http://decision.tcc-cci.gc.ca/site/tcc-cci/decisions/en/item/62997/index.do 
Tuccaro v. The Queen[1] (September 9, 2013) dealt with a motion by the Crown to strike pleadings attacking prior decisions of the Federal Court of Appeal:
[2] Generally, the impugned sections within the draft Amended Notice of Appeal and the Respondent’s (Applicant in the Motion) related grounds for challenge may be described as follows:
1. a claimed exemption from taxation by the Appellant by virtue of Treaty 8 of 1899 and the conjunctive operation of section 35 of the
Constitution Act ought to be struck on the basis of
res judicata;
2. the description of various historical facts and events in paragraphs 10 through 34 is challenged on the basis that same either advance the alleged Treaty 8 exemption and/or are irrelevant to the validly pleaded claimed exemption under section 87 of the
Indian Act, RSC 1985, c. I-5;
3. the inclusion of paragraph 43 which provides “The status Indian employees of Neegan were treated as tax-exempt.” is challenged on the basis that such fact relates to the treatment of another taxpayer by the Minister and is therefore irrelevant to this appeal; and
4. paragraphs 84 to 94 and paragraph 111 should be struck on the basis these paragraphs allege that CRA Form TD1-IN(06) “
Determination of Exemption of a Status Indian’s Employment Income” and included guidelines represent, through an Honour of the Crown collateral argument, a pleading of a pre-determination of liability for tax, which, in turn, usurps the jurisdiction of this Court (the “Guidelines Argument”).
The court rejected the taxpayer’s attack on the prior decisions of the Federal Court of appeal that rejected tax exemption under Treaty 8 of 1899:
[7] Furthermore, the Appellant argues that any willingness by this Court to be bound by the precedential weight of
Benoit and
Dumont by striking the pleadings is unfair and stymies the law from evolving in respect of the alleged Treaty 8 Exemption.
[8] For the reasons stated below these submissions of the Appellant against striking the Treaty 8 exemption pleadings must fail.
[9]
Benoit and
Dumont are definitive findings of the Federal Court of Appeal. The Tax Court of Canada is bound by such established law regarding the lack of legal effect of Treaty 8 in granting tax exempt status to its signatories. In the words of Justice Sheridan at paragraph 4 in the trial decision of
Dumont (2005 TCC 790 at paragraph 4) for these very reasons the “argument that Treaty 8 shelters … income from taxation is without merit.”
[10] If the Federal Court of Appeal is wrong, as submitted by the Appellant, it is not for the Tax Court of Canada to determine. Given the unambiguous finding of the Federal Court of Appeal regarding Treaty 8, it is plain and obvious there is presently no chance of success on that basis for a legal claim of exemption from tax. Therefore, paragraphs or portions thereof referencing Treaty 8 exemption rights or facts supporting same are struck from the draft Amended Notice of Appeal.
However the court did not accept the Crown’s position based on the Guidelines Argument:
[13] The Respondent acknowledged, in reply to the argument to retain these sections, that the Guidelines are merely a concise statement of the Minister’s view of the law and may be used in Court solely for that purpose and strictly to that extent. However, in this case, Respondent’s counsel maintains that the inclusion of the Guidelines is intended to be a form of legal estoppel from taxation and therefore eviscerates the Court’s exclusive jurisdiction to determine tax liability and therefore should be struck from the pleadings (
Hawkes v Canada, 97 DTC 5060 (FCA), [1996]).
[14] As properly referenced in Hawkes, actions, pronouncements or rulings of the Minister or her agents on matters of law cannot legally usurp of the Court’s ultimate role. However, there is no direct pronouncement by the Supreme Court of Canada or the Federal Court of Appeal on the application of the Guidelines, as a fact, to the analysis of a section 87 exemption. That issue therefore differs from the claimed, now struck, Treaty 8 exemption. The Guidelines, as pleaded, are something that should be before the watchful eye of the trial judge in the factual context of a section 87 exemption claim. Such Guidelines in the context of section 87 represent new facts which invite the consideration of the Court. Their inclusion as a fact to be considered will not bind a trial judge of this Court. Their inclusion as part of the factual analysis undertaken by the Court is not beyond “any chance of success”, where it may be reasonably concluded that, even to the smallest extent, an argument may be marshalled that the Guidelines comprise a component of the factual circumstances to be reviewed.
[15] This motions Court is not suggesting that paragraphs 84 to 94 and paragraph 111 will contribute to a successful finding by a trial judge that a section 87 exemption exists. However, the Guidelines Argument, even in the context of the Honour of the Crown argument, cannot be said to have “no chance of success” when considered in the context of the Appellant’s factual history, the sequence of events in his claim for a section 87 exemption and the fact that a trial judge has not previously weighed the probative value and weight of the Guidelines Argument in such a factual context. That opportunity shall now be afforded.
In light of the mixed results there was no order as to costs.
[1] 2013 TCC 300.