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.

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 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 Judicial Nullification of Statutes under the Charter of Rights and Freedoms, 1982-1988

1969 ◽  
pp. 396 ◽  
Author(s):  
F. L. Morton ◽  
G. Solomon ◽  
I. McNish ◽  
D. W. Poulton
Keyword(s):  
Statistical Analysis ◽  
Supreme Court ◽  
Policy Making ◽  
Minority Rights ◽  
Supreme Court Of Canada ◽  
Judicial Activism ◽  
Judicial Interpretation ◽  
The Supreme Court ◽  
Legislative Policy ◽  
Court Of Appeal

This study assesses the effect of the Charter of Rights on legislative policy-making. Unlike earlier studies limited to the Charter decisions of the Supreme Court of Canada, this study identifies and analyzes all reported federal and provincial Court of appeal decisions from 1982 through 1988 in which a statute was declared invalid, in whole or in part. The authors discuss which Charter rights result in the most ' 'nullifications "of statutes, and judicial activism under the Charter, using a statistical analysis to support their assertions. The study also finds that the Charter has had a greater substantive effect on provincial jurisdiction, than on federal creating a tension between provincial rights and minority rights which can be moderated or exacerbated by different modes of judicial interpretation.

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.

Estoppel

2019 ◽  
Author(s):  
Kenneth Hamer
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
England And Wales ◽  
Res Judicata ◽  
The Supreme Court ◽  
Chartered Accountants ◽  
Court Of Appeal ◽  
Disciplinary Committee

The Supreme Court held that the doctrine of cause of action estoppel applied to successive complaints before a professional disciplinary body, that disciplinary proceedings were civil in nature and that therefore the principles of res judicata applied, and that there was no reason why cause of action estoppel should not apply to successive sets of proceedings before the Disciplinary Committee of the Institute of Chartered Accountants in England and Wales (ICAEW). The Supreme Court so held in allowing an appeal by C-W, a chartered accountant, against the Court of Appeal, which had upheld the dismissal of his application for judicial review of the decision by the Committee to refuse to dismiss a second complaint based on the same facts of a first complaint that had been dismissed on the merits.

Repeat Litigators and Agenda Setting on the Supreme Court of Canada

2002 ◽  
Vol 35 (4) ◽  
pp. 811-833 ◽  
Author(s):  
Roy B. Flemming ◽  
Glen S. Krutz
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Statistical Models ◽  
Comparative Research ◽  
The United States ◽  
Supreme Court Of Canada ◽  
High Courts ◽  
The Supreme Court ◽  
Selection Of

The expanding public policy role of high courts heightens concerns over whether societal and political inequalities affect the outcomes of litigation. However, comparative research on this question is limited. This article assesses whether status inequalities between parties and differences in the experience and resources of attorneys influence the selection of cases for judicial review in the Supreme Court of Canada. A series of statistical models reveal that governments are more likely than other parties to influence whether leave is granted but that the experience and resources of lawyers, unlike in the United States, have little impact. The decentralized, low volume and high access features of the Canadian process may explain this finding.

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