The Tax Court of Canada granted an application by an Aboriginal taxpayer to file a Notice of Appeal outside the 90-day appeal period found in s. 167 of the Income Tax Act.  The Court held that the applicant’s argument about “disputed reserve lands” and the claims of the Six Nations Band of the Grand River satisfied the threshold of showing reasonable grounds for the appeal.

The applicant Turcotte filed her Notice of Appeal two weeks late. An extension may be granted if the conditions found in ss. 167(5)(b)(iv) of the ITA are met. The key issue in this application is whether Turcotte satisfied the test for showing that “there are reasonable grounds for the appeal”. Turcotte’s appeal is based upon section 87 of the Indian Act.  She claims that her employment income is exempt from tax as it is property located on a reserve. Turcotte is a member of the Six Nations Band of the Grand River. She resides in Ayr, Ontario – located between Kitchener and Brantford – and works in Kitchener. Her employer K-W Urban Native Wigwam Project has offices on- reserve, but its operations are located off-reserve. Justice Bocock commented that, on these facts alone, the appeal should be dismissed since those precise facts have already been before the court, including in a previous appeal by Turcotte. However, in this application, Turcotte put forward new arguments about “disputed reserve lands”. She alleges that both her residence and her workplace are located in the Haldimand Tract, which is the subject of a well-publicized dispute (including the Caledonia protests). In light of these facts and arguments, the Court concluded that it was appropriate to allow the application for an extension, so that this matter can “see the light of day before a hearing judge of this Court” rather than be dealt with in a mere application for an extension of time. The Court criticized the generic and formulaic pleadings filed by the applicant, and made an additional order that new pleadings be filed with sufficient particulars of the facts and statutory provisions of the appeal.

Scott Kerwin, Partner
Aboriginal Law
BLG, Vancouver


Scott Kerwin


Aboriginal Law