[1993] 1 F.C. 74
T-639-92
T-1306-92
T-1307-92
T-1316-92
T-1317-92
T-1318-92
T-1320-92
Canadian Pacific Limited (Applicant)
v.
Matsqui Indian Band and Matsqui Indian Band Council; Shuswap Indian Band and Shuswap Indian Band Council; Nicomen Indian Band and Nicomen Indian Band Council; Skuppah Indian Band and Skuppah Indian Band Council; Spuzzum Indian Band and Spuzzum Indian Band Council; Kanaka Indian Band and Kanaka Indian Band Council; Siska Indian Band and Siska Indian Band Council (Respondents)
Indexed as: Canadian Pacific Ltd. v. Matsqui Indian Band (T.D.)
Trial Division, Joyal J.—Vancouver, September 25; Ottawa, October 13, 1992.
Judicial review — Application to strike originating notices of motion to quash notices of tax assessment issued with respect to lands in respondents’ reserves — Applicant contending lands exempt from taxation — Whether lands held by Canadian Pacific Ltd. under Crown grant subject to federally approved Indian band council by-laws authorizing assessment and taxation of real property rights in lands on reserves in British Columbia — By-laws including appeal procedure — Judicial review discretionary remedy — Practice to decline jurisdiction where appeal available, except under special circumstances — As s. 18 motions, like all prerogative writ applications, heard summarily, boards of revision better forum to receive and consider material evidence.
Federal Court jurisdiction — Trial Division — Application to strike originating notices of motion to quash notice of tax assessment issued by respondents, pursuant to federally approved Indian band council by-laws, with respect to lands in reserves which applicant contends exempt from taxation — By-laws containing provisions for appeals from assessments — Judicial review discretionary remedy — Practice to decline jurisdiction where appeal available, except under special circumstances — As s. 18 motions, like all prerogative writ applications, heard summarily, boards of revision better forum to receive and consider material evidence.
Native peoples — Taxation of lands on reserves — Whether lands held by Canadian Pacific Ltd. under Crown grant subject to federally approved Indian band council by-laws authorizing assessment and taxation of real property rights in lands on reserves in British Columbia.
The Deputy Minister of Indian and Northern Affairs, acting under section 83 of the Indian Act, approved a number of Indian band council by-laws authorizing the bands to assess and tax real property rights in lands set aside for their use and occupation. Tax assessments were subsequently issued by the individual respondents. The applicant, alleging that its lands were held by Crown grant and exempt from taxation, filed section 18 motions to quash the notices of assessment. The respondents applied to strike out these originating notices of motion on the ground that the validity of the assessments could not be the subject of judicial review or that the Court should decline to grant the discretionary remedies sought because of the existence of appropriate appeal provisions in the by-laws.
Held, the application should be allowed.
Although the Federal Court of Appeal has held (in Optical Recording Corp. v. Canada, [1991] 1 F.C. 309) that section 18 judicial review proceedings are unavailable in respect of assessments under the Income Tax Act, there is authority for the proposition that if the assessment is a nullity or if ultra vires acts have been committed by the taxing authority, a superior court can grant a remedy notwithstanding the existence of legislation providing for a more expeditious appeal procedure: Abel Skiver Farm Corporation v. Town of Sainte-Foy et al., [1983] 1 S.C.R. 403.
The basic characteristic of judicial review is that it provides an exceptional and extraordinary remedy. It can be maintained only when no other effective recourse is open to a litigant. The relief which a court may grant by way of judicial review remains essentially discretionary. The practice is to decline jurisdiction where there is a right of appeal, except in special circumstances.
The issue was not whether the Court had jurisdiction but whether it might be preferable to have the dispute resolved in accordance with the appeal procedures set out in the by-laws. While there is conflicting case law and text authority as to the application of the principle of curial deference where legislation gives a right of appeal, a court in exercising its discretion will take into account the availability of an appeal process which can effectively deal with the issues.
On the face of the appeal provisions in the by-laws, there was an effective appeal process under which all the issues raised by the applicant could be brought forward. It would neither be in the public interest nor would it favour public policy to bypass the appeal provisions in the by-laws.
Furthermore, the applicant was not challenging a tax assessment when its lands and improvements have hitherto been exempt from taxation. One taxing authority had been substituted for by another.
Whether or not the applicant’s lands are “reserve lands” over which Indian bands have authority is a matter within the terms of reference of the appeal provisions and these provisions should be respected.
Finally, since section 18 motions are heard summarily, a board or court of revision is a preferable forum for receiving and considering all the evidence material to an issue of this nature.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5), 18.5 (as enacted idem).
Indian Act, R.S.C., 1985, c. I-5, ss. 2(1) (as am. by R.S.C., 1985 (4th Supp.), c. 17, s. 1), 83 (as am. idem, s. 10).
Interpretation Act, R.S.C., 1985, c. I-21, s. 2.
CASES JUDICIALLY CONSIDERED
APPLIED:
Wilfong, Re Cathcart v. Lowery (1962), 32 D.L.R. (2d) 477; 37 W.W.R. 612; 37 C.R. 319 (Sask. C.A.); Public Service Alliance of Canada et al. v. Canada (Treasury Board) et al. (1990), 36 F.T.R. 182 (F.C.T.D.); Lethbridge, City of, v. Can. West. Nat. Gas, L.,H. & P. Co., [1923] S.C.R. 652; [1923] 4 D.L.R. 1055; [1923] 3 W.W.R. 976; Terrasses Zarolega Inc. et al. v. Régie des installations olympiques, [1981] 1 S.C.R. 94; (1981), 124 D.L.R. (3d) 204; 23 L.C.R. 97; 38 N.R. 411; Commission des accidents du travail du Québec v. Valade, [1982] 1 S.C.R. 1103; (1982), 44 N.R. 75; Atikokan, Ex p., [1959] O.W.N. 200 (H.C.); London Gardens Ltd. and Township of Westminster, Re (1975), 9 O.R. (2d) 175 (Div. Ct.); Foster v. Township of St. Joseph, [1917] 39 O.L.R. 114; affd. [1917] 39 O.L.R. 525; (1917), 37 D.L.R. 283 (C.A.); Goderich Roman Catholic Separate School Trustees and Town of Goderich, Re, [1923] 53 O.L.R. 79 (App. Div.).
CONSIDERED:
Minister of National Revenue v. Parsons, [1984] 2 F.C. 331; [1984] CTC 352; (1984), 84 DTC 6345 (C.A.); Optical Recording Corp. v. Canada, [1991] 1 F.C. 309; [1990] 2 C.T.C. 524; (1990), 90 DTC 6647; 116 N.R. 200 (C.A.); Harelkin v. University of Regina, [1979] 2 S.C.R. 561; (1979), 96 D.L.R. (3d) 14; [1979] 3 W.W.R. 676; 26 N.R. 364; Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756; (1971), 18 D.L.R. (3d) 1; Barron v. Foothills No. 31 and Alberta (1984), 57 A.R. 71; [1985] 2 W.W.R. 711; 36 Alta. L.R. (2d) 27; 10 Admin. L.R. 229; 28 M.P.L.R. 235 (C.A.); Abel Skiver Farm Corporation v. Town of Sainte-Foy et al., [1983] 1 S.C.R. 403.
REFERRED TO:
Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147 (H.L.); Bennett & White (Calgary) Ltd. v. Municipal Dist. of Sugar City (No. 5), [1951] 4 D.L.R. 129; (1951), 3 W.W.R. (N.S.) 111; [1951] C.T.C. 219; [1951] A.C. 786 (P.C.); Crown Forest Indust. Ltd. v. Assessor of Area 24—Cariboo (1986), 2 B.C.L.R. (2d) 397 (C.A.); RivTow Industries Ltd. v. British Columbia (Assessor of Area # 01-Saanich-Capital) (1989), 55 D.L.R. (4th) 447; 34 B.C.L.R. (2d) 196 (S.C.); W.T.C. Western Technologies Corp. v. M.N.R., [1986] 1 C.T.C. 110; (1986), 86 DTC 6027; 1 F.T.R. 119 (F.C.T.D.); Bechthold Resources Ltd. v. M.N.R., [1986] 1 C.T.C. 195; (1986), 86 DTC 6065; 1 F.T.R. 123 (F.C.T.D.).
AUTHORS CITED
Kavanagh, John A. A Guide to Judicial Review, 2nd ed., Toronto: Carswell Legal Publications, 1984.
APPLICATION to strike out a series of originating notices of motion under section 18 of the Federal Court Act to quash and set aside notices of tax assessment issued against the applicant with respect to lands in the respondents’ reserves. Application allowed.
COUNSEL:
Norman D. Mullins, Q.C. and Bernard W. Hoeschen for applicant.
Arthur Pape for respondent Matsqui Indian Band.
John L. Finlay and Susan Stonier for other respondents.
SOLICITORS:
Canadian Pacific Legal Services, Vancouver, for applicant.
Pape and Salter, Vancouver, for respondent Matsqui Indian Band.
Cooper and Associates, Vancouver, for other respondents.
The following are the reasons for order rendered in English by
Joyal J.: This is an application by the respondents herein to strike out a series of originating notices of motion filed by the applicant in this Court against each of the above respondents.
The applicant’s motion was under section 18 of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 4)] to quash and set aside a notice of tax assessment issued by the individual respondents against the applicant on lands in the respondents’ reserves which the applicant contends are exempt from taxation. Although separate applications were filed with respect to each respondent, the parties agreed that, for purposes of the application to strike, they should all be heard together on common evidence. It is also noted that in respect of the Matsqui Indian Band, both Canadian Pacific Limited and Unitel Communications Limited are applicants. The latter is not named in any of the other applications. I should therefore refer to Canadian Pacific Limited alone in these reasons.
To put the issue in context, it is necessary to refer to its origins. It would appear that early in 1992, the Deputy Minister of Indian and Northern Affairs, pursuant to section 83 of the Indian Act [R.S.C., 1985, c. I-5 (as am. by R.S.C., 1985 (4th Supp.), c. 17, s. 10)], approved a number of Indian band council by-laws authorizing the bands, all located in British Columbia, to assess and tax real property rights in lands set aside for their use and occupation. Obviously this was a far-reaching programme involving both the federal authorities in Ottawa and the provincial authorities in British Columbia.
The by-laws involved, all of them substantially the same, contain all the earmarks of an assessment statute and indeed appear to be modelled on existing statutes in the province. Without going into unnecessary details on these by-laws, their scope is to establish a system of taxation for local purposes on land or interests in land in the reserves pursuant to the provisions of the Indian Act. The scheme calls for general taxation provisions, exemptions therefrom, the preparation of taxation and assessment rolls, a valuation process, a recovery of taxes process and the establishment of prescribed rates of tax. The by-laws also provide for an appeal process to boards of review and to assessment review committees, and further appeals to the Federal Court of Canada.
On reviewing its notices of assessment from each individual respondent, the applicant instituted its section 18 proceedings praying this Court to quash these assessments. The applicant alleged that its lands are held by way of a Crown grant, that the reach of the by-laws extends only to reserve lands, as that term is defined in the Indian Act, and therefore any such assessments are null and of no effect.
The respondents reacted to this challenge by filing the within application, asking this Court to strike the section 18 application on the grounds that the validity of the assessments could not be the subject of judicial review or that the Court should decline to grant the discretionary remedies applied for because of the existence of appropriate appeal provisions in the by-laws.
The application to strike came on to be heard in Vancouver on September 25, 1992. At the close of the hearing, I granted the respondents’ motion and provided the parties with brief oral reasons therefor. I was then requested to provide more elaborate and written reasons for my decision.
THE CASE FOR THE RESPONDENTS
The general approach by the respondents is that proceedings for judicial review should only be used when no other avenue of redress is available to a party seeking relief. Section 18 of the Federal Court Act is only a formalization of prerogative writ procedures calling for the Court to provide discretionary and equitable remedies, absent in any other recourse.
The respondents contend that under the by-laws, the validity of which has not been challenged, there are elaborate and clear-cut provisions for appeals from assessments. The terms of reference set out in the by-laws establish the competency of appeal boards to deal with the issues raised by the applicant and provide it with a full hearing on its claim.
In support of that position, the respondents refer the Court to the case of Minister of National Revenue v. Parsons, [1984] 2 F.C. 331, where the Federal Court of Appeal ruled that a challenge to assessments under the Income Tax Act [S.C. 1970-71-72, c. 63] could not be by way of an application to quash under section 18, but by way of the appeal provisions under the Act. It mattered not, said the Court of Appeal, whether the issue was quantum and liability or the more fundamental question of the Minister’s legal authority to make the assessments.
The respondents also find support in the case of Optical Recording Corp. v. Canada, [1991] 1 F.C. 309, where the Federal Court of Appeal again ruled that no section 18 proceedings were open to a taxpayer when dealing with tax assessments under the Income Tax Act.
The respondents also cite the Supreme Court of Canada decision in the celebrated case of Harelkin v. University of Regina, [1979] 2 S.C.R. 561, when a majority of the Court restated the same principle, i.e. that an application for certiorari against a decision of a tribunal authorized to deal with admission applications will not be entertained when the enabling statute provides for an appeal therefrom to another forum. The Court went on to state that this rule applies even though it is alleged that the inferior tribunal’s decision is such a nullity that no decision is appealable.
The respondents urge this Court to respect and adopt the principle laid down in these decisions and strike the applicant’s section 18 application and leave it to the applicant to file its complaint via the appeal route clearly laid out in the by-laws.
Further, the respondents ask the Court to consider that the judicial review under section 18 is effectively statute-barred by the provisions of section 18.5 of the Federal Court Act [as enacted idem, s. 5]. This section reads as follows:
18.5 Notwithstanding sections 18 and 18.1, where provision is expressly made by an Act of Parliament for an appeal as such to the Court, to the Supreme Court of Canada, to the Court Martial Appeal Court, to the Tax Court of Canada, to the Governor in Council or to the Treasury Board from a decision or order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commission or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act.
I will admit that I have a little problem in the application of section 18.5 to the legislative scheme before me, but I should reserve further comment to later.
THE CASE FOR THE APPLICANT
First of all, the applicant questions the jurisdiction of any court of review established under the by-laws to deal with the kind of issue facing this Court, i.e. whether its lands are liable to assessment and taxation by the respective Indian bands.
The applicant quotes in support the provisions of subsection 2(1) of the Indian Act [as am. by R.S.C., 1985 (4th Supp.), c. 17, s. 1], which defines “reserve” as “a tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band”. The applicant ties in this definition with the substantive provisions of paragraph 83(1)(a) of the statute, authorizing an Indian band council to make by-laws for the “taxation for local purposes of land, or interests in land, in the reserve, including rights to occupy, possess or use land in the reserve” [underlining added].
As the applicant contends that its lands are not vested in Her Majesty and are not set apart for the use and benefit of the members of the band but are under the exclusive ownership of the applicant, neither the Indian Act nor the by-laws, including appeal procedures, have any relevance whatsoever to the applicant. A court of revision established thereunder has therefore no jurisdiction to deal with the issues raised in this Court.
The applicant makes the further point that the powers of an Indian band council to adopt a taxation by-law, made conditional by subsection 83(3) of the Indian Act upon providing for an appeal procedure in respect of assessments, has effectively circumscribed the jurisdiction of an appeal tribunal if one is to consider the French version of the same subsection which speaks of a “procédure de contestation de l’évaluation en matière de taxation” [underlining added].
The applicant urges me to adopt the French text and find that a review tribunal can only deal with the equivalent English word “valuation” and not with “assessment“, an issue which has nothing to do with the basic claim of the applicant.
On the question of limited jurisdiction, the applicant contends that the powers vested in the boards of review or courts of revision go beyond the statutory authority under section 83 to establish a tribunal to hear appeals on “assessments”, including inquiries as to whether “land or improvements, or both land and improvements, have been wrongfully entered on or omitted from the assessment roll”, as to whether taxes have been evaluated at too high or low an amount, or whether exemptions have been properly allowed or refused, and other fields of enquiry of a similar nature.
Finally, the applicant argues that the authorities relied on by the respondents in their application to strike all deal with specific appeal processes established by statutes and none deal with rules made by subordinate tribunals or similar bodies. In any event, argues the applicant, a board established pursuant to a statute has no power to deal with matters that are not within the purview of the statute. The applicant cites in this respect the House of Lords decision in Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147, as well as the reasoning of Martland J. of the Supreme Court of Canada in Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756, where he said at page 775:
With respect, I do not agree with this view. The powers given to a board of inquiry are to enable it to determine whether or not there has been discrimination in respect of matters within the scope of the Act. It has no power to deal with alleged discrimination in matters not within the purview of the Act or to make recommendations with respect thereto.
The Court of Appeal judgment says that the board, had it been allowed to proceed, would have been obliged to decide (1) whether there was a denial of housing accommodation, (2) whether that accommodation was covered by the Code, and (3) whether the denial was by reason of the race, colour, or place of origin of the complainant. In my opinion, item (2) would have had to be considered first, and, if the accommodation was not covered by the Act, the board would have no authority to proceed further.
Item (2) raises an issue of law respecting the scope of the operation of the Act, and on the answer to that question depends the authority of the board to inquire into the complaint of discrimination at all. The Act does not purport to place that issue within the exclusive jurisdiction of the board, and a wrong decision on it would not enable the board to proceed further.
In my opinion, the appellant was not compelled to await the decision of the board on that issue before seeking to have it determined in a court of law by an application for prohibition, and the Court had jurisdiction to deal with the matter. [Underlining added.]
The applicant also cites cases dealing with municipal taxation statutes where judicial review was not denied a taxpayer, even though the enabling legislation provided for appeal procedures. These include the case of Bennett& White (Calgary) Ltd. v. Municipal Dist. of Sugar City (No. 5), [1951] 4 D.L.R. 129 (P.C.); Abel Skiver Farm Corporation v. Town of Sainte-Foy et al., [1983] 1 S.C.R. 403; Barron v. Foothills No. 31 and Alberta (1984), 57 A.R. 71 (C.A.). In this last case, Laycraft J.A. of the Alberta Court of Appeal is quoted as saying at page 74:
However, if the issue goes to whether the taxpayer should have been taxed at all, then the matter can be reviewed by a superior court on the basis that a provincial statutory tribunal cannot be delegated the power to set the limits of its own jurisdiction….
Added to the foregoing cases are Crown Forest Indust. Ltd. v. Assessor of Area 24—Cariboo (1986), 2 B.C.L.R. (2d) 397 (C.A.); RivTow Industries Ltd. v. British Columbia (Assessor of Area # 01-Saanich-Capital) (1989), 55 D.L.R. (4th) 447 (B.C.S.C.).
FINDINGS
It appears quite evident, from the array of cases dealing with the pre-emptive right of a superior court to come to grips with a legal challenge as against the more orthodox appeal processes, that rules and principles on the issue are somewhat conflicting.
As examples, the Parsons case (supra) dealing with income tax assessments and decided in 1984 was followed by W.T.C. Western Technologies Corp. v. M.N.R., [1986] 1 C.T.C. 110 (F.C.T.D.) and Bechthold Resources Ltd. v. M.N.R., [1986] 1 C.T.C. 195 (F.C.T.D.), both decided two years later in 1986 and which seem to have reached different conclusions. Whatever conflict there was, however, seems to have been laid to rest by the Federal Court of Appeal in Optical Recording Corp. (supra).
Much has also been written by judges when dealing with assessment and taxation statutes under provincial jurisdiction. When analyzing the cases submitted by applicant’s counsel in this respect, one must be wary of relying too much on judicial comment taken somewhat out of context. In my view, the surrounding circumstances of each case must be taken into consideration.
It was said by Beetz J. in the Abel Skiver Farm Corporation case (supra) at page 424, that in matters where the assessment is a nullity or the taxing authority commits acts which are ultra vires, the door is open to seek a remedy via a superior court route and it does not matter that no use was made of the expeditious and special actions provided by law, if they were available; further, that it does not matter, if such actions were used, that they failed. The rationale applied by Beetz J. appears to be that in matters of taxation and exemption, a taxpayer retains the right to go directly to a judicial forum which has the power to decide the matter with the force of res judicata (at page 437). Beetz J. also said, however, again at page 437, after outlining the general authority of boards of revision, that their terms are sufficiently general to allow a taxpayer to “complain of the roll as drawn up on the ground that the roll deprives it of the exemption to which it is entitled … and the members of the council or the board of revision must take this complaint under consideration.”
In the Barron case (supra), the Alberta Court of Appeal stated at pages 73-74 that assessment tribunals have a right to be wrong, so long as they are acting within the boundaries of their statutory jurisdiction, and if so acting, the courts have no power to review it. It is only otherwise that the issue is reviewable.
My preliminary review from the foregoing cases is that it confirms the jurisdiction of a superior court to hear a case by way of evocation or judicial review when a fundamental issue of validity or excess of jurisdiction is raised. As will be observed later on, however, the issues argued before this Court are not exclusively founded on the Court’s jurisdiction to hear a section 18 application.
On the issue of jurisdiction as set out in section 18.5 of the Federal Court Act, I have grave doubts that the conditions therein contained have been met to oust the jurisdiction of this Court to entertain an application under section 18.1 [as enacted by S.C. 1990, c. 8, s. 5]. The text of this section appears to limit its scope not only to specific appeal processes to a court, or to Treasury Board, or to Governor in Council, but their provisions must be contained in an Act of Parliament. It can of course be argued that an Indian band council by-law, approved by the Minister under section 83 of the Indian Act and which complies with a taxation appeal requirement under subsection 83(3), makes of such an appeal provision one conferred by an Act of Parliament. If one refers, as did the respondents, to section 2 of the Interpretation Act [R.S.C., 1985, c. I-21], to the effect that a “regulation” includes a by-law “made or established in the execution of a power conferred by or under the authority of an Act”, an argument may be made that the legislative purpose of section 18.5 of the Federal Court Act can only be met by the conclusion that the taxation appeal provision in the by-laws are pursuant to or under an “Act of Parliament”.
That argument merits some consideration, but in view of the alternative conclusion I have reached, I should leave that debate to another place and another time.
THE PURPOSE AND SCOPE OF JUDICIAL REVIEW
The increasing involvement of superior courts in supervising the functions of inferior tribunals and to make sure that their authority is exercised according to law makes us overlook at times that their origins were in terms of prerogative writs obtainable in courts of equity and being the expression of royal authority over the administration of justice. Reflecting the historical traditions of the past, these writs were and have since continued to be known by their ancient Latin words of certiorari, mandamus and quo warranto. The fact that the whole package is now known under the generic term of judicial review does not affect their basic characteristics of allowing an intervention by superior courts when no other process is available to grant relief from any alleged denial of natural justice, error of law or jurisdiction, or manifest error in the findings of inferior tribunals.
There is no doubt that as the common law became more and more codified and the administration of these laws became more and more entrusted to administrative bodies exercising both policy and judicial functions, with many of them enjoying privative clauses, the jealously-guarded role of superior courts was not to be diminished. And so what was hitherto known as an exceptional and extraordinary procedure, judicial review has now become commonplace.
The basic characteristic, however, of judicial review providing an exceptional or extraordinary remedy must necessarily be maintained. It can only be maintained when no other effective recourse is open to a litigant. Absent any statutory bar to jurisdiction, and section 18.5 of the Federal Court Act is one of them, the relief which a court may grant by way of judicial review remains essentially discretionary. On such an application, a court must view all the circumstances of the case and decide if any other recourse or remedy is available. Such a recourse is of course usually by way of an appeal. As stated by Culliton J.A., in Wilfong, Re Cathcart v. Lowery (1962), 32 D.L.R. (2d) 477 (Sask. C.A.), the practice is to decline jurisdiction where there is a right of appeal, except under special circumstances.
In Public Service Alliance of Canada et al. v. Canada (Treasury Board) et al. (1990), 36 F.T.R. 182 (F.C.T.D.), a number of public servants who had participated in a sit-in strike of government offices were disciplined and financial penalties were imposed on them. Moreover, Treasury Board had provided to set-off or collect these penalties by way of deduction from the public servants’ bi-monthly paycheques. The parties then agreed to come before the Court by way of a stated case for declaratory judgments on both the issue of legality of the fines imposed and the issue of the right to claim set-off under the provisions of the Financial Administration Act [R.S.C., 1985, c. F-11]. The Court declined to hear the case.
The Court stated that notwithstanding the agreement between the parties to proceed by way of an action for declaratory relief, it should, ex proprio motu, adhere to and have respect for the grievance and arbitration procedures which Parliament had established under the Public Service Staff Relations Act [R.S.C., 1985, c. P-35].
DISCRETIONARY ASPECTS
As will be seen from the foregoing observations, the issue before this Court is not whether I have jurisdiction in the matter, but whether it might be preferable to have it debated in accordance with the appeal procedures set out in the by-laws.
The principle of curial deference has been aptly set out by Anglin J. of the Supreme Court of Canada in Lethbridge, City of, v. Can. West. Nat. Gas, L., H. & P. Co., [1923] S.C.R. 652, at page 659, as follows:
Out of respect to the legislature and to carry into effect the spirit, if not the letter, of its policy, as expressed in the Public Utilities Act, the courts, although they may not have been denuded of jurisdiction to entertain such an action as that now before us, should, I think, decline to exercise that jurisdiction, if they possess it, and should relegate the parties to the board which the legislature has constituted to deal with such cases and has clothed with powers adequate to enable it to do full and complete justice in the premises.
The same doctrine was endorsed in the more recent case of Terrasses Zarolega Inc. et al. v. Régie des installations olympiques, [1981] 1 S.C.R. 94, when the Supreme Court of Canada was asked to consider whether a superior court had jurisdiction to interpret, by way of declaratory judgment, the terms of reference of an arbitration committee created under a special statute. The Supreme Court quoted with approval the judgment of the Quebec Court of Appeal [[1979] C.A. 497] which said, at page 103:
[translation] I am of the view that the Superior Court should not intervene by a declaratory judgment when the legislator has specifically provided that the matter is to be decided by some other tribunal.
…
I think it can be said that Canadian authorities is to the effect that the Superior Court should not use its declaratory power when a lower tribunal has been created by the legislature to decide on some particular issue.
Admittedly, the doctrine of curial deference is not a closed book. As was stated by Chouinard J. of the Supreme Court of Canada in Commission des accidents du travail du Québec v. Valade, [1982] 1 S.C.R. 1103, at page 1105:
It follows that the existence of a right of appeal … does not in itself have the effect of excluding the remedy in evocation. [Underlining added.]
This opinion was also expressed by Professor John Kavanagh in A Guide to Judicial Review (1984), 2nd edition, Carswell, at page 131, in the following words:
There is no hard and fast rule requiring a person to exhaust administrative remedies or a statutory right of appeal unless a statute so provides, that is, makes clear that the right of appeal is intended to be the exclusive remedy for reviewing the decision of the inferior body.
It is by reason of the discretionary aspect of section 18 remedy or of judicial review generally that, in my view, various courts have ascribed various grounds to exercise their discretion one way or the other. One of these grounds is the availability of an appeal process which can effectively or efficiently deal with the issues involved. This particular point was raised by the applicant’s counsel in argument, who expressed some doubts that a board or a court of revision under the by-laws could assure the applicant of fairness and impartiality.
Other grounds may be raised as well, i.e. that an appeal is no longer available to an applicant because it has become untimely. Interestingly enough, McRuer C.J.H.C. faced a somewhat analogous situation in Atikokan, Ex p., [1959] O.W.N. 200 (H.C.), when the township involved had objected to a hearing before the court of revision on grounds of lack of jurisdiction. The tribunal had nevertheless heard the appeal and decided in favour of the appellants. The township did not appeal this decision but applied to the High Court for an order to quash.
McRuer C.J.H.C. refused to hear the application. The Chief Justice noted that the legislature had provided a means of having all differences resolved in the Court of Appeal and it would be improper to grant certiorari when this course was open to the township. The Chief Justice further noted that the statute involved provided limitation periods for exercising rights of recourse to the courts. The time for the exercise of these rights had expired. To ask the Court to exercise its extraordinary jurisdiction by way of certiorari was to put on the respondents the responsibility of taking the course by way of appeal that was open to the applicant in the first instance.
The reluctance of courts to provide prerogative remedy when appeals are provided was also expressed in London Gardens Ltd. and Township of Westminster, Re (1975), 9 O.R. (2d) 175 (Div. Ct.); Foster v. Township of St. Joseph, [1917] 39 O.L.R. 114; affirmed by Court of Appeal at [1917] 39 O.L.R. 525; Goderich Roman Catholic Separate School Trustees and Town of Goderich, Re, [1923] 53 O.L.R. 79 (App. Div.).
I have reviewed the assessment by-laws adopted by each of the several band councils. With the exception of the Matsqui Indian Band, each of these by-laws have identical appeal provisions.
Section 40 of the by-law provides for the appointment of a Board of Review to which any person may appeal on grounds of an error or omission in the assessment roll.
Section 45(1) empowers the Board of Review, among other things, to direct amendments to the assessment roll necessary to give effect to its decisions.
Section 60 provides for an appeal from the Board’s decision to the Federal Court of Canada.
The Matsqui Indian Band assessment by-law has somewhat more elaborate appeal processes.
Section 27 provides for the establishment of courts of revision.
Section 28(A) opens the door to an appeal to the courts of revision to any person who alleges that an error or omission exists in the assessment roll.
Section 32(A) empowers these courts, among other things, to direct amendments to be made to the assessment roll necessary to give effect to their decisions.
Section 32(B) empowers the courts to issue summons to persons to attend as witnesses.
Section 35 provides for the establishment of an Assessment Review Committee.
Section 36 authorizes the Committee to hear all appeals from assessment notices.
Section 46 specifically empowers the Committee to hear all assessment appeals from courts of revision.
Section 47 gives the Committee power of inspection.
Section 51(A) provides that the Committee may exercise all the powers of the courts of revision.
Section 55(F) provides for a further right of appeal to the Federal Court of Canada from a Committee decision.
Section 56(A) authorizes the Committee, at any stage of the proceedings, to submit in the form of a stated case for the opinion of the Federal Court of Canada, a question of law arising in an appeal. The Committee is then directed to decide the appeal in accordance with the opinion.
Section 56(B) provides a similar recourse after a Committee’s decision has been made.
Section 58(A) authorizes the Band Council, by way of a resolution, to extend any of the delays provided in the by-laws.
CONCLUSIONS
On the face of the appeal provisions outlined in the foregoing assessment by-laws, I do not see where, as alleged by applicant’s counsel, there is not available an effective appeal process where all the issues raised by the applicant may be brought forward. It is true, as pointed out by applicant’s counsel, that the first group of by-laws to which I have referred provides in section 40(2) that boards of review shall consist of three members, only one of whom may be a member of the Indian band. Counsel argues bias. At best, this is a premature argument, no evidence being before me as to the composition of any board of review.
Although there is no direct evidence on the point, there is another aspect to the case which deserves mention. It is obvious, from an examination of all the material before me, that the whole legislative scheme found in the Indian band by-laws reflects extremely important policy issues. One need not be a participant in the scheme to observe the departure from long-established norms respecting the taxing of lands and improvements on Indian reserves. One can also presume that intensive discussions took place between public authorities in British Columbia, the federal authorities at Ottawa and, for that matter, the Indian bands concerned, in setting up an elaborate system of assessment and taxation. I conclude that effectively, the provincial authorities, as a policy matter, have relinquished their historical field of taxation over reserve lands and, with the collaboration of the federal authorities in giving the force of law to the by-laws pursuant to section 83 of the Indian Act, have clothed the respective Indian band councils with the mantle of legitimacy in running their own system of taxation. It leads me to conclude that for purposes of settling the issue before me, it would not be in the public interest and it would not favour public policy at this time to bypass the appeal provisions in the by-laws.
The third aspect I should mention is that the applicant is not challenging a tax assessment when its lands and improvements have hitherto been exempt from taxation. As I view the scheme before me, the effect on the applicant is simply to substitute one taxing authority for another. I have respect of course for the applicant’s argument that because its lands are not “reserve lands”, there is no statutory authority provided to Indian band councils to tax them. However, in my view, whether or not any lands are subject to taxation or exempt from taxation comes within the terms of reference of the appeal provisions and these provisions should be respected. In this respect, I should observe that contrary to applicant’s argument, the term “évaluation” in the French text of subsection 83(3) of the Indian Act is the accepted equivalence of “assessment” and in no way restricts the field of enquiry of an appeal tribunal.
I should also refer to certain observations I made at the conclusion of the hearing before me in Vancouver, that it would be expected that the parties would make every effort to have the issues brought before boards of review as expeditiously as possible, especially as the by-laws set out delays for filing of appeals. Since that time, the Court has received certain undertakings from the respondents and their counsel to which the applicant’s counsel has taken various objections. I should make no findings on the merits of this exchange between counsel. The applicant has had the carriage of the action and I should view the band council resolution from the Matsqui Indian Band as enough to provide the applicant with the necessary relief from an untimely appeal. Other recourses are of course available to the applicant with respect to the assessments from the other respondents.
Finally, I observe that section 18 motions, as for all prerogative writ applications, are heard summarily. It seems to me that a board or court of revision is a better forum to receive and consider all the evidence material to the issue. It is not presumptuous of me to imagine that the respondents have built up some armour to respond to the main thrust of the applicant’s case and that the enquiry might be extensive and far-reaching. Whatever the decision below, it is probable that the Federal Court would be called upon to deal with an appeal from it. In that respect, it may be generally stated that the field of enquiry of an appeal court and the remedies available to it are far more extensive than those available in certiorari proceedings.
For all the foregoing reasons, I would allow the respondents’ motion to strike, the whole with costs.