Table of Contents


Soulliere v. Canada, 2022 FCA 126

presumption of consistent expression

After finding that an initial director had not satisfied the requirement under the Business Corporations Act (Ontario) that a replacement director be appointed by virtue of an OBCA provision that deemed a de facto director to be a director, Gleason JA went on to state (at para. 16):

This textual interpretation is also supported by the interpretive presumption of consistent expression, which would require, unless the context dictates otherwise, that the terms “elected” and “appointed” be given a meaning in subsection 119(2) that is consistent with other provisions in the OBCA where these terms are used … .

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 227.1 - Subsection 227.1(4) an incorporating director’s resignation was invalidated because he was not replaced 381
Tax Topics - Excise Tax Act - Section 323 - Subsection 323(5) failure to replace initial director invalidated his purported resignation 259

Lawyers’ Professional Indemnity Company v. Canada, 2020 FCA 90

presumption of the same meaning

Before finding that a marginal note to s. 149(1)(c), which paragraph had similar wording to s. 149(1)(d.5), illuminated the interpretation of the latter provision, Mactavish JA stated (at para. 56):

[I]t is … a basic principle of statutory interpretation that where the same words appear in different parts of a statute, the presumption is that they are to be given the same meaning: R. v. Zeolkowski, [1989] 1 S.C.R. 1378 … at para. 19.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 149 - Subsection 149(1) - Paragraph 149(1)(d.5) LPIC was not exempt under s. 149(1)(d.5) because its owner, the Law Society, did not provide municipal-type services 452
Tax Topics - Statutory Interpretation - Interpretation Act - Section 14 marginal notes may be considered as part of the interpretive process 96
Tax Topics - Statutory Interpretation - Redundancy/reading in words narrower construction avoided rendering language redundant 81

Barejo Holdings ULC v. Canada, 2020 FCA 47

presumption of consistent expression is not absolute

In the context of his view that the determination of whether “Notes” held by an offshore fund in which the taxpayer was invested constituted “debt” should be determined in light of the text, context and purpose of the particular provision at issue (s. 94.1(1)(a)) rather than such determination being made for purposes of the Act as a whole, Noël CJ stated (at paras. 52-53):

The parties also proceeded on the assumption that the meaning of debt is the same throughout the Act regardless of the provision in which this word is used … . The presumption of consistent expression supports this approach … .

However, this presumption is not absolute. As explained in Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385, 89 D.L.R. (4th) 218, at page 400, “[u]nless the contrary is clearly indicated by the context, a word should be given the same interpretation or meaning whenever it appears in an act”. That the same word can have a different meaning depending on the context in which it is used is particularly so when dealing with the Act, a statute known for its specificity and technical complexity (Will-Kare, para. 33). This case illustrates the importance of examining the particular provision in issue when dealing with the Act.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 94.1 - Subsection 94.1(1) - Paragraph 94.1(1)(a) the amount payable under a “debt” for s. 94.1(1)(a) purposes need not be crystallized until maturity 692
Tax Topics - Income Tax Act - Section 12 - Subsection 12(11) - Investment Contract 3 tests for what constituted debt under s. 94.1(1)(a) 300

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65

presumption of consistent expression

In connection with finding that an appellate standard of review (e.g., of correctness where there is a question of law) should be applied to judicial review of an administrative decision from which there is a statutory right of appeal, the Court stated (at para. 44):

[T]here is no convincing reason to presume that legislatures mean something entirely different when they use the word “appeal” in an administrative law statute than they do in, for example, a criminal or commercial law context. Accepting that the word “appeal” refers to the same type of procedure in all these contexts also accords with the presumption of consistent expression, according to which the legislature is presumed to use language such that the same words have the same meaning both within a statute and across statutes … .

Words and Phrases
Locations of other summaries Wordcount
Tax Topics - Other Legislation/Constitution - Federal - Federal Courts Act - Section 18.1 - Subsection 18.1(2) correctness appellate standard for questions of law not generally applicable to s. 18.1 reviews 984
Tax Topics - Income Tax Act - Section 220 - Subsection 220(3.1) correctness standard applied to questions of law of central importance, reasonableness standard applicable to most reviews 542
Tax Topics - General Concepts - Stare Decisis prior decisions can be departed from where this will reduce uncertainty 254
Tax Topics - Statutory Interpretation - Ordinary Meaning administrative decisions must have regard to the provision’s text, context and purpose 222

Canada v. Tallon, 2015 DTC 5082 [at 6023], 2015 FCA 156

stipulation on "medical services" in one paragraph carried over to another paragraph in same subsection that did not include that stipulation

Before finding that the textual meaning of "medical service" specified in s. 118.2(2)(a) should inform the meaning of that term in ss. 118.2(2)(g) and (h), Ryer JA stated (at para. 34):

A contextual interpretative approach favours a consistent interpretation of that term in each of those provisions. As noted by Fish J. in R. v. Clark, 2005 SCC 2, [2005] S.C.J. No. 4 at para. 51, "Parliament could not have intended that identical words should have different meanings in two consecutive and related provisions of the very same enactment."

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 118.2 - Subsection 118.2(2) - Paragraph 118.2(2)(g) warm climate not a "medical service" 180
Tax Topics - Statutory Interpretation - Hansard, explanatory notes, etc. Hansard referred to in purposive interpretation 57

Confessions Productions Inc. v. The Queen (BC), 2014 DTC 5069 [at 6961], 2014 BCSC 813

substantively identical federal and provincial provisions required to be applied consistently

The taxpayer produced a movie in Canada for which it would have qualified for B.C. film tax credits, except that its application therefor was not filed on a timely basis. The federal portion of the credits was allowed because the federal Minister ("MNR") and CRA applied a "deemed" filing date to the necessary documents. However, the same administrators did not apply the deemed filing date to the provincial application.

Davies J allowed the taxpayer's provincial claim. Although differently worded, the applicable federal and provincial provisions were substantively identical. Therefore, it was not open to the CRA officials to deny B.C. credits, as they had allowed the federal credits on the same facts. Davies J stated (at para. 143):

[T]he CRA and MNR effectively approbated and reprobated the same conduct by the Appellant and thereby reached inconsistent decisions by failing to apply the same considerations and deemed facts to both applications.

Canada v. Lehigh Cement Limited, 2014 DTC 5058 [at 6849], 2014 FCA 103, aff'g 2013 DTC 1139 [at 740], 2013 TCC 176

restricting of anti-avoidance rule to avoid arbitrary application

In rejecting the Minister's claim that a specific anti-avoidance provision (s. 95(6)(b), contained in the subdivision i foreign affiliate rules rather than being included with the more general provisions in Part XVI) should be interpreted broadly so that it could be "applied in a variety of circumstances where a taxpayer has engaged in what the Minister considers to be abusive tax planning involving foreign corporations" (para. 62), Stratas JA stated (at para. 64) that this "creates the spectre of similarly-situated taxpayers being treated differently for no objective reason," and (at para. 67):

...I would be loath to interpret paragraph 95(6)(b) in a way that gives the Minister such an unlimited and ill-defined discretion - a standardless sweep - as to whether or not tax is owing, limited only by her view of unacceptability. It would be contrary to fundamental principle. It would also promote inconsistent and arbitrary application, the bane of consistency, predictability and fairness.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 95 - Subsection 95(6) - Paragraph 95(6)(b) restricted to status-manipulating acquisitions or dispositions 347
Tax Topics - Statutory Interpretation - Headings provision not in Tax Avoidance Part of Act 149

See Also

4145356 Canada Limited v. The Queen, 2011 DTC 1171 [at 937], 2011 TCC 220

The taxpayer acquired units in a Delaware limited partnership ("Crown Point"), whose other limited partner ("Altier") and whose general partner were Bank of America subsidiaries and which had elected to be classified as a corporation for purposes of the Code. In light of the right of the taxpayer to require Altier, which was the vendor of the units, to repurchase the units, the taxpayer's purchase of those units was characterized for purposes of the Code as a secured loan, so that the$400 million purchase price for the units was treated as a loan by the taxpayer to Altier, and the partnership distributions made by Crown Point to the taxpayer were treated as deductible interest by Altier. Crown Point had made a loan of $1.6 billion to another Bank of America subsidiary, and paid US corporate income tax on the interest income thereon. The taxpayer included its share of the Crown Point income (essentially this interest income) in computing its income for purposes of the Act, and claimed a foreign tax credit under s. 126(2) based on its share of the Crown Point US corporate tax for the year. The Minister's argued that the taxpayer was ineligible for a s. 126(2) foreign tax credit on the basis that the taxpayer did not itself pay any US income tax.

Webb J. found (at para. 28) that the word "paid" did not require a corresponding liability of the payor to make the payment. Furthermore (at para. 37):

Since the income of the Appellant is its share of the income of Crown Point (from the same sources of income), in determining whether the Appellant paid foreign taxes in relation to this income, the amount of foreign taxes paid by the Appellant should be its share of the foreign taxes paid by Crown Point in relation to that same income, even though Crown Point is a separate legal entity under the laws of Delaware. The Appellant would bear the economic burden of such taxes as such taxes would have to be deducted from the amount that could be distributed to the Appellant.

Bozzer v. Canada, 2010 DTC 5025 [at 6612], 2010 FC 139, rev'd 2011 DTC 5106 [at 5922], 2011 FCA 186

rev'd on other grounds 2011 DTC 5106 [at 5922], 2011 FCA 186

Shore J. found that he should apply a decision of the Federal Court of Appeal on the meaning of "taxation year" in s. 127(5) even though that section had since been repealed, and then stated (at para. 35):

The Applicant argues that subsection 220(3.1) of the ITA is ambiguous and therefore, it should use the residual presumption in favour of the taxpayer to construe it in favour of the taxpayer. While the residual presumption is a tool at the Court's disposal, the Court takes note of the ruling in Notre-Dame de Bons-Secours [[1994] 3 S.C.R. 3, 50 A.C.W.S. (3d) 541] where the Supreme Court held that the residual presumption is exceptional and should only be used when a court must choose between two valid interpretations. The Supreme Court also cited the case of Symes, [[1993] 4 S.C.R. 695], and held that "[o]nly a reasonable doubt, not resolved by the ordinary rules of interpretation, will be settled by recourse to the residual presumption in favour of the taxpayer" (Notre-Dame de Bon Secours at p. 20).

The Court of Appeal accepted the taxpayer's submission (at para. 12) that subsection 220(3.1) "permits the Minister to exercise his discretion to cancel interest accrued in any taxation year ending within ten years before the taxpayer's application for relief, regardless of when the underlying tax debt arose." Stratas J.A. noted (at para. 18) that, taken in isolation, "interest... payable... in respect of a taxation year" was ambiguous. Furthermore, the interpretation at trial was (para. 36) "contrary to the purpose of subsection 220(3.1): to allow taxpayers to ask for relief against penalties and interest and to allow the Minister to grant such relief where, in his view of the overall fairness of the situation, it is appropriate to do so."