Specific v. General Provisions

Table of Contents


Onenergy Inc. v. Canada, 2018 FCA 54

provision dealing with only certain situations was the more specific

After stating (at para. 29) that “arguably there is a conflict between subsection 141.01(2) of the Act and subsection 141.1(3) of the Act," Webb JA stated (at para. 30):

Because subsection 141.1(3) of the Act is the more specific provision that only applies in certain situations, it will override subsection 141.01(2) … .

Locations of other summaries Wordcount
Tax Topics - Excise Tax Act - Section 141.1 - Subsection 141.1(3) - Paragraph 141.1(3)(a) litigation services to recover fraudulent bonuses following a business’ termination were acquired in connection with that business 468
Tax Topics - Excise Tax Act - Section 141.01 - Subsection 141.01(2) no direct tracing to taxable supplies was required 271

Canada (National Revenue) v. ConocoPhillips Canada Resources Corp., 2017 FCA 243

specific time limitation rule in s. 166.1 was implied exception to the general waiver rule in s. 220(2.1)

Woods JA found that s. 220(2.1) (which provides that “where any provision of this Act… requires a person to file a… document…the Minister may waive the requirement”) does not accord the Minister the discretion to waive the requirement to file a Notice of Objection (respecting a situation where the taxpayer allegedly did not find out about the reassessment in question until after the one-year limitation in s. 166.1(7) to obtain an extension for filing an Objection had passed).

Woods JA held (at para. 42) that this “strict” limitation “is intentional,” and (at para. 48) that “the general waiver provision cannot be applied in this manner to override a more specific provision [s. 166.1(7)].” She stated (at paras. 48-49):

This is referred to as the “implied exception” rule of statutory interpretation in Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. at 363-367 (Markham: LexisNexis Canada Inc., 2014).

The principle was described in James Richardson & Sons, Ltd. v. Minister of National Revenue, [1984] 1 S.C.R. 614, 84 D.T.C. 6325 at 6329, where the Court referred to the English decision of Pretty v. Solly (1859), 53 E.R. 1032:

The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 220 - Subsection 220(2.1) CRA has no ability to use the s. 220(2.1) waiver to extend the period for filing a Notice of Objection 336
Tax Topics - Income Tax Act - Section 166.1 - Subsection 166.1(7) - Paragraph 166.1(7)(a) Parliament intended a strict one-year limitation 113

CDSL Canada Limited v. Canada, 2010 DTC 5055 [at 6746], 2008 FCA 400

The taxpayers, which carried on consulting businesses, computed their income for financial statement purposes by valuing the work in progress at the end of each year at fair market value (i.e., including a portion of the profit on uncompleted consulting contracts based on a percentage-of-completion method). The trial judge (2008 TCC 106) found that they were required to follow the same method for purposes of computing their income under the Act, given that a different conclusion would have made section 34 of the Act, which permitted certain professions to exclude income in respect of work in progress in computing their income, meaningless.

The Court of Appeal disagreed. Noël J.A. stated at para. 33 that s. 10(1), which requires that inventory be valued at the lesser of cost or fair market value, overrides any GAAP considerations. Noël J.A. also stated at para. 35:

With respect, it is incorrect to say that section 10 applies whenever section 34 applies. These two provisions operate differently. Taxpayers subject to section 10 must account for the value of their inventoried work in progress based on cost or FMV, depending on the circumstances; however, section 34 gives taxpayers the choice of excluding their inventoried work in progress in computing their income, in which case, section 10 does not apply.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 10 - Subsection 10(1) 215

Husky Oil Limited v. Canada, 2010 DTC 5089 [at 6887], 2010 FCA 125

avoidance of two statutory deeming rules creating two different statutory fictions

Sharlow, J.A. found that the "gift portion" exception to the rollover rule in s. 87(4) did not apply to a transaction in which the taxpayer received, on an amalgamation of its subsidiary with a subsidiary of another corporation, preferred shares that had a lower fair market value than the shares which it held of the subsidiary going into the amalgamation. In rejecting an alternative submission of the Minister that the amalgamation entailed an appropriation of property of the taxpayer (namely, its shares of its subsidiary) for the benefit of its shareholder (who wished this transaction to occur as part of a larger transaction), so that such shares of the subsidiary were deemed to be disposed of for their fair market value, Sharlow, J.A. stated (at para. 71-72):

"If subsection 69(4) can be applied to the disposition of shares to which para. 87(4)(a) also applies, the result in many cases (and certainly in this case) would be two statutory deeming rules creating two different statutory fictions. That cannot be ... In my view, the specific provisions of subsection 87(4) must trump the more general rule in subsection 69(4)."

National Bank Life Insurance v. Canada, 2006 FCA 161

zero-rating re insurance was to be dealt with exclusively under provision re insurance

The appellant provided administrative services to a non-resident company (Natcan) which operated in the reinsurance field and for which the appellant provides reinsurance for part of the risks it assumes in respect of customers obtaining mortgage loans. After finding (at para. 8) that ETA Sched. VI, Pt. IX, s. 2 dealt “specifically and exhaustively with the financial services relating to an insurance policy,” so that such services, if not zero-rated under s. 2, were not to be zero-rated under s. 1, Létourneau J.A. stated (at para. 9):

One of the fundamental principles of legislative construction is that a statute or provision of a statute which deals specifically with a subject-matter must take priority over, and override, any general legislation or provision dealing with the same subject-matter. The rule is derived from the Latin maxim generalia specialibus non derogant.

Locations of other summaries Wordcount
Tax Topics - Excise Tax Act - Schedules - Schedule VI - Part IX - Section 1 zero-rating re insurance was to be dealt with under s. 2 213

In re Ottawa Senators Hockey Club Corp., 2004 DTC 6062 (Ont Sup Ct J)

After noting that in the City of Verdun v. Doré [1997] 2 S.C.R. 862, the court held that "where general legislation is stated to operate 'notwithstanding any stipulation to the contrary,' the legislation derogates from prior specific legislation. In such a case, it is not necessary to rely on 'specific v. general legislation' statutory interpretation rules." (p. 6066) Chadwick J. went on to note that other authorities indicated that the principle of implied exception was generally to be preferred to the principle of implied repeal and found that the provisions of the Companies' Creditors Arrangement Act applied so as to deny the federal Crown a super priority in relation to GST.

The Queen v. Tsiaprailis, 2003 DTC 5246 (FCA), aff'd 2005 DTC 5119, 2005 SCC 8

The Court adopted the position of the trial Judge that to the extent that amounts paid to the taxpayer were exempted under s. 6(1)(f), they could not be included in her income under s. 6(1)(a), which was a section of more general application.

Munich Reinsurance Co. v. The Queen, 2002 DTC 6701 (FCA)

S.138(9) was determined to be a complete code for determining whether interest income earned by the taxpayer on an overpayment of taxes was income from its Canadian insurance business. Sharlow J.A. noted (at p. 6705) that:

"To require a non-resident insurer to look beyond subsection 138(9) to determine the tax character of its investment income would render the scheme of subsection 138(9) largely redundant with respect to the very question it is intended to address, or it would result in the Canadian allocation of the investment income being larger or smaller than the allocation dictated by subsection 138(9). There is no reason to believe that Parliament intended such a redundancy, or such inconsistency."

Shell Canada Ltd. v. Canada, 99 DTC 5669, [1999] 3 S.C.R. 622, [1999] 4 CTC 313

general reasonableness provision should not be applied to interest which has its specific s. 20(1)(c) reasonableness limitation

In refusing to apply s. 67 to interest that was found to be reasonable in amount for purposes of the reasonableness limitation expressed in s. 20(1)(c), McLachlin J. stated (at para. 51):

"... it seems to me that Parliament intended s. 67 to apply primarily to those deductions claimed under the provisions of the Act that do not have their own internal limiting clauses ... . Where the applicable provision has its own internal reference to 'reasonableness', as does s. 20(1)(c)(i), s. 67 could not apply without distorting the plain meaning of the more specific provision."

Locations of other summaries Wordcount
Tax Topics - General Concepts - Substance legal relationships prevail over economic realities 201
Tax Topics - General Concepts - Tax Avoidance taxpayers entitled to rely on structure of their transactions 170
Tax Topics - Income Tax Act - Section 20 - Subsection 20(1) - Paragraph 20(1)(c) borrowing in legal substance was in weak currency 174
Tax Topics - Income Tax Act - Section 67 s. 67 does not apply where provisions, having their own internal limiting clauses, apply 96
Tax Topics - Income Tax Act - Section 9 - Capital Gain vs. Profit - Foreign Exchange FX hedging gain was capital gain as hedged borrowing was on capital account 225

Brill v. The Queen, 96 DTC 6572, [1997] 1 CTC 2 (FCA)

In finding that paragraph 13(21)(d) rather than 79(c) governed the determination of the proceeds of disposition of a property, Linden J.A. stated (at p. 6576):

"... this is not a case where, because of a conflict, the Court must choose to apply a specific provision over a general one in accordance with that well-known principle of statutory interpretation; there is no conflict here. Both provisions are specific, but they cover different situations - paragraph 13(21)(d) and 54(h), covering sales and other situations where a precise compensation figure is known and paragraph 79(c), applying to foreclosures and repossessions where there is no ascertained amount."

Schwartz v. Canada, 96 DTC 6103, [1996] 1 SCR 254

specific statutory rule should not be undercut by a more general rule

La Forest stated (at para. 52) that accepting the Crown's argument that a lump sum received by the taxpayer for repudiation of an employment contract represented income under s. 3 notwithstanding that it did not come within the definition of a retiring allowance in s. 248(1) "would amount to giving precedence to a general provision over the detailed provisions enacted by Parliament to deal with payments such as that received by Mr. Schwartz pursuant to the settlement".

The Queen v. Albino, 94 DTC 6071, [1994] 1 CTC 205 (FCTD)

Although a lump sum received by the taxpayer might be considered to come within the more general terms of "remuneration" under s. 6(3)(b) in addition to constituting a retiring allowance, the rule generalia specialibus non derogant was applied to find that a retiring allowance should not be included in remuneration under s. 6(3)(b).

Symes v. Canada, 94 DTC 6001, [1993] 4 S.C.R. 695, [1994] 1 CTC 40

deduction to extent limited by a specific provision could not be deducted under a general provision

In finding that the taxpayer was precluded from deducting her child care expenses under s. 9 of the Act without limitation, rather than in accordance with s. 63, Iacobucci J. indicated (p. 6019) that if "the actual purpose of [an] expenditure is addressed in the Act", then "if a specific provision exists which limits deductibility in respect of that purpose", the specific provision governs. Otherwise, recourse may be had to more general rules governing deductibility.

MNR v. Chrysler Canada Ltd., 92 DTC 6346, [1992] 2 CTC 95 (FCTD)

In finding that an arrangement which came within the description both of an employee benefit plan in s. 248(1) and an employee stock option arrangement in s. 7(1) should be governed by the latter provision, Strayer J. stated (p. 6348):

"The common law has well established that wherever there is a particular provision and a general provision in the same statute and the latter if taken in its broadest sense would overrule the former, then the particular provision must be given effect and the general provision must be taken not to apply in these specific circumstances."

The Queen v. Cyprus Anvil Mining Corp., 90 DTC 6063 (FCA)

Because Urie J.A. found s. 10(1) to be "a provision of general application conferring the possibility for a taxpayer to make a choice of his method of inventory valuation without reference to any time period" whereas computation of income under s. 9 "must relate to the taxpayer's taxation year", he rejected a submission that s. 10(1) was a specific provision overriding the general provision, namely, s. 9.

Laxton v. The Queen, 88 DTC 6008, [1988] 1 CTC 19 (FCTD), rev'd , in part, 89 DTC 5327 (FCA)

rev'd, in part, on other grounds 89 DTC 5327 (FCA)

Reed, J. stated with respect to an argument that there is no specific provision imputing benefits on interest free loans: "it is of course true that there is no section of the Act (comparable to subsection 15(1)) specifically dealing with the fact situation now in issue. This is irrelevant, however, if the situation falls within one of the more broadly drafted sections such as subsections 3(1) or 245(2)."

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 246 - Subsection 246(1) 123

James Richardson & Sons v. M.N.R., 84 DTC 6325, [1984] CTC 345, [1984] 1 S.C.R. 614

The extent of the Minister's power to demand information under s. 231(3) was found to be narrow in light of his ability also to obtain information under s. 221(1)(d).

The Queen v. Alberta and Southern Gas Co. Ltd., 77 DTC 5244, [1977] CTC 388 (FCA), aff'd 78 DTC 6566, [1978] CTC 780, [1979] 1 S.C.R. 36

In rejecting a submission that s. 245(1) of the Act (which prohibited the deduction of undue or artificial expenses) could not apply to a deduction permitted by what then was s. 66 of the Act, the Court stated (at p. 5247) that if this argument prevailed:

"it is difficult to think of any case where section 245(1) would apply inasmuch as, in relation to any provision providing for a deduction in computing income, section 245(1) is always, by its nature, a general provision. Parliament must have intended the provision to have some effect ...".

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 245 - Old 66

See Also

Scott v. The Queen, 2017 TCC 224

termination payment that did not come within s. 6(4) should be treated as excluded from s. 6(1)(a)

In connection with the Nortel asset distributions, a Nortel health and welfare trust made lump sum payments in 2011 to a benficiary in satisfaction of her entitlement for the trust to pay the periodic premiums for life insurance policies on her life (giving rise to income inclusions to her under s. 6(4)). In finding that such payment was not taxable, Sommerfeldt J indicated that although it could easily be considered to be a benefit that arose out of her previous employment, the principle in Tsiaprailis applied to the effect that (para. 121):

where, in addition to the general provision in paragraph 6(1)(a), there is “a specific [statutory provision] containing detailed conditions for the inclusion of an amount in income that would not otherwise be income” … the general provision cannot be used “to fill in all the gaps left by” the specific provision [viz. s. 6(4)].

Locations of other summaries Wordcount
Tax Topics - Other Legislation/Constitution - Federal - Tax Court of Canada Rules (General Procedure) - Section 89 - Subsection 89(1) - Paragraph 89(1)(a) trust return not admitted at trial opening where no previous notice and not relied upon by CRA 229
Tax Topics - Income Tax Act - 101-110 - Section 107.1 - Paragraph 107.1(a) s. 107.1(a) in effect produced a rollover on cash distribution of mooted benefits 181
Tax Topics - Income Tax Act - Section 6 - Subsection 6(1) - Paragraph 6(1)(a) a distribution from a health and welfare trust to compensate for lost insurance coverage was not a taxable benefit as it did not come within s. 6(4) 316
Tax Topics - Income Tax Act - Section 56 - Subsection 56(1) - Paragraph 56(1)(a) - Subparagraph 56(1)(a)(iii) payment made as compensation for termination of monthly death benefits was paid, at the least, in lieu of a death benefit 249
Tax Topics - General Concepts - Stare Decisis Supreme Court obiter accorded deference 153
Tax Topics - Income Tax Act - Section 9 - Compensation Payments surrogatum principle references "why the compensatory amount was paid," and not confined to business receipts 207
Tax Topics - Income Tax Act - Section 6 - Subsection 6(4) lump sum received as compensation for no longer benefiting from contributions to a group life insurance policy did not come within the terms of s. 6(4) 334

Emballages Starflex Inc. v. Agence du revenu du Québec, 2016 QCCA 1856

charitable gift rules a complete code

The taxpayer, which had claimed deductions for donations made to U.S. charities under the Quebec charitable gift rules, requested an amendment to its pleadings to claim, in the alternative, that its donations were deductible as business (promotional) expenses, relying on Olympia. In confirming the refusal below to allow this amendment, the Court of Appeal essentially found that Olympia was inconsistent with the Symes approach to statutory interpretation, stating:

The specific tax treatment provided in the TA respecting gifts must prevail similarly to the pronouncements of the Supreme Court in Symes… . The Court specified there that child care expenses could not be deducted as business expenses under the applicable tax principles, in the face of a specific and complete regime for child care expenses provided in section 63 of the Income Tax Act. The same reasoning should be favoured in addressing the treatment of gifts.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 18 - Subsection 18(1) - Paragraph 18(1)(a) - Income-Producing Purpose gifts to charities likely cannot be deducted as business expenses 229
Tax Topics - Income Tax Act - 101-110 - Section 110.1 - Subsection 110.1(1) - Paragraph 110.1(1)(a) charitable donations not deductible as business expense 181

Andrew Peller Limited v. M.N.R., 2016 DTC 1009 [at 2553], 2015 TCC 329

use of "gratuities" in a specific provision did not imply that another kind of gratuity could not be caught under a general provision

Subsection 2(1) of the Insurable Earnings and Collection of Premiums Regulations read:

...the total amount of earnings that an insured person has from insurable employment is

(a) the total of all amounts, whether wholly or partly pecuniary, received or enjoyed by the insured person that are paid to the person by the person’s employer in respect of that employment, and

(b) the amount of any gratuities that the insured person is required to declare to the person’s employer under provincial legislation.

In the course of finding that amounts distributed to restaurant employees under a tip-sharing arrangement were subject to CPP and EI, Campbell J dismissed an argument that the use of “gratuities” in paragraph 2(1)(b) implies that gratuities cannot also be included in paragraph 2(1)(a), stating (at para 59):

I cannot ascertain any conflict between those two paragraphs. Essentially, this principle, that more specific legislation will prevail over a more general provision, does not apply. The wording of paragraph 2(1)(a) includes tips paid by the employer in the liberal and broad sense identified in Canadian Pacific. The wording in paragraph 2(1)(b) includes those tips that are required under provincial legislation to be declared by the employee to the employer. By implication, this means those tips which the employer has not “paid”, otherwise there would be no need to declare them.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 5 - Subsection 5(1) restaurant tips are remuneration from an employer 131
Tax Topics - Other Legislation/Constitution - Federal - Employment Insurance Act - Section 82 - Subsection 82(1) restaurant tips are remuneration from an employer
Tax Topics - Other Legislation/Constitution - Federal - Canada Pension Plan - Section 8 - Subsection 8(1) restaurant tips are remuneration from an employer

Mathieu v. The Queen, 2014 TCC 207

stock option rules more specific than employee benefits

In rejecting a Crown submission that option surrender benefits realized by the taxpayer (which it acknowledged were not taxable under s. 7(1)) were instead taxable under s. 6(1)(a), Paris J stated (at para 77, TaxInterpretations translation) that "the principle of generalibus specialia derogant applies and subsection 7(3) deflects the application of the general provision."

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 251 - Subsection 251(2) - Paragraph 251(2)(a) separated wife was related 173
Tax Topics - Income Tax Act - Section 7 - Subsection 7(3) - Paragraph 7(3)(a) non-arm's length option surrender proceeds were exempted by s. 7(3)(a) 150
Tax Topics - Statutory Interpretation - Interpretation Act - Subsection 45(2) may look at subsequent amendment to determine whether it changed the law 132

Barrington Lane Developments Limited v. The Queen, 2010 TCC 388, 2010 DTC 1244 [at 3734]

Pizzitelli J. conducted a brief review on how to resolve a conflict between a specific and a general statutory provision, before ruling that s. 12(1)(i) and s. 40(1) were not in conflict.

Tremblay v. The Queen, 2009 DTC 1104, 2009 TCC 6

After noting that ss.84(2) and 85.1 were both contained in subdivision h of Division B of Part I of the Act, Favreau, J. found (at para. 12) that it was not possible to say that one provision was of general application and the other was more specific in its application, so that the latter took precedence.

Hudson Bay Mining and Smelting Co., Ltd. v. The Queen, 2003 DTC 173 (TCC)

The definition of cumulative Canadian exploration expense, which would require a tax credit received from the Manitoba government to be set-off against the amount of Canadian exploration expense of the taxpayer, was a more specific provision than s. 12(1)(x), which would have required an inclusion in income of assistance received by the taxpayer, with the result that s. 12(1)(x) should not be applied to the assistance.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 12 - Subsection 12(1) - Paragraph 12(1)(x) CCEE provisions more specific 94

Gifford v. The Queen, 2001 DTC 168 (TCC)

After concluding that paragraphs 8(1)(j) and 20(1)(c) did not provide an exclusive code for the deduction of interest, Bowman A.C.J. stated (at p. 179):

"The notion that a specific provision impliedly ousts a more general one is, as a matter of statutory construction, of somewhat limited assistance and of no assistance at all here."

Fry v. The Queen, 2001 DTC 846 (TCC)

A lump-sum payment received by the taxpayer pursuant to a claim against her employer's disability insurer was not taxable under s. 6(1)(f) and, therefore, was not taxable as employment income under s. 6(1)(a) as (p. 848) "the subject matter of payment under an accident plan [was] dealt with under paragraph 6(1)(f)".

Erb v. The Queen, 2000 DTC 1401 (TCC)

Bowman TCJ. found that if s. 15(2) otherwise would have applied to alleged indebtedness owing by a partnership to the taxpayer, the more specific provisions of the Act dealing with withdrawals from a partnership (which he described at p. 1412 as "a specific and complete code on one relatively narrow aspect of the fiscal consequences of being a partner") would override s. 15(2) so that it would not apply.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 15 - Subsection 15(2) deficit capital account does not create indebtedness 139

Gestion Guy Ménard Inc. v. MNR, 93 DTC 1058, [1993] 2 CTC 2793 (TCC)

Dussault, TCJ. found that discounts realized from the sale of treasury bills constituted interest income rather than (other) income from property given the more specific provisions of the Act dealing with interest.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 12 - Subsection 12(1) - Paragraph 12(1)(c) sale one day prior to maturity 68
Tax Topics - Income Tax Act - Section 16 - Subsection 16(1) discount treated as interest 130

Del Grande v. The Queen, 93 DTC 133 (TCC)

In indicating that to the extent that there is any overlap between ss.15(1)(c) and 7(1), the latter provision should prevail, Bowman TCJ. stated (p. 138):

"... where a choice must be made between two taxing provisions that might conceivably apply to require an inclusion in income, a specific provision should prevail over a general one, on the footing that Parliament must be taken to have intended that the specific provisions would regulate the particular type of transaction."

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 15 - Subsection 15(1) not a shareholder benefit if option exercisable only while officer; obligation v. conferral 197
Tax Topics - Income Tax Act - Section 251 - Subsection 251(1) - Paragraph 251(1)(c) majority shareholder not subject to the direction of the minority shareholder 65
Tax Topics - Income Tax Act - Section 7 - Subsection 7(5) 114