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The presumption that a reasonableness review should be applied can be rebutted where there is a statutory appeal mechanism in place (thereby entailing application of a standard of correctness to questions of law) – however, the Court made it clear that this did not include provisions, such as ss. 18 to 18.2, 18.4 and 28 of the Federal Courts Act – so that this aspect does not appear to apply to reviews of CRA decisions (other than assessments). ... Reasons that “simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion” will rarely assist a reviewing court in understanding the rationale underlying a decision and “are no substitute for statements of fact, analysis, inference and judgment” …. ... Rather than confirming a meaningful presumption of deference for administrative decision-makers … the majority’s reasons strip away deference from hundreds of administrative actors subject to statutory rights of appeal; rather than following the consistent path of this Court’s jurisprudence in understanding legislative intent as being the intention to leave legal questions within their mandate to specialized decision-makers with expertise, the majority removes expertise from the equation entirely and reformulates legislative intent as an overriding intention to provide — or not provide — appeal routes; and rather than clarifying the role of reasons and how to review them, the majority revives the kind of search for errors that dominated the pre- C.U.P.E. era. ...

Canada, 2024 SCC 24-- summary under Subsection 296(1) Summary Under Tax Topics- Excise Tax Act- Section 296- Subsection 296(1) assessment is a non-discretionary number Before confirming that the taxpayer’s Federal Court motion for judicial review had represented an impermissible collateral attack on assessments made under ETA s. 296, Kasirer J stated (at para. 49): Okalta Oils — like other cases that rely on a like definition of “assessment” — stands for the proposition that a tax assessment is a non-discretionary determination of the Minister as to “the actual sum in tax which the taxpayer is liable to pay” …. ... Assessing tax is, for the Minister, not a discretionary decision but a mandatory duty imposed by statute, specifically by ss. 275 and 296 of the ETA. … Rennie J.A. rightly said, at para. 17 of his reasons, that the “fulfillment of [a non-discretionary] statutory responsibility cannot be an improper motive for the Minister to issue an assessment”. ...

…It would be incoherent — and indeed, unjust — for shareholders to benefit from limited liability while at the same time gaining a right of action in relation to faults committed against the corporation in which they hold shares…. The corporate veil is impermeable on both sides; just as shareholders cannot be liable for faults committed by the corporation, so too are they barred from seeking damages for faults committed against it …. ... In particular (para. 42): [T]he loss of value from the trust patrimony that was suffered by Fiducie corresponds to the net value of the seniors’ residences once owned by Groupe Melior …. ...

Reasons that “simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion” will rarely assist a reviewing court in understanding the rationale underlying a decision and “are no substitute for statements of fact, analysis, inference and judgment” …. ... It cannot adopt an interpretation it knows to be inferior — albeit plausible — merely because the interpretation in question appears to be available and is expedient. ... Rather than confirming a meaningful presumption of deference for administrative decision-makers … the majority’s reasons strip away deference from hundreds of administrative actors subject to statutory rights of appeal; rather than following the consistent path of this Court’s jurisprudence in understanding legislative intent as being the intention to leave legal questions within their mandate to specialized decision-makers with expertise, the majority removes expertise from the equation entirely and reformulates legislative intent as an overriding intention to provide — or not provide — appeal routes; and rather than clarifying the role of reasons and how to review them, the majority revives the kind of search for errors that dominated the pre- C.U.P.E. era. ...

Purpose is ascertained objectively (Ludco …). While subjective manifestations of purpose may sometimes be relevant, the taxpayer’s stated intention … is not determinative. The taxpayer’s conduct is generally more revealing than “ ex post facto declarations” of the taxpayer …. ... Gains and losses arising from hedging derivative contracts take on the character of the underlying asset, liability or transaction being hedged …. ...

-dollar short-term debt obligations and derived around 86% of its income from such debt and from cross-currency and interest rate swaps with an arm’s length bank to effectively convert much of its income stream into fixed rated Canadian-dollar interest – although it also made intercorporate loans and loans to drivers working as distributors for a US affiliate. ... The context of the FAPI regime, which was to classify a foreign affiliate’s income and “not provide a method for assigning capital to the different businesses within a single corporation” (para. 49), confirmed this reading – and the contrary reading would cause the failing of the test by CFAs in their early years with significant capitalization but still building a customer base – and conversely, “it would be untenable to say that a foreign affiliate is conducting business with a lender or investor decades after receiving money from them” (para. 62). ... Regarding the alleged relevance of the parents’ corporate oversight as part of the conducting of Glenhuron’s business, “[f]undamentally, a corporation is separate from its shareholders” and its conducting its business “in accordance with policies adopted by the board of directors on behalf of the shareholders … but this does not change the fact that the corporation remains the party conducting business” – and treating oversight by a parent corporation as shifting the responsibility for conducting business was incompatible with the FAPI regime, in that if there is a “ controlled foreign affiliate … there is necessarily corporate oversight by its parent” (para. 64). ...

An approach to reasonableness review that respects legislative intent must therefore assume that those who interpret the law — whether courts or administrative decision makers — will do so in a manner consistent with this principle of interpretation. … [W]hatever form the interpretive exercise takes, the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision. ... Where, for example, the words used are “precise and unequivocal”, their ordinary meaning will usually play a more significant role in the interpretive exercise …. ...

Matco then identified a mutual fund management company which wanted to effect a public offering of shares of the taxpayer and use the proceeds (of $100M) for a new bond trading business to be carried on in the taxpayer – a transaction which then proceeded. ... In finding that the transactions (which he described, at para. 6, as “narrowly circumventing the text of s. 111(5)”) did not accord with the rationale of s. 111(5), so that the use of the tax attributes had been properly denied under s. 245(2), Rowe J stated (at paras. 124, 126, 128): [T]he appellant was gutted of any vestiges from its prior corporate “life” and became an empty vessel with Tax Attributes. … Moreover, the shareholder base of the taxpayer underwent a fundamental shift throughout the transactions …. Matco achieved the functional equivalent of … an acquisition of [de jure] control through the Investment Agreement, while circumventing s. 111(5), because it used separate transactions to dismember the rights and benefits that would normally flow from being a controlling shareholder. ...

Côté J, for the three dissenting Justices, indicated (at para. 131): While the Minister generally has no discretion in determining a taxpayer’s liability … the power the Minister has under s. 247(10) is not permissive when a downward adjustment is sought and/or established … [and] must be exercised in order to determine the amount of tax liability. ... Dow’s theory would lower the “bar by interpreting s. 18.5 to exclude the Federal Court’s jurisdiction not just where a decision is subject to an express statutory appeal, but also where it is merely captured by an appeal provision by implication” – which was “likely to provoke litigation about which discretionary decisions are caught, implicitly, by statutory appeal provisions in other settings” (para. 8). Given Dow’s acknowledgement that, if the Minister did not issue an assessment after she made a discretionary decision under s. 247(10), her decision could be challenged by way of judicial review in the Federal Court, this implied “an untenable solution in which the Federal Court would retain its judicial review jurisdiction over discretionary decisions by the Minister as a general rule, but it would lose its jurisdiction to conduct judicial review of those same discretionary decisions if they are followed by assessments” – which raised the “difficulty of there being two different courts — applying two different standards of review — with jurisdiction to review discretionary decisions under s. 247(10), depending on whether or not an assessment is issued after the decision is made” (para. 95). ...

Before affirming the decision of the Federal Court of Appeal ordering a new hearing before a different judge in response to these violations of the witness’s and counsel’s language rights under s. 133 of the Constitution Act, 1867, s. 19 of the Charter and ss. 14 and 15 of the Official Languages Act, Gascon and Côté JJ stated (at paras. 46, 48, 64 and 78): [E]ven if there was no error in the decision on the merits, the language rights in question would be compromised if no remedy was granted … [A] new hearing will generally be an appropriate remedy for most language rights violations. … The judge’s insistence that [Industrial’s counsel] speak English during most of his argument constitutes a flagrant violation of the lawyer’s language rights. … [T]he order for a new hearing was fully justified. … The violations were numerous and, in some cases, serious and repeated, and they brought the administration of justice into disrepute. ...