Expressio Unius est Exclusio Alterius


Canada v. Loblaw Financial Holdings Inc., 2021 SCC 51

specific addition of a competition requirement in another provision implied that there was no such requirement here

Côté J indicated (at para. 59) that a comparison of the “investment business” definition in s. 95(1) with s. 95(2.4)(b) which, unlike such definition, imposed a competition requirement:

reinforces that there is no reason to believe competition for customers is a necessary indicium of arm’s length dealings. Pursuant to the legal maxim expressio unius est exclusio alterius (“to express one thing is to exclude another”), one can interpret the competition requirement of s. 95(2.4)(b) as an implied exclusion of such a requisite for the financial institution exception at s. 95(1) (R. v. Ulybel Enterprises Ltd., 2001 SCC 56 … at para. 42). The necessary inference to be drawn from the express language of s. 95(2.4)(b) is that Parliament chose not to include a competition element in the financial institution exception.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Business “business conducted,” as contrasted to “business,” did not include the raising of capital 229
Tax Topics - General Concepts - Foreign Law meaning of banking business under Barbados law was not persuasive 234
Tax Topics - Income Tax Act - Section 95 - Subsection 95(1) - Investment Business - Paragraph (a) bank business was conducted with arm's length persons notwithstanding that capital raised from shareholder 579
Tax Topics - Statutory Interpretation - Certainty full effect should be given to Parliament’s precise and unequivocal words to produce certainty 88
Tax Topics - Statutory Interpretation - Speaking in vain Parliament does not speak in vain 72
Tax Topics - Income Tax Act - Section 91 - Subsection 91(1) two policies balanced in FAPI regime 79

Copthorne Holdings Ltd. v. Canada, 2012 DTC 5006 [at 6536], 2011 SCC 63, [2011] 3 S.C.R. 721

implied exclusion principle

After referencing the expressio unius or "implied exclusion" principle, Rothstein J agreed (at para. 108) with the taxpayer's submission that when a definition of paid-up capital ("PUC") "lists a series of specific 'grinds' [to PUC], without any indication of the possibility of making additions to that list, that it may be assumed that the list is exhaustive." However, he went on to find that this "implied exclusion argument" was misplaced when it was advanced to argue that the general anti-avoidance rule could not be applied to prevent reliance by the taxpayer on this definition in a manner that defeated the underlying rationale of the PUC provisions.

Locations of other summaries Wordcount
Tax Topics - General Concepts - Stare Decisis high threshold for reversing not met 193
Tax Topics - Income Tax Act - Section 245 - Subsection 245(1) - Tax Benefit tax benefit illuminated by comparison to reasoanble alternative 315
Tax Topics - Income Tax Act - Section 245 - Subsection 245(4) policy of s. 87(3) is to avoid preservation of PUC on parent and sub amalgamation 372
Tax Topics - Income Tax Act - Section 248 - Subsection 248(10) "in contemplation" could be retrospective 342

A.Y.S.A. Amateur Youth Soccer Association v. Canada (Revenue Agency), 2007 DTC 5527, 2007 SCC 42, [2007] 3 S.C.R. 217

Rothstein J. rejected a submission of the Crown that because Parliament had enacted provisions of the Act respecting registered Canadian amateur athletic associations (RCAAAs), it should be considered to have established that athletic associations could not also qualify as charitable organizations. After noting (at para. 16) that "because of the degree of precision and detailed characteristics of many tax provisions, an emphasis has often been placed on textual interpretation when taxation statutes are concerned", he went on to state (at para. 17 and 18):

"Similar caution is necessary when assessing claims that imply unexpressed meaning into the RCAAA provisions, i.e., that the RCAAA provisions also preclude charitable status for non-nationwide sports organizations of all descriptions. ... Rather, Parliament created a clear position for RCAAAs, and left the rest to be determined in accordance with the long-standing practice under the common law."

R. v. Dimsey, [2001] BTC 408 (HL)

A provision which deemed income transferred in circumstances of tax avoidance by individuals to non-resident corporations to be income of the transferor individual was found not to have the effect of deeming such income not to be income of the transferee corporations in light inter alia of comparison to other provisions which explicitly stated that amounts that were deemed to be income of one person were deemed not to be income of any other person.

Allcolour Paint Ltd. v. The Queen, 97 DTC 5266, [1997] 2 CTC 356 (FCA)

It was appropriate to apply the maxim, expressio unius est exclusio alterius in finding that the failure of s. 127(8) to refer to an ability of taxpayers who carried on business in partnership to claim investment tax credits at the enhanced rate of 35% indicated that such rate was not available.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 127 - Subsection 127(8) 48

Hickman Motors Ltd. v. Canada, 97 DTC 5363, [1997] 2 S.C.R. 336, [1998] 1 CTC 213

After referring to various provisions of the Act that established specific time limitations, the L'Heureux-Dubé J. went on to find that Regulation 1102(1)(c) should not be found to apply whenever a revenue-producing asset was held for only a few days:

"Had Parliament intended such time restrictions to apply to CCA, it would have said so - expressio unius est exclusio alterius."

Locations of other summaries Wordcount
Tax Topics - General Concepts - Evidence failure to report revenue did not evidence its non-receipt 42
Tax Topics - General Concepts - Onus taxpayer demolished Minister's assumptions with uncontradicted testimony 41
Tax Topics - General Concepts - Payment & Receipt unrecorded revenues 148
Tax Topics - Income Tax Act - Section 18 - Subsection 18(1) - Paragraph 18(1)(a) - Reasonable Expectation of Profit 85
Tax Topics - Income Tax Act - Section 20 - Subsection 20(1) brief earning of rental income 130
Tax Topics - Income Tax Act - Section 3 - Paragraph 3(a) - Business Source/Reasonable Expectation of Profit reasonable expectation of profit test directed only at existence of business source 85
Tax Topics - Income Tax Act - Section 4 - Subsection 4(1) - Paragraph 4(1)(a) integrated farming equipment and auto leasing 95
Tax Topics - Income Tax Regulations - Regulation 1102 - Subsection 1102(1) - Paragraph 1102(1)(c) generation of revenue for a short time was sufficient 352
Tax Topics - Income Tax Regulations - Regulation 1102 - Subsection 1102(14) deemed property to be acquired for an income-producing purpose 37
Tax Topics - Statutory Interpretation - Drafting Style absence of specific-hold period was telling 85
Tax Topics - Statutory Interpretation - Interpretation Act - Section 16 26

Royal Bank of Canada v. Sparrow Electric Corp., 97 DTC 5089, [1997] 1 S.C.R. 411

After finding that s. 28(1) of the Personal Property Security Act was inconsistent with a broad interpretation of a licence of a debtor to sell without the proceeds being subject to the respondent's security interests, Iacobucci J. stated (at p. 5091):

"... this is an appropriate case for the invocation of the maxim expressio unius est exclusio alterius . The statute prescribes certain consequences for the security interest that follow a dealing with inventory. In particular, the statute contemplates defeasance of the interest if the debtor actually sells the inventory and applies the proceeds to an obligation to a third party. Significantly, the statute does not contemplate a defeasance on the happening of any other event. In my view, the statute occupies the field and crowds out other possible interpretations of the licence ..."

The Queen v. Nassau Walnut Investments Inc., 97 DTC 5051, [1998] 1 CTC 33 (FCA)

In noting that the presence of specific statutory relief for late elections did not establish that there was not an unexpressed availability of a late designation under paragraph 55(5)(f), Robertson J.A. stated (at p. 5057):

"I know of no case which holds that because an exception is provided by statute for one case and not another, that fact alone is determinative such that no other exceptions may exist."

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 55 - Subsection 55(2) late s. 55(5)(f) designation available 194
Tax Topics - Income Tax Act - Section 55 - Subsection 55(5) - Paragraph 55(5)(f) late s. 55(5)(f) designation available 162

The Queen v. Vancouver Art Metal Works Ltd., 93 DTC 5116, [1993] 1 CTC 346 (FCA)

In finding that Parliament should not be taken to have intended that the words "trader or dealer" in s. 39(5)(a) should be restricted to those who are so licensed by regulatory authorities, Létourneau J.A. noted that he was following the rule of construction applied in R. v. Multiform Manufacturing Co., [1990] 2 S.C.R. 624 where the Court "referred to the maxim expressio unius est exclusio alterius and ruled that the presence of a restriction in one paragraph reinforces the position that Parliament did not intend to restrict the scope of the other paragraphs in which the restriction did not appear" (p. 5118).

The Queen v. Taylor, 84 DTC 6234, [1984] CTC 244 (FCTD)

"Prima facie the same words in different parts of the same Statute should be given the same meaning unless there is a clear reason for not doing so." The word "spouse" was found to have a different meaning in s. 60(b) than in s. 73(1), in part, because the definition in s. 73(1.2) (a statutory ancestor of the present S.252(3) was made expressly applicable only to s. 73(1).

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 60 - Paragraph 60(b) 58

Ketz v. The Queen, 79 DTC 5142, [1979] CTC 186 (FCTD)

The plaintiff unsuccessfully argued that since s. 216(7) specifically provided that annuity income averaging was unavailable to a non-resident, by virtue of the rule exclusio unius inclusio alterius general averaging was available to non-residents. Annuity income averaging, in the absence of s. 216(7), would otherwise have been available to the plaintiff, whereas general averaging was not.

Associated Investors of Canada Ltd. v. MNR, 67 DTC 5096 (Ex. Ct.)

In rejecting a submission that s. 11(1)(f) of the pre-1972 Act (now s. 20(1)(p)), which permitted the deduction of bad debts in certain circumstances, impliedly prohibited a deduction for bad debts that did not fall within that provision, Jackett P. stated (at p. 5102):

"It might therefore had been thought, as the respondent contends, that a deduction for a 'bad debt' that is excluded from section 11(1)(f) by the qualifications expressed in it is impliedly prohibited. Such an interpretation would, however, have results that cannot in my view, have been contemplated. For example, a bond dealer, who, in effect, buys and sells 'debts', would, on such an interpretation, be precluded from taking into account losses arising from bonds becoming valueless ... ."

Minister of National Revenue v. Trans-Canada Investment Corporation Ltd., 55 DTC 1191, [1955] CTC 275, [1956] S.C.R. 49

"[T]he rule expressio unius est exclusio alterius must be applied with caution in construing a statute. To apply it in this case would, in my opinion, defeat the intention of Parliament." (p. 1199)

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 112 - Subsection 112(1) dividend-received deduction flowed through an investment trust 115
Tax Topics - Income Tax Act - Section 248 - Subsection 248(28) double (or triple) taxation may be intended 83

Army & Navy Department Stores Ltd. v. Minister of National Revenue, 53 DTC 1185, [1953] CTC 293, [1953] 2 S.C.R. 496

In finding that reference to control by a person did not include control by persons, Cartwright J. stated (pp. 1192-1193):

"When section 127 by clause (b) provides that corporations controlled directly or indirectly by the same person shall be deemed not to deal with each other at arm's length it appears to me to negative the view that corporations are to be deemed not to deal with each other at arm's length when controlled not by the same person but by the same group of persons. Expressio unius exclusio alterius. When the wording of clause (b) of section 127 is contrasted with that of clause (a) it seems to me impossible to read the word 'person' in clause (b) as including the plural".

See Also

Richard Lewin Re: The J.J. Herbert Family Trust #1 v. The Queen, 2011 DTC 1354 [at 1979], 2011 TCC 476, aff'd 2013 DTC 5006 [at 5525], 2012 FCA 279 [but overridden by s. 214(3)(f)(i)(C)]

Bédard J. found that, because s. 227(5) only applied to an amount which was paid rather than (as under s. 212(1)) to an amount which was paid or credited, it should not be applied to a situation where a trustee had credited (but not yet paid) an amount to a non-resident beneficiary - although, in any event, on the facts before the Court, the amount in question had not been credited. Bédard J. stated (at para. 64):

The Latin maxim "expressio unius est exclusio alterius", also known as the principle of implied exclusion, states that where the legislator causes a provision to apply to a number of categories but fails to include one that that could easily have been included, one may infer that the legislator intended to exclude that category from the application of the provision.

Honeywell Limited v. The Queen, 2006 DTC 3124, 2006 TCC 325

After noting that s. 152(4.01) permitted the Minister to assess beyond the normal reassessment period, where the taxpayer had provided a waiver, only in respect of the "matter" specified in the waiver, Bowman C.J. found that the Minister could not then do a "end run" around the restrictions in s. 152(4.01) by relying on the doctrine that there is virtually no restriction on what the Crown can plead in a reply and therefore now support his reassessment on an entirely different basis than that specified in the waiver given by the taxpayer.

Landry v. The Queen, 98 DTC 1416 (TCC) (Informal Procedure)

In finding that a lump sum payment received by the taxpayer from a disability insurer following her termination of employment was not taxable, Bowman TCJ. stated (at p. 1418):

"Paragraph 6(1)(a) is a general provision and it is not intended to fill in all the gaps left by paragraph 6(1)(f) - expressio unius est exclusio alterius."