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A-407-76
Minister of National Revenue (Applicant) v.
Iroquois of Caughnawaga (Caughnawaga Indian Band) (Respondent)
Court of Appeal, Jackett C.J., Pratte J. and Hyde D.J.—Montreal, December 16 and 17, 1976; Ottawa, January 21, 1977.
Judicial review — Unemployment insurance — Application for review of Umpire's decision that employers' premiums are not payable in respect of persons employed by an Indian Band on the Band's reserve — Whether premiums are taxation on property within meaning of s. 87 of Indian Act — Whether respondent an employer within meaning of s. 2(1)(e) of Unem ployment Insurance Act, 1971 — Whether Court has jurisdic tion to review Umpire's decision — Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, ss. 2(1)(e), 66(2) and 84 — Indian Act, R.S.C. 1970, c. I-6, s. 87 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Applicant claims that employers' premiums are payable in respect of persons employed by an Indian Band on the Band's reserve. The respondent claims that the premiums are a tax on property within the meaning of section 87 of the Indian Act and that the Band is therefore exempted from the relevant provisions of the Unemployment Insurance Act, 1971 and that in any event the Band is not an employer as defined by section 2(1)(e) of the Unemployment Insurance Act, 1971.
Held, section 87 of the Indian Act only exempts Indian Bands from direct taxation on property and the premiums herein, even if they are taxes, are taxes on the person. The respondent is in fact an employer within the meaning of section 2(1)(e) of the Unemployment Insurance Act, 1971 and no evidence was led to show that it had no authority to be one. The Umpire's decision is referred back (Jackett C.J. dissenting).
Per Jackett C.J. (dissenting): For the reasons set out in M.N.R. v. Dame L. H. MacDonald the Court has no jurisdic tion to review the decision of an Umpire under section 84 of the Unemployment Insurance Act, 1971.
Provincial Treasurer of Alberta v. Kerr [1933] A.C. 710 and M.N.R. v. Dame L. H. MacDonald [1977] 2 F.C. 189, applied.
JUDICIAL review. COUNSEL:
Claude Blanchard and W. Lefebvre for applicant.
James A. O'Reilly and William S. Grodinsky for respondent.
SOLICITORS:
Deputy Attorney General of Canada for applicant.
O'Reilly, Hutchins & Archambault, Mont- real, for respondent.
The following are the reasons for judgment rendered in English by
JACKETT C.J.: This is a section 28 application to set aside a decision rendered by an Umpire under section 84 of the Unemployment Insurance Act, 1971.
The question involved in the matter before the Umpire was whether employers' premiums are payable in respect of persons employed by an Indian Band at a hospital and related facility operated by the Band on the Band's reserve. The Umpire held that such premiums are not payable.
The provision of the Unemployment Insurance Act, 1971 that would appear to be the "charging provision" in respect of what were previously called employers' and employees' contributions and are called "premiums" under the 1971 Act is section 66(2), which reads:
(2) Every employer shall, for every week during which a person is employed by him in insurable employment, pay, in respect of that person and in the manner provided in Part IV, an amount equal to such percentage of that person's insurable earnings as is fixed by the Commission as the employer's premium payable by employers or a class of employers of which the employer is a member, as the case may be, for the year in which that week occurs.
The principal basis put forward by the respond ent for supporting the correctness of the Umpire's decision was that the premiums in question are "taxation" on "property" that falls within section 87 of the Indian Act', which reads:
87. Notwithstanding any other Act of the Parliament of Canada or any Act of the legislature of a province, but subject to subsection (2) and to section 83, the following property is exempt from taxation, namely:
' R.S.C. 1970, c. I-6.
(a) the interest of an Indian or a band in reserve or surren dered lands; and
(b) the personal property of an Indian or band situated on a reserve;
and no Indian or band is subject to taxation in respect of the ownership, occupation, possession or use of any property men tioned in paragraph (a) or (b) or is otherwise subject to taxation in respect of any such property; and no succession duty, inheritance tax or estate duty is payable on the death of any Indian in respect of any such property or the succession thereto if the property passes to an Indian, nor shall any such property be taken into account in determining the duty payable under the Dominion Succession Duty Act, being chapter 89 of the Revised Statutes of Canada, 1952, or the tax payable under the Estate Tax Act, on or in respect of other property passing to an Indian.
As it seems to me, it is not necessary, for present purposes, to express any opinion as to whether the imposition by statute on an employer of liability to contribute to the cost of a scheme of unemploy ment insurance such as is found in the Unemploy ment Insurance Act, 1971 is "taxation" within the meaning of section 87. 2 If it is taxation, it is not, in my view, taxation on "property" within the ambit of section 87.
From one point of view, all taxation is directly or indirectly taxation on property; from another point of view, all taxation is directly or indirectly taxation on persons. It is my view, however, that when section 87 exempts "personal property of an Indian or band situated on a reserve" from "taxa- tion", its effect is to exempt what can properly be classified as direct taxation on property. The courts have had to develop jurisprudence as to when taxation is taxation on property and when it is taxation on persons for the purposes of section 92(2) of The British North America Act, 1867, and there would seem to be no reason why such jurisprudence should not be applied to the inter pretation of section 87 of the Indian Act. See, for example, with reference to section 92(2), Provin cial Treasurer of Alberta v. Kerr. 3 When the charging section is clear, its terms must be con strued to decide what is the subject matter of the
2 In this connection, it would be necessary to consider the decision of the Privy Council in Attorney-General for Canada v. Attorney-General for Ontario [1937] A.C. 355, section 91(2A) of The British North America Act, and Re Martin Service Station and M.N.R. (1976) 67 D.L.R. (3d) 294 (S.C.C.).
3 [1933] A.C. 710.
taxation. See the same case per Lord Thankerton at pages 720-21. Section 62(1) of the Unemploy ment Insurance Act, 1971 says that an employer shall pay the amount in question "in respect of" an employee in insurable employment. As already indicated, this seems to be the charging provision. That being so, in my view, the Umpire erred in holding that section 87 is applicable to exempt Indians or bands of Indians from paying premiums under the Unemployment Insurance Act, 1971.
A subsidiary submission of the respondent in support of the Umpire's decision is that the respondent is not an "employer" within the mean ing of section 2(1)(e) of the Unemployment Insur ance Act, 1971, which reads:
(e) "employer" includes a person who has been an employer;
In my view, it is clear that the respondent does in fact operate the institutions in question and does employ the employees in question. No evidence was led to show that there was not legal authority for it to do what it did in fact, and I find no basis for the Umpire's decision in this contention.
However, for the reasons that I have given in delivering judgment this day in M.N.R. v. Dame L. H. MacDonald 4 (which was heard at the same time as this application), I am of opinion that this Court has no jurisdiction under section 28 to set aside a decision of the Umpire under section 84 of the Unemployment Insurance Act, 1971. I am, therefore, of the view that this section 28 applica tion should be dismissed for lack of jurisdiction.
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The following are the reasons for judgment rendered in English by
PRATTE J.: I have already said in M.N.R. v. Dame L. H. MacDonald [ [1977] 2 F.C. 189] that, in my view, this Court has jurisdiction to review and set aside a decision pronounced by an Umpire under section 84 of the Unemployment Insurance Act, 1971. As I agree with the Chief Justice that
4 [1977] 2 F.C. 189.
the Umpire's decision in this case is wrong, it follows that I would allow the section 28 applica tion, set aside the decision under attack and refer the matter back so that it be decided by an Umpire on the basis that
(a) the respondent is an "employer" within the meaning of the Unemployment Insurance Act, 1971, and
(b) the obligation of an employer to pay premi ums under the Unemployment Insurance Act, 1971, is not a tax in respect of property within the meaning of section 87 of the Indian Act.
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The following are the reasons for judgment rendered in English by
HYDE D.J.: For the reasons given by Mr. Justice Pratte I would dispose of this application in the manner he suggests.
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