Redundancy/reading in words

Table of Contents


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

narrower construction avoided rendering language redundant

Before going on to indicate that the expansive interpretation of s. 149(1)(d.5) submitted by the taxpayer would have the effect of making it unnecessary in the provision to refer to a municipality, Mactavish JA stated (at para, 52):

[L]egislatures generally avoid the use of unnecessary or superfluous words in legislation, and that every word in a statute is presumed to have a specific role to play in advancing the legislative purpose: … Proulx, 2000 SCC 5 … ..

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 - Consistency presumption of the same meaning 78

Canada v. Colitto, 2020 FCA 70

decision that had the effect of reading in words was reversed

The expansive effect given by the Tax Court to the exclusion from director’s liability in s. 227.1(2) had the effect of reading two words into that provision, namely, that a director is not liable for the corporation’s default unless “and until” the specified s. 227.1(2) procedures took place (in 2011). The decision was reversed.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 227.1 - Subsection 227.1(1) a director’s s. 227.1 liability can flow through to a transferee under s. 160 well before the s. 227.1(2) claim conditions have been met 403
Tax Topics - Excise Tax Act - Section 323 - Subsection 323(2) director's liability arises before procedures are taken against the corporation 298

Loblaw Financial Holdings Inc. v. Canada, 2020 FCA 79, aff'd 2021 SCC 51

error to apply an unexpressed intention

At issue was whether a Barbados bank subsidiary (Glenhuron ) of the taxpayer, which used equity funds received from its Canadian parent to invest in short-term debt obligations, conducted its business principally with persons with whom it dealt at arm’s length, as required in s. 95(1) - investment business - (a). In rejecting the Crown’s submission that there was a requirement that there be an element of competition involved in the receipt of funds by Glenhuron, Woods JA stated (at para. 58):

[This] is an example of a court inferring a purposive interpretation from unexpressed legislative intent. This is … a legal error. As stated [in Shell]: “This Court has consistently held that courts must therefore be cautious before finding within the clear provisions of the [ITA] an unexpressed legislative intention ...” … . The emphasis in the Tax Court’s reasons on an unexpressed intention of competition is not appropriate in this case which involves a FAPI scheme that is drafted with mind-numbing detail.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 95 - Subsection 95(1) - Investment Business - Paragraph (a) a Barbados bank sub conducted its business of investing in short-term debt principally with arm’s length persons 602
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Business receipt of equity funds from parent was not part of Barbados bank’s business 188
Tax Topics - Statutory Interpretation - Drafting Style no additional requirements should be inferred in legislation drafted with “mind-numbing detail” 172
Tax Topics - General Concepts - Separate Existence subsidiary did not manage its funds on behalf of parent 161
Tax Topics - Income Tax Act - Section 95 - Subsection 95(1) - Foreign Accrual Property Income fundamental purpose of FAPI is to capture passive income 164

Canada (National Revenue) v. Cameco Corporation, 2019 FCA 67

CRA’s broad interpretation of s. 231.1(1)(a) would render s. 231.1(1)(d) redundant

CRA sought to compel Cameco to submit 25 listed employees of it and subsidiaries to CRA interviews. Rennie JA found that s. 231.1(1)(d) was limited to providing CRA aid in its “inspection, search, examination or review of records,” whereas here, CRA sought “oral answers to oral questions” in order to facilitate its “understanding of Cameco's potential tax liability.”

However, the Crown submitted that the word “audit” in the power under in s. 231.1(1)(a) to “inspect, audit or examine” encompassed the authority to ask questions of employees of a taxpayer, including the employees of its overseas subsidiaries, and to require that they be answered orally. In rejecting this submission, Rennie JA stated (at para. 23):

If the requirement to answer questions was implied in (a) then the obligation in paragraph (d) and the express power to compel answers, would be unnecessary. Interpretations that render any portion of a statute meaningless or redundant should be avoided

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 231.1 - Subsection 231.1(1) - Paragraph 231.1(1)(a) Minister cannot under s. 231.1(1) compel oral answers to its questions other than for aid in auditing taxpayer books and records 339
Tax Topics - Statutory Interpretation - Ejusdem Generis 3rd word in phrase was limited by focus on other 2 words 138
Tax Topics - Statutory Interpretation - Interpretation Act - Subsection 45(2) interpretation informed by legislative amendment narrowing the wording 58

Canada (National Revenue) v. Cameco Corporation, 2017 FC 763, aff'd 2019 FCA 67

presumption against tautology

After indicating that the Minister's expansive interpretation of s. 231.1(1)(a) had the effect of rendering s. 231.1(1)(d) redundant, McVeigh J stated (at para. 42):

The presumption against tautology militates against this interpretation (Placer Dome Canada Ltd v Ontario (Minister of Finance), 2006 SCC 20 at paras 45 and 46).

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 231.1 - Subsection 231.1(1) - Paragraph 231.1(1)(d) s. 231.1(1)(d) does not accord CRA an unfettered right to interview taxpayer personnel 463
Tax Topics - Other Legislation/Constitution - Federal - Tax Court of Canada Rules (General Procedure) - Section 95 - Subsection 95(1) unfettered CRA interview right would undercut Rules and proportionality principle 262

Canada (National Revenue) v. Thompson, 2016 SCC 21, [2016] 1 S.C.R. 381

presumption against tautology

Before finding that CRA was precluded from requiring an Alberta lawyer to provide detailed accounts receivables listings for his clients on constitutional grounds, the Court found that such accounting records were clearly intended in the s. 232(1) definition of solicitor-client privilege to be excluded from the protection for such privilege by the exclusion in the definition of that term for accounting records. In this regard, restrictively interpreting the exception as applying only to accounting records whose disclosure would not trench on privilege:

would violate the presumption against tautology, according to which “[i]t is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain” (para. 32).

Locations of other summaries Wordcount
Tax Topics - General Concepts - Solicitor-Client Privilege exclusion for accounting records was invalid even where CRA demands related to enforcement action against the lawyer 540
Tax Topics - Statutory Interpretation - Hansard, explanatory notes, etc. Hansard indicated an intent for an amendment to trench on privilege 107
Tax Topics - Statutory Interpretation - Speaking in vain presumption against the legislature using redundant words so as to speak in vain 49

Caithkin, Inc. v. Canada, 2015 FCA 118

condition was redundant if broadly construed

The Court affirmed a finding below that a company which placed children in foster homes for children's aid societies and assisted the foster parents was making a "re-supply" to the societies of foster care services which it had "acquired" from the foster parents, but that this resupply was not exempt because the company did not satisfy the requirement that its service be provided "in an establishment operated by the supplier for the purpose of providing such service." In rejecting an argument that "establishment" could encompass the business organization of the company, Rennie JA stated (para. 21):

[S]tatutes are to be interpreted so as to give meaning to every term and to avoid redundancy: Placer Dome Canada Ltd v Ontario (Minister of Finance), 2006 SCC 20 at para 45, [2006] 1 S.C.R. 715 at 739, citing Hill v William Hill (Park Lane) Ltd, [1949] AC 530 (HL). If, as contended, an establishment were to be more than the bricks and mortar of the physical building, the third criterion of the test would have been unnecessary - mere surplus language of no consequence.

John Doe v. Ontario (Finance), 2014 SCC 36, [2014] 2 S.C.R. 3

"advice" in "advice or recommendations" can't only entail "recommendations"

In response to the appellant's access to information request under Ontario Freedom of Information and Protection of Privacy Act ("FIPPA"), the Ministry refused to disclose various internal drafts of a policy options paper, on the basis that they contained "advice or recommendations" of public servants, which the Minister could therefore withhold under s. 13(1) of FIPPA. The Adjudicator found that the "advice or recommendations" exception did not apply, as "the information in the record must suggest a course of action that will ultimately be accepted or rejected by the person being advised."

Rothstein J stated (at para. 24):

[T]he Adjudicator left no room for "advice" to have a distinct meaning from "recommendation". A recommendation, whether express or inferable, is still a recommendation. "Advice" must have a distinct meaning. ... Otherwise, it would be redundant.

He found that, on a purposive reading, "advice" should be construed broadly. See summary under Access to Information Act, s. 21.

Locations of other summaries Wordcount
Tax Topics - Other Legislation/Constitution - Federal - Access to Information Act - Section 21 - Subsection 21(1) - Paragraph 21(1)(a) exclusion for "advice or recommendations" applied to draft policy papers 202

Envision Credit Union v. The Queen, 2010 DTC 1399 [at 4585], 2010 TCC 576, aff'd 2012 DTC 5055 [at 6842], 2011 FCA 321, aff'd 2013 DTC 5144 [at 6275], 2013 SCC 48

The taxpayer unsuccessfully argued (ca. para. 65) that s. 87(2) was intended to constitute a complete code as to the consequences of an amalgamation, so that it would be rendered redundant if an amalgamation could be governed by general Black & Decker ([1975] 1 S.C.R. 411) principles.

Canada v. Remai, 2009 DTC 5188 [at 6257], 2009 FCA 340

provision not to be interpreted such that it can never apply

In rejecting an interpretation of the Trial Judge that indicated that s. 251(1)(c) would not apply in any identifiable circumstance, Evans, J.A. stated (at para. 5) "Parliament is presumed not to intend provisions to have no practical application".

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 245 - Subsection 245(4) no abuse in controlling funds established 159
Tax Topics - Income Tax Act - Section 251 - Subsection 251(1) - Paragraph 251(1)(c) providing a favour is consistent with arm's length dealing 222

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. refused to give an expansive interpretation to what was charitable in the context of a submission that a sports organization should be considered to be charitable in part in light of the consideration that an expansive interpretation would undercut the distinction drawn under the Act between non-profit organizations that were operated exclusively for social welfare, and charitable organizations, and stated (at para. 28):

"When courts consider expanding the definition of charity, therefore, they must consider whether what is being proposed is an incremental change, or one with more complex ramifications that is better left to the legislature."

Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006 DTC 6532, 2006 SCC 20, [2006] 1 S.C.R. 715

presumption against tautology

After noting that the interpretation advanced by the taxpayer had the effect of making a statutory definition of "hedging" redundant (as such interpretation had the effect of limiting the taxpayer's mining profits to the consideration actually received from sales of its production, which would have been the case even without their purported expansion to hedging profits), LeBel J. stated (at para. 45):

"Under the presumption against tautology 'every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose' ... . To the extent that it is possible to do so, court should avoid adopting interpretations that render any portion of a statute meaningless or redundant ...".

Locations of other summaries Wordcount
Tax Topics - Statutory Interpretation - Interpretation Bulletins, etc. shifting CRA position could not be relied upon except to evidence ambiguity 79
Tax Topics - Statutory Interpretation - Resolving Ambiguity residual presumption in favour of the taxpayer 133
Tax Topics - Income Tax Regulations - Regulation 1204 - Subsection 1204(1) - Paragraph 1204(1)(b) cash-settled derivatives had the effect of fixing mine production] 453
Tax Topics - Income Tax Act - Section 9 - Capital Gain vs. Profit - Futures/Forwards/Hedges “hedging “ includes cash settled derivatives including options 461
Tax Topics - Statutory Interpretation - Regulations/Statutory Delegation addition of regulation did not significantly expand scope of tax 264

Ray v. Canada, 2004 DTC 6028, 2004 FCA 1

Sharlow J.A. reversed a finding of the Tax Court that the words 'as recorded by a pharmacist' in s. 118.2(2)(n) could be ignored stating (at p. 6031) that "it is for Parliament alone to determine whether the words 'as recorded by a pharmacist' should be removed ... ."

Canada (National Revenue) v. Kitsch, 2003 DTC 5540, 2003 FCA 307

S.231.2(1)(a) of the Act, which referred to a right of the Minister to require the production of "any information", was found not to be restricted to the production of documents and records given that documents and records were specifically dealt with in s. 231.2(1)(b) of the Act. After referring to the statement in Communities Economic Development Fund v. Canadian Pickles Corp. [1991] 3 S.C.R. 388 that "it is a principle of statutory interpretation that every word of a statute must be given meaning", Malone J.A. stated (at p. 5543):

"Applied in this case, that principle dictates that meaning must be given to both paragraphs (a) and (b) of subsection 231.2(1), and unless there is good reason to the contrary, a different interpretation must be given to both paragraphs and different meanings to the words 'information' and 'document'."

Montgomery v. Canada, 99 DTC 5186, [1999] 2 CTC 196 (FCA)

Appraisal Institute recognized by statute where statutes or Regulations required appraisals to be performed by members

Rothstein J.A. found that to infer that the requirement in s. 8(1)(I)(i) that professionals be "recognized" by statute meant that a statute must provide for the regulation of the professional organization, would entail reading words into the statute that were not there.

GSW Appliances Ltd. v. The Queen, 98 DTC 6010, [1998] 1 CTC 335 (FCA)

In responding to the taxpayer's submission that "the use of the word 'encore' in conjunction with 'ou' in paragraph 20(1)(gg), where the English uses only the word 'or' indicates that the entire clause which follows is separate from the preceding clause", Linden J.A. stated (at p. 6012):

"The word 'encore' seems to be more accurately interpreted as a linguistic flourish which allows the drafters to join the two clauses together more smoothly. It is a matter of esthetics not one affecting the meaning of the provision."

Bolton v. The Queen, 96 DTC 6413 (FCA)

right to appeal assessment because of Minister's delay would be redundant if assessment were automatically vacated

The taxpayer argued that his assessment should be vacated because the Minister failed to act with all due dispatch to reconsider his assessment. Hugessen JA dismissed the taxpayer's appeal. Ginsberg, decided a week before, establishes that this is not a basis to vacate an assessment. Moreover, the taxpayer's right to appeal under s. 169(b) (i.e. where the Minister has taken 90 days or more to respond to a notice of objection) would be nonsensical if the effect of the Minister's failure were already to vacate the assessment.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 165 - Subsection 165(3) Minister's failure to act with all due dispatch is not a basis for vacating an assessment 95

Extendicare Health Services Inc. v. MNR, 87 DTC 5404, [1987] 2CTC 179 (FCTD)

At 5407:

"It has been recognized as a 'settled canon of construction' that 'a statute ought to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void or insignificant.'"

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 246 - Subsection 246(2) 29

Shell Canada Resources Ltd. v. MNR, 84 DTC 6129, [1984] CTC 169 (FCA)

presumption against redundancy

An interpretation was preferred which avoided rendering an exception to an exemption provision redundant.

The Queen v. Savage, 83 DTC 5409, [1983] CTC 393, [1983] 2 S.C.R. 428

exclusion in specific provision extended to general provision to avoid redundancy

An interpretation was avoided which would have rendered the exclusion from income under s. 56(1)(n), for the first $500 of prize money, by including that same amount in income under s. 6(1)(a) (p. 5416).

Goyer Estate v. The Queen, 78 DTC 6159, [1978] CTC 205 (FCTD)

legislature assumed not to make mistakes

Reference was made to the principle that "'a court of law is bound to proceed on the assumption that the legislature is an ideal person that does not make mistakes'."

See Also

Hancock & Anor v Revenue and Customs, [2019] UKSC 24

phrase read out of provision to give effect to intent

The taxpayers relied on a literal interpretation of provisions to rely on proposition that it had avoided tax on a capital gain on the sale of their domestic private company for foreign-currency denominated loan notes through a partial conversion of some of the loan notes into qualifying corporate bonds (“QCBs”) and with the QCBs and the unconverted loan notes then being converted into one series of secured discounted loan notes (“SLNs”), with such notes then being sold on an exempt basis.

The taxpayers’ interpretation rested on considering that the conversion into SLNs was to be treated as a single conversion of both the QCBs and loan notes rather than as two distinct conversions. This interpretation was supported by the relevant statutory wording which referred to a conversion which would consist of “or include” a QCB.

Lady Arden noted that the fact that such provision contemplated the possibility of such a single transaction and the use of such phrase were “powerful arguments” in favour of the taxpayers’ construction. However, she then stated (at paras. 21, 23-24, 26):

[T]he appellants’ interpretation result would be inexplicable in terms of the policy expressed in these provisions. …

Floyd and Lewison LJJ [below] did not give any meaning to the words “or include” in section 116(1)(b), but as I see it this was appropriate because … it is clear that the intention of Parliament was that each security converted into a QCB should be viewed as a separate conversion … .

Floyd and Lewison LJJ also relied on the principle in Luke v Inland Revenue Comrs [1963] AC 557. This enables the court, when interpreting a statute, to adopt (my words) a strained interpretation in place of one which would be contrary to the clear intention of Parliament. …

Nothing in this judgment detracts from the principle in Luke but in my judgment, it is unnecessary to consider its application in this case because … the construction of the relevant provisions is clear without resort to it.

Locations of other summaries Wordcount
Tax Topics - Statutory Interpretation - Absurdities Luke principle that a stained interpretation can be adopted to implement clear Parliamentary intention 141

Cascades Inc. v. The Queen, 2008 DTC 2387, 2007 TCC 730

In rejecting the Crown interpretation of s. 40(3.5)(c), Lamarre J. noted that the interpretation had the effect of making the stipulation therein that it applies "where subsections (3.3) and (3.4) apply to the disposition by a transferor of a share of the capital stock of a corporation" redundant.