Musqueam Indian Band et al. v. Assessor of Area No. 09 - Vancouver Sea to Sky Region et al., (2012) 320 B.C.A.C. 159 (CA)

• Judge: Newbury, Kirkpatrick and Hinkson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 28, 2011
• Jurisdiction: British Columbia
• Citations: (2012), 320 B.C.A.C. 159 (CA);2012 BCCA 178

Musqueam Indian Band v. Assessor (2012), 320 B.C.A.C. 159 (CA);

    543 W.A.C. 159

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. MY.002

Musqueam Indian Band, Block F Land Ltd. and Block K Land Ltd. (appellants/appellants) v. Assessor of Area #09 - Vancouver Sea to Sky Region and Property Assessment Appeal Board (respondents/respondents) and Attorney General of British Columbia (intervenor)

(CA038459; 2012 BCCA 178)

Indexed As: Musqueam Indian Band et al. v. Assessor of Area No. 09 - Vancouver Sea to Sky Region et al.

British Columbia Court of Appeal

Newbury, Kirkpatrick and Hinkson, JJ.A.

May 1, 2012.

Summary:

The Property Assessment Appeal Board determined that certain lands owned by the appellant companies in trust for the appellant Band, were not exempt from taxation. The appellants appealed by way of stated case to the British Columbia Supreme Court but were unsuccessful. See [2010] B.C.T.C. 1259. The appellants appealed.

The British Columbia Court of Appeal allowed the appeal.

Indians, Inuit and Métis - Topic 6511

Taxation - Exemption - Land held in trust for Indians - Section 15(1)(h) of the Taxation (Rural Area) Act (Act) stated that "The following property is exempt from taxation: ... (h) land and improvements vested in or held by Her Majesty or another person in trust for or for the use of a tribe or body of Indians, and either unoccupied, or occupied by a person in an official capacity or by the Indians;" - The British Columbia Court of Appeal stated that in R. v. Nowegijick (1983 SCC) the application of tax exemptions to Indians was in issue and the court construed the words of a statute in the sense in which they would naturally be understood by the Indians - The court stated that "Although the Act is legislation of general application, the section to be interpreted, s. 15(1)(h), applies only to Indians. In my view, the modern rule of statutory interpretation must guide the interpretation of the exemption. The words chosen by the drafter should be taken within the context of the statute as a whole within the statutory framework of which it is a part, and in its historical context, and in those contexts the chosen words should be given their natural meaning. As neither the parties nor the Intervenor ... assert that there is any ambiguity or any doubtful expressions in the words chosen, the interpretive rule formulated in Nowegijick has no application." - See paragraphs 13 to 18.

Indians, Inuit and Métis - Topic 6511

Taxation - Exemption - Land held in trust for Indians - Section 15(1)(h) of the Taxation (Rural Area) Act (Act) stated that "The following property is exempt from taxation: ... (h) land and improvements vested in or held by Her Majesty or another person in trust for or for the use of a tribe or body of Indians, and either unoccupied, or occupied by a person in an official capacity or by the Indians;" - The British Columbia Court of Appeal held that s. 15(1)(h) was unambiguous; it was not restricted to reserve lands; and it applied to the lands in issue here, which were held "in trust" by "another person" (the appellant companies), for a tribe of Indians (the Musqueam) and were unoccupied - The court viewed s. 15(1)(h) in the context of the Act as a whole, within the legislative scheme of which it was a part, and in its historical context and, on a natural reading of the section, held that it applied to the lands in issue, making them exempt from taxation under the Act.

Real Property Tax - Topic 6294

Exemptions - Particular persons or organizations - Land held in trust for Indians - [See both Indians, Inuit and Métis - Topic 6511 ].

Statutes - Topic 1644

Extrinsic aids - Legislative history - Legislative debates - [See second Indians, Inuit and Métis - Topic 6511 ].

Statutes - Topic 2603

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Intention from whole of section or statute - [See both Indians, Inuit and Métis - Topic 6511 ].

Words and Phrases

Another person - The British Columbia Court of Appeal discussed the meaning of this phrase as found in s. 15(1)(h) of the Taxation (Rural Area) Act, R.S.B.C. 1996, c. 448 - See paragraphs 62 to 68.

Words and Phrases

Another person in trust - The British Columbia Court of Appeal discussed the meaning of this phrase as found in s. 15(1)(h) of the Taxation (Rural Area) Act, R.S.B.C. 1996, c. 448 - See paragraphs 44 to 49.

Cases Noticed:

Westbank Indian Band Development Co. v. British Columbia (Assessor of Area #19-Kelowna), [1991] B.C.J. No. 2501 (S.C.), consd. [para. 8].

Stubart Investments Ltd. v. Minister of National Revenue, [1984] 1 S.C.R. 536; 53 N.R. 241, refd to. [para. 13].

Friesen v. Minister of National Revenue, [1995] 3 S.C.R. 103; 186 N.R. 243, refd to. [para. 13].

Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; 203 N.R. 60; 94 O.A.C. 211, refd to. [para. 13].

Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411; 208 N.R. 161; 193 A.R. 321; 135 W.A.C. 321, refd to. [para. 13].

R. v. Hydro-Québec, [1997] 3 S.C.R. 213; 217 N.R. 241, refd to. [para. 13].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 13].

Montreal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; 340 N.R. 305; 2005 SCC 62, refd to. [para. 13].

ATCO Gas and Pipelines Ltd. v. Energy and Utilities Board (Alta.), [2006] 1 S.C.R. 140; 344 N.R. 293; 380 A.R. 1; 363 W.A.C. 1; 2006 SCC 4, refd to. [para. 13].

Canada Trustco Mortgage Co. v. Canada - see Minister of National Revenue v. Canada Trustco Mortgage Co.

Minister of National Revenue v. Canada Trustco Mortgage Co., [2005] 2 S.C.R. 601; 340 N.R. 1; 2005 SCC 54, refd to. [para. 14].

Placer Dome Canada Ltd. v. Ontario (Minister of Finance), [2006] 1 S.C.R. 715; 348 N.R. 148; 210 O.A.C. 342; 2006 SCC 20, refd to. [para. 15].

Nowegijick v. Minister of National Revenue et al., [1983] 1 S.C.R. 29; 46 N.R. 41, dist. [para. 16].

Wasauksing First Nation et al. v. Wasausink Lands Inc. et al., [2004] 2 C.N.L.R. 355; 184 O.A.C. 84 (C.A.), refd to. [para. 17].

Kitimat (District) v. Alcan Inc. (2006), 234 B.C.A.C. 65; 387 W.A.C. 65; 2006 BCCA 562, refd to. [para. 18, footnote 1].

Northwest Prince Rupert Assessor, Area No. 25 v. N & V Johnson Services Ltd., [1988] 4 C.N.L.R. 83 (S.C.), affd. (1990), 73 D.L.R.(4th) 170 (B.C.C.A.), dist. [paras. 20, 22].

Derrickson v. Kennedy (2006), 229 B.C.A.C. 96; 379 W.A.C. 96 (C.A.), refd to. [para. 23].

Mitchell and Milton Management Ltd. v. Peguis Indian Band et al., [1990] 2 S.C.R. 85; 110 N.R. 241; 67 Man.R.(2d) 81, refd to. [para. 32].

Annacis Auto Terminals (1997) Ltd. et al. v. Assessor of Area No. 11 - Richmond/Delta et al. (2003), 183 B.C.A.C. 83; 301 W.A.C. 83; 227 D.L.R.(4th) 476; 2003 BCCA 315, refd to. [para. 43].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 50].

Musqueam Holdings Ltd. et al. v. Assessor of Area No. 09 - Vancouver et al., [1998] B.C.T.C. Uned. G09; 62 B.C.L.R.(3d) 93 (S.C.), affd. (2000), 138 B.C.A.C. 309; 226 W.A.C. 309; 2000 BCCA 299, leave to appeal refused (2001), 266 N.R. 400 (S.C.C.), refd to. [para. 57].

Ross River Dena Council Band et al. v. Canada et al., [2002] 2 S.C.R. 816; 289 N.R. 233; 168 B.C.A.C. 1; 275 W.A.C. 1; 2002 SCC 54, refd to. [para. 60].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2002] 4 S.C.R. 245; 297 N.R. 1; 2002 SCC 79, refd to. [para. 61].

National Bank of Greece (Canada) v. Katsikonouris - see National Bank of Greece (Canada) et autres v. Simcoe & Erie General Assurance Co. et autres.

National Bank of Greece (Canada) et autres v. Simcoe & Erie General Assurance Co. et autres, [1990] 2 S.C.R. 1029; 115 N.R. 42; 32 Q.A.C. 250, refd to. [para. 66].

Statutes Noticed:

Taxation (Rural Area) Act, R.S.B.C. 1996, c. 448, sect. 15(1)(h) [para. 3].

Authors and Works Noticed:

British Columbia, Hansard, Official Report of Debates of the Legislative Assembly, vol. 9, 4th Sess., 38th Parliament (March 13, 2008), p. 10568 [para. 59].

Côté, Pierre-André, The Interpretation of Legislation in Canada (1984), generally [para. 66].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 13].

Counsel:

M.A. Morellato, Q.C., and L.E. Pence, for the appellant;

R.B.E. Hallsor, for the respondent, Assessor of Area #09;

J.L. Owen, for the respondent intervenor, Attorney General of British Columbia.

This appeal was heard on October 28, 2011, at Vancouver, B.C., by Newbury, Kirkpatrick and Hinkson, JJ.A., of the British Columbia Court of Appeal. Hinkson, J.A., delivered the following decision for the court on May 1, 2012.