2013 QCCA 1839, 2013 QCCA 1839

Unofficial English Translation Agence du revenu du Québec c. Jenniss 2013 QCCA 1839 COURT OF APPEAL CANADA PROVINCE OF QUÉBEC REGISTRY OF QUÉBEC No. 200-09-007992-131 (200-80-004291-108) DATE: October 25, 2013 ______________________________________________________________________ PRESIDING: THE HONOURABLE DOMINIQUE BÉLANGER J.C.A. ______________________________________________________________________ AGENCE DU REVENU DU QUÉBEC APPELLANT - Defendant v.

MARCELLE JENNISS RESPONDENT – Plaintiff and LISTUGUJEWAQ PETITIONER [ 1 ] The petitioner, LISTUGUJEWAQ, also known as the Listuguj Mi’gmaq First Nation, is an Indian band within the meaning of the Indian Act [1] (hereinafter “the Act“) that entered into a fishing agreement with Her Majesty the Queen in right of Canada (Minister of Fisheries and Oceans), following Marshall . [2] [ 2 ] On the basis of articles 208 to 210 of the Code of Civil Procedure , the petitioner is seeking authorization to intervene in the present dispute in order that it may support the respondent’s position. [ 3 ] Subsidiary, the petitioner seeks to intervene as a matter of public interest, based on

article 211 C.C.P., arguing that it can provide the Court with additional insight into the matter. [ 4 ] The appellant and the respondent are opposed to the application for intervention. The dispute [ 5 ] The respondent is an Indian within the meaning of the Act , who belongs to the Viger Maliseet First Nation, a reserve located in the Cacouna region. The judgment in first instance acknowledged that her income, as captain of a fishing boat owned by the Viger Maliseet First Nation, is exempt from taxation. [ 6 ] The question submitted to the Court is whether the income received by the respondent must be considered income situated on a reserve within the meaning of

section 725 (

e) of the Taxation Act . [3] [ 7 ] Two subquestions arise: ➢ What are the connecting factors and what weight should they be given for the purpose of assessing the situs of the respondent’s employment income? ➢ Does the fishing agreement constitute a treaty or an agreement between a band and Her Majesty within the meaning of section 90(1) (

b) of the Indian Act ? [ 8 ] Following Marshall concerning the fishing rights of First Nations in Eastern Canada, the Minister of Fisheries and Oceans entered into fishing agreements with certain Indian bands, including the petitioner and the Viger Maliseet First Nation. The agreements are similar, if not identical. [ 9 ] The aim of a fishing agreement is to ensure that an Indian band has access to fishery resources not only for food, social and ceremonial purposes, but also for commercial fishing purposes, through a communal fishing licence.

To that end, communal fishing licences are issued and held for the benefit of all band members. To help the band develop its fishing capacity, the Minister of Fisheries and Oceans supplies boats to the band, which becomes the owner. [ 10 ] The petitioner is an Indian band comprising 4000 members, of which 2000 reside on the Listuguj reserve, located in Gaspésie.

Fishing is a key activity for the band, and the answer given to the question posed could affect its members. [ 11 ] The petitioner alleges that the question of whether an agreement arising from Marshall constitutes a treaty or an agreement between a band and Her Majesty within the meaning of section 90(1)(

b) of the Indian Act is of primary importance to it. It appears to be a question of public law, arising from treaties and the decision rendered by the Supreme Court of Canada. Analysis [ 12 ] Voluntary intervention is allowed in three cases that meet specific requirements. The intervention may be based on articles 208 to 210 C.C.P. and may be aggressive or conservatory. Amicable or public interest intervention is based on

article 211 C.C.P. [ 13 ] V oluntary intervention is termed aggressive when the third party asks to be acknowledged as having, against the parties or one of them, a right which is in dispute; it is termed conservatory when the third party only seeks to be substituted for one of the parties, in order to represent the party, or to be joined with such party in order to assist them, either to aid their action or to support their submissions.

The intervening party is sometimes described as “accessory” ; the fate of the party will be in keeping with that of the party they support. [ 14 ] In both cases, where intervention is authorized, the intervener becomes a party. Aggressive or conservatory intervention requires that the intervening party have an interest within the meaning of

article 55 C.C.P. The legal interest of the intervening party must be apparent from the party’s proceeding and be related to the principal action by a connection. The intervener must demonstrate a personal right in connection with a party or a real right bearing on the object of the dispute. [4] [ 15 ] It seems clear from the proceeding concerned here that the petitioner does not have a legal interest in the dispute, as instituted. It is a third party to the dispute and can thus not avail itself of the possibility of intervening and becoming a party to it, pursuant to articles 208 to 210 C.C.P.

Therefore, its application for conservatory intervention is without foundation. [ 16 ] This having been established, can the petitioner avail itself of

article 211 C.C.P. and become an amicable intervener, as it has requested in the alternative? [ 17 ] Amicable or public interest intervention is that which is authorized by the court so that the intervener may provide it with information likely to enlighten its reasoning, simplify its task and assist it in its reflection. The status of intervener is not that of a party, but is akin to that of amicus curiae . This type of intervention has been codified since 2002. [5] [ 18 ] The authorization of this type of intervention is a discretionary matter.

The court determines whether it is appropriate to hear an intervener, considering the questions in dispute and after having heard the parties. [ 19 ] As my colleagues Clément Gascon [6] and Marie St-Pierre [7] JJ.A. have pointed out, it is first necessary to analyze the nature of the case and the questions to be decided and to ask whether the debate concerns questions of public law, constitutional law or fundamental rights as opposed to a purely private dispute.

Identifying the questions in dispute makes it possible to make an expediency assessment. [ 20 ] Recalling the principles established by Gascon J.A., Madam Justice St-Pierre stated the following: [TRANSLATION] [13] Based on the study by my colleague Gascon J.A. in Dunkin' Brands Canada Ltd. v. Bertico inc . ( 2013 QCCA 867 ) and the authorities cited in it, I conclude that I must be guided by

the following principles: • A judge seized of an application for intervention enjoys wide discretion; • While it is necessary to adopt a generous approach to intervention in a case of public law, constitutional law or fundamental rights, considerable caution must be exercised if a private dispute is involved; • The mere fact that the Court’s judgment may have an impact on the situation of the party seeking to intervene or on other existing or future disputes is not sufficient; • The burden of proving that the parties to the case are not able to provide the Court with all the necessary and desirable enlightenment to settle the debate of which it has been seized, lies with the party seeking to intervene; • The intervention must not be a source of redundancy; • The opportunity of the measure depends in particular on the assessment of its advantages and disadvantages, including its effects on the unfolding of the case; • The intervenor must be able to assist the Court in settling the specific and limited debate of which it has been seized; the objective is not to transform the debate or broaden its scope.

Accordingly, consideration of the intervention’s opportunity must be concrete and non-theoretical; • The positions of the parties to the case must be taken into account, especially in the case of a private dispute; • The principles of proportionality and of maintaining a proper equilibrium between the parties concerned must be taken into account at all times. [ 21 ] This is a case of a dispute involving a private matter between a Quebec taxpayer and the Agence du revenu du Québec, but whose ramifications go beyond the private sphere and could affect the rights of First Nations members. [ 22 ] The dispute stems in part from the facts in evidence, especially concerning the question of connecting factors.

Were it not for this one question, the application would be dismissed, because the outcome stems largely from the facts of the case, which is essentially personal to the respondent and the Viger Maliseet First Nation. [ 23 ] However, the dispute raises an important question for First Nations, that of whether an agreement entered into following Marshall constitutes a treaty or an agreement between a band and Her Majesty, in accordance with section 90(1) (

b) of the Act . [ 24 ] The answer that the Court will give on this point transcends the private nature of the dispute. [ 25 ] Contrary to what the parties allege, there is little risk that a multitude of interventions will occur, given that in Quebec only the Maliseets and three Mi’gmaq bands have signed fishing agreements. [ 26 ] The intervener should be authorized to make representations on this question alone, despite the parties’ opposition to its intervention. [ 27 ] Considering that the petitioner has shown, through its knowledge of the question, that it can properly in form the Court. THEREFORE, THE UNDERSIGNED: [ 28 ] GRANTS the application for intervention, in accordance with

article 211 of the Code of Civil Procedure , without costs; [ 29 ] AUTHORIZES the petitioner LISTUGUJEWAQ to intervene in this appeal and to make representations on the following question alone: Does the fishing agreement constitute a treaty or an agreement within the meaning of section 90(1) (

b) of the Indian Act ? [ 30 ] GRANTS the petitioner 30 days to serve and file a factum of no more than 10 pages; [ 31 ] GRANTS the parties the right to respond to the intervener’s arguments, in an additional factum of no more than five pages , to be served and filed no later than 45 days following the reception of the intervener’s factum; GRANTS the intervener 20 minutes to plead. (

s) DOMINIQUE BÉLANGER J.C.A. Mtre. Franklin S. Gertler Franklin Gertler Law Office For the petitioner Mtre. David Schulze Mtre. Nicholas Dodd Dionne Schulze For the petitioner Mtre. Yves Gravel Yves Gravel, attorney For the respondent Mtre. Danny Galarneau Revenu Québec For the appellant Date of hearing: October 24, 2013