Dismissal of application for judicial review of surcharge upheld on appeal

TOBACCO TAX

Dismissal of application for judicial review of surcharge upheld on appeal

Store owner was member of First Nations band and lived on reserve where he operated store which sold tax-exempt cigarettes. Band imposed surcharge on cigarettes distributed through tobacco retailer agreement with province. Store owner’s application for judicial review of surcharge was dismissed. Trial judge found Federal Court did not have jurisdiction to consider application. Trial judge found band was not empowered by any federal legislation, rather, it made decision to allocate quota of tax-exempt cigarettes based on authority provided by Tobacco Tax Act. Trial judge found band’s imposition of surcharge was directly related to authority to administer and allocate quota of tax-exempt cigarettes under tax act and retailer agreement. Trial judge found imposition of surcharge had nothing to do with Indian Act. Decision to impose surcharge was not made by federal board, commission or tribunal as contemplated by s. 2(1) of Federal Courts Act. Store owner appealed. Appeal dismissed. No reviewable error in construing relationship between tobacco retailers and First Nation as one governed by private contract, and that as such, First Nation was not acting by or under federal law.
Des Roches v. Wasauksing First Nation (Oct. 28, 2015, F.C.A., Dawson J.A., Stratas J.A., and Yves de Montigny J.A., File No. A-573-14) Decision at 247 A.C.W.S. (3d) 724 was affirmed.  259 A.C.W.S. (3d) 593.