Donna E. Kasvand (Applicant) v. Her Majesty the Queen (Respondent)

Published in: (1995), 95 Dominion Tax Cases 5618

Federal Court of Appeal

September 28, 1995

(Court File No. A-176-95.)



The taxpayer applied to the Federal Court of Appeal for a judicial review of her previously unsuccessful tax litigation.

Held: The taxpayer's application was dismissed. The only new point raised by the taxpayer was that the Income Tax Act is ultra vires the Parliament of Canada. A reading of paragraph 91(3) of the Canada Constitution Act, 1867, however, showed the taxpayer's point to be wholly without substance.


The applicant in person;
R. Leclaire for the respondent.

Before: Hugessen, Décary and McDonald, JJ.A.


Hugessen, J.A.: The only point taken by the applicant which was not taken in her previous unsuccessful tax litigation [FOOTNOTE 1 : See Kasvand v. The Queen, 94 DTC 6271. Leave to appeal to the Supreme Court of Canada refused] is that the Income Tax Act is ultra vires the Parliament of Canada as being direct taxation. It suffices to read paragraph 91(3) of the Constitution Act [1867 (U.K.), 30 & 31 Victoria, c. 3]

91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,


3. the raising of Money by any Mode or System of Taxation.

to see that the point is wholly without substance.

The application for judicial review will be dismissed.