Federal Court of Appeal Decisions

Date: 20090408

Docket: A-586-07

Citation: 2009 FCA 108

 

CORAM:       NADON J.A.

                        BLAIS J.A.

                        PELLETIER J.A.

 

BETWEEN:

ESTATE OF ROLLAND BASTIEN

Appellant

and

HER MAJESTY THE QUEEN

Respondent

 

 

 

Heard at Montréal, Quebec, on November 20, 2008.

Judgment delivered at Ottawa, Ontario, on April 8, 2009.

 

REASONS FOR JUDGMENT BY:                                                                             NADON J.A.

CONCURRING REASONS BY:                                                                          PELLETIER J.A.

CONCURRED IN BY:                                                                                                   BLAIS J.A.

 

 

Date: 20090408

Docket: A-586-07

Citation: 2009 FCA 108

 

CORAM:       NADON J.A.

                        BLAIS J.A.

                        PELLETIER J.A.

 

BETWEEN:

ESTATE OF ROLLAND BASTIEN

Appellant

and

HER MAJESTY THE QUEEN

Respondent

 

 

REASONS FOR JUDGMENT

 

NADON J.A.

[1]               This is an appeal from the decision of Justice Angers of the Tax Court of Canada, 2007TCC625, dated December 6, 2007, dismissing the appeal from the assessment made by the Minister of National Revenue (the Minister) under the Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1, (the ITA), for the 2001 taxation year of the late Rolland Bastien (Rolland Bastien).

 

[2]               This appeal raises the question of whether the investment income of Rolland Bastien, who was an Indian under the Indian Act, R.S.C. 1985, c. I-5, was situated on a reserve and is therefore exempt from taxation pursuant to paragraph 81(1)(a) of the ITA and section 87 of the Indian Act.

 

The facts

[3]               The following summary of facts is necessary to place the dispute raised by the appeal into its proper context.

 

[4]               Rolland Bastien was a member of the Huron-Wendat Nation and lived his entire life on the Wendake Reserve, where he died in 2003. Throughout his life, he worked on the reserve manufacturing moccasins. From 1970 to 1997, he personally operated a moccasin manufacturing business, Les Industries Bastien enr., which he disposed of in 1997 in favour of his children, who also resided on the reserve.

 

[5]               In the 2001 taxation year, Rolland Bastien held term deposits at the Caisse populaire Desjardins du Village Huron (the Caisse du Village Huron) and received interest on his investments in the amount of $64,416.79. Rolland Bastien also received interest on investments with the Caisse populaire Desjardins de Pointe-Bleue (the Caisse de Pointe-Bleue) in the amount of  $9,095.02. The interest from the investments at the Caisse de Pointe-Bleue was litigated at trial, but is not the subject of this appeal.

 

[6]               The Caisse du Village Huron is situated on the Wendake Reserve and, in 2001, 60 percent of its members were Indians. It had assets consisting of, in particular, cash deposits and investments with the Fédération des Caisses Desjardins (the Federation), housing loans on and off the reserve, consumer loans and business loans. From 1996 to 2003, investments with the Federation accounted for approximately 25 percent of its assets, and all of these investments were managed by the Federation and made off the reserve. As for loans to individuals and businesses, which account for 75 percent of the Caisse’s assets, around 30 percent of these loans were granted to Indians living on a reserve, including those living on a reserve other than Wendake.  As a result, from 1996 to 2003, around two thirds of the Caisse du Village Huron’s assets were invested outside the reserve.

 

[7]               The income used for Rolland Bastien’s investments with the Caisse populaire du Village Huron came exclusively from the operation of his business, Les Industries Bastien enr., and from any proceeds from the sale of the business paid by his children since 1997.

 

[8]               Rolland Bastien considered the income from the operation of his business, Les Industries Bastien enr., to be property exempt from taxation; this income was neither audited by the Canada Revenue Agency, nor was it taxed. The investment income generated by the deposit certificates with the Caisse du Village Huron was reinvested in the business or used for the everyday needs of Mr. Bastien and his spouse or to make other term investments with the caisses.

 

[9]               In his assessment dated March 6, 2003, the Minister added the investment income totalling $73,511 from the Caisse du Village Huron and the Caisse de Pointe-Bleue to the computation of the appellant’s income for the 2001 taxation year. The appellant appealed the assessment to the Tax Court of Canada.

 

Decision of Justice Angers

[10]           To begin with, Justice Angers noted that in order for the exemption from taxation provided for at paragraph 87(1)(b) of the Indian Act to apply, three elements must be present: being an Indian within the meaning of the Indian Act, having possession of personal property, and that property being situated on a reserve. The judge noted that, in this case, it is admitted that the late Rolland Bastien was an Indian and that the investment income was personal property. Accordingly, the issue in dispute was whether the investment income was, in fact, situated on a reserve.

 

[11]           To answer this question, the judge carefully reviewed the legal principles established in case law, particularly those from the Supreme Court’s decisions in Williams v. Canada, [1992] 1 S.C.R. 877 (Williams) and Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85 (Mitchell) and from the decision of this Court in Recalma v. Canada (1998), 98 D.T.C. 6238 (Recalma).

 

[12]           Justice Angers highlighted that in Recalma, above, this Court restated the principles enunciated in Williams, above, and identified four connecting factors to be considered in determining the situs of investment income: (1) the investment income’s connection to the reserve; (2) the benefit of the investment income to the traditional Native way of life; (3) the potential danger of the erosion of Native property; and (4) the extent to which the investment income may be considered as being derived from economic mainstream activity. However, according to Justice Angers, the fourth factor was the most important in that case.

 

[13]           Based on an analysis of the connecting factors, the judge found that there were indeed several connections between the investment income and the reserve. For one thing, the reserve was Rolland Bastien’s place of residence, the source of the capital, the location of the Caisse, the place where the investment income, or at least a good part of it, was used, the location of the investment vehicle, and the place where the investment income was paid. The judge nonetheless found that these were factors of lesser importance in determining the situs of investment income and that for that purpose, the emphasis should mainly be placed on how the income was earned. In the case, the judge found that the income-generating activities were derived from an economic mainstream activity and not closely connected to the reserve. Consequently, the investment income was not exempt from taxation.

 

 

Appellant’s submissions

[14]           As I mentioned above, the appellant did not appeal the portion of the trial judge’s decision as regards the investment income that the appellant received from the Caisse de Pointe-Bleue. Therefore, this appeal only contemplates the investment income from the Caisse du Village Huron, which totals $64,416.79.

 

[15]           The appellant’s first ground for challenging Justice Angers’ decision is that the judge erred in his analysis of the connecting factors and gave too much weight to the fact that Caisse du Village Huron was investing in the general mainstream of the economy. According to the appellant, however, nine of the ten factors identified by the Tax Court of Canada in Recalma v. Canada (1996), 96 D.T.C. 1520, a decision affirmed by this Court in Recalma, above, were satisfied.

 

[16]           Second, the appellant is using certain articles of the Civil Code of Québec (the Civil Code), and in particular article 1440, to allege that the contractual agreements between the Caisse du Village Huron and third parties that are financial institutions situated off the reserve (i.e., in the “general mainstream of the economy”) have no effect on the contractual agreement reached between a caisse and an Indian situated on the reserve.

 

[17]           Last, the appellant submits that the judge erred in finding, for the purposes of making his decision, that the connecting factors in the case at bar are the same as those in Lewin v. Canada, 2002 FCA 461 (Lewin). To the contrary, the appellant alleges that there are important factual distinctions between this case and Lewin, above, because in that decision, moreover, Mr. Lewin had never resided on the reserve and mainly worked off the reserve. In fact, in Lewin, the trial judge noted that the only distinctive feature of that case was that the caisse was situated on the territory of the reserve.

 

Respondent’s submissions

[18]           The respondent submits that this Court has already dealt with the question of connecting factors on a number of occasions and that this case provides no basis for reconsidering the method used to identify the situs of investment income when applying section 87 of the Indian Act.

 

[19]           According to the respondent, Justice Angers’ decision is consistent with the principles developed by the case law. In particular, the respondent alleges that there is no major distinction between this case and Lewin, above, which dealt with interest income from deposit certificates with the same establishement at issue in this case, the Caisse populaire du Village Huron.

 

[20]           Lastly, in response to the appellant’s argument based on the Civil Code, the respondent submits that it serves no purpose to examine the contractual relations between Rolland Bastien and the Caisse, since the purpose sought by the Civil Code cannot be equated with the purpose of section 87 of the Indian Act.

 

 

Issue

[21]           It is undisputed, in this case, that Rolland Bastien was an Indian and that investment income is personal property. Therefore, the appeal raises a single issue, which is whether Justice Angers erred in concluding that Rolland Bastien’s investment income was not property “situated on a reserve” and was therefore not exempt from taxation.  

Analysis

A. Statutory provisions

[22]           Paragraph 81(1)(a) of the ITA provides that an amount that is declared to be exempt from taxation by any other enactment of Parliament shall not be included in computing the income of a taxpayer:

 

[23]           The exemption provided by another enactment is found at section 87 of the Indian Act, which reads as follows:

 

B. Standard of review

[24]           From the decision of the Supreme Court in Housen v. Nikolaisen, [2002] 2 S.C.R. 235, we know that the standard of review on a question of law is correctness, and that the trial judge’s finding of fact or of mixed fact and law cannot be overturned unless the judge made a palpable and overriding error.

 

C. Is the investment income situated on an Indian reserve?

[25]           In my opinion, Justice Angers properly grounded his analysis in the legal principles that have been established in the case law and did not err in law or make a palpable and overriding error. Furthermore, I can find no error in Justice Angers’ analysis of the connecting factors developed by this Court in Recalma, above.

 

[26]           To determine whether an Indian’s investment income is situated on a reserve, it is first necessary to consider the intent of the exemption provided in the Indian Act and the principles set forth by the Supreme Court in Mitchell and Williams, above.

 

[27]           The intended purpose of the exemption provided at paragraph 87(1)(b) of the Indian Act was explained in the following manner by Justice La Forest in Mitchell, above, at paragraphs 86 and 88:

     … The exemptions from taxation and distraint have historically protected the ability of Indians to benefit from this property in two ways. First, they guard against the possibility that one branch of government, through the imposition of taxes, could erode the full measure of the benefits given by that branch of government entrusted with the supervision of Indian affairs. Secondly, the protection against attachment ensures that the enforcement of civil judgments by non-natives will not be allowed to hinder Indians in the untrammelled enjoyment of such advantages as they had retained or might acquire pursuant to the fulfillment by the Crown of its treaty obligations. In effect, these sections shield Indians from the imposition of the civil liabilities that could lead, albeit through an indirect route, to the alienation of the Indian land base through the medium of foreclosure sales and the like; see Brennan J.’s discussion of the purpose served by Indian tax immunities in the American context in Bryan v. Itasca County, 426 U.S. 373 (1976), at p. 391.

 

     In summary, the historical record makes it clear that ss. 87 and 89 of the Indian Act, the sections to which the deeming provision of s. 90 applies, constitute part of a legislative “package” which bears the impress of an obligation to native peoples which the Crown has recognized at least since the signing of the Royal Proclamation of 1763. From that time on, the Crown has always acknowledged that it is honour-bound to shield Indians from any efforts by non-natives to dispossess Indians of the property which they hold qua Indians, i.e., their land base and the chattels on that land base.

 

     It is also important to underscore the corollary to the conclusion I have just drawn. The fact that the modern-day legislation, like its historical counterparts, is so careful to underline that exemptions from taxation and distraint apply only in respect of personal property situated on reserves demonstrates that the purpose of the legislation is not to remedy the economically disadvantaged position of Indians by ensuring that Indians may acquire, hold, and deal with property in the commercial mainstream on different terms than their fellow citizens. An examination of the decisions bearing on these sections confirms that Indians who acquire and deal in property outside lands reserved for their use, deal with it on the same basis as all other Canadians.

 

[Emphasis added]

 

 

[28]           At paragraph 112, Justice La Forest elaborated on the Crown’s obligation not to dispossess Indians of their property:

     … As is the case with the restrictions on alienability to which I drew attention earlier, the intent of these sections is to guard against the possibility that Indians will be victimized by “sharp dealing” on the part of non-natives and dispossessed of their entitlements.

[Emphasis added]

 

 

[29]           In Williams, above, Justice Gonthier discussed the choice that Native taxpayers have as to how they organize their personal property and whether they situate them on or off a reserve. At paragraph 18, he states the following:

Therefore, under the Indian Act, an Indian has a choice with regard to his personal property.  The Indian may situate this property on the reserve, in which case it is within the protected area and free from seizure and taxation, or the Indian may situate this property off the reserve, in which case it is outside the protected area, and more fully available for ordinary commercial purposes in society.  Whether the Indian wishes to remain within the protected reserve system or integrate more fully into the larger commercial world is a choice left to the Indian.

 

 

[30]           At paragraph 61, Justice Gonthier also explained how to determine the location of intangible personal property:

Determining the situs of intangible personal property requires a court to evaluate various connecting factors which tie the property to one location or another.  In the context of the exemption from taxation in the Indian Act, there are three important considerations: the purpose of the exemption; the character of the property in question; and the incidence of taxation upon that property.  Given the purpose of the exemption, the ultimate question is to what extent each factor is relevant in determining whether to tax the particular kind of property in a particular manner would erode the entitlement of an Indian qua Indian to personal property on the reserve.

 

[Emphasis added]

 

 

[31]           Moreover, at paragraph 35, Justice Gonthier also stressed that each case must be decided on its own facts:

Furthermore, it would be dangerous to balance connecting factors in an abstract manner, divorced from the purpose of the exemption under the Indian Act.  A connecting factor is only relevant in so much as it identifies the location of the property in question for the purposes of the Indian Act.  In particular categories of cases, therefore, one connecting factor may have much more weight than another.  It would be easy in balancing connecting factors on a case by case basis to lose sight of this.

[32]           These connecting factors were restated in Recalma, above, where this Court identified certain factors to consider in determining the situs of investment income. The substantive portion of the reasoning in this case was set forth by Justice Linden at paragraph 11:

[11]      So too, where investment income is at issue, it must be viewed in relation to its connection to the Reserve, its benefit to the traditional Native way of life, the potential danger to the erosion of Native property and the extent to which it may be considered as being derived from economic mainstream activity. In our view, the Tax Court judge correctly placed considerable weight on the way the investment income was generated, just as the Courts have done in cases involving employment, U.I. benefits and business income. Investment income, being passive income, is not generated by the individual work of the taxpayer. In a way, the work is done by the money which is invested across the land. The Tax Court judge rightly placed great weight on factors such as the residence of the issuer of the security, the location of the issuer’s income generating operations, and the location of the security issuer’s property. While the dealer in these securities, the local branch of the Bank of Montreal, was on a Reserve, the issuers of the securities were not; the corporations which offered the Bankers’ Acceptances and the managers of the Mutual Funds in question were not connected in any way to a Reserve. They were in the head offices of the corporations in cities far removed from any reserve. Similarly, the main income generating activity of the issuers was situated in towns and cities across Canada and around the world, not on Reserves. In addition, the assets of the issuers of the securities in question were predominantly off Reserves, which in case of default would be most significant.

 

[Emphasis added]

 

 

[33]           Recalma, above, was followed by this Court in Lewin, above, and in Sero v. Canada, 2004 FCA 6 (Sero). Recalma is now the leading authority on the question of whether section 87 can exempt certain investment income from tax (see Sero at paragraph 16).

 

[34]           However, the appellant is attempting to distinguish the relevant case law on section 87 from the case at bar. In particular, it submits that Lewin, above, which also dealt with investment income from the Caisse du Village Huron, must be distinguished. According to the appellant, several connecting factors were not present in that case; among other things, Mr. Lewin did not reside on the reserve, the original capital investment had been constituted from work done off the reserve, and the interest paid to Mr. Lewin did not contribute to preserving the traditional way of life of Native people living on the reserve. Conversely, the appellant alleges that in its case, all but one of the factors relied on by the Tax Court of Canada in Recalma v. Canada (1996), 96 D.T.C. 1520, show a connection between the reserve and the investment income.

 

[35]           The state of the law on the issue of taxation of Indians’ investment income is currently well established. I am persuaded that there is no essential distinction between this case and the decisions of this Court in Recalma, Lewin and Sero, above. In my opinion, the factual distinctions that the appellant is trying to rely on are immaterial.

 

[36]           When an Indian invokes paragraph 87(1)(b) of the Indian Act to obtain a tax exemption on his or her investment income, and the income in question is generated off the reserve, the exemption cannot be granted. In such a context, the other connection factors are of little importance. In particular, the mere fact that the financial institution is situated on the reserve merits little weight. What matters is whether the investment income—that is, the profit generated from the capital invested in a financial institution—was produced on or off the territory of the reserve. In other words, if all or part of the funds were invested in the general mainstream of the economy, the taxation exemption provided at paragraph 87(1)(b) of the Indian Act cannot apply.

 

[37]           In Recalma, above, Justice Linden implies at paragraph 14 of his reasons that “the result may, of course, be otherwise in factual circumstances where funds invested directly or through banks on reserves are used exclusively or mainly for loans to Natives on reserves”. However, that is not so in this case, and accordingly, we do not have to rule on such a question. It is important to recall that, as Justice La Forest emphasized in Mitchell, the intent of the exemption provided at section 87 of the Indian Act is not to allow Indians to acquire and deal with property situated outside the reserve on better terms than other Canadians.

 

[38]           Moreover, in my opinion, the recent decision of this Court in Horn v. Canada (Minister of National Revenue), 2008 FCA 352, dated November 12, 2008, which was brought to the Court’s attention on December 4, 2008, after its judgment was reserved, is of no use to the applicant. Horn deals with employment income, not investment income, and does not in the least change the analysis of the connection factors that the Court must carry out.

 

[39]           Accordingly, I find no error in the judge’s decision to give considerable weight to the fact that Caisse du Village Huron was investing its funds in the economic mainstream.

 

[40]           Furthermore, like the trial judge, my view is that the appellant’s arguments based on the Civil Code are of no assistance with respect to the analysis that must be performed to determine the situs of the investment income.

 

[41]           In fact, contrary to the appellant’s allegations, there is no question that the agreements reached between Caisse du Village Huron and the third-party financial institutions are highly relevant, seeing as it is the situs of investment income that is at issue under section 87 of the Indian Act. As a result, it is impossible to ignore the fact that the investment income was generated in the economic mainstream.

 

Disposition

[42]           For these reasons, I would dismiss the appeal, with costs.

 

 

“M. Nadon”

 

Certified true translation

Sarah Burns

 

 

PELLETIER J.A. (CONCURRING REASONS)

[43]           I agree with the reasons articulated by my colleague Justice Nadon, but I would add the following to his remarks.

 

[44]           In Recalma v. Canada (1998), 98 D.T.C. 6238, Justice Linden acknowledged the possibility that in some circumstances, particularly when “funds invested directly or through banks on reserves are used exclusively or mainly for loans to Natives on reserves”, investment income could be exempt from taxation. This factor was only one of several in his analysis, but he gave it more weight than the others.

 

[45]           Perhaps there was once a time when caisses populaires set themselves apart from other financial institutions by virtue of their limited activities and the common link that existed between members, but that is no longer the case. As shown by the evidence in this case, caisses populaires are no longer limited as to their geographical and financial operations. The fact that they belong to a group means that they participate fully in the capital market to the extent that their cash requirements permit or surplus funds demand.

 

[46]           Additionally, as events in recent months have shown, the capital market is a global market. While the sources of the capital put on the market are local and the projects in which that capital is invested are local, the fact remains that the market itself is global. Investors can access that market from their own communities, but the point of entry does not, in itself, limit the market in which investors make profits and incur losses.

 

[47]           I therefore conclude that in the case of the investment of capital through a financial institution, including a caisse populaire, the weightiest factor in determining the situs of the investment income is the nature of the capital market itself, which is not limited to a reserve, a province or even a country.

 

[48]           I would therefore dismiss the appeal as my colleague Justice Nadon proposes.

 

 

“J.D. Denis Pelletier”

“I agree.”

            Pierre Blais J.A.

 

 

 

Certified true translation

Sarah Burns

 

FEDERAL COURT OF APPEAL

                                                  

SOLICITORS OF RECORD

 

 

 

DOCKET:                                                                              A-586-07

 

STYLE OF CAUSE:                                                              ESTATE OF ROLLAND BASTIEN v. HER MAJESTY THE QUEEN

 

PLACE OF HEARING:                                                        Québec, Quebec

 

DATE OF HEARING:                                                          November 20, 2008

 

REASONS FOR JUDGMENT BY:                                     Nadon J.A.

 

CONCURRING REASONS BY:                                         Pelletier J.A.

CONCURRED IN BY:                                                         Blais J.A.

 

DATED:                                                                                 April 8, 2009

 

 

APPEARANCES:

 

Michel Beaupré	FOR THE APPELLANT
Sophie-Lyne Lefebvre	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Langlois Kronström Desjardins Québec, Quebec	FOR THE APPELLANT
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT