Executive Summary: Key Legal and Evidentiary Issues

• Louis Zachary, a registered Indian under subsection 2(1) of the Indian Act and a non-treaty Amikwa Matawasibi Anishinaabe, appealed the Tax Court's dismissal of his application for an extension of time to file notices of objection for the 2014, 2015, 2016, and 2017 taxation years.

• Statutory pre-conditions under sections 165, 166.1, and 166.2 of the Income Tax Act were not met, as the appellant late-filed for 2014 without seeking an extension from the Minister of National Revenue and filed nothing for 2015, 2016, and 2017.

• Constitutional arguments under section 35 of the Constitution Act, 1982 could not be considered because the appellant failed to serve the required notice of constitutional question on the Attorney General of Canada and the attorney general of each province.

• No supporting evidence was offered to substantiate the appellant's section 35 constitutional argument that the Income Tax Act did not apply to him.

• Established jurisprudence confirms that statutory time limits for filing objections apply even where the constitutional and treaty rights of Indigenous peoples are asserted (Horseman v. Canada, 2018 FCA 119).

• The Federal Court of Appeal dismissed the appeal with no costs awarded, as the respondent did not seek them.

Background and facts of the case

Louis Zachary, a self-represented appellant and a registered Indian under subsection 2(1) of the Indian Act, is a non-treaty Amikwa Matawasibi Anishinaabe. Assessments were issued against him under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) for the 2014, 2015, 2016, and 2017 taxation years. For the 2014 taxation year, Mr. Zachary late-filed a notice of objection and did not seek an extension of time from the Minister of National Revenue. For the 2015, 2016, and 2017 taxation years, he filed no notices of objection and made no requests for extensions of time.

The Tax Court proceedings

Mr. Zachary brought an application before the Tax Court of Canada seeking an extension of time to file his notices of objection. Justice MacPhee of the Tax Court dismissed the application (2024 TCC 8), finding that the statutory pre-conditions for granting such an extension under sections 165, 166.1, and 166.2 of the Income Tax Act had not been satisfied. Beyond the procedural deficiencies, the Tax Court also addressed Mr. Zachary's main argument — that as a registered Indian under subsection 2(1) of the Indian Act, he was not required to pay income tax or bound by the procedural rules in the Income Tax Act.

The appellant's constitutional and Indigenous rights arguments

Mr. Zachary advanced two main arguments. First, he contended that the Income Tax Act did not apply to him by virtue of section 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. The Tax Court determined it could not consider this argument because Mr. Zachary had failed to serve the necessary notice of constitutional question on the Attorney General of Canada and the attorney general of each province — a required step to seek a finding that legislation is constitutionally invalid, inoperable, or inapplicable. The Tax Court further noted that, in any event, no supporting evidence had been offered. Second, Mr. Zachary argued that as an Indigenous person and based on constitutional and treaty rights, he was not a citizen or resident of Canada and was therefore not subject to income tax or the procedural rules in the Income Tax Act. The Tax Court considered but rejected this alternative argument. Only the application of procedural rules was relevant to the Tax Court's reasons.

The Federal Court of Appeal's analysis

On appeal to the Federal Court of Appeal, Mr. Zachary did not dispute the Tax Court's conclusion that he had not complied with the procedural requirements under the Income Tax Act for an extension of time to file a notice of objection. Instead, he submitted that the Tax Court erred in applying the Income Tax Act procedural rules to him, based on the arguments he had made regarding his status as a registered Indian. These were identified as legal issues, reviewable for correctness. The appellate court, comprising Justices Webb, Biringer, and Walker, clarified that the issue of whether the appellant was subject to taxation was not before the Tax Court and was not before the Federal Court of Appeal. The only issue being considered was whether the appellant was required to comply with the procedural rules in the Income Tax Act in order to proceed with his tax refund requests. The court reaffirmed that to seek a finding that legislation is constitutionally invalid, inoperable, or inapplicable, the appellant must have served a notice of constitutional question, which he did not do. Furthermore, citing Horseman v. Canada, 2018 FCA 119, Canada (Attorney General) v. Lameman, 2008 SCC 14, and Shot Both Sides v. Canada, 2024 SCC 12, the court held that the statutory time limits to file a notice of objection to a tax assessment apply even where the constitutional and treaty rights of Indigenous peoples are asserted.

Ruling and outcome

The Federal Court of Appeal dismissed the appeal, substantially for the reasons given by the Tax Court. Justice Biringer, writing for a unanimous panel concurred in by Justices Webb and Walker, concluded that the appellant had not identified an error in the Tax Court's reasons warranting the appellate court's intervention. The appellant was required but failed to comply with the procedural rules in the Income Tax Act relating to filing notices of objection and requests for extensions of time, and neither the Tax Court nor the Federal Court of Appeal could grant the appellant the relief he sought. The respondent did not seek costs, and accordingly, none were awarded. No specific monetary amount was at issue in this procedural decision, as the case concerned whether Mr. Zachary was required to comply with the procedural rules in the Income Tax Act rather than the merits of the underlying tax assessments.