MacKay,
J.:—In
this
action
the
plaintiff
appeals
a
reassessment
by
the
Minister
for
its
1980
taxation
year,
on
the
basis
that
the
reassessment
in
question
was
made
outside
the
time
limit
established
for
reassessments
by
subsection
152(4)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act").
At
issue
is
the
limitation
period
for
reassessment
by
the
Minister
of
the
plaintiff's
tax
for
the
1980
taxation
year,
in
which
a
loss
had
been
carried
back
from
1981.
This
depends
upon
the
application
of
subsection
152(4)
as
amended
by
S.C.
1983-84,
c.
1,
subsections
84(3)
and
(6).
The
plaintiff
contends
that
amended
subsection
is
not
applicable
and
that
its
predecessor,
subsection
152(4)
as
it
applied
when
the
loss
carryback
was
claimed,
applies
to
preclude
the
reassessment
here
made
by
the
Minister.
Facts
The
parties
filed
an
agreed
statement
of
facts
at
the
hearing
of
this
appeal.
Subject
to
certain
agreed
conditions,
the
statement
provides
as
follows.
1.
The
Plaintiff
is
the
successor
by
amalgamation
to
Placer
Development
Ltd.
(herein
called
Development").
2.
The
taxation
year
of
Development
ended
on
December
31st
in
each
calendar
year
and
the
income
tax
return
for
each
fiscal
period
was
due
on
or
before
June
30th
in
the
calendar
year
following
the
end
of
any
taxation
year.
3.
Development
filed
an
income
tax
return
for
the
1980
taxation
year
within
the
time
prescribed
by
the
Income
Tax
Act
(Canada)
(the
"Act")
and
the
return
was
assessed
by
the
Minister
of
National
Revenue
on
October
5,
1981.
4.
Development
filed
an
income
tax
return
for
the
1981
taxation
year
on
July
5,
1982
in
which
it
reported
a
non
capital
loss
of
$2,224,448.
At
the
same
time
Development,
as
contemplated
by
subsection
152(6)
of
the
Act
in
force
at
June
30,
1982,
filed
a
prescribed
form
claiming
a
deduction
of
the
non-capital
loss
of
$2,224,448
in
computing
taxable
income
for
the
1980
taxation
year.
5.
The
Minister
of
National
Revenue
reassessed
Development
on
June
2,
1983
to
allow
the
deduction
of
the
loss
of
$2,224,448
in
computing
income
for
the
1980
taxation
year.
6.
On
May
24,
1984,
the
Minister
of
National
Revenue
further
reassessed
Development
for
1980
taxation
year
to
reduce
the
amount
of
the
non-capital
loss
deductible
in
computing
taxable
income
to
the
sum
$2,164,743.
7.
The
actual
amount
of
the
non-capital
loss
incurred
in
the
1981
taxation
year
was
$1,572,829.
8.
On
November
20,
1987
the
Minister
of
National
Revenue
issued
a
further
reassessment
to
Development
for
the
1980
taxation
year
to
reduce
the
amount
of
1981
non-capital
loss
available
for
deduction
thereby
increasing
taxable
income
by
the
sum
of
$591,914.
The
plaintiff
objects
to
the
final
reassessment,
made
November
20,
1987,
six
years
and
approximately
six
weeks
after
the
initial
assessment.
It
is
said
that
it
was
made
after
expiry
of
the
limitation
period
established
for
reassessment
by
the
Minister.
The
amount
of
the
non-capital
loss
upon
which
the
Minister
bases
the
reassessment
is
not
at
issue.
The
sole
question
between
the
parties
concerns
the
appropriate
statutory
limitation
period
for
reassessments
by
the
Minister
in
relation
to
the
carryback
of
non-capital
losses
from
the
1981
taxation
year
to
the
plaintiff's
1980
taxation
year.
The
Legislative
Regime
Subsection
152(4)
prescribes
the
time
period
in
which
the
Minister
may
reassess
tax.
It
has
been
amended
since
1982
when
the
plaintiff
taxpayer
claimed
non-capital
loss
from
its
1981
taxation
year
to
apply
to
its
1980
year.
Then
the
limitation
period
for
reassessment
under
subsection
152(4)
was
four
years
from
the
date
of
mailing
an
original
notice
of
assessment,
unless
there
was
misrepresentation
or
other
fault,
or
a
waiver,
by
the
taxpayer.
In
1983
that
limitation
period
was
extended
to
seven
years
by
amendment
enacted
by
S.C.
1983-84,
c.
1,
subsection
84(3).
Extending
the
limitation
period
for
reassessment
of
tax
was
made
in
concert
with
extending
the
period
for
carryback
of
loss
to
a
previous
taxation
year.
In
1982
when
the
plaintiff
claimed
the
loss
from
its
1981
taxation
year
as
applicable
to
its
1980
year,
the
period
allowed
under
paragraph
111(1)(a)
was
one
year
only.
By
amendment
enacted
by
S.C.
1983-84,
c.
1,
subsection
54(1)
this
was
extended
to
three
years.
In
addition
to
these
provisions,
subsection
152(6)
of
the
Act,
referred
to
in
subsection
152(4)
as
amended,
under
which
the
taxpayer
claiming
a
loss
carryback
may
require
a
reassessment
to
an
earlier
year
to
which
the
loss
has
been
carried,
also
was
revised
by
S.C.
1983-84,
c.
1,
subsection
84(4).
Since
the
amendment
to
subsection
152(4)
in
the
1983-84
statutes,
the
subsection
has
been
further
amended
(S.C.
1984,
c.
45,
subsection
59(1))
and
the
limitation
period
for
reassessments
in
relation
to
loss
carryback
to
a
previous
taxation
year
has
been
reduced
to
six
years
under
paragraph
(b)
of
subsection
152(4).
The
six-year
limitation
period
was
made
“
applicable
to
the
1983
and
subsequent
taxation
years"
(S.C.
1984,
c.
45,
subsection
59(5)).
In
Silverman
v.
M.N.R.,
[1989]
2
C.T.C.
2024;
89
D.T.C.
307
(T.C.C.)
Kempo,
T.C.J.
rejected
a
taxpayer's
argument
that
the
six-year
limitation
period
was
intended
to
apply
to
reassessments
made
in
calendar
years
after
1983,
i.e.,
that
the
effective
date
of
the
amendment
for
purposes
of
reassessment
was
a
calendar
year
after
1983
so
that
the
amendment
enacted
by
S.C.
1984,
c.
45
applied
to
preclude
a
reassessment
made
some
six
years
and
four
months
after
the
original
assessment.
In
that
case
loss
had
been
carried
back
from
the
taxpayer's
1980
to
his
1979
year
and
the
final
reassessment
was
made
in
1986,
taxation
year
immediately
following
the
taxation
year,
.
.
.
B.
As
amended
S.C.
1983-84,
c.
1,
subsection
54(1):
111.
(1)
For
the
purpose
of
computing
the
taxable
income
of
a
taxpayer
for
a
taxation
year,
there
may
be
deducted
such
portion
as
he
may
claim
of
(a)
his
non-capital
losses
for
the
7
taxation
years
immediately
preceding
and
the
3
taxation
years
immediately
following
the
year,
.
.
.
This
amended
provision
is“
applicable
with
respect
to
the
computation
of
taxable
income
for
the
1983
and
subsequent
taxation
years”
by
virtue
of
S.C.
1983-84,
c.
1,
subsection
54(6)].
more
than
six
but
less
than
seven
years
after
the
date
of
the
original
assessment.
While
the
facts
in
the
case
before
this
Court
are
analogous
to
those
in
Silverman
the
taxpayer
here
raises
an
issue
not
there
raised
and
does
not
argue
that
subsection
152(4)
as
amended
by
S.C.
1984,
c.
45,
subsection
59(1)
is
here
applicable.
The
plaintiff's
argument
here
would
limit
the
reassessment
period
to
four
years,
as
it
was
at
the
time
the
loss
carryback
was
claimed.
Outline
of
the
Parties'
Positions
The
plaintiff
argues
that
subsection
152(4),
as
amended
by
S.C.
1983-84,
c.
1,
subsection
84(3),
and
made
effective
in
accord
with
subsection
84(6),
must
be
interpreted
to
apply
only
to
those
situations
in
which
the
taxpayer
has
availed
himself
of
subsections
152(6)
and
111(1)
as
amended
by
the
same
amending
statute
and
that
it
is
not
applicable
to
situations
previously
governed
by
the
preamended
subsection
152(6)
and
section
111.
To
these
situations
it
is
urged
that
subsection
152(4)
applies
as
it
was
prior
to
amendment
by
the
1983-84
statutes.
It
is
submitted
that
the
amendments
be
read
in
the
context
of
the
scheme
of
the
Income
Tax
Act
as
a
whole
with
regard
to
the
purpose
of
the
amendment
in
that
context.
As
the
basis
of
this
interpretive
approach,
counsel
relies
upon
Stubart
Investments
Ltd.
v.
The
Queen,
[1984]
1
S.C.R.
536;
[1984]
C.T.C.
294;
84
D.T.C.
6305
and
Lor-Wes
Contracting
Ltd.
v.
The
Queen,
[1985]
2
C.T.C.
79;
85
D.T.C.
5310;
60
N.R.
321
(F.C.A.).
In
reliance
upon
the
latter
counsel
also
invites
consideration
of
explanatory
notes,
released
by
the
then
Minister
of
Finance
explaining
the
amending
bill,
to
which
the
Minister
made
reference
in
debate
in
the
House
of
Commons.
This
document,
it
is
said,
supports
the
interpretation
of
subsection
152(4)
urged
by
the
plaintiff.
In
that
context
the
key
to
resolution
of
the
issue
in
this
case
is
said
to
be
the
interpretation
of
subsection
84(6),
relating
to
the
application
of
the
amended
subsection.
The
Minister's
position
was
essentially
that
the
amending
Act's
provisions
relating
to
applicability
of
the
amendments,
subsection
84(6),
were
clear,
and
expressly
provided
for
reassessments
of
the
sort
that
the
Minister
has
made
in
this
case.
Interpreting
the
1983-84
Amendments
In
Stubart
Investments
Ltd.
v.
The
Queen,
supra,
Mr.
Justice
Estey,
speaking
for
the
Supreme
Court
at
316
(D.T.C.
6323;
S.C.R.
578),
referred
to
the
principle
of
interpretation
stated
by
E.A.
Driedger,
in
Construction
of
Statutes,
2nd
ed.
(1983)
at
page
87:
Today
there
is
only
one
principle
or
approach,
namely,
the
words
of
an
Act
are
to
be
read
in
their
entire
context
and
in
their
grammatical
and
ordinary
sense
harmoniously
with
the
scheme
of
the
Act,
the
object
of
the
Act,
and
the
intention
of
Parliament.
Referring
to
the
comments
of
Estey,
J.
in
that
case,
Mr.
Justice
MacGuigan,
speaking
for
the
Federal
Court
of
Appeal
in
Lor-Wes
Contracting,
supra,
stated
at
83
(D.T.C.
5313):
"The
only
principle
of
interpretation
now
recognized
is
a
words-in-total-context
approach
with
a
view
to
determining
the
object
and
spirit
of
the
taxing
provisions."
In
reliance
upon
that
approach
it
is
urged
on
behalf
of
the
plaintiff
that
the
total
context
in
which
subsection
152(4)
was
amended
to
provide
for
a
sevenyear
period
for
reassessment
includes
an
appreciation
of
related
changes
introduced
by
the
same
amending
statute,
including
the
change
to
subsection
152(6),
section
111
and
the
provisions
bringing
these
changes
into
effect.
Thus,
it
is
said
that
the
amended
subsection
152(4)
is
enacted
in
concert
with
and
with
reference
to
the
extended
period
for
loss
carryback,
up
to
three
years,
introduced
by
the
amended
section
111,
and
that
the
amended
subsection
156(6)
provided
a
complementary
requirement
for
reassessment
by
the
Minister
in
a
variety
of
circumstances,
including
when
a
deduction
under
section
111
is
made
in
respect
of
a
loss
in
a
subsequent
taxation
year.
For
the
record
I
note
that
the
amendment
to
section
111(1),
extending
the
period
for
loss
carryback
to
three
years
(S.C.
1983-84,
c.
1,
subsection
54(1)),
is
made
applicable
to
"the
computation
of
taxable
income
for
1983
and
subsequent
taxation
years"
(S.C.
1983-84,
c.
1,
paragraph
54(6)(a)).
An
exception
is
provided
for
the
1983
taxation
year
whereby,
in
the
case
of
a
public
company
like
the
plaintiff,
not
qualifying
under
the
Act
as
a
small
business,
the
carryback
period
was
limited
to
two
years
(S.C.
1983-84,
c.
1,
paragraph
54(6)(b)).
Full
implementation
of
the
three-year
carryback
for
non-capital
losses
in
the
case
of
such
companies
was
phased
in
over
two
years.
It
was
stated
by
counsel
for
the
plaintiff
that
the
amendment
to
section
111
did
not
permit
the
plaintiff
corporation
to
carry
back
a
loss
from
1983
to
its
1980
year,
a
result
which
seems
to
me
clear
from
the
exception
clause,
idem.
I
note
that
counsel
for
the
defendant
did
not
agree
in
argument
that
the
plaintiff
corporation
was
so
limited
in
relation
to
any
loss
incurred
in
the
1983
taxation
year
but
disagreement
on
that
point
has
no
significance
for
determination
of
this
case.
The
significance
of
the
coming-into-force
provisions
relating
to
section
111
is
that
it
was
applicable
to
1983
and
subsequent
taxation
years.
The
key
to
the
interpretation
of
subsection
152(4)
is
said
for
the
plaintiff
to
be
found
in
the
provision
bringing
the
amendment
of
that
subsection
into
effect.
That
provision
(S.C.
1983-84,
c.
1,
subsection
84(6),
quoted
supra,
note
5)
deals
with
the
amended
subsection
152(4)
and
the
amended
subsection
152(6)
and
it
provides
that
they
.
.
.
are
applicable
after
April
19,
1983,
except
that
where
the
subsequent
taxation
year
referred
to
in
subsection
152(6)
of
the
said
Act,
as
enacted
by
subsection
(4),
is
a
taxation
year
ending
after
1982,
the
prescribed
form
referred
to
in
subsection
152(6)
may
be
filed
for
the
subsequent
taxation
year
at
any
time
on
or
before
the
later
of
(a)
the
day
on
or
before
which
it
would
be
required
by
the
said
subsection
152(6)
to
be
filed,
and
(b)
the
day
that
is
90
days
after
the
day
on
which
this
Act
is
assented
to.
It
is
the
plaintiff's
contention
that
read
together,
the
amendments
introduced
by
subsections
84(3),
(4)
and
(6)
mean
that
the
power
to
reassess
for
up
to
seven
years
only
applies
when
an
application
is
made,
after
April
19,
1983,
under
subsection
152(6)
as
amended
after
that
same
date,
to
carry
back
a
loss,
or
when
the
"subsequent
year",
the
year
in
which
the
loss
is
incurred,
is
a
taxation
year
after
December
31,
1982.
Since
neither
of
those
circumstances
occurred
in
this
case
it
is
urged
that
subsection
152(4)
as
amended
has
no
application
and
the
previous
version
of
that
subsection,
limiting
the
reassessment
period
to
four
years,
in
force
at
the
time
the
loss
was
claimed,
is
the
appropriate
section
for
determining
the
time
within
which
the
Minister
is
to
reassess,
if
he
decides
to
do
so.
The
plaintiff
urges
that
support
for
its
interpretation
of
the
Act
is
found
in
three
circumstances.
These
are
the
purpose
of
the
amendments
as
appears
from
the
explanatory
notes
of
the
then
Minister
of
Finance
when
the
amending
bill
was
before
Parliament,
the
inclusion
in
subsection
152(4)
of
reference
to
subsection
152(6)
for
the
first
time
in
the
1983-84
amendment,
and
the
anomalous
situation
that
would
prevail
in
relation
to
reassessments
if
the
interpreta-
ion
urged
by
the
defendant
is
accepted.
Explanatory
notes
published
by
the
Minister
may
not
in
themselves
readily
qualify
as
an
aid
to
interpretation.
In
this
case,
however,
the
Minister
of
the
day
specifically
referred
to
explanatory
notes
he
had
published
in
conjunction
with
consideration
of
the
bill
amending
the
Act,
and
it
is
urged
these
notes
be
considered
in
support
of
the
submission
of
the
plaintiff
about
the
mischief
sought
to
be
remedied,
and
the
general
purpose
of
the
amendments,
following
the
principle
set
out
by
MacGuigan,
J.A.
in
Lor-Wes
Contracting,
supra,
at
84
(D.T.C.
5314):
I
am
strengthened
in
this
conclusion
by
the
clear
indication
of
the
evil
sought
to
be
remedied
found
in
the
parliamentary
debates,
of
which
as
public
documents
this
Court
can
take
judicial
notice.
While
the
rule
still
remains
that
legislative
history
is
not
admissible
to
show
the
intention
of
the
legislature
directly,
the
Supreme
Court
of
Canada
has
nevertheless
increasingly
looked
to
legislative
history
for
related
purposes,
not
only
in
constitutional
cases
(Re
Anti-Inflation
Act,
[1976]
2
S.C.R.
373,
Re
Objection
by
Quebec
to
a
Resolution
to
Amend
the
Constitution,
[1982]
2
S.C.R.
793),
but
also
in
relation
to
the
interpretation
of
statutes
generally.
In
that
case,
the
learned
Justice,
after
referring
to
other
examples
of
decisions
of
the
Supreme
Court,
discussed
the
budget
statement
of
the
then
Minister
of
Finance
as
it
was
included
in
Hansard
(Debates
of
the
House
of
Commons).
In
this
case,
plaintiff's
counsel
points
to
debates
in
the
House
of
Commons,
concerning
the
bill
containing
the
amendments
in
issue,
in
which
the
then
Minister
of
Finance
referred
to
the
amendments
and
to
explanatory
notes
he
had
published,
in
the
following
words:
The
bill
also
allows
business
losses
to
be
carried
back
three
years
and
forward
seven
years,
instead
of
one
year
back
and
five
years
forward
as
at
present.
The
three
year
carryback
will
be
phased
in
over
two
years
for
most
businesses,
but
for
small
business
corporations,
this
new
benefit
will
take
effect
immediately.
I
was
pleased
to
see
that
the
House
Standing
Committee
on
Finance,
Trade
and
Economic
Affairs
took
note
of
the
release
on
August
15
of
explanatory
notes
to
the
draft
bill.
The
Committee
described
this
initiative
as
a
major
improvement
in
the
effort
to
make
complex
tax
changes
more
understandable
to
the
general
public.
Late
last
month
I
made
available
revised
explanatory
notes.
I
have
given
my
commitment
that
simplification
of
the
tax
system
will
be
a
continuing
high
priority,
particularly
as
it
applies
to
the
small
business
sector.
The
explanatory
notes
to
which
the
Minister
made
reference,
includes
comment
upon
the
amendment
to
subsection
152(4),
upon
which
the
plaintiff
relies
in
the
following
terms:
Existing
subsection
152(4)
of
the
Act
provides
that
in
the
absence
of
fraud
or
misrepresentation
the
Minister
of
National
Revenue
may
not
assess
or
reassess
tax,
interest
or
penalties
after
four
years
from
the
day
of
mailing
the
original
notice
of
assessment.
This
amendment
extends
the
four-year
reassessment
period
to
seven
years
in
certain
circumstances.
The
need
for
the
amendment
arises
out
of
the
extension
of
the
carryback
period
for
losses
and
investment
tax
credits.
Paragraph
152(4)(b)
of
the
Act
is
amended
to
permit
the
Minister
to
assess
or
reassess
tax
Within
seven
years
where
the
assessment
or
reassessment
for
a
year
requires
an
adjustment
described
in
subsection
152(6),
such
as
the
carry
back
of
a
loss
or
an
investment
tax
credit
from
a
subsequent
year.
Thus,
for
example,
if
a
non-capital
loss
for
1984
is
claimed
by
a
taxpayer
in
1981
and,
within
seven
years
from
the
date
of
mailing
the
original
notice
of
assessment
for
1981
it
is
determined
that
the
actual
amount
of
that
loss
is
less
than
the
amount
claimed,
the
Minister
may
reassess
the
1981
year
to
the
extent
that
the
reassessment
relates
to
the
adjustment
of
the
loss
carryback.
.
..
The
plaintiff
urges
that
read
in
light
of
the
other
amendments
with
which
it
was
interrelated,
including
the
coming-into-force
provisions,
and
the
explanatory
note,
the
reasonable
interpretation
is
that
the
change
of
the
assessing
period
to
seven
years
only
applies
when
one
is
dealing
with
a
1983
or
subsequent
taxation
year
loss
or
a
request
for
a
carryback
made
after
April
19,
1983.
Counsel
for
the
defendant
does
not
object
to
the
Court's
resort
to
the
explanatory
notes
published
and
referred
to
in
parliamentary
debate
by
the
then
Minister,
so
long
as
the
explanatory
notes
are
not
taken
to
displace
the
plain
meaning
of
the
words
in
subsection
84(6)
"
applicable
after
April
19,
1983”.
Moreover,
the
defendant
argues
that
"the
need
for
the
amendment"
referred
to
in
the
explanatory
notes
cited
by
the
plaintiff
includes
the
need
to
provide
for
a
seven
year
period
for
reassessment
in
relation
to
the
1980
taxation
year
since
the
loss
carryback
extension
under
the
amended
subsection
111(1)
included
situations
where
the
carryback
period
for
the
1983
taxation
year
for
noncapital
losses
extended
to
three
years,
i.e.,
to
1980.
In
my
view
the
reference
to
the
explanatory
notes
does
not
resolve
the
principal
issue
between
the
parties.
If
consideration
is
to
be
given
to
these
notes,
that
should
include
more
than
the
passage
cited
in
argument
by
counsel
for
the
plaintiff.
Thus,
the
notes
referring
to
subsection
152(4)
conclude:
"The
amendments
to
subsection
152(4)
of
the
Act
are
applicable
after
April
19,
1983”
and
with
reference
to
the
coming-into-force
provisions,
the
notes
state:
[The
provision
sets
out]
the
effective
dates
for
the
amendments
to
section
152
of
the
Act
and
provide
for
an
extension
of
the
time
for
filing
the
prescribed
forms
required
by
subsection
152(6)
where
a
taxation
year
ends
before
these
amendments
are
enacted.
Read
as
a
whole
the
explanatory
notes
are
generally
supportive
of
the
plaintiff's
argument
that
the
purpose
of
the
amendments
in
question
is
to
facilitate
arrangements
for
extension
of
the
period
for
loss
carryback
(and,
incidentally,
carry
forward)
with
appropriate
time
for
the
Minister
to
reassess.
The
explanatory
notes
are
not
essential
to
assessment
of
that
purpose
and
they
do
not,
in
my
view,
assist
in
resolution
of
the
issue
between
the
parties.
The
plaintiff
submits
that
its
interpretation
is
further
supported
by
the
inclusion
of
reference
to
subsection
152(6)
in
the
text
of
subsection
152(4)
for
the
first
time
in
the
1983-84
amendment.
It
is
submitted
this
inclusion
supports
the
interpretation
of
subsection
152(4)
as
amended,
as
intended
to
relate
to
situations
to
which
the
amended
subsection
152(6)
and
subsection
111(1)
with
the
extended
carryback
period,
apply.
It
is
urged
that
an
inference
supporting
this
can
be
drawn
from
the
inclusion
of
the
amended
subsections
152(4)
and
152(6)
in
the
same
provision
for
their
application,
i.e.,
S.C.
1983-84,
c.
1,
subsection
84(6).
In
my
view,
those
readings
of
the
amendments
are
dependant
upon
acceptance
of
the
plaintiff's
construction,
consistent
with
its
view
of
the
purpose
of
the
amendments.
They
do
not,
independently
of
that
purpose,
assist
in
determining
legislative
intent.
Finally,
it
is
urged
that
this
interpretation
avoids
retrospective
application
of
the
amended
subsection
152(4)
to
any
extent
greater
than
required
to
give
effect
to
the
purposes
of
the
amendment,
ensuring
that
the
Minister
and
the
taxpayer
would
not
be
prejudiced
by
a
shortened
or
expired
limitation
period
in
circumstances
where
the
taxpayer
claimed
an
adjustment
as
a
result
of
the
expanded
loss
carryback
provision.
In
turn,
this
avoids
the
anomalous
result,
which
the
interpretation
urged
by
the
defendant
would
allow,
that
is,
that
while
the
loss
year
here
involved,
1981,
could
not
be
reassessed
beyond
four
years,
the
1980
taxation
year
for
which
an
adjustment
was
claimed
from
the
loss
incurred
in
1981
would
be
reassessable
for
a
period
up
to
seven
years.
It
was
urged
that
such
a
result
would
be
simply
fortuitous
for
the
Minister,
and
that
there
was
no
need
for
extending
the
time
for
reassessment
by
the
Minister
beyond
the
period
known
to
both
parties
at
the
time
the
carryback
was
claimed
within
the
limit
of
one
year
then
provided.
As
a
final
point
the
plaintiff
urged
that
to
the
extent
there
is
uncertainty
about
the
intention
of
Parliament,
that
should
be
resolved
in
favour
of
the
taxpayer.
In
my
view,
that
issue
does
not
arise
since
the
application
of
the
legislation
to
the
circumstances
of
the
plaintiff
is
here
resolved.
In
response
to
the
arguments
of
the
plaintiff
counsel
for
the
defendant
relies
principally
on
the
argument
that
the
words
in
subsection
84(6)
of
S.C.
1983-84,
c.
1,
concerning
the
application
of
the
amended
subsection
152(4),
are
clear
and
unambiguous.
It
is
urged
that
the
words
used
with
reference
to
that
amended
subsection,
"
applicable
after
April
19,
1983”,
are
clear,
that
there
is
therefore
no
necessity
to
look
beyond
them
for
a
purpose
which
would
in
any
way
qualify
the
intention
of
Parliament
revealed
by
those
words.
Thus,
the
extended
reassessment
period
to
seven
years
under
the
amended
subsection
152(4)
authorizes
the
reassessment
made
in
this
case
by
the
Minister,
more
than
six
years
but
less
than
seven
after
the
date
of
the
original
assessment
for
the
1980
taxation
year.
Referring
to
Silverman,
supra,
counsel
urges
the
approach
there
followed;
by
reference
to
other
sections
of
the
same
amending
statute
it
is
urged
that
if
Parliament
had
intended
the
amended
subsection
152(4)
to
apply
only
to
certain
taxation
years
it
would
have
said
so,
as
subsection
84(5)
of
S.C.
1983-84,
c.
1
does
in
respect
of
amendments
enacted
to
subsections
152(1.1)
and
152(1.3)
of
the
Act
which
are
specifically
said
to
be
"applicable
to
the
1983
and
subsequent
taxation
years".
I
am
not
persuaded
that
this
assists
in
resolving
the
issue
raised
by
the
plaintiff,
for
the
object
of
subsections
152(1.1)
and
152(1.3)
is,
in
my
view,
to
require
the
Minister,
having
ascertained
the
amount
of
a
taxpayer's
loss
for
a
taxation
year
which
has
not
been
reported
by
the
taxpayer
as
a
loss
for
that
year,
to
determine
at
the
taxpayer's
request
the
amount
of
the
loss
and
to
send
notice
of
that
to
the
taxpayer,
and
that
determination
is
binding,
subject
only
to
the
taxpayer's
right
to
object
and
to
appeal.
The
provision
for
the
application
of
these
amendments
thus
simply
ensures
that
they
are
applicable
with
effect
from
the
1983
taxation
year
to
ensure
that
there
is
no
retroactive
application
unless
that
be,
as
it
turned
out
to
be,
for
the
taxation
year
before
the
amending
Act
was
ultimately
adopted
by
Royal
Assent
on
January
19,
1984.
Moreover,
it
is
not
surprising
that
these
other
amendments
were
made
applicable
to
a
specified
taxation
year
since
the
provisions
were
concerned
with
a
single
taxation
year.
Counsel
for
both
parties
made
reference,
for
different
purposes,
to
the
later
amendment
of
subsection
152(4),
by
S.C.
1984,
c.
45,
subsection
59(1),
limiting
the
reassessment
period
to
six
years
which
was
made
applicable
to
the
1983
and
subsequent
taxation
years.
I
am
not
disposed
to
consider
this
later
enactment
as
an
aid
in
considering
the
earlier
amendments
which
present
the
issue
in
this
action.
For
the
same
reason,
since
Silverman
deals
with
the
later
amendment
and
its
interpretation,
and
does
not
deal
with
the
issue
raised
in
this
case,
that
is
the
application
of
subsection
152(4)
as
amended
by
S.C.
1983-84,
c.
1,
subsections
84(3)
and
(6),
that
case
is
not
directly
relevant
here.
Conclusion
At
the
risk
of
oversimplifying
this
case,
I
see
it
as
a
question
of
whether
Parliament
intended
the
extended
period
for
reassessment,
up
to
seven
years,
to
apply
to
all
cases
in
which
a
loss
had
been
carried
back
even
before
the
amendment
under
rules
prevailing
before
the
amendment,
or
whether
it
was
to
apply
only
to
cases
where
the
taxpayer
took
advantage
of
the
extended
period
for
loss
carryback,
or
at
least
applied
for
loss
carryback,
under
the
amended
section
111.
In
my
view,
the
intention
of
Parliament
must
be
deemed
to
be
the
latter
for
two
reasons.
First,
that
is
consistent
with
the
purpose
of
the
Act
in
light
of
the
coordination
of
amendments
to
subsections
111(1),
152(4)
and
152(6).
The
object
of
these
was
to
facilitate
the
opportunity
to
claim
a
loss
carryback,
or
to
carry
it
forward,
for
an
extended
period.
Within
that
objective
subsection
152(4)
was
amended
to
extend
the
reassessment
period.
That
reassessment
period
is
deemed
to
be
related
to
those
who
took
advantage
of
the
opportunity
to
claim
a
carryback
of
loss
under
the
amended
subsection
111(1),
which
became
effective
for
the
1983
taxation
year.
The
second
reason,
supporting
that
conclusion,
is
the
presumption
against
retrospective
application
of
legislation
which
has
a
prejudicial
or
adverse
effect
upon
persons
in
relation
to
completed
transactions
or
events.
While
that
presumption
may
be
rebutted
where
Parliament
clearly
or
by
necessary
implication
so
states,
that
statement
or
implication
must
be
clear.
Here
the
retrospective
application
of
subsection
152(4)
to
transactions
completed
under
a
different
legislative
regime,
i.e.,
permitting
reassessment
up
to
seven
years
rather
than
the
four
years
in
vogue
when
the
loss
was
claimed
and
assessed,
is
not
clearly
specified
as
an
objective
of
the
legislation.
It
is
not
suggested
as
necessary
to
accomplish
the
purpose
or
object
of
the
amendments
in
question
when
read
together,
and
thus
it
is
not
supported
by
any
necessary
implication.
Generally,
legislation
is
applied
with
prospective
effect
only.
The
presumption
against
retrospective
application
is
ignored
where
the
statute
is
deemed
beneficial
in
its
effects,
or
where
it
is
merely
procedural
without
affecting
substantive
interests,
or
where,
within
comparatively
narrow
limits
it
is
deemed
to
be
enacted
to
protect
special
public
interests.
The
legislation
here
in
question,
in
my
view,
fits
none
of
those
categories.
Rather,
if
deemed
to
apply
to
past
events
its
effects
are
primarily
prejudicial
or
adverse
to
the
substantive
interests
of
the
taxpayer,
and
the
presumption
against
retrospective
application
applies.
I
conclude
that
subsection
152(4)
as
amended
by
S.C.
1983-84,
c.
1,
subsections
84(3)
and
84(6),
has
prospective
effect
only,
in
all
aspects
of
its
application,
and
is
applicable
only
where
the
opportunity
afforded
by
the
amended
subsection
111(1)
is
taken
by
the
taxpayer
after
April
19,1983
to
claim
a
loss
carryback,
which
could
only
be
done
for
a
taxation
year
commencing
after
December
31,
1982.
In
any
case
like
that
of
the
plaintiff
here
where
the
loss
was
claimed
in
a
prior
taxation
year
and
carried
back
within
the
then
prevailing
limit
of
one
year,
the
Minister
is
limited
in
the
period
for
reassessment
by
the
terms
of
subsection
152(4)
as
it
was
prior
to
April
19,
1983,
permitting
reassessment
for
a
period
up
to
four
years.
If
it
were
otherwise,
and
the
extended
period
for
reassessment
at
the
option
of
the
Minister
were
deemed
to
apply,
transactions
com-
pleted
under
the
law
then
prevailing
(here
the
filing
of
a
tax
return,
its
assessment
and
reassessment
by
the
Minister)
could
be
affected
adversely
to
the
interests
of
the
taxpayer.
Parliament
might
so
provide
by
legislation
but
its
intent
to
regulate
past
transactions
of
this
sort
which
have
been
completed
must
be
clear.
The
defendant's
interpretation
would
imply,
for
example,
that
Parliament
intended
that
under
the
amending
statute
the
Minister's
authority
to
reassess
for
a
period
of
seven
years
would
permit
in
1984,
after
enactment
of
the
statute,
reassessment
of
the
1975
or
1976
taxation
year
to
which
a
taxpayer
had
carried
back
a
loss
from
1976
or
1977,
the
reassessment
of
which
had
been
closed
in
1980
or
1981
under
section
152(4)
as
it
then
was.
I
am
not
persuaded
Parliament
intended
any
such
action
some
three
or
four
years
after
reassessment
had
been
settled.
Indeed,
if
that
had
been
suggested
to
the
Minister
of
National
Revenue
by
his
legal
advisers
in
1984
I
expect
he
would
have
been
surprised.
In
my
view
the
intent
to
reopen
transactions
previously
closed
to
further
reassessment
has
not
here
been
established.
In
the
circumstances
of
this
case
the
Minister's
reassessment
dated
November
20,
1987
was
beyond
the
time
limited
for
reassessment.
It
is,
therefore,
of
no
effect.
The
appeal
of
the
plaintiff
is
allowed
and
the
reassessment
dated
November
20,
1987,
of
the
plaintiff's
1980
taxation
year
is
vacated.
Appeal
allowed.