Date: 19990525
Docket: A-573-98
CORAM: MARCEAU J.A.
DESJARDINS J.A.
NOËL J.A.
BETWEEN:
GESTION B. DUFRESNE LTÉE
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Québec, Quebec,
on Tuesday, May 25, 1999)
MARCEAU J.A.
[1] We are all of the view that the appeal cannot succeed.
[2] Despite his efforts, counsel for the appellant did not convince us that his interpretation of paragraph 55(5)(e) of the Income Tax Act was not unduly restrictive. There is nothing in the text to suggest that the fiction or assumption set out in that "deeming provision""to the effect that where applicable, for the specific purpose identified, siblings are not to be treated as such, i.e., are to be deemed not to be related to one another but on the contrary to be dealing at arm"s length"should apply only at the level of and with regard to siblings themselves and have no effect on relationships that stem directly and exclusively from that sibling relationship, such as brothers- and sisters-in-law. The use of the word "more" in the opening phrase that situates the rule, i.e., "in determining whether two or more persons are dealing with each other at arm"s length", stands firmly in the way of such a restriction, which in any event would in itself be incomprehensible in that it would lead to perverse results.
[3] Moreover, however logical it might seem and closely it appears to "stick to the wording", counsel"s reasoning is in our view equally disputable in that it uses a purely interpretive provision of Part XVII of the Act to give it a meaning that goes beyond what the provision actually suggests. Paragraph 252(2)(a ) says that "[i]n this Act . . . "brother" includes brother-in-law"; it does not say that a "brother-in-law is a brother", who must be deemed to be related by blood to his sister-in-law. A rule of interpretation presented strictly as such is not a rule of fiction laid down contrary to reality.
[4] The Judge needed no other ground than the first one he used to support his finding. It is on that basis alone that we wish to uphold his judgment.
[5] The appeal will be dismissed with costs.
Louis Marceau
J.A.
Certified true translation
Peter Douglas
Date: 19990525
Docket: A-573-98
CORAM: MARCEAU J.A.
DESJARDINS J.A.
NOËL J.A.
BETWEEN:
GESTION B. DUFRESNE LTÉE
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
Hearing held at Québec, Quebec, on Tuesday, May 25, 1999.
Judgment delivered from the bench on May 25, 1999.
REASONS FOR JUDGMENT OF THE COURT BY: MARCEAU J.A.
Date: 19990525
Docket: A-573-98
QUÉBEC, QUEBEC, THE 25th DAY OF MAY 1999
Coram: MARCEAU J.A.
DESJARDINS J.A.
NOËL J.A.
Between:
GESTION B. DUFRESNE LTÉE
Appellant
Against:
HER MAJESTY THE QUEEN
Respondent
JUDGMENT
The appeal is dismissed with costs.
J.A.
Certified true translation
Peter Douglas
IN THE FEDERAL COURT OF APPEAL
Date: 19990525
Docket: A-573-98
BETWEEN:
GESTION B. DUFRESNE LTÉE
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
OF THE COURT
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE NO.: A-573-98
STYLE OF CAUSE: GESTION B. DUFRESNE LTÉE v. HER MAJESTY THE QUEEN
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: May 25, 1999
REASONS FOR JUDGMENT OF THE COURT: (Marceau, Desjardins, Noël JJ.A.)
DELIVERED FROM THE BENCH BY: Marceau J.A.
APPEARANCES:
André Lareau FOR THE APPELLANT
Marie Bélanger FOR THE RESPONDENT
SOLICITORS OF RECORD:
Joli-Coeur, Lacasse, Lemieux,
Simard, St-Pierre (Partnership)
Sillery, Quebec FOR THE APPELLANT
Morris A. Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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