FU2 – Tax Court of Canada finds that Senate vacancies do not invalidate ITA bills passed by it

The taxpayer appealed a reassessment of its 2011 taxation year – made in reliance on a retroactive amendment made to the relevant ITA provision in 2014 – on the grounds that the amending Act was passed by a Senate that had substantial vacancies, contrary to Part IV of the Constitution Act, 1867 (which has detailed provisions respecting the appointment of specified numbers of senators from each province). In granting the Crown’s motion to strike this claim on that basis that it was plain and obvious that it had no prospect of success, Ouimet J stated:

[S]ections 33, 35 and 36 of the Constitution Act, 1867 contemplate the situation where the Senate has vacancies. Section 35 allows the Senate to exercise its powers and vote in the event of vacancies.

Neal Armstrong. Summary of FU2 Productions Ltd. v. The King, 2022 TCC 148 under Constitution Act, 1867, s. 35.