FU2 – Federal Court of Appeal confirms that Senate vacancies do not invalidate ITA bills passed by it

The taxpayer appealed a reassessment of its 2011 taxation year, which was adversely affected by subsequent retroactive legislation, on the grounds that such legislation 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 confirming the decision below that this claim should be struck, Biringer JA stated:

Crucially, section 35 [of the Constitution Act, 1867] makes it clear that the Senate may exercise its powers notwithstanding any vacancies, as long as there is a quorum of senators … .

Accordingly, it was plain and obvious that the appellant’s Senate vacancy argument had no reasonable prospect of success … . [T]he untenable implication of the appellant’s Senate vacancy argument is that any legislation passed by a quorum of the Senate when there are vacancies in the Senate could also be invalid.

Neal Armstrong. Summary of FU2 Productions Ltd. v. Canada, 2024 FCA 45 under Constitution Act, 1867, s. 35.