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Bosa v Canada, 2025 BCSC 1284-- summary under Rectification & Rescission Summary Under Tax Topics- General Concepts- Rectification & Rescission BCSC lacked the jurisdiction to consider a request to rectify a clause in a family trust indenture whose interpretation was at issue in an impending TCC appeal The petitioners were the beneficiaries of a family trust, who sought to rectify the terms of the Trust Indenture to clarify that the assets of the trust had vested indefeasibly in them on the date defined in the Trust Indenture as the "Distribution Date," which occurred approximately 10 months before the 21st anniversary of the formation of the trust. ... Canada … 2013 ABQB 489, at para. 61. … The interpretation of the Trust Indenture which they [the petitioners] urge me to adopt is based on the same arguments that the Reassessment officer considered and rejected. Those arguments are the subject of the appeal to the Tax Court …. In further finding that, even if she had jurisdiction, rectification would not be appropriately granted, she stated (at para. 58) that “[i]t is well established that equitable relief is not available to avoid unanticipated adverse tax consequences which arise from the ordinary operation of the Income Tax Act … Collins Family Trust ….. ...

The Court stated (at paras 53, 60- 61): …[T]he case-law stemming from the judgment in Halifax does not require it to be established that the accrual of a tax advantage is the only objective of the transactions at issue. … In order to determine the substance and real significance of the leases at issue in the main proceedings, the referring court may, in particular, take account of the purely artificial nature of those transactions and the links of a legal, economic and/or personal nature between the operators at issue …. Such aspects are capable of demonstrating that the accrual of a tax advantage constitutes the essential aim pursued, notwithstanding the possible existence, in addition, of economic objectives …. …[T]he leases … had no commercial reality and were entered into … with the aim of reducing the VAT liability on the sales of immovable property … which they envisaged carrying out subsequently. ...

Canada (Attorney General), 2016 ONSC 2737-- summary under Rectification & Rescission Summary Under Tax Topics- General Concepts- Rectification & Rescission date of capital dividend declaration rectified to eliminate Part III tax The corporate applicant intended to distribute the applicable portion of a “capital gain” (likely, goodwill proceeds) from a business sale as a capital dividend. ... Before amending the directors’ resolution nunc pro tunc to change its date to November 1, 2012, Dunphy J stated (at paras. 7, 9): This case is quite unlike… Birch Hill … decided by me…[where] [t]he rectification sought would have materially re-ordered the transaction in ways that nobody had considered at the relevant time. There was a specific intention to allocate specific proceeds of a specific transaction to a specific tax account – the capital dividend account – to achieve a specific tax goal. ...

Ernst & Young LLP, 2015 BCCA 445-- summary under Agency Summary Under Tax Topics- General Concepts- Agency presumption that law firm agreement binds client The appellant’s B.C. law firm retained Ernst & Young to provide her with U.S. tax advice in connection with negotiating a separation agreement with her husband. ... In finding that the appellant was bound by the engagement agreement, Newbury JA applied (at para. 38) the principle in Shaw, Salter & Plommer v. Phipps & Cosgrove (1926) 37 B.C.R. 184 “that as a general rule, solicitors will be taken to be contracting on behalf of their clients in the course of their practice.” ...

Brogan Family Trust, 2014 ONSC 6354-- summary under Rectification & Rescission Summary Under Tax Topics- General Concepts- Rectification & Rescission no obligation to notify Crown if tax liability which was relieved has not been assessed The respondent family trust obtained a rectification order, to permit trust distributions to minor grandchildren beneficiaries, on 26 November 2010, which was shortly after a sale of a business by the trust. ... In dismissing this motion, Ray J stated (at para. 13): I am not persuaded that… CCRA [sic] was affected by the order of McLean, J. … [After citing Canada v. ... Richter & Associates, [2000] OJ No. 2073 (Ont SC) aff'd [2001] OJ No. 1087 (Ont CA)]. ...

Deloitte & Touche, 128 OR (3d) 225, 2016 ONCA 11, rev'd in part 2017 SCC 63-- summary under Negligence, Fiduciary Duty and Fault Summary Under Tax Topics- General Concepts- Negligence, Fiduciary Duty and Fault auditors liable for failure to detect the company’s own fraud effected through its senior management A negligent audit by an auditing firm (“Deloitte”) of a Canadian public corporation (“Livent”), in which Deloitte failed to discover that senior management was fraudulently misstating the financial statements, was found by the trial judge to have resulted in damages to Livent, so that Deloittte was liable to the receiver-manager for Livent. ... In rejecting this submission, Blair JA noted (at para. 113) that the rationale for such an illegality (or “ ex turpi causa ”) defence “was to avoid “damage to the integrity of the legal system,” whereas this concern did not arise here as “the actual fraudsters will not profit from their wrongdoing and have not evaded criminal sanction…[n]or will Livent profit from the wrongdoing” (para. 156). ...

Collins Family Trust v Canada (Attorney General), 2019 BCSC 1030, aff'd 2020 BCCA 196, rev'd 2022 SCC 26-- summary under Rectification & Rescission Summary Under Tax Topics- General Concepts- Rectification & Rescission Fairmont cast doubt on but did not overrule Pallen After noting that the applications before him for the rescission of transactions entailing reliance on an interpretation of s. 75(2) that was established by Sommerer to be incorrect – and that in Pallen “which concerned an almost identical set of facts … rescission was granted” (para. 3), Giaschi J stated (at para. 5): I agree with the submissions of the respondent that the decisions... in Fairmont and Jean Coutu have seriously undermined Pallen. ... [holding] that a tax plan similar to the ones before me (and therefore also similar to the plan in Pallen) constituted abusive tax avoidance and was subject to GAAR. … In Satoma the primary purpose was found by the trial judge to be to avoid payment of any tax…. ...

Attorney General of Canada, 2017 ABCA 393-- summary under Rectification & Rescission Summary Under Tax Topics- General Concepts- Rectification & Rescission cannot use general equitable jurisdiction to do an end run around the narrow (post- Fairmont) rectification doctrine A last-minute requirement of a lender (“ATB”) to the target corporation (“Krang Energy”) for ATBH’s loan to be repaid on closing resulted in the purchase price being reduced by $35M and that amount being lent by an affiliate of the buyer (a predecessor (“Viking Holdings”) to the appellant in this action) to Krang Energy to fund the loan repayment. ... The means that the parties utilized in pursuit of their goal of a tax-neutral transaction – and not the goal of tax neutrality – are the primary focus of a rectification application. ... There is no principled basis, in the guise of exercising our equitable jurisdiction, to pump theoretical steroids into the rectification doctrine and give it the strength or force that the Supreme Court of Canada recently and consistently has declined to do. … ...

Barker v Baxendale Walker Solicitors (a firm) & Anor, [2017] EWCA Civ 2056-- summary under Negligence, Fiduciary Duty and Fault Summary Under Tax Topics- General Concepts- Negligence, Fiduciary Duty and Fault tax solicitor was negligent in not advising of the risk of an alternative interpretation Mr Baxendale-Walker, the sole equity partner in a law firm specializing in advising on tax-avoidance schemes, charged the taxpayer (Mr Barker) a fee of £2.4 million in advising on a scheme which Mr Barker implemented with a view to avoiding capital gains tax and inheritance tax respecting his shares of a private company. ... Turning to the negligence issue and in setting the stage, Asplin LJ stated (at paras 59 and 61): …The question is whether in the light of all the circumstances no reasonably competent solicitor in the position of the Respondents would have failed to give the specific warning that there was a significant risk that the EBT arrangement would fail to be tax effective because of the post-death exclusion construction. … …[I]t is perfectly possible to be correct about the construction of a provision or, at least, not negligent in that regard, but nevertheless to be under a duty to point out the risks involved and to have been negligent in not having done so …. In allowing the appeal, Asplin LJ found (at para 71): … [T]here was a significant risk that the … arrangement would not work as a result of the post-death exclusion construction which was centrally important to its structure and the likelihood that the promised tax advantages would be delivered. ...

Commissioner of Pay-roll Tax, [1984] BTC 8019 (PC)-- summary under Payment & Receipt Summary Under Tax Topics- General Concepts- Payment & Receipt indirect receipt of wages An argument was rejected to the effect that fees received by employees of a company were not wages because they were collected directly from clients of the company. ...