ROGER OBONSAWIN Appellant v. HER MAJESTY THE QUEEN, 2011 FCA 152

Federal Court of Appeal CANADA Cour d'appel fédérale Federal Court of Appeal CANADA Cour d'appel fédérale Date: 20110503 Docket: A-207-10 Citation: 2011 FCA 152 CORAM: BLAIS C.J. LÉTOURNEAU J.A. SEXTON J.A. BETWEEN: ROGER OBONSAWIN Appellant and HER MAJESTY THE QUEEN Respondent Heard at Ottawa, Ontario , on May 3, 2011. Judgment delivered from the Bench at Ottawa, Ontario , on May 3, 2011. REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A. Date: 20110503 Docket: A-207-10 Citation: 2011 FCA 152 CORAM: BLAIS C.J. LÉTOURNEAU J.A. SEXTON J.A.

BETWEEN: ROGER OBONSAWIN Appellant and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa , Ontario, on May 3, 2011) LÉTOURNEAU J.A. [ 1 ] The appellant appeals against a decision of Webb J. of the Tax Court of Canada (judge) whereby he dismissed with costs the appellant​s appeal against the assessments made by the Minister of National Revenue under

Part IX of the Excise Tax Act , R.S.C. 1985, c. E-15 (ETA). [ 2 ] The appellant was assessed on the ETA for his failure to collect and remit the GST owed by his clients on the supplies he provided to them. He claimed that, pursuant to

section 87 of the Indian Act , R.S.C. 1985, c. I-5, he was exempt from taxation and the GST assessments against him amounted to a tax on his property situated on a reserve or a tax on him in respect of that property. [ 3 ]

Section 87 reads:

Property exempt from taxation 87.

(1) Notwithstanding any other Act of Parliament or any Act of the legislature of a province, but subject to

section 83 and

section 5 of the First Nations Fiscal and Statistical Management Act, the following property is exempt from taxation: (

a) the interest of an Indian or a band in reserve lands or surrendered lands; and (

b) the personal property of an Indian or a band situated on a reserve. Idem

(2) No Indian or band is subject to taxation in respect of the ownership, occupation, possession or use of any property mentioned in paragraph (1)(

a) or (

b) or is otherwise subject to taxation in respect of any such property. Biens exempts de taxation 87.

(1) Nonobstant toute autre loi fédérale ou provinciale, mais sous réserve de l​article 83 et de l​article 5 de la

Loi sur la gestion financière et statistique des premières nations, les biens suivants sont exemptés de taxation :

a) le droit d​un Indien ou d​une bande sur une réserve ou des terres cédées;

b) les biens meubles d​un Indien ou d​une bande situés sur une réserve. Idem

(2) Nul Indien ou bande n​est assujetti à une taxation concernant la propriété, l​occupation, la possession ou l​usage d​un bien mentionné aux alinéas (1)

a) ou

b) ni autrement soumis à une taxation quant à l​un de ces biens. [ 4 ] After a careful analysis of the evidence, the contracts with placement organizations and the relevant jurisprudence, the judge drew the following conclusions:

a) the appellant provided taxable supplies in the nature of services for which an administrative fee was charged;

b) no personal property of the appellant was being taxed or taken;

c) the appellant was not taxed in respect of the ownership, occupation, possession or use of any of his personal property;

d) the appellant was the supplier of the services and it was the purchaser, not the vendor, of these services which was taxed;

e) none of the purchasers of the services were Indians and would qualify for an exemption from taxation under the Indian Act : the appellant cannot pass to a person who is not an Indian or a Band an exemption that he may or could have under

section 87 of the Indian Act ;

f) since the GST was not imposed on the appellant but on his clients, it did not erode the appellant​s property; g) subsection 87(2) of the Indian Act does not apply since the appellant is not taxed because the tax is due by the purchaser, not the appellant; and

h) the appellant was assessed for the GST that he failed to collect from his client: he is not taxed, he is assessed for his failure to collect and remit the GST. [ 5 ] We are in agreement with the factual and legal findings and conclusions of the judge. There was ample evidence and legal authorities to support them. This appeal is without merit and will be dismissed with costs. ​Gilles Létourneau​ J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-207-10 STYLE OF CAUSE: ROGER OBONSAWIN v.

HER MAJESTY THE QUEEN PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: May 3, 2011 REASONS FOR JUDGMENT BLAIS C.J. OF THE COURT BY: LÉTOURNEAU J.A. SEXTON J.A. DELIVERED FROM THE BENCH BY: LÉTOURNEAU J.A.

APPEARANCES : Maxime Faille Jaimie Lickers Mark Siegel FOR THE APPELLANT Gordon Bourgard FOR THE RESPONDENT SOLICITORS OF RECORD : Gowling Lafleur Henderson LLP Ottawa , Ontario FOR THE APPELLANT Myles J. Kirvan Deputy Attorney General of Canada FOR THE RESPONDENT