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Rowe and Martin, JJ, jointly speaking for the minority of three, accepted (at para. 151) that, under the Treaty, the “ allocation of taxing powers follows the theory of ‘economic allegiance’," under which “taxes should be paid on income where it has the strongest ‘economic interests’ or ties, either in the state of residence or the source state,” – whereas here there was an abuse of that Treaty object since the “evidence demonstrate[d] that Alta Luxembourg had no genuine economic connections with Luxembourg as it was a mere conduit interposed in Luxembourg for residents of third-party states to avail themselves of a tax exemption under the Treaty” (para. 177). ... The object of the business property exemption was to provide a “ tax break [that] encourages foreigners to invest in immovable property situated in Canada in which businesses are carried on (e.g. mines, hotels, or oil shales)” (para. 77). ... Canada “could also have insisted on a subject-to-tax provision” under which it would forego its right to tax capital gains only if the other state actually taxed those gains – but did not (para. 85). ...

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. ...

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. ...

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. ...

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). ...

[B]ecause language rights are not procedural rights, the fact that a violation has had no impact on the fairness of the hearing is in principle not relevant to the remedy …. Indeed, even 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 … because such a violation deprives one party of the possibility of having access to Canadian justice in the official language of his or her choice. … A judge's failure to take the rights of the persons before him or her into account constitutes both an error of law and a denial of natural justice independently of the quality of his or her judgment and the absence of substantive errors. 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. ...

. … 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. ...

., 2018 SCC 8 " and that: “As Rothstein J. wrote, because of this fiduciary relationship,’“[t]he beneficial owner of property has been described as ‘the real owner of property even though it is in someone else’s name’ ‘ (Pecore v. Pecore, 2007 SCC 17 …).” (at para. 49) that: “Another core attribute of beneficial ownership is certainty as to the property that is subject to the trust ….” ...

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”. ...

. … [P]rovincial inability is established in this case. … First, the provinces, acting alone or together, are constitutionally incapable of establishing minimum national standards of GHG price stringency to reduce GHG emissions. … Second, a failure to include one province in the scheme would jeopardize its success in the rest of Canada. … Moreover, the matter’s impact on the provinces’ freedom to legislate and on areas of provincial life that would fall under provincial heads of power is qualified and limited. ...