Justice Marshall Rothstein, "An Overview of the Supreme Court of Canada", Bulletin for International Taxation (IBFD), January/February 2016, p. 20.

Summaries

Stare decisis usually applies (p. 20)

As the Court recently noted: "stare decisis is not a straitjacket that condemns the law to stasis". [f.n. 10 [Carter v. Canada (AG), 2015 SCC]] The Supreme Court has indicated a willingness to depart from its own precedent where a new legal issue has been raised or where there has been a change in the facts that "fundamentally shifts the parameters of the debate."[f.n.11: [Canada (AG) v Bedford, 2013 SCC 72] at para 42] But this will be rare; the principle of stare decisis, or following precedents, is the norm.

Extraneous communication (p. 21)

The judges...refrain from speaking on radio or television or commenting on social media and will not engage in blogging.

Signing of judgments (p. 22)

There is no rule governing when a judgment will be signed by "The Court", but as a rule of thumb it is reserved for controversial cases of significant public importance. They are cases that likely involve highly visible and/or devisive issues that attract much attention from the public and commentators. Signing "The Court" depersonalizes the judgment and is intended to signal that the Court is strong and united on the legal issues in the cases [F.n. 24: For example, two of the cases that were heard between October 2014 and May 2015 were written by "The Court": Carter, [2015 SCC 5], in which the Court found unconstitutional the prohibition against physician-assisted death for competent adults in certain limited circumstances, and R v. Smith, 2015 SCC 34, in which the Court found unconstitutional the prohibition against the possession of non-dried forms of medical marihuana.]

Resort to foreign Treaty interpretation decisions (p. 25)

In interpreting treaties to which Canada is a party, the Supreme Court of Canada and Canadian courts are not averse to seeking guidance from the decisions of foreign courts. An openness to considering foreign judgments is beneficial for a number of reasons: a well-reasoned foreign decision that has considered similar issues may provide analytical guidance. We may also look to the effects of a particular rule in action in considering the merit of arguments about likely consequences. It also leads to greater harmonization of law in terms of interpretation and implementation of treaties. [F.n.73: See generally van Ert [Using International Law in Canadian Courts, 2d ed (Irwin Law 2008)]...at pp. 280-284]

Resort to foreign judgments (p. 25)

An example concerns the interpretation of a "series of transactions" under a general anti-avoidance rule (GAAR) that is found to be abusive of the Income Tax Act. English jurisprudence had a direct influence in Canada on the way in which this concept was understood. In the 2005 case Canada Trustco Mortgage Co v. Canada, the Supreme Court agreed with the Federal Court of Appeal which, in a prior unrelated case, had adopted the interpretation of the UK House of Lords' decisions in Furniss v . Dawson and Craven v. White... . Another example is Canada's approach to defining residency of a corporation and a trust, which is informed by British jursiprudence... .

Characterization of foreign entities (p. 25)

This endorsement of a foreign court's definition of a taxation law concept contrasts with Canadian courts' use of domestic law to characterize certain foreign arrangements and relationships, which can lead to significant tax consequences. In 2001, in Backman v. Canada, a Canadian taxpayer was seeking to deduct certain losses of a partnership recognized under the law of the state of Texas, in the United States. While the Federal Court of Appeal looked at whether the taxpayer satisfied the definition of a partnership under Canadian law after having determined that Texas law was insufficiently proven, the Supreme Court did not look at whether foreign law had been sufficiently proven under Texas law. Instead, the Court wrote that if a partnership wants to deduct losses under Canadian law, it must satisfy the elements of a partnership under Canadian law. This precedent limits to a certain extent the use of foreign law in Canadian tax cases.

Characterization of foreign entities (p. 25)

This endorsement of a foreign court's definition of a taxation law concept contrasts with Canadian courts' use of domestic law to characterize certain foreign arrangements and relationships, which can lead to significant tax consequences. In 2001, in Backman v. Canada, a Canadian taxpayer was seeking to deduct certain losses of a partnership recognized under the law of the state of Texas, in the United States. While the Federal Court of Appeal looked at whether the taxpayer satisfied the definition of a partnership under Canadian law after having determined that Texas law was insufficiently proven, the Supreme Court did not look at whether foreign law had been sufficiently proven under Texas law. Instead, the Court wrote that if a partnership wants to deduct losses under Canadian law, it must satisfy the elements of a partnership under Canadian law. This precedent limits to a certain extent the use of foreign law in Canadian tax cases.

International rules of interpretation (pp. 24-25)

[W]hen interpreting treaties, Canadian courts generally use international rules of interpretation instead of domestic rules. The Supreme Court of Canada has endorsed the principles of treaty interpretation enunciated in sections 31-33 of the Vienna Convention on the Law of Treaties.[F.n. 70: (VCLT). See Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at paras. 51-52; see also Crown Forest Industries Ltd. v Canada ...] These rules require that a court first look at the ordinary meaning of the terms of the treaty in their context (which includes the preamble, annexes, related agreements and instruments, subsequent practices and relevant rules of international law) and in light of the treaty's object and purpose. If the meaning of a treaty term is ambiguous, courts may restore to the treaty's preparatory works (also called the travaux preparatoires) and the circumstances surrounding the conclusion of the treaty. [F.n. 72: VCLT, supra n. 70, sec 32. See also van Ert, [Using International Law in Canadian Courts, 2d ed (Irwin Law 2008)]...at p. 274.]

In interpreting treaties to which Canada is a party, the Supreme Court of Canada and Canadian courts are not averse to seeking guidance from the decisions of foreign courts. An openness to considering foreign judgments is beneficial for a number of reasons: a well-reasoned foreign decision that has considered similar issues may provide analytical guidance. We may also look to the effects of a particular rule in action in considering the merit of arguments about likely consequences. It also leads to greater harmonization of law in terms of interpretation and implementation of treaties. [F.n.73: See generally van Ert...at pp. 280-284]

OECD guidelines (p. 24)

The OECD Guidelines do, however, have persuasive force in Canada. In Glaxo [2012 SCC 52], the provision of the Income Tax Act did not itself provide guidance in defining the "reasonable amount" paid in an arm's length context, so the Court turned to the OECD Guidelines. The Court referred to the OECD Guidelines (1979) and the OECD Guidelines (1995) to consider different transfer pricing methods. These in turn informed the Court's decision under the Income Tax Act.

Standard and procedure for granting leave (p. 23)

The standard [for granting leave], as explained earlier, is that of public importance. Three judges review each application. If they are convinced that the written material contains a question of public importance, they will grant leave. If the panel is split, the practice has been that the application is presented at a monthly Court conference and discussed with the other six judges. If four of the nine judges agree to hear it, the panel of three judges assigned the leave application will grant leave. The court retains discretion to order an oral argument on a leave application. [F.n. 51: ...Supreme Court Act, sec. 43(1)(c).] This rare occurrence is likely when the Court is in doubt from the written material whether to grant leave or when the judges think it is necessary to clarify the issues it wants to hear on appeal and weed out those it does not want to hear. In a recent tax case, for example, during an oral leave motion the judges told counsel that it wanted to ensure the parties would address two specific issues among the many advanced by the applicant in order to prevent an unfocussed appeal. [F.n. 52: [The Honourable Henry S. Brown, Supreme Court of Canada Practice 2015...(Carswell 2014)], at p. 103. The case was Daishowa-Marubeni International Ltd v Canada. The oral motion was heard on 9 June 2012. ...judgment issued...as 2013 SCC 29, [2013] 2 S.C.R. 336.]

Resort to foreign judgments (p. 25)

An example concerns the interpretation of a "series of transactions" under a general anti-avoidance rule (GAAR) that is found to be abusive of the Income Tax Act. English jurisprudence had a direct influence in Canada on the way in which this concept was understood. In the 2005 case Canada Trustco Mortgage Co v. Canada, the Supreme Court agreed with the Federal Court of Appeal which, in a prior unrelated case, had adopted the interpretation of the UK House of Lords' decisions in Furniss v . Dawson and Craven v. White... . Another example is Canada's approach to defining residency of a corporation and a trust, which is informed by British jursiprudence... .