COURT CASES

 

A. Cases relating to the issue: "Does the Federal Government Have the Legislative Authority under the Constitution Act, 1867 to impose a direct tax such as the federal Income Tax or GST?"

Case Name

Year

Type of Hearing

Court

Caron v. The King

1924

Taxpayer's appeal to Judicical Committee of the Privy Council from a decision of the Supreme Court of Canada concerning his tax assessment (taxpayer's appeal dismissed).

P.C.

In re Silver Brothers, Limited 1932 Federal claim to priority, relative to provincial government, with respect to tax money owing by a bankrupt corporation to the two governments. This case is not truly relevant to the issue of the "validity" of federal laws which impose a direct tax, though it has been mischaracterized as being relevant. It is actually an unremarkable case dealing with the inconsistency of federal and provincial legislation, and the related doctrine of federal paramountcy (see article on this subject).

P.C

Forbes v. Attorney-General of Manitoba 1937 Provincial claim against a taxpayer for non-payment of a provincial tax. This case is not truly relevant to the issue of the "validity" of federal laws which impose a direct tax, though it has been mischaracterized as being relevant. It is actually an unremarkable case dealing with the inconsistency of federal and provincial legislation, and the related doctrine of federal paramountcy (see article on this subject).

P.C.

Nova Scotia (Attorney-General) v. Canada (Attorney-General) (The "Lord Nelson Hotel" case)

1950

Reference by federal and provincial attorneys general concerning the province of Nova Scotia's authority to make a certain law which would permit the imposition of an indirect tax if the power to do so were delegated by the federal Parliament to the provincial Legislature (held that the federal Parliament and provincial Legislatures have non-overlapping powers that cannot be delegated from one law-making body to the other: the N.S. Legislature lacked the legislative power to make the Bill a law).

S.C.C.

Norman Lusby Goodwin v. Minister of National Revenue

1971

Taxpayer's appeal from tax assessment (taxpayer's appeal was dismissed).

T.A.B.

Winterhaven Stables Ltd. v. Canada (Attorney-General)

1988

Taxpayer's appeal from a trial judge's decision concerning an action brought by the taxpayer in which a declaration was sought that the federal Income Tax Act is unconstitutional (taxpayer's appeal was dismissed).

Alta. C.A.

Reference Re GST

1992

Reference by federal and provincial attorneys general concerning the federal Parliament's authority to impose the GST (held that the federal Parliament did not lack the legislative authority to impose the GST).

S.C.C.

Mueller v. Canada

1993

Crown's motion to strike taxpayer's claim for a declaration of unconstitutionality (taxpayer's claim was struck).

F.C.T.D.

Gullison v. The Minister of National Revenue

1993

Taxpayer's application for a judicial review of her tax assessment appeal decision (taxpayer's application was dismissed).

F.C.A.

P.H.L.F. Family Holdings Ltd. v. Canada

1994

Taxpayer's appeal from tax assessment (taxpayer's appeal dismissed).

T.C.C.

Sarraf v. Her Majesty the Queen

1994

Crown's motion to strike taxpayer's claim, which involved an argument that the federal Income Tax Act is unconstitutional (taxpayer's claim was struck)

F.C.T.D.


Kasvand
v. Her Majesty the Queen

[commentary]

1995

Taxpayer's application for judicial review of tax assessment appeal decision (taxpayer's application was dismissed)

F.C.A.

Giagnocavo v. Her Majesty the Queen

1995

Taxpayer's appeal from striking of application for a declaration that the federal Income Tax Act is unconstitutional (taxpayer's appeal was dismissed).

F.C.T.D.

Charbonneau v. Minister of National Revenue

1995

Crown's motion to strike taxpayer's application concerning the propriety of a seizure (taxpayer's application was struck)

F.C.T.D.

Hoffman v. Canada

1996

Crown's motion to strike taxpayer's claim for a declaration that the federal Income Tax Act is unconstitutional (taxpayer's claim was struck).

F.C.T.D.

R. v. Pilon 1996

Taxpayer's appeal from tax assessments (taxpayer's appeal was dismissed).

T.C.C.
Guillemette v. Her Majesty the Queen 1997

Taxpayer's appeal from tax assessment (taxpayer's appeal was dismissed)

T.C.C.

Landon v. Canada

1997

Taxpayer's appeal from tax assessment (taxpayer's appeal was dismissed).

T.C.C.

Guillemette v. Her Majesty the Queen

1998

Taxpayer's appeal from a tax assessment (taxpayer's appeal was dismissed).

T.C.C.

R. v. Josey 1998 Taxpayer's application for a declaration that the federal Income Tax Act is ultra vires the federal Parliament was dismissed (taxpayer later convicted of failing to file a T1).

N.S.P.C.

Kennedy v. CCRA et al. 2000 Taxpayer's application to render of no force or effect (presumably) a Requirement to Pay. Issues raised by Applicant: that he is not a "person" under s. 2 of the Income Tax Act; that the payment of income tax is voluntary; that the federal Parliament lacks jurisdiction to make the Income Tax Act. Application dismissed, legal costs of $500 to be paid to CCRA.

O.S.C.J.

 


B. Cases Relating to the Issue: "Is a particular part of the federal Income Tax Act in Conflict with the Canadian Charter of Rights and Freedoms such that it is of no force or effect?"

Landon v. Canada (Minister of National Revenue.)
1991 Taxpayer's appeal from a tax assessment. The taxpayer challenged the validity of paragraph 118(1)(b) of the federal Income Tax Act (equivalent to married status), arguing conflict with subsections 2(a) [religion] and 15(1) [equality] of the Charter. His appeal was dismissed. Also: T.C.C. stated it has no jurisdiction to grant declaratory relief. T.C.C.
Landon v. Canada
1997 Taxpayer's appeal from a tax assessment. The taxpayer challenged the consitutional validity of subsection 118(1) of the federal Income Tax Act, arguing conflict with subsection 15(1) [equality] of the Charter. His appeal was dismissed. T.C.C.

Guillemette v. Her Majesty the Queen
1997 Taxpayer's appeal from tax assessment. The taxpayer challenged the validity of s.117 of the federal Income Tax Act (progressive rates of taxation), arguing conflict with subsection 15(1) [equality] of the Charter (discrimination on the basis of income). His appeal was dismissed. T.C.C.


C. Many court decisions are never published in periodicals et cetera: such decisions remain tucked in the large archive of court files stored by our governments. To access a judge's decision that hasn't been published, one needs to have the "court file number" of the case. This can normally be looked up, in a very large, publically accessable book or set of books, in the court in which the hearing was held.

A fellow named Gerry Hart (now deceased) was a notorius tax fighter in Manitoba between the 1950s and the time of his death. Legend has it that he appeared before the Manitoba Court of Appeal some 22 times and, each time, convinced the court that he did not have to pay tax on his income. Legend also has it that he used a constitutional argument involving subsections 91(3) and 92(2) of the Constitution Act, 1867 and the "Lord Nelson Hotel" case to convince the Manitoba Court of Appeal that the federal Income Tax Act is unconstitutional. As far as I can tell, the legend appeared in the Michael Journal, a somewhat religious newspaper produced in Quebec and distributed, for free, throughout Canada.

No case has been published which involved the making, by Gerry Hart or his company (Hart Electronics Limited), of a successful argument that the federal Income Tax Act is unconstitutional. However, one Manitoba Court of Appeal decision was published involving a tax dispute by Hart Electronics Limited (though the case did not involve a constitutional argument). Here it is for your information and enjoyment: The Queen v. Hart Electronics Limited.


Jurisdiction of the Courts (where the decision of a court is in conflict with the decision of another court of relatively superior jurisdiction, the decision of the superior court, and not of the inferior court, is binding precedent with respect to future cases or appeals):

1(a). "P.C." - Judicial Committee of the Privy Council (until 1949, was a court of superior jurisdiction to the Supreme Court of Canada. Its decisions continue to be binding precedent on all other Canadian courts, with the possible exception of the Supreme Court of Canada)

1(b). "S.C.C." - Supreme Court of Canada (Since the abolition of appeals to the Judicial Committee of the Privy Council in 1949, the Supreme Court of Canada is Canada's court of most superior jurisdiction. Its decisions are binding precedent on all other Canadian courts).

2 (a). "Alta. C.A." - Alberta Court of Appeal (decisions of this court are binding precedent with respect to inferior Alberta Courts, though not with respect to the courts of another province)

2 (b). '"F.C.A." - Federal Court of Appeal (decisions of this court are binding precedent with respect to inferior federal and provincial courts, but are of co-ordinate jurisdiction with respect to the Courts of Appeal of the provinces)

3. "F.C.T.D." - Federal Court - Trial Division

3. "O.S.C.J." - Superior Court of Justice (Ontario)

4.(a) "T.C.C." - Tax Court of Canada

4.(b) "T.A.B." - Tax Appeal Board

4.(c) "N.S.P.C." - Nova Scotia Provincial Court


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