Yellow Point – Federal Court of Appeal confirms that an ecological gift was made in the year before it was certified as such
A taxpayer, who donated an interest in ecologically sensitive land to two qualified donees in 2008, unsuccessfully argued that the gift was not made until 2009 for purposes of computing the five-year (now 10-year) carryforward period described in s. 110.1(1)(d)(iii), because it was not until 2009 that he received the certification from the Minister of the Environment as to the land's ecologically sensitive nature and value that was required under that provision. In confirming that the ecological gift instead was made in 2008 when the gifted property was transferred, Noël CJ stated:
[W]hen property is gifted … the disposition takes place when ownership of the gifted property is transferred from the donor to the donee …
… There is no doubt that the appellant’s entitlement to the capital gain exemption and the related deduction did not arise until 2009 when all the conditions set out in paragraph 110.1(1)(d) and subsection 110.1(2) were met, but this does not alter the time when the “gift was made”.
Noël CJ also effectively found that the word “peut” (may) in the French version of s. 118.1(11) meant the same thing as the word “shall” in the English version, stating in this regard:
[T]he use of the word “peut” in the French version illustrates how “an official who is permitted to do a thing may, in addition, be obliged to do it” (Ruth Sullivan, Sullivan on the Construction of Statutes …).