employing him directly and he arranged to be employed by OI and to provide his services to Trux as a leased employee. Mr. Roe said in cross-examination that his reason for joining OI was to obtain an exemption from paying income tax.
[42] In February 2000 Mr. Roe’s services were leased by OI to Aujla Trucking Ltd., who contracted to Trux to provide trucks and drivers to carry out contracts arranged by Trux for cargo transport in Canada and the U.S. Aujla’s offices were not located on a reserve and the principals of Aujla were not natives.
[43] From September 2000 until 2006, Mr. Roe’s services were again leased directly to Dulay Trux by OI.
[44] Mr. Roe said that some of the locations to which he delivered cargo for Trux and Aujla might have been on a reserve but that the vast majority of the destinations were not.
[45] During the periods in appeal, Mr. Roe was on the road most of the time and lived in his truck. He did not have any other residence.
Alegha Van Hanuse
[46] Alegha Van Hanuse is a member of the Oweekeno First Nation whose reserve is located near Bella Bella, B.C. She grew up off-reserve in Bella Bella and Victoria, although at one point as an adult she lived on the reserve for 7 months.
[47] After graduating from university with a degree in social work in 2000, she moved to Kelowna and was hired by the Ki-Low-Na Friendship Society. When she was offered employment at the Society, Ms. Van Hanuse said that the bookkeeper told her about the services of NLS and offered to “set it up” for her. Ms. Van Hanuse chose to be employed through NLS and entered into an employment contract with NLS on September 11, 2000 and her services were then leased to the Society.
[48] Ms. Van Hanuse started off as a volunteer coordinator but she took on additional duties as the Community Action Plan for Children (“CAPC”) worker at the Society in order to have full-time work. The CAPC was a federal government program promoting the healthy development of children and families through parenting and nutrition support groups. Few details of the initiative were presented. Ms. Van Hanuse said that most of her clients in this program were natives from other parts of Canada. She also said that she held at least one weekly CAPC session at the Society’s office in Kelowna and one on the nearby Westbank Reserve.
[49] After a couple of months at the Society, Ms. Van Hanuse also took over as the Canadian Pre-natal Program (“CPNP”) worker when a co-worker went on leave. The evidence did not show what the particular goals of this program were but it appears that it was designed to assist and educate expectant mothers on nutrition and health care during pregnancy. Ms. Van Hanuse said that she was left on her own to decide what she wanted to do to develop the CAPC and CPNP programs and relationships with the community. For the CPNP she said that her caseload consisted of pregnant native women, many of whom were homeless and living in tents and shelters. She tried to meet with these clients where they were living. She said the clients would also drop in to see her at the Society office. She also did home visits on the Westbank Reserve.
[50] She said that for the first weeks that she worked at the Society she was mostly in the office, but by the time she finished the job in March 2001 she was spending between 70 and 80 per cent of her time working on the Westbank Reserve. She would go to the Reserve with her boyfriend (later her husband), Luc Van Noorden, who was a family services worker at the Society, when he did home visits there because she did not have a driver’s license herself. At one point in her evidence she said that Luc was with her whenever she was on the reserve, but later said she would sometimes go to the reserve with a person who worked at “Métis services”. She did not say how frequently this occurred or give any details of those visits.
[51] While Mr. Van Hanuse (the name Mr. Van Noorden took after he and Ms. Van Hanuse got married) testified that Ms. Van Hanuse did a lot of outreach on the reserve, his claims for reimbursement of travel expenses incurred in the course of his employment with the Society show only a limited number of trips to the Westbank Reserve. Although he did not apparently submit claims for all the months he worked at the Society, the claims for January, February and March 2001 appear to be complete. During those three months, which were the last months worked by Ms. Van Hanuse at the Society, there are references to trips to the Westbank reserve on only five days. Mr. Van Hanuse said that a couple of additional entries may have related to trips to the Westbank Reserve, but that he could not say for certain. Even allowing for missed entries, it appears to me that Mr. Van Hanuse visited the Westbank Reserve only one and occasionally two days a week. Therefore, Ms. Van Hanuse herself would not have traveled there much more frequently than that herself. Also, Mr. Van Hanuse said that Ms. Van Hanuse only traveled to the Westbank Reserve with him.
[52] Ms. Van Hanuse said that she chose to be employed by NLS because it gave her access to the tax exemption and to other benefits. She could not recall what other benefits were offered besides the tax exemption. She did not need the other benefits at the time, but she wished to have the option of taking them in the future should the need arise.
Pauline Janyst
[53] Pauline Janyst is a member of the Da’Naxda’xw First Nation. She grew up on the Da’Naxda’xw Reserve near Alert Bay, B.C. but left at the age of 12 to attend residential school in Alert Bay and Port Alberni. She attended college in Vancouver and then moved to Campbell River where she worked in retail and ran her own clothing store. Later, she worked with Campbell River Family Services and created a number of programs for native people. In 1992, with funding from the government and local bands, she set up a separate organization to help prevent family violence. She also worked for a time in Victoria in native services delivery.
[54] In August 1999, Ms. Janyst began working for the Aboriginal Healing Foundation (“AHF”). The AHF was set up by the federal government in 1998 to provide support, through research and funding contributions, to community-based Aboriginal directed healing initiatives addressing the legacy of residential school abuse. In its 2000 Annual Report the AHF stated that it sought “to support the participation of all Aboriginal people, including Métis, Inuit, and First Nations, both on and off reserves and both status and non status, in effective healing processes”.
[55] The AHF has its offices in Ottawa and is governed by a Board of Directors made up of Aboriginal people from across Canada.
[56] Ms. Janyst worked on contract in the Ottawa office until early 2000, revising the proposal review process for the AHF. She then returned to Victoria and acted as a community support coordinator for the B.C. region, putting on information sessions and assisting applicants with the development and presentation of their proposals, carrying out site visits to monitor approved projects, creating project networks, and reviewing and evaluating projects. Ms. Janyst was based out of her home in Victoria, which was not located on a reserve. She traveled extensively in B.C. and also on occasion to Ottawa.
[57] In February 2000, Ms Janyst entered into an employment contract with NLS and was placed at the AHF. She was given the option by the AHF to go through NLS when she was offered the position of community support coordinator, the same position she had been in on contract. Some of the AHF workers were employees of NLS and others were employed directly by the AHF.
[58] While acting as the community support coordinator, she estimated that she was on the road about three and a half days a week, with much of that time spent on reserves. She also visited Friendship Centres and offices of native organizations located off-reserve.
[59] A number of reports prepared by Ms. Janyst in the course of her work for the AHF were entered as exhibits, including monthly summaries of her activities for May to August and October 2000. The summaries showed that Ms. Janyst visited reserves once in May, three times in June, once in July, three times in August. No visits to a reserve were shown on the October report. From the information available it appeared that in all she spent ten or eleven days on reserve during those five months. The remaining documents that were presented showed that Ms. Janyst also visited reserves for her work twice in April 2000, three times in November 2000 and twice in February 2001. Ms. Janyst’s estimate that she was on the road about three and a half days a week, with much of that time spent on reserves therefore does not accord with the reports she prepared during those years. Those reports tend to show that she spent no more than two or three days a month on reserves.
Barbara Matilpi
[60] Barbara Matilpi is a member of the Namgis First Nation whose reserve is off the Northern Coast of Vancouver Island. She was raised on the reserve, but moved to Vancouver with her sister to attend high school. She attended college in Victoria and worked for the B.C. government for 22 years. Her last position with the government was at the Ministry of Aboriginal Affairs where she administered funding programs under the First Citizens’ Fund.
[61] In 1997 she was hired by the B.C. Association of Aboriginal Friendship Centres (“BCAAFC”) as the program administrator.
[62] The BCAAFC is an umbrella organization for the 23 Friendship Centres in B.C. Friendship Centres were created to help natives integrate into urban centres from reserves and maintain their culture in an urban environment. The Friendship Centre movement began with the acceleration of native migration from reserves to urban centres in the 1960s. All but one of the B.C. Friendship Centres were located in urban centres off-reserve. Although the programs and services at the Centres were directed at natives, they provided services to anyone, regardless of race, where resources were available.
[63] The mandate of the BCAAFC is to promote the betterment of Aboriginal Friendship Centres in B.C., to establish and maintain communications between the Centres and other provincial and territorial associations and the National Association of Friendship Centres (the “NAFC”), to act as a unifying body for the Centres and to act as liaison between the Centres and government agencies, and to advise the government on programs to assist the Centres in the development of programs to better the lives of Aboriginal people in B.C. It is one of seven provincial and territorial Friendship Centre associations (“PTAs”) in Canada.
[64] At the time Ms. Matilpi was hired, Heritage Canada had just transferred the administration of the core funding for Friendship Centres to the NAFC. The BCAAFC had been designated to review and make recommendations concerning applications by the B.C. Friendship Centres to the NAFC for funding. As program director, Ms. Matilpi evaluated the applications submitted by the Friendship Centres. She verified that the audited financial reports of the applicant for the previous year had been received by the BCAAFC and forwarded the applications along with her comments and recommendations to the NAFC. Ms. Matilpi also was assisted with financial monitoring of certain Friendship Centres and provided support and training to directors of the Centres when requested.
[65] Ms. Matilpi was also given responsibility for reviewing and making recommendations on applications for grants under the First Citizens’ Fund when that role was transferred to the BCAAFC by the provincial government. The First Citizens’ Fund was set up by the B.C. government to provide money for bursaries for native students, for native elders’ to travel to conferences and gatherings, and for programs at Friendship Centres. Ms. Matilpi did not say what the conditions the applicants for these grants were required to meet, or how the successful applicants were selected.
[66] Ms. Matilpi performed most of her work in the offices of the BCAAFC and occasionally visited some of the Friendship Centres. When she started at the BCAAFC, its offices were on the Tsawout Reserve near Victoria but they were moved off-reserve to downtown Victoria in July 2001.
[67] When the BCAAFC office was moved, the executive director arranged for those BCAAFC employees who wished to do so to enter into an employment relationship with NLS. Ms. Matilpi chose to become an NLS employee and entered into an employment contract with NLS in July 2001. She was employed by NLS until July 26, 2002. From September 2001 until her resignation she had her paycheques deposited in a bank located on a reserve in North Vancouver.
[68] Ms. Matilipi did not live on a reserve in the years in issue.
Delores Jim
[69] Delores Jim is a member of the Penelakut Indian Band whose reserve is located on Thetis Island and Penelakut Island off the east coast of Vancouver Island. Ms. Jim grew up on a reserve at Ruby Lake, B.C. and moved to the Penelakut Reserve when she got married. She was a community aid worker at the residential school on the reserve and provided medical care and alcohol and drug counseling to the community. In about 1985 she moved to North Vancouver and was hired by as a house supervisor at the Circle of the Eagles Lodge, a community residential facility for natives on conditional release from federal correctional institutions. In the years in issue the facility was run by the Circle of the Eagles Lodge Society (“COELS”). It was located in Vancouver and was not on a reserve.
[70] Ms. Jim’s duties at the Lodge were dependent on the shift that she worked. For the 4 p.m. to midnight shift, she monitored the residents, cooked and cleaned. On the midnight shift, she monitored the residents, did bed checks and did record keeping. On the day shift she monitored the residents, cooked and cleaned and taught the residents how to cook.
[71] The mandate of the COELS is to help reduce the number of native repeat offenders through its residential half-way house and rehabilitation services. The facility was open to status and non-status Indian, Inuit and Métis offenders from across Canada. Acceptance into the facility is not conditional on past or future residency on a reserve, but many of the participants were from reserves. According to the direc