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The Queen, 2019 TCC 76, rev'd 2021 FCA 160-- summary under Subsection 256(8) Summary Under Tax Topics- Income Tax Act- Section 256- Subsection 256(8) loss streaming rules are conditioned on an acquisition of effective control After finding that a third-party did not have a call right to acquire a further block of shares sufficient to give it a s. 251(5)(b) right to acquire control of a Lossco, Paris J found that there was no abuse of the loss-streaming rules (and, in particular, of ss. 256(8) and 251(5)(b)), stating (at paras. 134, 147): I … find that the object, spirit and purpose of subsection 111(5) is to target manipulation of losses of a corporation by a new person or group of persons, through effective control over the corporation’s actions…. [T]he circumstances referred to by the Respondent do not, in my view, indicate that Matco had effective control over the majority of the voting shares of the Appellant prior to the IPO …. ...

Canada, 2019 FCA 299-- summary under Stare Decisis Summary Under Tax Topics- General Concepts- Stare Decisis consent judgments had no precedential value In rejecting arguments that the Federal Court of Appeal should not follow its earlier decision in Maréchaux, Noël CJ stated (at para 52): … [T]his Court will not overrule a prior decision unless it can be shown that in rendering it, the Court overlooked binding precedents or ignored relevant statutory authority…. ... Noël CJ also stated (at para 61): … [T]he four Consent Judgments signed by the Minister involving other participants in the [subject leveraged donation] Program for taxation years subsequent to the enactment of subsections 248(30)-(32)… are of no assistance to the appellants. ...

He stated (at paras. 76-77): The purpose of the Act … is to reduce GHG [green-house gas] emissions on a nation-wide basis. ... After noting (at para. 80) that “there is today a greater appreciation that environmental pollution can transcend national and international boundaries and it is no longer thought of as a purely local concern,” and in finding that the charges were within the national concerns branch of the federal peace, order and good government (POGG) power, he stated (at paras. 113-114, 133): Counsel for the Attorney General of British Columbia proposes a useful summary of the “singleness, distinctiveness and indivisibility” requirements: (1) singleness requires that the matter be characterized as specifically and narrowly as possible, at the lowest level of abstraction consistent with the fundamental purpose and effect of the statute; (2) distinctiveness requires that the matter be one beyond the practical or legal capacity of the provinces because of the constitutional limitation on their jurisdiction to matters “in the Province”; and (3) indivisibility means that the matter must not be an aggregate of matters within provincial competence, but must have its own integrity – this normally occurs where the failure of one province to take action primarily affects extra-provincial interests, including the interests of other provinces, other countries and Indigenous and treaty rights. ... Establishing minimum national standards to reduce GHG emissions meets these requirements. … Confining Canada’s jurisdiction to the establishment of minimum national standards to reduce GHG emissions does not result in a massive transfer of broad swaths of provincial jurisdiction to Canada, as Ontario claims. ...

In commenting on the third ground, he stated (at paras. 21, 23): [T]he Assistant Commissioner … stated that “the legislative intent [is] that only purchasers who are not consumers can take possession of goods in Canada for export on a zero-rated basis.” ... He also implicitly acknowledged the general intent noted in Montecristo … that GST/HST should be limited to consumption within Canada. The next sentence of the Assistant Commissioner’s analysis is equally reasonable in view of the more particular intent reflected in the detailed conditions for zero-rating: “Goods purchased by non-resident consumers are only intended to be zero-rated if they are shipped to a destination outside Canada, or they are sent by mail or courier to an address outside Canada.” … The Assistant Commissioner concluded reasonably that the predicament in which Escape Trailer found itself (being liable for HST amounts that were not collected from customers) was caused not by any unintended results of the legislation, but rather by its failure to comply with any of the detailed conditions for zero-rating. ...

… [Under the Agreement] [t]he obligation to pay the consideration is linked to the promotional and marketing services to be provided by Aeroplan to CIBC … [and] the other obligations of Aeroplan (which would include issuing Aeroplan Miles to CIBC’s customers) are incidental to the promotional and marketing services. … Just as in Global Cash, the agreement under which the consideration for the supply was paid by CIBC should play a dominant role in determining what was acquired for the amounts that were paid. … The issuance of Aeroplan Miles to CIBC’s customers cannot be elevated to be the predominant supply when such issuance of Aeroplan Miles is not even mentioned in the referral activities for which the consideration was payable. … The legal relationship between CIBC and Aeroplan is defined by the agreement between these two parties. There is nothing to suggest that this agreement is not a bona fide agreement. … Before dismissing CIBC’s appeal, he declined to address the second argument. ... This may be a boon for cunning drafters and their bag of tricks. … [T]he element that gives the supply commercial efficacy—the predominant element of the supply—is the right to allocate Miles. ...

., 2019 FC 506, aff'd 2020 FCA 85-- summary under Subsection 231.2(3) Summary Under Tax Topics- Income Tax Act- Section 231.2- Subsection 231.2(3) authorization of CRA requirement for a construction material company to disclose its customers with significant purchases Pursuant to ITA s. 231.2(3) and ETA s. 289(3), the Minister sought the following information about residential and commercial construction contractors having an account with the Respondent (“Roofmart”) and for whom the total annualized purchases were $20,000 or greater for the 4 ½ year period covered (and “Unnamed Persons Requirement”): (a) Identifying information (e.g., name, address, phone number and contact person); (b) The business number, if known; (c) The Customers’ itemized transaction details including invoice date, invoice number, total sales amount, method of payment, and address of delivery, and (d) All bank account information for the Customers (including transit, institution, and account numbers) from credit applications and/or otherwise maintained by Roofmart in its records. In rejecting Roofmart’s submissions that authorization of the Unnamed Persons Requirement should not be granted, Campbell J stated (at para.11) that the unnamed persons were an ascertainable group as “the total annual purchase requirement set out in the Unnamed Persons Requirement is sufficient to establish the target group of residential and commercial contractors among Roofmart’s customers,” and (at para. 13) that the Unnamed Persons Requirement had been established to had been “made to verify compliance by the person or persons in the group with any duty or obligation under the ITA and ETA ” e.g., verifying that the unnamed persons had filed all of their required income tax returns and calculated and remitted GST/HST. ...

In confirming that CRA had not acted unreasonably in declining to recommend a remission order under s. 23(2) of the Financial Administration Act, Locke JA noted that CRA had “implicitly acknowledged the general intent noted in Montecristo … that GST/HST should be limited to consumption within Canada,” but had reasonably considered that “Goods purchased by non-resident consumers are only intended to be zero-rated if they are shipped to a destination outside Canada, or they are sent by mail or courier to an address outside Canada,” and further stated (at para. 23): The Assistant Commissioner concluded reasonably that the predicament in which Escape Trailer found itself … was caused not by any unintended results of the legislation, but rather by its failure to comply with any of the detailed conditions for zero-rating. ...

The Investment Agreement also appears to contemplate the possibility of a sale of the Remaining Shares (or some of those shares) to a third party, without the need for Matco’s consent …. ... Furthermore, he accepted (at para. 62) testimony that: [I]t was Newco’s choice to sell the Remaining Shares to Matco, and … the decision was made to accept Matco’s offer in April 2009 because Newco needed the money for its operations and was concerned about the possibility of a decline in value of those shares …. ...

In finding that this arrangement did not constitute a joint venture for s. 273 purposes, Teskey J first quoted (at para. 52) from an extended extract from Central Mortgage & Housing Corporation v. Graham, 43 D.L.R. (3d) 686 (N.S.S.C.) including the following passage from Williston on Contracts: [T]he decisions are in substantial agreement that the following factors must be present: (a) A contribution by the parties of money, property, effort, knowledge, skill or other asset to a common undertaking; (b) A joint property interest in the subject matter of the venture; (c) A right of mutual control or management of the enterprise; (d) Expectation of profit, or the presence of “adventure”, as it is sometimes called; (e) A right to participate in the profits; (f) Most usually, limitation of the objective to a single undertaking or ad hoc enterprise. … Teskey J then stated (at para. 55): I do not find there existed the right to participate in profits nor an expectation of profit, from the infrastructure for either party. ...

& W. Paul, Ltd. v. Wheat Commission, [1937] A.C. 139 (H.L.)), unless a statute so authorizes (Re George Edwin Gray (1918), 57 S.C.R. 150). ... However, the underlying rationale is the same as where subordinate legislation is said to be inconsistent with another Act of Parliament ‑‑ there is a presumption that the legislature did not intend to make or empower the making of contradictory enactments. ...