Brant v. Canada
T-528-98
Rothstein J.
16/9/98
22 pp.
Determinations of questions of law-Plaintiff, Indian, owning gas bar on Tiendinaga Mohawk First Nation's territory, reserve under Indian Act-Sells gasoline to Indians, non-Indians-Purchases gasoline at price including 14.7 cents per litre Ontario gasoline tax-On sales to qualified Indians with identification who purchase gasoline for personal use, plaintiff reducing price by 14.7 cents per litre-Submitting application for refund to Ontario Minister of Finance-Minister of National Revenue assessing plaintiff for GST in respect of sales of gasoline to non-Indians in amount of $474,825.83 including interest, penalties-As part of collection action, seized Ontario gasoline tax rebates payable by Ontario Minister of Finance-(1) Are such gas tax refunds personal property of plaintiff situated on reserve, and accordingly not subject to seizure by virtue of Indian Act, s. 89?-Question of whether property of Indian situated on reserve for taxation or seizure purposes to be determined according to connecting factors test enunciated in Williams v. Canada, [1992] 1 S.C.R. 877-Necessary to identify relevant connecting factors, analyze them to determine weight in identifying location of property, in light of three considerations: purpose of exempting provision; nature of property sought to be taxed; nature of taxation-In present case, nature of property seized, nature, incidence of seizure relevant-(i) Plaintiff's residence weighing against refunds being considered as situated on reserve-As living off reserve six days per week, gasoline tax refunds not having much to do with use, occupancy of reserve as Indian-(ii) Business located on reserve-Operation of business on reserve and sales to Indians on reserve ultimately giving rise to indebtedness of Ontario Minister of Finance-This factor connecting rebates to reserve, entitled to significant weight-(iii) Where no evidence of specific employment policy connecting business to reserve, that half staff status Indians residing on reserve may simply be coincidence-This factor entitled to little weight-(iv) Where business catering to Indians, non-Indian customers alike, indicating commercial mainstream business-As 50% of customers Indians, 50% non-Indians, nature of clientele tending to be factor discounting property in question from being considered as situated on reserve-(v) Plaintiff entitled to refund, not because exempt from taxation under s. 87(1), but because customers exempt under s. 87(1)-That any retailer on reserve would be entitled to rebate placing rebate in commercial mainstream thus weighing against it being considered situated on reserve-(vi) In case of seizure, property must be in debtor's possession for seizure to be effective-Location of debtor tending to be more critical factor-Off-reserve location of government office when seizure effected factor weighing against property being considered as situated on reserve-(vii) That gasoline obtained from off reserve tending to be commercial mainstream consideration weakening connection of rebates to reserve-(viii) As normal business practice payment by cheque from plaintiff's account off reserve, tending to weigh against rebates being considered as situated on reserve-Dicta of La Forest J. in Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85 relevant: as personal property acquired by Indians in normal business dealings simply property anyone else might have acquired, no reason why Indians in those circumstances should not be treated in same way as other people-Situs of rebate off reserve, subject to seizure, not protected by reason of s. 89(1)-Based on connecting factors test, Ontario gasoline tax rebates not exempt from seizure by virtue of Indian Act, s. 89(1)-(2) Does "person" for purpose of Excise Tax Act, s. 317(1) include Ministry of Finance of Province of Ontario?-S. 317 providing where Minister knowing, suspecting person liable to make payment to another person, may require person to pay forthwith moneys otherwise payable to tax debtor-Either knowing, suspecting Ontario would be liable to make payment to plaintiff, Minister serving letter on Ontario requiring it to pay moneys owed to plaintiff to Minister-Interpretation Act, s. 17 providing no enactment binding on Her Majesty except as mentioned or referred to in enactment-Unless Excise Tax Act mentioning or referring to Her Majesty in right of province, Ontario not bound, s. 317(1) not applicable-"Mentioned or referred to" encompassing (i) expressly binding words; (ii) clear intention to bind; (iii) intention to bind where purpose of statute would be "wholly frustrated" if government not bound: Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 2 S.C.R. 225-Neither Excise Tax Act, s. 123(1) definition of "person" nor s. 317 specifically including Crown-Purpose of Excise Tax Act not wholly frustrated if provinces not bound-Reference in s. 122 to "binding on Her Majesty in right of a province" for specific purpose suggesting Parliament not intending to bind Her Majesty in right of province generally for other obligations under Excise Tax Act-"Person" for purpose of Excise Tax Act, s. 317 not including Ministry of Finance-Excise Tax Act, R.S.C., 1985, c. E-15, ss. 122 (as enacted by S.C. 1990, c. 45, s. 12), 123 (as enacted idem), 317 (as enacted idem)-Indian Act, R.S.C., 1985, c. I-5, ss. 87, 89-Interpretation Act, R.S.C., 1985, c. I-21, s. 17.