Les exigences de l'impartialité quasi-judiciaire

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.

Download Full-text

State and Local Tax Policy: Challenging the Use of Tax Credits and Other Incentives

The ATA Journal of Legal Tax Research ◽

10.2308/jltr.2006.4.1.32 ◽

2006 ◽

Vol 4 (1) ◽

pp. 32-43

Author(s):

William A. Raabe ◽

Roby B. Sawyers

Keyword(s):

Supreme Court ◽

Development Strategy ◽

Supreme Court Decision ◽

Federal Court ◽

Tax Credits ◽

Critical Question ◽

Supreme Court Ruling ◽

Local Municipalities ◽

The Supreme Court ◽

State And Local

A recent Sixth Circuit case challenged the validity under the Commerce Clause of the U.S. Constitution of an Ohio income tax credit. Although the Supreme Court overruled the decision on May 15, holding that the plaintiffs in the case did not have standing to challenge the incentives in federal court, the ruling did little to quell the debate concerning the constitutionality of the credits in question. While the Supreme Court ruling was not unanticipated, many observers were hoping for a more definitive resolution to the issue. As it stands, the Supreme Court decision leaves open the critical question of the constitutionality of incentives like that offered by the state of Ohio. Tax credits and other incentives offered by the states and local municipalities have been used as part of an economic development strategy, often to recruit or retain business activity within the borders. While some of these subsidies may be subject to challenge under notions of uniformity of equity, in this paper we argue that it is improper to challenge the credit under review in this case.

Download Full-text

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

Accounting Economics and Law - A Convivium ◽

10.1515/ael-2015-0019 ◽

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.

Download Full-text

Antitrust Arbitration and Illinois Brick

10.31235/osf.io/78bje ◽

2016 ◽

Cited By ~ 2

Author(s):

Mark Lemley

Keyword(s):

Supreme Court ◽

Supreme Court Decision ◽

Federal Court ◽

Court Decision ◽

Antitrust Law ◽

Antitrust Enforcement ◽

The Supreme Court

For nearly forty years, since the Supreme Court decision in Illinois Brick,federal antitrust law has prevented indirect purchasers from complaining ofovercharges caused by antitrust violations. The Court reasoned that directpurchasers are the best and most motivated antitrust plaintiffs. But in its2013 Italian Colors decision, the Court made it extremely difficult fordirect purchasers to bring an antitrust claim in federal court. In doingso, it undermined the policy rationale for Illinois Brick, opening the wayfor courts to reconsider the ban on antitrust enforcement by indirectpurchasers.

Download Full-text

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

Canadian Tax Journal/Revue fiscale canadienne ◽

10.32721/ctj.2020.68.1.ctp ◽

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—Canada Trustco, Mathew, and Copthorne. 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 Husky Energy and Canada Safeway, the Ontario Court of Appeal in Inter-Leasing, and the BC Court of Appeal in Veracity, and, on the other hand, by the Quebec Court of Appeal in OGT Holdings and Iberville. 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—Univar, Oxford Properties, 594710 British Columbia Ltd., and Birchcliff. 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.

Download Full-text

RECOURSE PERIOD TO THE ADMINISTRATIVE COURT THROUGH THE PRISM OF THE INFLUENCE OF THE SUPREME COURT

International scientific journal Internauka Series Juridical Sciences ◽

10.25313/2520-2308-2021-12-7830 ◽

2018 ◽

Author(s):

Iryna Balakarieva ◽

◽

Krystyna Rutvian ◽

Keyword(s):

Supreme Court ◽

Due Process ◽

Scientific Work ◽

Point Of View ◽

Access To Justice ◽

The Supreme Court ◽

Judicial Errors ◽

The One ◽

Administrative Proceedings ◽

The Right

The article is devoted to the study of the peculiarities of regulating the recourse period to the administrative court from the point of view of due process. Clear up the issue to what extent the consolidation and regulation of the recourse period qualifies the requirements of the legal procedure, namely: clear legislative regulation; inadmissibility of violation of the rights, freedoms and interests of the parties; clear structuredness and regulation. The scientific work investigates the essence of the term circulation term and considers the feasibility of introducing it. An attempt was also made to compare the recourse period with the limitation, arguments are given why the introduction of the terms of appeal in administrative proceedings is not identical to the limitation in civil proceedings. Different positions are considered, referring to the practice of the Supreme Court and the opinions of scientists, why, on the one hand, the limitation cannot be introduced in the administrative process from the point of view of the principle of legal certainty, and on the other hand, how the recourse period violates the right to access to justice. The main attention is paid to the role of the Supreme Court in the formation of approaches to the application of limitations. The concept of contra legem, which is inherent in the countries of the Anglo-Saxon legal family, is considered and is used in cases where there is a need to deviate from the enshrined norm at the legislative level in order to avoid literal application of the law and not make an absurd or unfair decision. The thesis is emphasized, despite the fact that the Supreme Court sometimes deviates from the formally prescribed norms, however, this is the essence of the cassation proceedings: it is an additional guarantee of the protection of subjective rights by correcting judicial errors, as well as a kind of judicial control. The specific decisions of the Supreme Court are considered, in which the approaches to the practice of applying the recourse period have been changed. On the basis of the decisions of the Supreme Court, it was investigated how the Supreme Court by its decisions affects and changes the recourse period fixed at the legislative level, the key positions of the Supreme Court are highlighted, which today are guiding for the subjects of appeal to the administrative court.

Download Full-text