JUNE ROBINSON, Appellant, v. HER MAJESTY THE QUEEN,, 2010 TCC 649

Docket: 2007-154(IT)I BETWEEN: JUNE ROBINSON, Appellant, and HER MAJESTY THE QUEEN, Respondent . ____________________________________________________________________ Appeal heard on common evidence with the appeals of Douglas Cockburn (2007-499(IT)I); Linda Cockburn (2007-500(IT)I); Simone Hillier (2007-799(IT)I); Sandra King (2007-807(IT)I); Jules Koostachin (2007-1026(IT)I); Julie Debassige (2007-1110(IT)I); Joan Kennedy (2007-1391(IT)I); Leanna Gerrior (2007-1525(IT)I); Martin John (2007-1526(IT)I); Janet Takata (2007-1897(IT)I); Bonnie Guarisco (2009-1125(IT)I); John Y Takata (2009-3790(IT)I); on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario Before: The Honourable D.W.

Rowe, Deputy Judge Appearances : Counsel for the Appellant: Graham Ragan Jaimie Lickers Counsel for the Respondent: Laurent Bartleman Anne Jinnouchi ____________________________________________________________________ JUDGMENT The appeal from the assessments made under the Income Tax Act for the 1995, 1996, 1997, 1999, 2005, 2006, 2007 and 2008 taxation years is dismissed in accordance with the attached Reasons for Judgment. Signed at Sidney, British Columbia this 22nd day of December 2010. ​D.W. Rowe​ Rowe D.J

Docket: 2007-499(IT)I BETWEEN: DOUGLAS COCKBURN, Appellant, and HER MAJESTY THE QUEEN, Respondent. ____________________________________________________________________ Appeal heard on common evidence with the appeals of June Robinson (2007-154(IT)I); Linda Cockburn (2007-500(IT)I); Simone Hillier (2007-799(IT)I); Sandra King (2007-807(IT)I); Jules Koostachin (2007-1026(IT)I); Julie Debassige (2007-1110(IT)I); Joan Kennedy (2007-1391(IT)I); Leanna Gerrior (2007-1525(IT)I); Martin John (2007-1526(IT)I); Janet Takata (2007-1897(IT)I); Bonnie Guarisco (2009-1125(IT)I); John Y Takata (2009-3790(IT)I); on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario Before: The Honourable D.W.

Rowe, Deputy Judge Appearances : Counsel for the Appellant: Graham Ragan Jaimie Lickers Counsel for the Respondent: Laurent Bartleman Anne Jinnouchi ____________________________________________________________________ JUDGMENT The appeal from the assessment made under the Income Tax Act for the 1995 taxation year is dismissed in accordance with the attached Reasons for Judgment. Signed at Sidney, British Columbia this 22nd day of December 2010. ​D.W. Rowe​ Rowe D.J. Docket: 2007-500(IT)I

BETWEEN: LINDA COCKBURN, Appellant, and HER MAJESTY THE QUEEN, Respondent. ____________________________________________________________________ Appeal heard on common evidence with the appeals of Douglas Cockburn (2007-499(IT)I); June Robinson (2007-154(IT)I); Simone Hillier (2007-799(IT)I); Sandra King (2007-807(IT)I); Jules Koostachin (2007-1026(IT)I); Julie Debassige (2007-1110(IT)I); Joan Kennedy (2007-1391(IT)I); Leanna Gerrior (2007-1525(IT)I); Martin John (2007-1526(IT)I); Janet Takata (2007-1897(IT)I); Bonnie Guarisco (2009-1125(IT)I); John Y Takata (2009-3790(IT)I); on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario Before: The Honourable D.W.

Rowe, Deputy Judge Appearances : Counsel for the Appellant: Graham Ragan Jaimie Lickers Counsel for the Respondent: Laurent Bartleman Anne Jinnouchi ____________________________________________________________________ JUDGMENT The appeal from the assessment made under the Income Tax Act for the 1995 taxation year is dismissed in accordance with the attached Reasons for Judgment. Signed at Sidney, British Columbia this 22nd day of December 2010. ​D.W. Rowe​ Rowe D.J. Docket: 2007-799(IT)I BETWEEN:

SIMONE HILLIER, Appellant, and HER MAJESTY THE QUEEN, Respondent. ____________________________________________________________________ Appeal heard on common evidence with the appeals of Douglas Cockburn (2007-499(IT)I); June Robinson (2007-154(IT)I); Linda Cockburn (2007-500(IT)I); Sandra King (2007-807(IT)I); Jules Koostachin (2007-1026(IT)I); Julie Debassige (2007-1110(IT)I); Joan Kennedy (2007-1391(IT)I); Leanna Gerrior (2007-1525(IT)I); Martin John (2007-1526(IT)I); Janet Takata (2007-1897(IT)I); Bonnie Guarisco (2009-1125(IT)I); John Y Takata (2009-3790(IT)I); on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario Before: The Honourable D.W.

Rowe, Deputy Judge Appearances : Counsel for the Appellant: Graham Ragan Jaimie Lickers Counsel for the Respondent: Laurent Bartleman Anne Jinnouchi ____________________________________________________________________ JUDGMENT Upon motion made by counsel for the Respondent for an Order to quash the Appellant​s purported appeal for the 1999 taxation year on the basis no federal tax was payable; And counsel for the Appellant having not opposed this motion; The motion is granted and the purported appeal for the 1999 taxation year is hereby quashed in accordance with the attached Reasons for Judgment.

The appeal from the assessments made under the Income Tax Act for the 1995, 1998, 2005 and 2006 taxation years is dismissed in accordance with the attached Reasons for Judgment. Signed at Sidney, British Columbia this 22nd day of December 2010.

​D.W. Rowe​ Rowe D.J.

Docket: 2007-807(IT)I BETWEEN: SANDRA KING, Appellant, and HER MAJESTY THE QUEEN, Respondent. ____________________________________________________________________ Appeal heard on common evidence with the appeals of Douglas Cockburn (2007-499(IT)I); June Robinson (2007-154(IT)I); Linda Cockburn (2007-500(IT)I); Simone Hillier (2007-799(IT)I); Jules Koostachin (2007-1026(IT)I); Julie Debassige (2007-1110(IT)I); Joan Kennedy (2007-1391(IT)I); Leanna Gerrior (2007-1525(IT)I); Martin John (2007-1526(IT)I); Janet Takata (2007-1897(IT)I); Bonnie Guarisco (2009-1125(IT)I); John Y Takata (2009-3790(IT)I); on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario Before: The Honourable D.W.

Rowe, Deputy Judge Appearances : Counsel for the Appellant: Graham Ragan Jaimie Lickers Counsel for the Respondent: Laurent Bartleman Anne Jinnouchi ____________________________________________________________________ JUDGMENT The appeal from the assessments made under the Income Tax Act for the 1999, 2005, 2006 and 2007 taxation years is dismissed in accordance with the attached Reasons for Judgment. Signed at Sidney, British Columbia this 22nd day of December 2010.

​D.W. Rowe​ Rowe D.J.

Docket: 2007-1026(IT)I BETWEEN: JULES KOOSTACHIN, Appellant, and HER MAJESTY THE QUEEN, Respondent. ____________________________________________________________________ Appeal heard on common evidence with the appeals of Douglas Cockburn (2007-499(IT)I); June Robinson (2007-154(IT)I); Linda Cockburn (2007-500(IT)I); Simone Hillier (2007-799(IT)I); Sandra King (2007-807(IT)I); Julie Debassige (2007-1110(IT)I); Joan Kennedy (2007-1391(IT)I); Leanna Gerrior (2007-1525(IT)I); Martin John (2007-1526(IT)I); Janet Takata (2007-1897(IT)I); Bonnie Guarisco (2009-1125(IT)I); John Y Takata (2009-3790(IT)I); on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario Before: The Honourable D.W.

Rowe, Deputy Judge Appearances : Counsel for the Appellant: Graham Ragan Jaimie Lickers Counsel for the Respondent: Laurent Bartleman Anne Jinnouchi ____________________________________________________________________ JUDGMENT The appeal from the assessments made under the Income Tax Act for the 2005 and 2006 taxation years is dismissed in accordance with the attached Reasons for Judgment. Signed at Sidney, British Columbia this 22nd day of December 2010. ​D.W. Rowe​

Rowe D.J.

Docket: 2007-1110(IT)I BETWEEN: JULIE DEBASSIGE, Appellant, and HER MAJESTY THE QUEEN, Respondent. ____________________________________________________________________ Appeal heard on common evidence with the appeals of Douglas Cockburn (2007-499(IT)I); June Robinson (2007-154(IT)I); Linda Cockburn (2007-500(IT)I); Simone Hillier (2007-799(IT)I); Sandra King (2007-807(IT)I); Jules Koostachin (2007-1026(IT)I); Joan Kennedy (2007-1391(IT)I); Leanna Gerrior (2007-1525(IT)I); Martin John (2007-1526(IT)I); Janet Takata (2007-1897(IT)I); Bonnie Guarisco (2009-1125(IT)I); John Y Takata (2009-3790(IT)I); on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario Before: The Honourable D.W.

Rowe, Deputy Judge Appearances : Counsel for the Appellant: Graham Ragan Jaimie Lickers Counsel for the Respondent: Laurent Bartleman Anne Jinnouchi ____________________________________________________________________ JUDGMENT The appeal from the assessments made under the Income Tax Act for the 1996, 1997, 2002 and 2003 taxation years is dismissed in accordance with the attached Reasons for Judgment. Signed at Sidney , British Columbia this 22nd day of December 2010. ​D.W. Rowe​ Rowe D.J.

Docket: 2007-1391(IT)I BETWEEN: JOAN KENNEDY, Appellant, and HER MAJESTY THE QUEEN, Respondent. ____________________________________________________________________ Appeal heard on common evidence with the appeals of Douglas Cockburn (2007-499(IT)I); June Robinson (2007-154(IT)I); Linda Cockburn (2007-500(IT)I); Simone Hillier (2007-799(IT)I); Sandra King (2007-807(IT)I); Jules Koostachin (2007-1026(IT)I); Julie Debassige (2007-1110(IT)I); Leanna Gerrior (2007-1525(IT)I); Martin John (2007-1526(IT)I); Janet Takata (2007-1897(IT)I); Bonnie Guarisco (2009-1125(IT)I); John Y Takata (2009-3790(IT)I); on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario Before: The Honourable D.W.

Rowe, Deputy Judge Appearances : Counsel for the Appellant: Graham Ragan Jaimie Lickers Counsel for the Respondent: Laurent Bartleman Anne Jinnouchi ____________________________________________________________________ JUDGMENT The appeal from the assessments made under the Income Tax Act for the 1995, 1996, 1998, 1999, 2000 and 2001 taxation years is dismissed in accordance with the attached Reasons for Judgment. Signed at Sidney , British Columbia this 22nd day of December 2010. ​D.W. Rowe​ Rowe D.J.

Docket: 2007-1525(IT)I BETWEEN: LEANNA GERRIOR, Appellant, and HER MAJESTY THE QUEEN, Respondent. ____________________________________________________________________ Appeal heard on common evidence with the appeals of Douglas Cockburn (2007-499(IT)I); June Robinson (2007-154(IT)I); Linda Cockburn (2007-500(IT)I); Simone Hillier (2007-799(IT)I); Sandra King (2007-807(IT)I); Jules Koostachin (2007-1026(IT)I); Julie Debassige (2007-1110(IT)I); Joan Kennedy (2007-1391(IT)I); Martin John (2007-1526(IT)I); Janet Takata (2007-1897(IT)I); Bonnie Guarisco (2009-1125(IT)I); John Y Takata (2009-3790(IT)I); on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario Before: The Honourable D.W.

Rowe, Deputy Judge Appearances : Counsel for the Appellant: Graham Ragan Jaimie Lickers Counsel for the Respondent: Laurent Bartleman Anne Jinnouchi ____________________________________________________________________ JUDGMENT The appeal from the assessments made under the Income Tax Act for the 1995, 1996, 1997 and 1998 taxation years is dismissed in accordance with the attached Reasons for Judgment. Signed at Sidney, British Columbia this 22nd day of December 2010. ​D.W. Rowe​ Rowe D.J. Docket: 2007-1526(IT)I

BETWEEN: MARTIN JOHN, Appellant, and HER MAJESTY THE QUEEN, Respondent. ____________________________________________________________________ Appeal heard on common evidence with the appeals of Douglas Cockburn (2007-499(IT)I); June Robinson (2007-154(IT)I); Linda Cockburn (2007-500(IT)I); Simone Hillier (2007-799(IT)I); Sandra King (2007-807(IT)I); Jules Koostachin (2007-1026(IT)I); Julie Debassige (2007-1110(IT)I); Joan Kennedy (2007-1391(IT)I); Leanna Gerrior (2007-1525(IT)I); Janet Takata (2007-1897(IT)I); Bonnie Guarisco (2009-1125(IT)I); John Y Takata (2009-3790(IT)I); on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario Before: The Honourable D.W.

Rowe, Deputy Judge Appearances : Counsel for the Appellant: Graham Ragan Jaimie Lickers Counsel for the Respondent: Laurent Bartleman Anne Jinnouchi ____________________________________________________________________ JUDGMENT The appeal from the assessment made under the Income Tax Act for the 1996 taxation year is dismissed in accordance with the attached Reasons for Judgment. Signed at Sidney, British Columbia this 22nd day of December 2010. ​D.W. Rowe​ Rowe D.J. Docket: 2007-1897(IT)I BETWEEN:

JANET TAKATA, Appellant, and HER MAJESTY THE QUEEN, Respondent. ____________________________________________________________________ Appeal heard on common evidence with the appeals of Douglas Cockburn (2007-499(IT)I); June Robinson (2007-154(IT)I); Linda Cockburn (2007-500(IT)I); Simone Hillier (2007-799(IT)I); Sandra King (2007-807(IT)I); Jules Koostachin (2007-1026(IT)I); Julie Debassige (2007-1110(IT)I); Joan Kennedy (2007-1391(IT)I); Leanna Gerrior (2007-1525(IT)I); Martin John (2007-1526(IT)I) ; Bonnie Guarisco (2009-1125(IT)I); John Y Takata (2009-3790(IT)I); on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario Before: The Honourable D.W.

Rowe, Deputy Judge Appearances : Counsel for the Appellant: Graham Ragan Jaimie Lickers Counsel for the Respondent: Laurent Bartleman Anne Jinnouchi ____________________________________________________________________ JUDGMENT The appeal from the assessments made under the Income Tax Act for the 2005, 2006, 2007 and 2008 taxation years is dismissed in accordance with the attached Reasons for Judgment. Signed at Sidney , British Columbia this 22nd day of December 2010. ​D.W. Rowe​ Rowe D.J. Docket: 2009-1125(IT)I BETWEEN: BONNIE GUARISCO,

Appellant, and HER MAJESTY THE QUEEN, Respondent. ____________________________________________________________________ Appeal heard on common evidence with the appeals of Douglas Cockburn (2007-499(IT)I); June Robinson (2007-154(IT)I); Linda Cockburn (2007-500(IT)I); Simone Hillier (2007-799(IT)I); Sandra King (2007-807(IT)I); Jules Koostachin (2007-1026(IT)I); Julie Debassige (2007-1110(IT)I); Joan Kennedy (2007-1391(IT)I); Leanna Gerrior (2007-1525(IT)I); Martin John (2007-1526(IT)I) ; Janet Takata (2007-1897(IT)I); John Y Takata (2009-3790(IT)I); on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario Before: The Honourable D.W.

Rowe, Deputy Judge Appearances : Counsel for the Appellant: Graham Ragan Jaimie Lickers Counsel for the Respondent: Laurent Bartleman Anne Jinnouchi ____________________________________________________________________ JUDGMENT The appeal from the assessments made under the Income Tax Act for the 2005, 2006 and 2007 taxation years is dismissed in accordance with the attached Reasons for Judgment. Signed at Sidney, British Columbia this 22nd day of December 2010. ​D.W. Rowe​ Rowe D.J. Docket: 2009-3790(IT)I BETWEEN: JOHN Y TAKATA, Appellant,

and HER MAJESTY THE QUEEN, Respondent. ____________________________________________________________________ Appeal heard on common evidence with the appeals of Douglas Cockburn (2007-499(IT)I); June Robinson (2007-154(IT)I); Linda Cockburn (2007-500(IT)I); Simone Hillier (2007-799(IT)I); Sandra King (2007-807(IT)I); Jules Koostachin (2007-1026(IT)I); Julie Debassige (2007-1110(IT)I); Joan Kennedy (2007-1391(IT)I); Leanna Gerrior (2007-1525(IT)I); Martin John (2007-1526(IT)I) ; Bonnie Guarisco (2009-1125(IT)I); Janet Takata (2007-1897(IT)I); on October 18, 19, 20, 21 and 22, 2010 at Toronto, Ontario Before: The Honourable D.W.

Rowe, Deputy Judge Appearances : Counsel for the Appellant: Graham Ragan Jaimie Lickers Counsel for the Respondent: Laurent Bartleman Anne Jinnouchi ____________________________________________________________________ JUDGMENT The appeal from the assessment made under the Income Tax Act for the 2007 taxation year is dismissed in accordance with the attached Reasons for Judgment. Signed at Sidney, British Columbia this 22nd day of December 2010. ​D.W. Rowe​ Rowe D.J. Citation: 2010 TCC 649 Date: 20101222

Docket: 2007-154(IT)I BETWEEN: JUNE ROBINSON, Appellant, and HER MAJESTY THE QUEEN, Respondent; Docket: 2007-499(IT)I AND BETWEEN: DOUGLAS COCKBURN, Appellant, and HER MAJESTY THE QUEEN, Respondent; Docket: 2007-500(IT)I AND BETWEEN: LINDA COCKBURN, Appellant, and HER MAJESTY THE QUEEN, Respondent; Docket: 2007-799(IT)I AND BETWEEN: SIMONE HILLIER, Appellant, and HER MAJESTY THE QUEEN, Respondent;

Docket: 2007-807(IT)I AND BETWEEN: SANDRA KING, Appellant, and HER MAJESTY THE QUEEN, Respondent; Docket: 2007-1026(IT)I AND BETWEEN: JULES KOOSTACHIN, Appellant, and HER MAJESTY THE QUEEN, Respondent; Docket: 2007-1110(IT)I AND BETWEEN: JULIE DEBASSIGE, Appellant, and HER MAJESTY THE QUEEN, Respondent; Docket: 2007-1391(IT)I AND BETWEEN: JOAN KENNEDY, Appellant, and HER MAJESTY THE QUEEN,

Respondent; Docket: 2007-1525(IT)I AND BETWEEN: LEANNA GERRIOR, Appellant, and HER MAJESTY THE QUEEN, Respondent; Docket: 2007-1526(IT)I AND BETWEEN: MARTIN JOHN, Appellant, and HER MAJESTY THE QUEEN, Respondent; Docket: 2007-1897(IT)I AND BETWEEN: JANET TAKATA, Appellant, and HER MAJESTY THE QUEEN, Respondent; Docket: 2009-1125(IT)I AND BETWEEN: BONNIE GUARISCO, Appellant, and

HER MAJESTY THE QUEEN, Respondent; Docket: 2009-3790(IT)I AND BETWEEN: JOHN Y TAKATA, Appellant, and HER MAJESTY THE QUEEN, Respondent. REASONS FOR JUDGMENT Rowe D.J. [1] These appeals proceeded on the basis of common evidence. The issue in each of the appeals of Douglas Cockburn ​ 2007-499(IT)I,Martin John ​ 2007-1526(IT)I and John Y Takata ​ 2009-3790(IT)I, is whether any of them is entitled to deduct the personal credit formarried status in the relevant taxation year, pursuant to paragraph 118(1)(

a) of the Income Tax Act (the ​Act​). The reassessment of theMinister of National Revenue (the ​Minister​) issued to each Appellant is based on the net income of the spouse having exceeded themaximum allowable in each of the taxation year(

s) at issue and as such, none of these Appellants ​ as spouses ​ were entitled to deduct thepersonal credit for married status. Counsel for the Appellants and counsel for the Respondent agreed the result in each of these appealswould depend on the decision rendered in respect of that Appellant​s spouse. [2] The issue in the remaining group of appeals is whether the employment income earned by the Appellants was exempt fromincome 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 Indianor a band is exempt from taxation if situated on a reserve. The position of each Appellant employed by Native Leasing Services (​NLS​) isthat the employment income is exempt from taxation pursuant to paragraph 81(1)(

a) of the Act. The relevant period for these appeals isbetween the years 1995 and 2008. Each of the Appellants is an Indian as defined in the Indian Act. The appeals proceeded on the basis ofcommon evidence, agreed facts and other evidence specific to certain Appellants. [3] The position of the Respondent is that an application of the ​connecting factors test​ established by the Supreme Court of Canada inWilliams v. Canada, (SCC), [1992] 1 S.C.R. 877 did not connect the property of any Appellant to a reserve for thepurpose of establishing whether the property is situated on a reserve.

The Minister reassessed each Appellant on the basis no income wassituated on a reserve. [4] On consent of counsel for the parties, the following exhibits were filed: • Exhibit R-1 ​ Joint Book of Documents; • Exhibit R-2 ​ Ontario Federation of Indian Friendship Centres Book of Documents; • Exhibit R-3 ​ O.I. Employee Leasing/Native Leasing Services New Leased Employee Information;

• Exhibit R-4 ​ Statement of Agreed Facts. [ 5 ] With respect to Exhibit R-1, the title page displays a different Style of Cause than the one used in the within appeals. Now, the lead Appellant is June Robinson, a member of the group claiming exemption from taxation and other Appellants were named in ascending numerical order according to the docket number assigned to their appeal. The first page of Exhibit R-1 states the documents therein are to be deemed filed as an exhibit in each of the appeals noted below.

There is a table containing further information and an explanatory heading that only documents relevant to the individual appeal of an Appellant will be deemed to be in the Joint Book of Documents for purposes of that appeal.

Included in Exhibit R-1, is a 5-page Index indicating the location within the binder of certain documents which are arranged in categories according to the particular Placement Organizations involved and those relevant to a particular Appellant. [ 6 ] Various documents and title pages within exhibits filed in the within appeals refer to an Appellant ​ Julie Pigeon ​ who advised the Court at the outset of the hearing that she did not wish to be part of the group of Appellants named herein and wanted to represent herself.

Her appeal was heard prior to the commencement of the within appeals. [ 7 ] With respect to Exhibit R-2, that binder was originally prepared for the specific appeal of Bonnie Guarisco ​ 2009-1125(IT)I but the documents therein ​ by agreement of counsel ​ are applicable to all Appellants, where relevant. [ 8 ] Exhibit R-4 is a Statement of Agreed Facts, (​Agreed Facts​), the relevant portion of which is reproduced below: STATEMENT OF AGREED FACTS The parties to these appeals, for the purposes only of these appeals, and as common evidence, agree to the following facts.

The parties agree that each party is free to adduce in evidence additional facts not inconsistent with this Statement of Agreed Facts. 1. The parties adopt the Statement of Agreed Facts filed in the Tax Court of Canada proceeding Roger Obonsawin v. Her Majesty the Queen , Tax Court File 2000-4164 (GST)G. In substance and effect those facts are applicable to years subsequent to the period they describe. Attached as

Schedule ​A​ to this document is the Statement of Agreed Facts as filed in that proceeding and as

Schedule ​B​ the financial statements referred to in

Schedule ​A​. I. THE RELEVANT PERIOD 2. The relevant period for these appeals is between the years 1995 and 2008. II. NATIVE LEASING SERVICES AND OI EMPLOYEE LEASING INC. 3. Roger Obonsawin is a status Indian and a member of the Odanak Indian Band, which has its reserve in Odanak, near Pierreville, east of Montreal. He is not a member of the Six Nations Band. 4. The Appellants were all employed by either Native Leasing Services (NLS) or OI Employee Leasing (OIEL) (together NLS/OIEL). 5. NLS, as an operating unit, was located on a reserve.

NLS leased its office premises at the Woodland Cultural Centre on the Six Nations Reserve. NLS and other members of the O.I. Group of companies had offices in Toronto and Winnipeg but it operated primarily out of the Six Nations Reserve. 6. The majority of NLS/OIEL administrative staff in the Six Nations office, numbering from 8 to 15 people depending on the

year, were Six Nations members, some of whom lived on the reserve. The key functions of the employee leasing operation ​ human resources administration, payroll and benefits administration, invoicing and accounting as well as general administrative support ​ were conducted on the Six Nations Reserve. 7. To the extent that there were any deviations from the procedures to concentrate administrative and business function on the Six Nations Reserve, these instances were minor and insignificant. All NLS/OIEL files including financial and staff records were kept at the Six Nations Reserve office.

NLS/OIEL also had a Toronto office where some of NLS/OIEL​s administrative work was carried out. Obonsawin did not work regularly on the Six Nations Reserve, worked principally out of Toronto, and did not reside on the Six Nations Reserve until 2005, after which he still maintained his Toronto residence. 8. Up to 1999, the offices of NLS/OEIL were located in the Woodland Indian Cultural Centre on the Six Nation Reserve. In 2000, the offices were moved to a building known as ​Eagle​s Nest​, which was also on Six Nations Reserve. The offices in both locations were rented from the Six Nations Band Council. 9.

NLS/OIEL provided certain benefits to the Six Nations Reserve. These include training of personnel who live or may come to live on the reserve; however, this benefit was difficult to quantify. More direct benefit is evident in the rent to the reserve and salary and benefits paid to on-reserve staff during the years 1995 and 1996 was approximately $230,000 to $240,000. 10. The gross revenue of NLS/OIEL is generated off-reserve. It is estimated that OI had approximately 800 employees by 1997, 1000 leased employees by 1999, and as many as 1400 employees in the years between 1999 and 2006.

The only functions carried out on the reserve are administrative functions. 11. From a business perspective, the employee leasing business is the sine qua non of NLS​s operations. NLS financial statements show: a. In 1995 and 1996 respectively, NLS had gross revenue of $15,692,945 and $13,344,801, all of which were derived from the work of NLS employees off-reserve; b. 95% of NLS​s costs were the wages and benefits paid to its employees who were contracted to off-reserve organizations.

These costs of employees​ pay and benefits are funded by the clients in what is essentially a flow through where the employee​s pay and benefits are deposited by the client in NLS​s bank account to be drawn down (less the service fee) to fund NLS​s payroll for those employees leased to the client; 12. Roger Obonsawin does not have financial statements for NLS after 1997 although the business continues to operate. 13. The descriptions of the facts concerning Roger Obonsawin and the operations of NLS/OIEL by Justice Phelan of the Federal Court in the 2007 decision in Horn et al. v.

The Queen at paras. 42 - 69 attached as

Schedule ​C​ and Justice Paris of the Tax Court in the 2008 decision in Roe v. The Queen at paras. 6 - 20, attached as

Schedule ​D​ , Associate Chief Justice Rossiter in the 2009 decision in Googoo v. The Queen at paras. 5 - 16, attached as

Schedule ​E​ and Justice Sheridan in the 2009 decision in McIvor v. The Queen at paras. 20 - 31, attached as

Schedule ​F​ fairly reflect the evidence that Roger Obonsawin has given and would give again. DATED in the city of Toronto, Ontario, this 20 th day of October, 2010. [ 9 ] Pursuant to paragraph 13 of the Agreed Facts, there are references to specific paragraphs in four decisions ​ one by the Federal Court and three by the Tax Court of Canada ​ as cited therein and counsel agreed those findings of fact fairly reflect the evidence that Roger Obonsawin has given in other proceedings and would give again.

[10] In order to minimize repetition in the recital of facts, I have examined the Agreed Facts and the specific paragraphs in thedecisions referred to, which are attached as Schedules C, D, E, and F to Exhibit R-4. For the purposes of the within appeals, I havechosen the following: • from the decision of Phelan J. in Horn et al. v. The Queen et al., 2007 FC 1052, 2007 DTC 5589: 45 Obonsawin had extensive experience and training in the delivery of social services. His evidence was clear, direct and credible.

Thepurpose of his business, aside from profit, was to improve his client organizations by providing training, governance expertise andadministrative services including employee leasing. 46 The concept of employee leasing is another aspect of outsourcing.

For a fee, an organization hires a leasing company to providepersonnel and the administrative support for that personnel who, although employees of the leasing company, work for the hiringorganization. 47 The genesis of the aboriginal employee leasing concept arose after Obonsawin and his partner, Ljuba Irwin, formed Obonsawin-Irwin Consulting Inc., a management consulting company focused on aboriginal organizations. Obonsawin saw the need for skillsimprovement in aboriginal organizations. 48 The original employee leasing operation was conducted by O.I. Employee Leasing Inc.

However, in 1991 NLS was formed, as aproprietorship, and the operations of O.I. Employee Leasing Inc. were split. O.I. Employee Leasing Inc. clients were departments andagencies of various levels of government while NLS's clients were aboriginal not-for-profit organizations. 49 Obonsawin testified that NLS was set up originally to deal with GST problems and only later was he made aware of the decision ofthe Supreme Court in R. v. Nowegijick, (SCC), [1983] 1 S.C.R. 29.

Obonsawin testified that he saw the immediate taxbenefits under s. 87 in that it would allow aboriginal organizations the opportunity to offer more competitive salaries and would attract abetter skilled work force. 50 This testimony is instructive in that it focuses attention on competitive salaries and raises the question of "with whom is thecompetition for salaries". It suggests that attention is being paid to the "market place" or "the mainstream of commerce".

The implicationis that by employees being income tax exempt, NLS's clients could offer employment to Natives through NLS which would be the samenet amount to the employee but at a lesser gross cost amount to NLS's client. The NLS fee was less than the applicable tax rate imposedon the native employee's income. 53 A central feature of NLS's business is its employee leasing function. It is not, however, the only feature -- NLS provided benefits toits client native organizations particularly that of training to assist new and existing directors, and training for the development ofstrategic and financial plans.

The evidence is replete with instances of NLS assisting its clients in dealing with structural and governanceissues. However, these organizations, such as the Centre and the Shelter, continued to do their own training. NLS training was clearlysupplemental to those clients. 55 The structure of the payment to NLS by the client was 5% of each leased employee's income for which the client received thebenefits of payroll and benefits management, human resources support, training and shared information between other similarorganizations.

The leased native employee principally received the benefit of the tax exempt status. • from the decision of Paris J. in Roe v. Canada, 2008 TCC 667, [2008] T.C.J. No. 509, the following paragraphs: 16 NLS and OI employees were able to access a range of optional benefits such as life and disability insurance and health and dentalcoverage that might not have been available if the worker had been employed directly by the client organization. Mr. Obonsawin saidthat NLS and OI also provided training and retreats to evaluate the strategic plans of its employees, thus providing them with stabilityand direction.

NLS and OI also maintained a library of training material on-site that could be accessed by any of the employees. Of thenine appellants in the cases at bar, only one took any training from NLS and none had used the library or participated in a retreat. NLSand OI also sent out newsletters and notices of job postings for different placement organizations to their employees.

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. 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. • f rom the decision of Rossiter A.C.J. in Googoo v. Canada , 2008 TCC 589 , 2009 DTC 1061 , [2009] T.C.J. No. 48 : 8 Mr. Obonsawin used his contacts with placement organizations to promote NLS. Because of his long history with NFCs, Mr. Obonsawin targeted them as clients. In his recruiting publicity he stated that if the services of NFC's were mainly provided off the reserve, one of the features that NLS could provide was a link to a reserve for tax exemption purposes.

In marketing to prospective NLS employees, Mr. Obonsawin would emphasize the advantages he thought were offered by NLS including support services, a benefit package, training and the tax exempt status for Indian employees. Mr. Obonsawin felt that there was a need for strengthening of the NFC's programs, by providing a better system for training and for educating staff. Taxation exemption was one way to accomplish the purposes. 9 The NLS advantage that caught the attention of a placement organization and its employees was indeed tax exemption for status Indians employees.

In effect, the placement organization's Native employees would become employees of NLS and provide the same services to the placement organization as they did previously but with a different legal employer, NLS. The placement organization could provide a salary level higher in reality, than others, because the employees, if status Indians, were getting their salary exempt of tax. NLS completed all employee paperwork, including the payroll and source deductions and provided human resources support. If an employee became problematic the placement organization would inform NLS, would attempt to resolve the issue(

s) and, if the issue(

s) could not be resolved, then the employee was terminated. NLS would then follow through with employment counseling. 10 Once a Native employee of a placement organization became an employee of NLS, the employee would provide an executed release of liability form to the placement organization. A standard placement agreement was generated by NLS Human Resources defining the lease position, the annual cost, the relationship, notices if there was termination of the relationship, as well as confidentiality and conflict of interest issues.

The Agreement would be sent to a placement organization for signature and returned to NLS for the signature of Mr. Obonsawin. The contractual obligations by NLS to the placement organizations were basically to provide payroll services, training, and some benefits as well as some human resources services. Once the placement agreement completed, a contract of employment was also completed for each of the employees. 11 The contract of employment is particular with respect to the benefits chosen by the employee.

Employment Insurance and Canada Pension Plan deductions were not options of the employee as NLS was responsible for source deductions. NLS handled all remittances, did all the filings, dealt with modified work and return to work, kept track of vacation pay as well as paid leave or time off and was responsible for compliance with all employer standards legislation. 13 If a placement organization wanted to terminate its relationship with NLS, the employees were paid up to the final day with NLS including vacation pay.

If an employee was terminated, NLS would try to place the employee with another organization depending on what was available. The assistance provided to terminated employees was limited to information about Native employment opportunities. NLS issued bi-weekly newsletters which showed opportunities that were available for employees. 14 In any dispute between leased employees and the placement organization the initial contact would be with a NLS Human Resources staff. They would receive the complaint, define the issues, and speak with the employee and the placement organization.

If the issue was straightforward, they dealt with it, if not they would go to a labour lawyer. 15 Mr. Obonsawin felt that training was a benefit to NLS employees as it was provided free by NLS. According to Mr. Obonsawin this made it attractive for the placement organizations to do business with NLS. In 1996 NLS only paid $3,979 in training and in 1997, $5,910, even though NLS had hundreds of employees. Training was contracted out by NLS and provided by non-Native entities (except

for the Ojibuay Language Conference and a Counseling Workshop). No training was provided on a reserve and attendees could be Native or non-Native. None of the Appellants took any of the training offered. NLS would pay for the training registration but the wages and travel of the employees would be paid by the placement organization and the training would be treated as a work day. Also, the placement organizations provided some training to their own employees.

The training provided by the placement organization was specific to the job services provided while the training provided by NLS through non-Native entities was more generic in nature. NLS did not know what training was needed by employee X or if employee X would benefit from any particular training.

Employees would have an opportunity to file a training registration form, with their placement organization supervisor's approval. [ 11 ] Unless stated otherwise, reference to tabs hereafter are intended to refer to those located within the Joint Book of Documents, Exhibit R-1. [ 12 ] There are various references in documents and in testimony to OI Employee Leasing, OIEL and OI Group. They will be referred to simply as OI. In some instances, there was a change in the employer of an Appellant from OI to NLS. However, in all the within appeals, the employer is NLS, a sole proprietorship of Roger Obonsawin.

Anduhyaun was pronounced by various witnesses as, ​En-dye-on​, ​An-dye-on​ or ​ in Ojibway ​ ​Awn-dye-on.​ Jules Koostachin: 2007-1026(IT)I Taxation years: 2005 and 2006 Relevant documents are at tabs 1A, 2B, 3I [ 13 ] Jules Koostachin (​Koostachin​) testified she resides in Toronto . As a result of Bill C-31, her mother ​ in 1985 ​ regained status previously been lost through marriage to a non-native. Koostachin grew up in Moosonee and Ottawa and never lived on a reserve. Recently, she graduated from Ryerson University in the Masters Program in Documentary Media.

She has extended family on the Attawapiskat First Nation Reserve located in the Kenora district of Ontario and visited there in the autumn of 2009 but not during 2005 and 2006. Koostachin stated she has no real connection to that Reserve but her family hunted and fished in that territory. She is a jingle dress dancer and participates in powwows held at various locations. Koostachin decided to become employed by NLS to exercise her perceived right to an exemption from income tax. As a single mother with two young children, the opportunity to take home more income was important.

Koostachin worked as Director at a facility (the ​Shelter​) operated by Anduhyaun Inc. (​Anduhyaun​) ​ a non-profit corporation pursuant to Letters Patent issued by the Province of Ontario on March 12, 1973. The Shelter ​ located in Toronto ​ was established to provide a place of refuge for Aboriginal women. Koostachin oversaw programs, handled intake and taught life skills within the context of an overall program designed to assist women fleeing violence in their homes or on the street. Since many Aboriginal people move from one area to another, many women seeking help had left their reserve.

There are no reserves located within the geographical boundaries of Toronto . The program at the Shelter had a strong cultural component. [ 14 ] In cross-examination, Koostachin stated women are free to choose whether to return to their own reserve or to remain away. NLS conducted performance reviews by obtaining information from Blanche Meawassige, the Executive Director of the Shelter.

Koostachin stated her salary was determined by the Board of Directors of Anduhyaun. [ 15 ] In re-direct examination, Koostachin was referred to a contract of employment between herself and NLS ​ within tab 3I ​ dated February 4, 2005 pursuant to which her salary was $50,000 per year, later increased to $53,435 by an amendment effective February 18, 2005. Sandra King: 2007-807(IT)I Taxation years: 1999, 2005, 2006, 2007 Relevant documents are at tabs 1A, 2B, 3H [ 16 ] Sandra King (​King​) testified she has been a status Indian all her life. During the years at issue, she lived in Toronto .

She is a member of the Wasauksing First Nation located north of Parry Sound , Ontario and she and her husband visit there. King was raised in foster or institutional care until age 16 when she moved to Toronto and has never lived on a reserve. Her brothers and sisters and members of her mother​s family live on the Reserve but she does not visit them. In 1996, King had signed a contract with NLS whereby she became an employee. She wanted to learn about native language and culture and to work with children under circumstances where her salary would be exempt from tax.

By virtue of other contracts including one dated April 15, 2005, she worked for NLS until June 30, 2010. Pursuant to said contract, her salary per annum was $33,649.20. During the years 2005 to 2007, inclusive, she worked at the Shelter ​ in Toronto ​ as an Assistant Early Childhood Educator. Her duties involved caring for babies in the daycare and as a ​float​ to

relieve others working with toddlers and pre-schoolers. The program included drumming, dancing and music, even in the room occupiedby infants aged 5 to 18 months. [17] In cross-examination, King stated she had one supervisor earlier and Koostachin in later years and both had providedperformance reviews to NLS. Janet Takata: 2007-1897(IT)I Taxation years: 2005, 2006, 2007, 2008 Relevant documents are at tabs 1A, 2B, 3M [18] Janet Takata (​Takata​) testified she resides in Toronto and works as a Residential Counsellor at the Shelter operated byAnduhyaun.

She has been a status Indian all her life and is a member of the Micmac (Mi​Kmaq) Nation in Nova Scotia. She was born inSydney ​ off-reserve ​ but lived on the Reserve until age 19 when she went to Halifax, then Toronto where she remained. Her mother ​ aged88 ​ currently lives in a home off-reserve but her brothers and sisters live on the Reserve. Her husband ​ John Y Takata ​ is not a statusIndian. Takata stated she visits her Reserve two or three times a year.

Her role as Residential Counsellor at the Shelter is to performfunctions ​ associated with intake ​ to assist women and their children to access housing, medical treatment, upgrading in training andeducation, counselling for addictions and as victims of sexual assaults and to obtain child care. The majority of clients are Aboriginalwomen and children but Shelter has helped others from time to time.

At the facility operated by Native Women​s Resource Centre ofToronto Inc. ​ (​NWRC or Centre​) ​ women from the Shelter participate in the Full Moon Ceremonies which are held once a month incooperation with other organizations. As part of her intake duties, Takata refers clients to the health care facility which is Aboriginal innature and to native organizations dealing with addictions. [19] In cross-examination, Takata confirmed that she had been an employee of Anduhyaun since 2001 but became an employee ofNLS in 2005. There was no change in the duties performed.

Simone Hillier: 2007-799(IT)I Taxation years: 1995, 1998, 1999, 2005, 2006 Relevant documents are at tabs 1A, 2B, 3F [20] With respect to the 1999 taxation year, counsel for the Respondent moved to quash the appeal on the basis no federal tax waspayable. The motion was not opposed. In accordance with well-settled jurisprudence, beginning with the judgment of the Supreme Courtof Canada in Okalta Oils Limited v. Minister of National Revenue, (SCC), 55 DTC 1176, it is beyond dispute that whenthe Minister assesses no tax, there is no appeal from it.

Therefore, the purported appeal for the 1999 taxation year is hereby quashed. [21] Simone Hillier testified she is employed by NLS as a Crisis Support Life Skills Counsellor and works at the Shelter. She is astatus Indian but her mother had lost her own status due to marriage with a non-Indian. However, her mother regained it in 1985 as aconsequence of Bill C-31, passed by Parliament on June 18, 1985 to amend certain provisions of the Indian Act. Hillier is a member ofSix Nations of the Grand River (​Six Nations​) located near Brantford, Ontario.

She has never lived on that Reserve and her mother leftthere ​ when Hillier was 7 years old ​ and moved to Hamilton. Hillier stated she was unable to reside on the Reserve because she lackedstatus. In recent years - during August - she attends powwows at Six Nations and has visited other reserves for the purpose of gaming in acasino.

Hillier stated the Six Nations Reserve is the birthplace of her mother and other members of their family and considers thatterritory to be her ​roots.​ Hillier stated she chose to be employed by NLS because she was informed her salary would be exempt fromtaxation and she respected the advice received from those in charge at NLS and OI. As a counsellor, Hillier welcomed women andchildren seeking assistance and refuge from violence. Prior to 2005, she worked as a Residential Counsellor.

In that position, sheundertook an analysis of the situation with a view to satisfying the specific needs of clients who often required referrals to an appropriateorganization dealing with Aboriginal culture. At the Shelter, residents participated in a ​smudging​ ceremony and other celebrationssymbolic of purification were conducted by Elders who visited the Shelter for that purpose. Hillier stated she worked with variousgroups to empower women and to provide information concerning issues such as boundaries, assertiveness, defining and examining thenature of violence.

The purpose of the program was to elevate self-esteem utilizing a variety of techniques. Some clients seeking helpfrom the Shelter had been subject to certain troubling experiences while in residential schools. [22] In cross-examination, Hillier stated she also provided her services to a facility known as Nekenaan Second Stage Housing(​Nekenaan or Second Stage​) which is located in Toronto. Prior to 2005 and currently in her new position, the Shelter Coordinator is hersupervisor. There are 12 shelters in Toronto but Anduhyaun is the only one dealing specifically with violence against Aboriginal women.

On occasion, this facility will take in a homeless person but the primary focus is to shelter women and children from violence and threats and space is limited to only 16 beds and two cribs. [ 23 ] Blanche Meawassige (​Meawassige​) testified she resides in Toronto and has been employed under written contract with NLS since 2005 to provide her services to Anduhyaun as Executive Director. Beginning in 2003, after working as a Program Coordinator for the University of Toronto, she was employed by Anduhyaun to perform the same function.

Subsequent to becoming employed by NLS, she continued as Executive Director and oversees day-to-day operations. Meawassige stated she is a member of the Serpent River First Nation located 2 hours north of Sudbury, Ontario . Her birth certificate, apart from containing the usual relevant information, also recorded her arrival as the ​birth of a live Indian.​ She lost her status due to marriage to a non-Indian but regained it pursuant to the provisions of Bill C-31.

Meawassige stated Anduhyaun operates the Shelter which accepts native women and children fleeing abusive situations regardless of their place of origin within Canada . The residential facility known as Nekenaan or Second Stage is a healing lodge that can house 42 Aboriginal women and children. Applicants seeking refuge provide information which is entered into a document titled Initial Application Form (near the back of tab 2B in the numbered tabs at the first part of Exhibit R-1.) Within the same tab, is a sheet titled Nekenaan Housing Policies.

In accordance with the relevant funding agreement with Toronto Housing Authority, applicants must provide verification of their Aboriginal ancestry which can be in the form of a status card or a Métis card which may be issued by the Métis Nation of Canada or other authorized Métis Nation, Council, Federation or Alliance in a province. Other documents may be submitted to verify ancestry but must be approved by Nekenaan staff. Meawassige stated that if a woman is non-native but her children are status Indians, the housing program will accept her and the children.

Non-native women are accepted at the Shelter but space is limited and if beds are required to accommodate an Aboriginal woman, the non-native will be referred to another facility. Meawassige stated the Anduhyaun mandate and vision is to support native women and their children in their efforts to maintain their cultural identity, self-esteem and their economic, physical and spiritual well-being. Anduhyaun operated Awashishuck Daycare (​Daycare​) until June 30, 2010.

During the years relevant to the within appeals, Daycare was specifically designed with a strong cultural foundation for Aboriginal children so they could learn about heritage and language. Currently, Anduhyaun provides an Aboriginal Crisis Intervention Program. The crisis counselling was an in-house program and also part of an outreach structure. Meawassige stated Hillier was involved in developing this program. Using healing circles, a program was created to counsel victims of sexual abuse.

The Anduhyaun vision is depicted in the form of a Medicine Wheel and these programs are available only to Aboriginal women. Within Nekenaan, there is an Elders​ Suite to accommodate teachers who attend the lodge to conduct ceremonies in which a fireplace plays an important role. The facility is restricted to women and children and men are not permitted to visit. However, a male Elder may attend and be housed there for the purpose of participating in a cultural ceremony, provided he is accompanied by his spouse.

Meawassige stated that ​ often ​ women arrive directly from a First Nation community but acceptance into the Shelter does not depend on origin. In one instance, a woman came from British Columbia . Her life was in imminent danger arising from threats by her spouse who was a member of a criminal gang and Shelter provided her with sanctuary. One woman with 5 children was fleeing her community as a result of threats to her safety. Many women come to the Shelter battered, hungry and under severe stress.

In the event the Shelter has no space available, the intake workers consult a list of First Nations shelters and referrals are made to other facilities, perhaps to Six Nations Reserve in Brantford , the reserve closest to Toronto . The appropriate Police Service is called upon to provide assistance. The Shelter provides basic necessities as sometimes women arrive clad only in their nightgowns. Meawassige stated the majority of Anduhyaun staff are native as are all members of the Board which is responsible for strategic planning. The Board holds regular meetings 8 months a year.

As Executive Director, Meawassige is required to attend each meeting unless unable to do so in which case the Acting Executive Director attends on her behalf. The Shelter Manager provides Meawassige with monthly reports but there is no attempt to distinguish between reserve and off-reserve clients since a person​s specific place of origin or residence is not a significant factor in Aboriginal culture. Instead, the service provided to First Nations people ​ at the Shelter ​ is within a continuum.

However, when women and children are accepted into the Anduhyaun housing component ​ Second Stage ​ they must have Indian status or a Métis card. Meawassige stated that not all workers at Anduhyaun were employed by NLS. Anduhyaun employed 36 people, some of whom were part-time or on-call but 8 permanent, full-time workers were employed by NLS, most of whom were status Indians.

On occasion, Meawassige contacted the NLS office in regard to certain matters involving unionized staff and Anduhyaun retained counsel with expertise in labour law and NLS provided an individual who was knowledgeable in health and health and safety issues. Meawassige stated Anduhyaun relied heavily on NLS to resolve human resources issues and it was a mechanism to ​bounce ideas off​ from time to time or to discuss confidential matters.

In Meawassige​s personal situation, she had to leave her First Nations community in order to provide for herself and her children but, in doing so, did not consider that she had shed or abandoned her heritage through that relocation. NLS entered into a Placement Agreement with Anduhyaun on February 4, 2005, whereby it would provide employees to fill 6 full-time positions at an annual cost of $268,444.28, including those of Executive Director, Director of Daycare, Director of Shelter Administrative Management and Resident Relations/Cultural Coordinator.

Performance reviews of other employees were undertaken by the manager of a particular program and as Executive Director, Meawassige examined the performance of these managers. The performance reviews were not linked to any potential salary increase since the salaries of Anduhyaun workers were governed either by collective agreement or by the provisions of certain pay equity legislation and NLS played no role whatsoever in establishing those salaries.

Clerical staff, counsellors and relief workers were represented by the Canadian Union of Public Employees (​CUPE​) but the Executive Director and Program Managers were exempt. Meawassige stated CUPE was aware of the transition whereby certain Anduhyaun employees became employed by NLS even though they continued to perform the same function and occupied the same position. [ 24 ] In cross-examination, Meawassige confirmed that when she chose to become employed by NLS to provide her services to Anduhyaun as Executive Director, there was no change in her duties.

Anduhyaun retained an outside accountant to perform payroll duties. June Robinson: 2007-154(IT)I Taxation years: 1995, 1996, 1997, 1999, 2005, 2006, 2007, 2008 Relevant documents are at tabs 1A, 2B, 3L

[ 25 ] June Robinson (​Robinson​) testified she resides in Scarborough , Ontario and is employed by Anduhyaun as a Residential Counsellor. As a result of Bill C-31, she regained her status which had been lost as a result of marrying a non-Indian. Robinson moved to Toronto in 1985 from the Hiawatha Nation located 20 kilometres south of Peterborough, Ontario and during the years relevant to her appeals, resided in Toronto . She lived on the Hiawatha Reserve for about 40 years but after marriage moved to Peterborough with her non-native husband to find employment.

Many nieces and nephews continue to reside at Hiawatha and she travels there by bus to visit them and others. Robinson is a member of the Hiawatha Band and is aware that payments to the Band by the federal government are based on membership. She votes in Band elections. Robinson stated she decided to enter into a written employment contract with NLS after having been informed that pursuant to her treaty rights as a status Indian, her salary was exempt from income tax.

During the period 1995 to 1999, Robinson worked at the Shelter as a Residential Counsellor and an intake worker where she encountered people who had left their Reserve ​ usually for economic reasons - and found themselves in precarious situations where they were homeless and ​ often ​ victims of violence. Robinson stated there was an Aboriginal cultural component integrated into all programs offered by Anduhyaun. The overall goal was to assist Aboriginal women with training and strategies to deal with addictions or other problems.

Through feedback from former recipients of services provided by Anduhyaun, Robinson was aware that some had returned to their reserve while others remained in the Greater Toronto Area (​GTA​). [ 26 ] In cross-examination, Robinson stated Anduhyaun clients had the choice whether to return to their native communities or to remain in the city. Linda Cockburn: 2007-500(IT)I Taxation year: 1995 Relevant documents are at tabs 1A, 2B, 3B [ 27 ] Linda Cockburn (​Cockburn​) testified she has been a status Indian all her life and is a member of the Cree nation in the James Bay region.

She was born in Moose Factory, Ontario and lived on the Albany Reserve ​ near Fort Albany, Ontario ​ until age 5 when her mother moved to Toronto . Since then, Cockburn has not lived on any reserve. She is married to a non-native, has children, and wanted to provide them with opportunities not available on Albany Reserve. Her 5 brothers and sisters all live there as do several nieces, cousins and uncles. Cockburn stated she visits there at least once a year and has a personal connection through family and friends.

Albany Reserve is a 10-hour drive from Toronto and Cockburn used to travel there by train or by airplane but in recent years the cost became prohibitive. In 1995, Cockburn was an employee of NLS which she considered would entitle her to ​pay no income tax on her salary​ and to have access to a broad range of employment opportunities by being able to transfer to other agencies and organizations. Cockburn had been a leased NLS employee since 1993 and was placed with Anduhyaun in the position of Children​s Programmer.

She also handled intake duties, taught arts and crafts and assisted with the family circles which had a component of cultural teachings. After 1995, Cockburn stayed home with her children for several years before returning to the work force where she is currently employed as a Provisioner. [ 28 ] In cross-examination, Cockburn stated she received Cardiopulmonary Resuscitation (​CPR​) and stress management training at the Shelter which she thought had been provided by NLS.

Julie Debassige: 2007-1110(IT)I Taxation years: 1996, 1997, 2002, 2003 Relevant documents are at tabs 1A, 2B, 2C, 2D, 3C [ 29 ] Julie Debassige (​Debassige​) testified she is a Traditional Counsellor working at Anishnawbe Health Toronto (​AHT​). By Supplementary Letters Patent dated October 9, 1987, AHT became a successor to the previous non-profit corporation ​ Anishnawbe Health Resources ​ which was created pursuant to Letters Patent dated October 9, 1987. Debassige has been a status Indian all her life. She was born at M​Chigeeng ​ formerly West Bay ​ on Manitoulin Island, Ontario .

She resided there until she completed Grade 13. Between 1984 and 1994, Debassige resided on the Reserve where she taught the Ojibway language to children and sat on committees established by the Band Council. In 1994, she returned to Toronto to pursue higher education and obtained an Honours Degree in Psychology from York University. Two of her brothers and several first cousins live at M​Chigeeng where the family home is maintained. Debassige votes in Band elections.

She stated her family is well-known and respected in that community and she could rely on the Band for assistance including funding for her Masters program. Her mother lives in a home for seniors on the Sagamok Reserve. Nearly every year during a 3-week vacation, Debassige travels by bus to visit her mother. Her other visits to a reserve are to Chippewas of Rama First Nation (​Rama​) near Orillia where there is a large commercial casino. Debassige stated she came to Toronto originally to care for her sister.

However, she wants to be buried on M​Chigeeng Reserve because it is her home and she does not want to abandon that link. When Debassige entered into a contract of employment with NLS ​ January 15, 1996 ​ to provide her services as a Language Teacher/Receptionist to Anduhyaun, she was aware this agreement could provide her with ​a chance to not pay income tax.​ As an employee of NLS at some point in the working relationship, she was able to access certain extended health benefits ​ possibly through OI ​ that were not available previously.

However, her primary motivation in becoming an employee of NLS was to exercise perceived treaty

rights to claim an exemption from tax on her salary. Working at Daycare, she developed a format to teach Ojibway language to children and also in other pre-school classes. Debassige stated there are no harsh sounds in Ojibway and that it is important to impart a sense of the language at an early age to facilitate future learning. In addition to teaching, she performed secretarial services, assisted staff in playground supervision and provided support for the Director.

Debassige also taught numeracy and participated in storytelling and smudging where sage and other medicines are burned as part of a cleansing ceremony. Most of her duties were performed at Anduhyaun but she also worked at home where she prepared individualized packages of instruction. Debassige left Daycare in 2002 and started working as a coordinator of a program involving young children and their mothers who required child care to enable them to access programs or to seek employment. NWRC operated a daycare program with an enrolment of 42 which was open to the general public.

NWRC also offered an advocacy program, housing program, food bank, literacy instruction and activities with a cultural component such as excursions and Full Moon Ceremonies which were guided by Elders. On September 22, 2003, Debassige entered into an employment contract with NLS whereby she agreed to provide her services to AHT ​ for $38,000 a year ​ as a Program Coordinator to assist in the implementation of services to reduce the impact of Fetal Alcohol Syndrome Disorder (​FASD​) and to increase awareness of risks associated with alcohol consumption during pregnancy.

Programs were also established to enable diagnosis and early intervention and Elders were part of the diagnostic team. Workshops were held dealing with dangers of alcohol abuse and healthy baby workshops were established to provide information and instruction concerning nutrition, health and preventative measures to ensure well-being. Debassige stated Ojibway people believe the first three years of a child​s life are critical because the ​womb is not an iron fortress​ and various factors can influence the development of a fetus. [ 30 ] In cross-examination, Debassige agreed that according to

Schedule A in her employment contract with NLS ​ dated April 10, 2000 ​ she did not receive extended health care benefits. She conceded such benefits may have accrued to her through another mechanism. All duties performed for NLS were in Toronto . At the Shelter, she taught Ojibway language classes to all young children regardless of the First Nation to which they belonged. While placed at NWRC as a Family Support Counsellor, Debassige performed no duties on any reserve.

During her tenure at NWRC, she worked for 8 different Executive Directors and was not aware of the method by which her salary was established but job descriptions always stated the salary payable. All community events organized ​ or participated in ​ by NWRC were held in Toronto . Leanna Gerrior: 2007-1525(IT)I Taxation years: 1995, 1996, 1997, 1998 Relevant documents are at tabs 1A, 2B, 2F, 3D [ 31 ] Leanna Gerrior (​Gerrior​) testified she resides in Toronto and did so during the relevant years.

She is a status Indian as a result of her mother having regained ​ in 1986 ​ the status lost previously through marriage to a non-native. Gerrior is a member of the Wikwemikong First Nation situate on Manitoulin Island . Gerrior was born in Toronto and, after age 10, lived in Florida for the next 14 years. After returning to Canada , she attended the University of Western Ontario and obtained a Bachelor of Science degree in biology. Gerrior has never lived on a reserve and does not have a strong connection to Wikwemikong. Her mother left there, moved to Toronto and did not return.

Gerrior visits her aunt and other relatives on the Sheguiandah Reserve on Manitoulin Island and has attended powwows on other reserves. Gerrior​s husband is a status Indian from a reserve located southwest of London , Ontario and in the past she has spent some time there. During the taxation years under appeal, she was employed by NLS and entered into the initial contract to receive a tax exemption on employment earnings and to obtain certain benefits. Between 1992 and 1995, Gerrior was placed at Anduhyaun where she worked as a Residential Counsellor and later assumed the position of Assistant Executive Director.

The clients at the Shelter were Aboriginal women and children from various reserves within Canada and Anduhyaun designed programs to offer a cultural experience to those seeking refuge as many were not well-grounded in their own heritage. Monthly ceremonies were held and different training courses focused on Aboriginal culture. The Shelter did not require proof of ancestry and people were permitted to self- identify as Aboriginal but the housing component required proof in a satisfactory form as a pre-requisite for admission to the residential program.

As a Counsellor, Gerrior handled intake, crisis calls and referrals to other centres where necessary. Action plans were developed for individual clients. In the role of Assistant Executive Director, Gerrior participated in hiring personnel and in developing certain programs. All work was performed in Toronto . In 1996, Gerrior was placed at a facility operated by Pedahbun Lodge Inc. (​Pedahbun​), an Aboriginal-designed-and-directed substances abuse treatment centre.

At Pedahbun, the treatment philosophy is based on traditional concepts of healing with the purpose of facilitating healing and recovery from addiction and related problems. The program is based on positive cultural reinforcement, self-empowerment and the teaching of skills. The treatment program includes personal counselling, group therapy, workshop and discussion groups. The participants must be of Aboriginal ancestry and over 18 years of age. Some of the culture-based activities included smudging ceremonies, fire burning and the offering of tobacco for traditional ceremonial purposes.

There were programs provided to encourage Pedahbun residents to follow a dietary regimen more in accord with traditional values and to understand the role of proper foods in the recovery and healing process. All duties performed by Gerrior for NLS were in Toronto . [ 32 ] In cross-examination, Gerrior confirmed that as Assistant Executive Director, she informed NLS of the name of a potential employee and the salary applicable to the position. Gerrior acknowledged that no benefits were listed in

Schedule A to her employment contract ​ with OI ​ dated February 19, 1996, nor were there any employment benefits available from NLS pursuant to the written contract dated January 9, 1997. However, she had participated in certain benefits offered in her contract dated January 21, 1993, pursuant to which she was placed at Anduhyaun as a Residential Counsellor. The benefits checked off in the boxes at

Schedule A included Long Term Disability, Life Insurance, A. D & D, and Other, without any further description. Gerrior stated she worked at Pedahbun only from February 19 to September 27, 1996.

Joan Kennedy: 2007-1391(IT)I Taxation years: 1995, 1996, 1998, 1999, 2000, 2001 Relevant documents are at tabs 1A, 2A, 2B, 2D, 3G [ 33 ] Joan Kennedy (​Kennedy​) testified she lived in Brampton during the relevant years and is currently on leave from her employment. She is a status Indian as a result of regaining status in 1985 which had been lost as a consequence of her marriage to a non- native. She is a member of the Whitefish River First Nation located on Manitoulin Island .

She was born there and remained until age 19 but the lack of employment caused her to leave and to move to Toronto where all her siblings resided. She completed Grade 12 and a summer course at Lakehead University where she enrolled in a business administration and management program. Kennedy owns property on Whitefish River Reserve and her sister lives there. She visits there two weeks a year and attends powwows at Six Nations Reserve and on another reserve. As an employee of NLS, she was placed at Anduhyaun and worked as a Receptionist greeting clients, answering the phone and carrying out administrative duties.

She worked at the Shelter between 1994 and 1998 and then took leave for a few months. She returned to work as a receptionist at NWRC and between October, 1999 and March, 2000 performed the same type of duties as at Anduhyaun. Her next employment with NLS was as a Receptionist at Aboriginal Legal Services Toronto Inc. (​ALS​). [ 34 ] In cross-examination, Kennedy stated her residence in Brampton is not on a reserve and that all duties described in her testimony were performed in Toronto .

Bonnie Guarisco: 2009-1125(IT)I Taxation years: 2005, 2006, 2007 Relevant documents are at tabs 1A, 2B, 2E, 3E [ 35 ] Exhibit R-2 is the binder with documents at tab A followed by tabs 1-15, inclusive. [ 36 ] Bonnie Guarisco (​Guarisco​) testified she is employed by the Ontario Federation of Indian Friendship Centres (​OFIFC​). During the years relevant to her appeals, she resided in Toronto . She is a status Indian and a member of the Wauzhushk Onigum First Nation near Kenora.

She was born in Toronto to a teenage mother and was apprehended and placed into care and later adopted - at age one - by a non-native family. Guarisco lived on that Reserve from 1998 to 2000, inclusive, where she worked as an Administrative Assistant and during that period had the opportunity to connect with her family and Aboriginal culture. She left her employment at the Reserve and enrolled at University of Toronto where she received a Master of Social Work. During the past 4 years, she has visited her Reserve 3 or 4 times a year and to do so must travel by bus for 20 hours.

On occasion, she travels there by airplane. She visits other reserves to attend powwows and participates therein as a jingle dress dancer. She also attends at casinos located on reserves. During the years relevant to her appeals, she was placed by NLS at Anduhyaun and her first job was aiding sexual assault workers. Later, she held other positions at the Shelter and at Second Stage which was at a different location in Toronto . At both facilities, there was a cultural aspect to programs and activities and Elders were brought in to offer traditional counselling to individuals and through group healing circles.

In July 2007, pursuant to her written contract with NLS, she was placed at OFIFC which provided services to 29 Friendship Centres (​Centres​) in Ontario in the form of program audits, on-site training pertaining to various subject matters including physical and mental health. Services also relate to court workers and to diversion, employment, addictions and anti-violence programs. Services can be accessed by any person who self-identifies as an Aboriginal.

None of the 29 Centres are located on a reserve and in Guarisco​s opinion that is because most reserves are located near a municipality where a broader range of services are available. There is also the issue of confidentiality if certain treatment is undertaken on a reserve with a small population. At OFIFC, Guarisco began as a Community Support Worker but now works in the Community Justice Program. At OFIFC, there is a mandatory cultural component in every program.

Elders from various First Nations across Canada are brought in to provide instruction in cultural activities such as drum-making and to discuss a connection to history and the relationship of certain events occurring in the past ​ such as residential school programs ​ and their current effect on many Aboriginal people and their families. Guarisco stated she chose to work for Aboriginal organizations and believes this work is important and that she is part of the Aboriginal community.

When NLS offered her an employment contract, she embraced the concept of that entity. [ 37 ] In cross-examination, Guarisco stated she was never a direct employee of Anduhyaun and only provided her services pursuant to her contract with NLS. Service was available to any female who identified herself as Aboriginal, whether a status Indian, non-status, Métis or Inuit. However, in dire circumstances, shelter was provided ​ or a referral made ​ to any woman and her children who were seeking refuge.

Guarisco stated OFIFC does not distinguish between people living on a reserve or off-reserve when providing services or administering programs. [ 38 ] Maggie Wente (​Wente​) testified she is a member of Serpent River First Nations whose territory is near Elliot Lake, Ontario . She is a lawyer, practising as a partner with Olthius, Kleer, Townshend LLP in Toronto . She has been a member of the Board of ALS - which also operates a Legal Clinic (​Clinic​) within the same overall framework ​ since 2005, and President since 2008. The majority of the Board are Aboriginals.

Clinic provides a wide range of services in various areas such as housing problems and human rights, work-

related disability claims matters arising pursuant to the Employment Insurance Act, Canada Pension Plan, complaints concerning police,criminal injuries compensation and various other issues pertaining to the Indian Act. ALS is also involved in law reform and intervenesin various courts at the Appellate level to provide an Aboriginal perspective even though the potential effect on Aboriginal people maybe indirect. The Mission Statement ​ within tab 2A ​ is to strengthen the capacity of the Aboriginal community and its citizens to deal withjustice issues and provide Aboriginal-controlled and culturally-based justice alternatives. Pursuant to

section 718.2 (

e) of the CriminalCode of Canada (​Code​) and a 1999 decision by the Supreme Court of Canada in R. v. Gladue, (SCC), 1999 1 S.C.R.688, three courts in Toronto ​ known as Gladue Courts ​ were established. The Supreme Court stated the provisions of that

section of theCode applied to all Aboriginal offenders whether they lived on a reserve, in a rural area off-reserve or in large city. In Toronto, adultoffenders can have their cases transferred to a Gladue Court which accepts guilty pleas, sentences offenders and hears bail applications.Three Gladue Caseworkers are employed by ALS and they write reports at the request of counsel or the presiding judge concerning thelife circumstances of the offender and recommendations are included for consideration by the particular Gladue Court. ALS hasdeveloped alternative sentencing programs and provides victim services.

All social programs have a cultural basis and the developmentof a strong cultural connection is important in attempting to reduce recidivism. ALS staff are mainly Aboriginals and attend culturalevents and participate in sweat lodge, sweet grass and other ceremonies. Wente stated there is no other organization in Canada similar toALS so it is called upon by other groups and organizations to offer advice. Self-identification as an Aboriginal person is the onlyrequirement to become eligible to receive services provided by ALS but additional evidence of origin may be requested.

If a person ischarged with a crime in the urban centres of Toronto, Hamilton, Kitchener-Waterloo, Guelph, the ALS staff do not inquire about thehome community of the applicant. Wente believes many people return to their reserve once the court process has been completed. NLSprovided employees to ALS but at the initial interview people were provided with information and asked whether they wished to workfor ALS. Some chose to be employed directly by ALS.

With respect to certain employee benefits, the ALS workers assigned to the Clinicwere entitled to participate because it was linked to Legal Aid Ontario which was a large group. Employees of NLS and others workingdirectly for ALS who performed functions outside the scope of the Clinic were not permitted to access those benefits. [39] In cross-examination, Wente acknowledged the objects of ALS as set forth in the Letters Patent ​ dated February 21, 1990 ​ atparagraph (

c) was to ​provide advice to Aboriginal people in Metropolitan Toronto on their legal rights and recourse in areas of civil andadministrative law.​ However, when people were charged with an offence in Toronto, it did not matter where the individual was from,provided he or she identified themselves as an Aboriginal person. Wente stated ALS determined the appropriate salary for a particularposition and advised NLS of the name of the potential employee and the amount payable.

Workers employed directly by ALS and thoseworking under an employment contract with NLS participated equally in cultural activities and there was no difference in day-to-dayfunctions carried out by members of these two groups. Wente stated the distinction between the functions of ALS and those of the Clinicwas illustrated by the draft contracts ​ within tab 2A ​ in which Aboriginal Legal Services was named as the placement organization inone, while in another the employee​s services were to be provided to Aboriginal Legal Services (​Legal Clinic​).

However, ALS paidworkers​ compensation premiums for the entire staff including those employed by NLS. Wente was not aware of any direct trainingprovided by NLS but it was entitled to do so and ALS provided training to workers who delivered services to the Aboriginal community.The ALS office was located in Toronto but one person worked from an office on the Six Nations Reserve. Wente did not know whetherthis individual was a status Indian.

When requested by a lawyer or another group or organization to provide a Gladue report - akin to anextensive pre-sentence report ​ the administrators of ALS decide whether to undertake that task and if a Caseworker is assigned, then afee is charged to compensate for the cost of the worker​s time and expenses related to the production of the report. The Clinic does notprovide direct criminal defence assistance to individuals charged with offences as that is handled through Duty Counsel and othercounsel provided by Legal Aid Ontario. Preparation of Gladue reports by ALS is not funded by Legal Aid Ontario.

Wente stated thatsince January 1, 2010, NLS no longer leases employees to ALS. [40] In re-direct examination, Wente stated she understood NLS was responsible for payment of any amounts considered payablewhen settling a dispute with an NLS employee. Since 1992, the Executi

[…]