Treaties

Table of Contents

Cases

Crown Forest Industries Ltd. v. The Queen, 92 DTC 6305 (FCTD)

"... It seems to be not particularly logical or useful to impart a meaning to the expressions articulated in one treaty between Canada and one treaty partner from the meaning of the expressions articulated in another treaty with another partner whose legal, economic and political exigencies, not to emphasize its distinct treaty-negotiating personnel and techniques, may be quite distinct from the first" (p. 6309)

Utah Mines Ltd. v. The Queen, 92 DTC 6194 (FCA)

Hugessen J.A. referred to the presidential message to the U.S. Senate seeking that body's ratification of an amendment to the 1942 U.S.-Canada Income Tax Convention in determining the purpose of that amendment.

National Corn Growers Assn. v. Canada (Import tribunal), [1990] 2 S.C.R. 1324

In interpreting s. 42 of the Special Import Measures Act (Canada), it was proper for the Canadian Import Tribunal to consult the terms of the GATT Subsidies Code. Gonthier J. stated (p. 1371):

"It is reasonable to make reference to an international agreement at the very outset of the enquiry to determine if there is any ambiguity, even latent, in the domestic legislation. The Court of Appeal's suggestion that recourse to an international treaty is only available where the provision of the domestic legislation is ambiguous on its face is to be rejected."

See Also

Trieste v. The Queen, 2012 DTC 1125 [at 3133], 2012 TCC 91, aff'd 2012 FCA 320

Lamarre J. examined the French version of the Canada-U.S. Convention in order to shed light on the meaning of the phrase "habitual abode" in Art. IV(2)(b). She stated (at paras. 25-26):

Where there are two official versions of a treaty in two languages, the Vienna Convention on the Law of Treaties (Can. T.S. 1980 No. 37), Art. 33(4), allows a comparison of the texts in order to adopt "...the meaning which best reconciles the texts having regard to the object and purpose of the treaty..." ...

The French version when translated literally means "where one stays in an habitual way". This version largely removes any ambiguity that may have been present in the English version.

Sommerer v. The Queen, 2011 DTC 1162 [at 845], 2011 TCC 212, aff'd 2012 FCA 207

Miller J. stated (at para. 119) that the official Commentaries for the OECD Model Tax Treaty are generally not applicable to treaties formed before the Commentary in question. A later Commentary is only of interpretive assistance to the extent that it is not in conflict with the commentaries that were applicable when the treaty was made.

Hinkley v. MNR, 91 DTC 1336 (TCC)

Assistance was derived in interpreting the Canada-U.K. Income Tax Convention from the OECD Commentary.

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Tax Topics - Treaties - Income Tax Conventions - Article 14 76

Articles

Michael N. Kandev, Matthew Peters, "Treaty Interpretation: The Concept of 'Beneficial Owner' in the Canadian Tax Treaty Theory and Practice", Canadian Tax Foundation, 2011 Conference Report, 26:1-60

In the course of reviewing the meaning of "beneficial owner" under the OECD model convention, Kandev and Peters stated (at p. 28):

The jurisprudential trend in Canada, at least in theory, has been to allow increasing reliance on later commentaries, However, the practical effect of such commentaries remains uncertain. What seems clear is that taxpayers, their advisers, the tax administration, and tax judges will not avert their eyes from OECD materials merely on the theoretical basis that they were issued subsequent to the negotiation of a particular treaty. To the contrary, whatever the relevance and weight to be given to OECD commentaries, they are an important point of reference for treaty interpretations.

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Tax Topics - Treaties - Income Tax Conventions - Article 11 392

Craig Elliffe, "Cross Border Tax Avoidance: Applying the 2003 OECD Commentary to Pre-2003 Treaties", British Tax Review, No. 3, 2012, p. 307

Later OECD commentaries can be of assistance in the interpretation of a treaty if they clarify or amplify the previous commentary. Changes to the commentary in 2003 were clarifying rather than fundamental, suggesting that these changes can be applied to treaties entered into before 2003.

David A. Ward, "Principles to be Applied in Interpreting Tax Treaties", 1977 Canadian Tax Journal, p. 263.

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Tax Topics - Treaties 0