scholarly journals Corporate Tax Planning: GAAR: An Economic Test?—The Courts Divide

2020 ◽  
Vol 68 (1) ◽  
pp. 351-390
Author(s):  
Brian R. Carr ◽  
Brittany Finn ◽  
Ryan Wolfe
Keyword(s):  
Supreme Court ◽  
Federal Court ◽  
Tax Planning ◽  
Supreme Court Of Canada ◽  
Corporate Tax ◽  
Inherent Difficulty ◽  
The Supreme Court ◽  
The One ◽  
Compare And Contrast ◽  
Court Of Appeal

The authors of this article review the history and development of the general anti-avoidance rule (GAAR) in section 245 of the Income Tax Act (Canada), for the purpose of assisting in the analysis of recent decisions of the federal and provincial courts of appeal. They discuss the inherent difficulty in construing section 245 and outline various tests that the courts could have employed to interpret its provisions. The authors then review three of the four decisions in which the Supreme Court of Canada interpreted GAAR—<i>Canada Trustco</i>, <i>Mathew</i>, and <i>Copthorne</i>. With that background, the authors contrast the different approaches to the provincial general anti-avoidance rules taken, on the one hand, by the Alberta Court of Appeal in <i>Husky Energy</i> and <i>Canada Safeway</i>, the Ontario Court of Appeal in <i>Inter-Leasing</i>, and the BC Court of Appeal in <i>Veracity</i>, and, on the other hand, by the Quebec Court of Appeal in <i>OGT</i> <i>Holdings</i> and <i>Iberville</i>. They then compare and contrast those approaches with the pronouncements of the Supreme Court of Canada on how GAAR should be interpreted. The authors also discuss the approach taken by the Federal Court of Appeal in four recent GAAR decisions—<i>Univar</i>, <i>Oxford Properties</i>, <i>594710 British Columbia Ltd.</i>, and <i>Birchcliff</i>. They compare and contrast that approach with the approaches of the provincial courts, and consider whether the Federal Court of Appeal's approach is consistent with the Supreme Court of Canada's pronouncements on GAAR. Finally, the authors offer some advice for tax planners based on the recent GAAR decisions of the various courts of appeal.

scholarly journals GAARs and the Nexus between Statutory Interpretation and Legislative Drafting: Lessons for the U.S. from Canada

2016 ◽  
Vol 7 (1) ◽  
Author(s):  
Reuven S. Avi-Yonah ◽  
Amir Pichhadze
Keyword(s):  
Supreme Court ◽  
Tax Avoidance ◽  
Federal Court ◽  
Supreme Court Of Canada ◽  
Statutory Interpretation ◽  
Discretionary Power ◽  
The Supreme Court ◽  
The Us ◽  
Court Of Appeal ◽  
The U.S

Abstract Rules targeting specific known schemes are not the only tools available in the battle against tax avoidance. Legal systems also use measures that apply generally. The U.S. for example has tended to rely heavily on general doctrines. One such doctrine which is discussed in part 2 of this chapter is the “economic substance” doctrine. Yet as Xiong and Evans recently pointed out “although such judicial doctrines can be used to deal with various aspects of complicated tax abuse judges tended sometimes to limit and sometimes to enlarge the scope of jurisprudential interpretation leading to substantial uncertainty and risk.” One way to limit the discretionary power of judges and overcome the uncertainty apparent in their judgments is by formalizing the doctrines as the US has done by codifying the “economic substance” doctrine in 2010. As explained in part 2 of this chapter a limitation of the “economic substance” doctrine whether it is established judicially or codified by statute may be its focus on the taxpayer’s intentions as the basis for attacking tax avoidance. Part 3 of this chapter goes on to explain that the U.S. could overcome this limitation by adopting a statutory General Anti-Abuse Rule (“GAAR”). GAARs also impose generally applicable limits on what constitutes acceptable (reasonable) tax arrangements. But they do so based on whether the arrangements are consistent with the legislature’s intentions as they were conveyed in the tax provision which the taxpayer is relying on for achieving the tax advantage in question. As Canada’s Federal Court of Appeal (“FCA”) explained “by confining legitimate tax avoidance to schemes that are not inconsistent with the policy underlying the statutory provision invoked by the taxpayer GAAR effectively limits the scope of the principle in Commissioners of Inland Revenue v. Duke of Westminster… that ‘[e]very man is entitled if he can to order his affairs so that the tax attaching under the appropriate Acts is less than it would otherwise be’.” Based on Canada’s experience with the GAAR parts 4 and 5 identify and explain the nexus between statutory interpretation and legislative drafting and the implications of this nexus on the application of a GAAR in the U.S. should Congress choose to take this route. Part 4 identifies that while the Supreme Court of Canada (“SCC”) has recognized the need to apply a purposive interpretation of Canada’s GAAR in order to ascertain parliament’s intentions in the relevant tax provision the court has also held that it will only give effect to those intentions which were clearly conveyed by the relevant provision and will not invent a legislative intention which parliament has failed to convey. Part 5 notes that such judicial restraint has also been taken by the U.S. Supreme Court and therefore a similar approach could be expected by the U.S. courts should Congress adopt a GAAR. Therefore it would be up to Congress as it is similarly up to Canada’s Parliament to carefully and clearly draft its legislative intentions otherwise the effectiveness of a GAAR would be undermined.

scholarly journals Les erreurs de droit dans l'exercice d'une compétence

2005 ◽  
Vol 23 (3) ◽  
pp. 505-516
Author(s):  
Denis Lemieux
Keyword(s):  
Statistical Analysis ◽  
Supreme Court ◽  
Judicial Review ◽  
Federal Court ◽  
Supreme Court Of Canada ◽  
Judicial Control ◽  
The Supreme Court ◽  
The Face ◽  
Legal Foundations ◽  
Court Of Appeal

In this paper, the author deals with the legal foundations of judicial control over errors of law allegedly committed by administrative authorities. The paper also considers the scope of error of law on the face of the record as a ground of review. More specifically, the author has examined all the decisions rendered by the Quebec Court of Appeal, the Federal Court, and the Supreme Court of Canada in 1980 and 1981 where there was an allegation of error of law. From this statistical analysis, the author describes and explains the different, and seemingly contradictory, results achieved by these different jurisdictions. The author adds some comments on the constitutionality of privative clauses excluding judicial review of non-jurisdictional errors of law.

Ford and Irwin Toy 30 Years Later: A Conversation with Justice Montigny

2019 ◽  
Vol 28 (3) ◽  
Author(s):  
Han-Ru Zhou
Keyword(s):  
Supreme Court ◽  
Freedom Of Expression ◽  
National Level ◽  
Federal Court ◽  
First Year ◽  
Supreme Court Of Canada ◽  
First Year Students ◽  
The Supreme Court ◽  
The Government ◽  
Court Of Appeal

Thirty years ago, in a tense national political context, the Supreme Court of Canada rendered judgment in three cases that have had a profound impact on Canadian society and constitutional law: Ford v. Québec (A.G.) and its related appeal, Devine v. Québec (A.G.), and Irwin Toy Ltd. v. Québec (A.G.) decided a few months apart1. Against the backdrop of language conflicts in Québec and constitutional reform at the national level, this Supreme Court trilogy established the foundations of freedom of expression and the application of the notwithstanding clause of the Canadian Charter of Rights and Freedoms, as well as the quasi-constitutional nature of Québec’s Charter of Human Rights and Freedoms. Before the Supreme Court of Canada, the Government of Québec was represented by Yves de Montigny — now a Justice of the Federal Court of Appeal — as lead counsel. On the occasion of the trilogy’s 30th anniversary, Justice de Montigny was invited to the Université de Montréal, Faculty of Law, to share with first-year students his reflections on the three Supreme Court decisions as well as his experience as a young lawyer at the forefront of the major constitutional debates of the time.

scholarly journals The Evolution of the Duty to Consult

2020 ◽  
Vol 10 (1) ◽  
Author(s):  
Alejandro Gonzalez
Keyword(s):  
Supreme Court ◽  
Indigenous Peoples ◽  
Regulatory Agency ◽  
Federal Court ◽  
Supreme Court Of Canada ◽  
Consultation Process ◽  
Current Process ◽  
The Supreme Court ◽  
The Subject ◽  
Court Of Appeal

The duty to consult has been the subject of many trials and headlines, yet many still feel as though the consultation process is faulty. Relying on recent caselaw from the Supreme Court of Canada and the Federal Court of Appeal, I trace the evolution of the duty to consult from its inception to the latest major cases. I suggest that the current process can be improved to better engage all parties, (i.e. Crown, regulatory agency, industry proponent, Indigenous peoples), with a stronger emphasis on efficiency and reconciliation. I rely on the work of Matthew Hodgson to further solidify my consultation framework by advancing the idea of a specialized tribunal charged with reviewing the adequacy of consultations.

scholarly journals Consultation with Aboriginal Peoples: Impacts on the Petroleum Industry

2020 ◽  
Author(s):  
Tony Fogarassy ◽  
KayLynn Litton
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Petroleum Industry ◽  
The Other ◽  
Aboriginal Peoples ◽  
Supreme Court Of Canada ◽  
Company Limited ◽  
The Supreme Court ◽  
The One ◽  
Court Of Appeal

The duties of consultation and accommodation with Aboriginal peoples affected by resource development were, until 2002, primarily the responsibility of the Crown. The British Columbia Court of Appeal, in two related decisions involving the Haida Nation on the one hand and the Crown and Weyerhaeuser Company Limited on the other, has placed these duties squarely on to the shoulders of industry. Where the Crown fails to discharge its duties of consultation and accommodation, resource tenures such as permits, licenses or leases may be invalid and activity conducted pursuant to the tenures may result in damages awarded against industry in favour of affected Aboriginal peoples. Appeals from both decisions will be heard by the Supreme Court of Canada. In the meantime, the law on industry’s duty to consult and to accommodate Aboriginal peoples continues to lack certainty.

scholarly journals Les exigences de l'impartialité quasi-judiciaire

2005 ◽  
Vol 18 (2-3) ◽  
pp. 585-594
Author(s):  
Patrice Garant
Keyword(s):  
Supreme Court ◽  
Supreme Court Decision ◽  
Federal Court ◽  
Point Of View ◽  
Discretionary Power ◽  
Natural Justice ◽  
Past Behavior ◽  
The Supreme Court ◽  
Worth Reading ◽  
The One

The Supreme Court decision commented upon is another important administrative law decision which relates to principles of natural justice, and especially to the nemo judex rule (freedom from bias). Speaking for the majority, Mr. Justice Laskin states that the function exercised by the National Energy Board under section 44 of the National Energy Board Act is quasi-judicial although it consists in issuing a licence according to an extensive discretionary power. Consequently, principles of natural justice must be applied. The nemo judex rule means that if there is a "reasonable apprehension of bias" due to the past behavior or actions of a member of a quasi-judicial tribunal, that member must be disqualified from acting. Otherwise, the decision rendered by the tribunal must be quashed. Two years before his appointment to the Board, the chairman of the National Energy Board had in fact participated actively in operations and decisions bearing on the very subject-matter subsequently submitted to the Board. That placed the chairman in a situation of conflict of interest, although he had no personal pecuniary interest in the matter involved. The majority of the Supreme Court dissagrees with Mr. Justice de Grandpré's dissent as well as with the decision of the Federal Court of Appeal. Each expresses a point of view which is worth reading. The majority of the Supreme Court applies to administrative boards or tribunals exercising quasi-judicial functions the same critérium as the one applied under the common law to any inferior court. Another remarkable judgment of our Supreme Court.

scholarly journals Alberta's Court of Next-to-Last Resort: Appeals from the Alberta Court of Appeal to the Supreme Court of Canada, 1970-1990

1969 ◽  
pp. 861
Author(s):  
Peter McCormick
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Success Rates ◽  
The Supreme Court ◽  
The Law ◽  
Statistical Survey ◽  
Court Of Appeal

This paper reports the results of a statistical survey of the success rates of appeals to the Supreme Court of Canada. Appeals from all provinces were examined, but in his analysis Professor McCormick focuses on the Alberta Court of Appeal. The variables he discusses include the geographic and political composition of the Supreme Court, the mix of cases from different areas of the law, the length of experience of Court of Appeal judges, and the presence or absence of dissenting opinions.

scholarly journals Be careful what you promise: Proprietary estoppel in Cowper-Smith v Morgan

2018 ◽  
Author(s):  
Jason Chin
Keyword(s):  
British Columbia ◽  
Property Rights ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Canadian Experience ◽  
The Supreme Court ◽  
The Law ◽  
Court Of Appeal

Proprietary estoppel provides one of equity’s most powerful remedies. Estoppel is an equitable doctrine which arises when one party acts on the reliance of the promise of another. The promise and corresponding reliance creates a quasi-contract with reliance acting as an alternative to the consideration usually required in contracts. Proprietary estoppel is distinct from other equitable estoppels in that a proprietary estoppel can act as a ‘sword’ and form the basis of a cause of action. If all of the parts of proprietary estoppel are made out, a court can modify or create property rights to satisfy the equity.With regard to the Canadian experience, the Court of Appeal for Ontario recently noted that proprietary estoppel has received “somewhat uneven treatment in Canada.” It is within this context that the Court of Appeal for British Columbia split on the proper scope for the Supreme Court of Canada. In Cowper-Smith v Morgan, the Supreme Court of Canada has both clarified the test for — and arguably expanded the scope of — proprietary estoppel in the context of promises exchanged between children over their mother’s care during her lifetime. The fact that a party lacks an interest in the disputed property at the time of the promise does not negate the obligation of fulfilling the promise. Instead, when the party responsible for the expectation has or acquires sufficient interest in the property, proprietary estoppel will attach to that interest and protect the equity. This article will discuss the law of proprietary estoppel in other jurisdictions and how the Supreme Court of Canada has infused this remedy with greater flexibility to satisfy the equity.

scholarly journals The Supreme Court of Canada and the Alberta Court of Appeal: Do the Top Courts Have a Fundamental Philosophical Difference of Opinion on Public Law Issues

1969 ◽  
pp. 703
Author(s):  
Barbara Billingsley ◽  
Bruce P. Elman
Keyword(s):  
Supreme Court ◽  
Public Law ◽  
Supreme Court Of Canada ◽  
Divergence Of Opinion ◽  
The Supreme Court ◽  
Precise Analysis ◽  
Difference Of Opinion ◽  
Court Of Appeal

Prompted by the marked clash between the Supreme Court of Canada and the Alberta Court of Appeal in R. v. Ewanchuk, the authors ask whether this conflict is indicative of a fundamental divergence of opinion between the two courts. To answer this question, the authors embark on a review of all 132 public law cases appealed from the Alberta Court of Appeal to the Supreme Court of Canada between 1982 and December 2000. The authors examine these cases to determine the extent of the Supreme Court’s overt criticism of the reasoning employed by the Alberta Court of Appeal. While acknowledging the obvious difficulties of subjecting this data to precise analysis, the authors find that the data reveals some predictable patterns regarding the manner in which the two courts react to certain public law questions. The authors conclude that there are some fundamental philosophical differences between the courts, a finding which indicates that the class between the courts in the Ewanchuk case was not a completely unique or unpredictable circumstance.

Sign in / Sign up

Export Citation Format

Share Document