Cases
Chen v. Canada, 2023 FCA 146
In connection with following the court’s earlier decision in Cheema, LeBlanc JA stated (at paras. 10-11):
[T]he principle of horizontal stare...
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| Tax Topics - Excise Tax Act - Section 254 - Subsection 254(2) - Paragraph 254(2)(b) | Cheema followed regarding purchasers including those with no beneficial entitlements | 211 |
| Tax Topics - Excise Tax Act - Section 123 - Subsection 123(1) - Recipient | purchasers included two individuals who had no entitlement to acquire beneficial ownership | 170 |
National R&D Inc. v. Canada, 2022 FCA 72
Regarding the taxpayer’s submission that the Tax Court Judge, by applying the tests in Northwest Hydraulic as to what constituted scientific...
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| Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Scientific Research & Experimental Development | need for use of the scientific method in SR&ED | 215 |
| Tax Topics - Statutory Interpretation - Interpretation Bulletins, etc. | interpretation is governed by interpretation principles and precedent rather than CRA guidance | 97 |
Friedman v. Canada (National Revenue), 2021 FCA 101
In connection with finding that there is no reversible error of a Federal Court judge in not following a prior decision of a colleague, Pelletier...
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| Tax Topics - General Concepts - Judicial Comity | not following a decision of a fellow Federal Court judge is not reviewable error | 267 |
| Tax Topics - Other Legislation/Constitution - Charter (Constitution Act, 1982) - Section 13 | allegation that ss. 231.1 and 231.7 violated the Charter lacked a factual foundation and, in any event, there was no allegation of a criminal investigation | 366 |
| Tax Topics - Income Tax Act - Section 231.1 - Subsection 231.1(1) | Jarvis also applies to allegations that CRA information requirements violate the Charter right not to self-incriminate | 286 |
Canada v. 984274 Alberta Inc., 2020 FCA 125
After noting the Crown’s reliance on the FCA’s finding in Freitas that a statute-barred reassessment was voidable rather than void, Noël CJ...
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| Tax Topics - Income Tax Act - Section 160.1 - Subsection 160.1(1) | ss. 160.1(1) and (3)’s application not subject to the issuance of a prior time-constrained reassessment | 489 |
| Tax Topics - Income Tax Act - Section 164 - Subsection 164(1) | nil assessment was an “assessment” giving rise to an s. 164(3.1) overpayment | 445 |
| Tax Topics - Income Tax Act - Section 152 - Subsection 152(4) | nil assessment not subject to 3-year limitation in s. 152(4) | 190 |
Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653
Before going on to revise the standards to be applied in determining whether an administrative decision should be altered through judicial review,...
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| 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 - Statutory Interpretation - Consistency | presumption of consistent expression | 138 |
| Tax Topics - Statutory Interpretation - Ordinary Meaning | administrative decisions must have regard to the provision’s text, context and purpose | 222 |
Markou v. Canada, 2019 FCA 299
In rejecting arguments that the Federal Court of Appeal should not follow its earlier decision in Maréchaux, Noël CJ stated (at para 52):
…...
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| Tax Topics - Income Tax Act - Section 118.1 - Subsection 118.1(1) - Total Charitable Gifts | Quebec and ROC donations have similar requirements for a donative (impoverishing) intent | 422 |
1455257 Ontario Inc. v. Canada, 2016 FCA 100
The Court overruled its earlier decision in Sarraf and found that an Ontario corporation which has been dissolved cannot file a Notice of Appeal. ...
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| Tax Topics - Other Legislation/Constitution - Ontario - Business Corporations Act - Section 242 | dissolved corporation cannot launch appeal/voluntarily dissolved corp cannot be revived by Companie Branch | 264 |
| Tax Topics - Income Tax Act - Section 169 - Subsection 169(1) | dissolved corporation cannot appeal to Tax Court | 116 |
Tuccaro v. Canada, 2014 DTC 5103 [at at 7210], 2014 FCA 184
The taxpayer's tax appeal was based on an alleged exemption, in an aboriginal treaty ("Treaty 8"), from all taxation. The motions judge found...
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| Tax Topics - General Concepts - Estoppel | prior finding about meaning of aboriginal treaty did not estop new litigant | 164 |
| Tax Topics - Other Legislation/Constitution - Federal - Indian Act - Section 87 | prior decision on treaty was finding of fact, not law | 164 |
Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489
After noting (at para. 25) that, before overruling a previous decision of the Court, "the Court must be satisfied based on compelling reasons that...
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| Tax Topics - Income Tax Act - Section 31 - Subsection 31(1) | law practice and farm were a "combination" source | 301 |
Copthorne Holdings Ltd. v. Canada, 2012 DTC 5006 [at at 6536], 2011 SCC 63, [2011] 3 S.C.R. 721
The Canada Trustco decision, 2005 SCC 54, established that under the definition of "series of transactions" in s. 248(10), a transaction can be...
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| Tax Topics - Income Tax Act - Section 245 - Subsection 245(1) - Tax Benefit | tax benefit illuminated by comparison to reasonable and simpler alternative | 425 |
| 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 | 341 |
| Tax Topics - Statutory Interpretation - Expressio Unius est Exclusio Alterius | implied exclusion principle | 109 |
Bozzer v. Canada, 2010 DTC 5025 [at at 6612], 2010 FC 139, rev'd 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...
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| Tax Topics - Income Tax Act - Section 220 - Subsection 220(3.1) | 93 | |
| Tax Topics - Statutory Interpretation - Consistency | 299 |
Kaulius v. Canada, 2003 FCA 371, 2003 DTC 5644 (FCA), aff'd 2005 DTC 5538, 2005 SCC 55
Before finding that the Court should not depart from its approach in OSFC Holdings Ltd. v. The Queen, 2001 FCA 260 (FCA), Rothstein J.A. noted...
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| Tax Topics - Other Legislation/Constitution - Charter (Constitution Act, 1982) - Section 7 | 89 |
Itt Industries of Canada Ltd. v. Canada, 2000 DTC 6445 (FCA)
Before going on to decline to follow an obiter dictum in a previous case, Sharlow J.A. stated (at p. 6449):
"In my view, the obligation of the...
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| Tax Topics - Income Tax Act - Section 13 - Subsection 13(21) - Timber Resource Property | 114 |
Mastri v. R., 97 DTC 5420, [1997] 3 C.T.C. 234 (FCA)
With respect to a submission by the Crown that the earlier decision of the Court of Appeal in the Tonn case should be "overruled", Robertson J.A....
The Queen v. Armstrong, 96 D.T.C 6315 (FCA)
After noting that the decision in The Queen v. Bryce, [1982] 2 F.C. 581 (C.A.) was reversed under a consent judgment made in the Supreme Court of...
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| Tax Topics - Income Tax Act - Section 60.1 - Subsection 60.1(1) | 89 | |
| Tax Topics - Income Tax Act - Section 60.1 - Subsection 60.1(2) | 21 |
Symes v. Canada, 94 DTC 6001, [1993] 4 S.C.R. 695, [1994] 1 CTC 40
Before stating (p. 6012) that he did not feel that he had to "slavishly follow those cases which have characterized child care expenses as...
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| Tax Topics - Other Legislation/Constitution - Charter (Constitution Act, 1982) - Subsection 15(1) | 90 | |
| Tax Topics - General Concepts - Evidence | 80 | |
| Tax Topics - Income Tax Act - Section 18 - Subsection 18(1) - Paragraph 18(1)(a) - Income-Producing Purpose | unnecessary to consider whether should be change to traditional position that child care expenses were non-deductible | 121 |
| Tax Topics - Income Tax Act - Section 63 - Subsection 63(1) | 45 | |
| Tax Topics - Income Tax Act - Section 9 - Accounting Principles | 70 | |
| Tax Topics - Statutory Interpretation - Specific v. General Provisions | deduction to extent limited by a specific provision could not be deducted under a general provision | 74 |
| Tax Topics - General Concepts - Purpose/Intention | purpose to be determined having regard to objective manifestations thereof | 132 |
Carlini Bros. Body Shop Ltd. v. The Queen, 92 DTC 6543, [1993] 1 CTC 55 (Ont. Ct. J. - G.D.)
"My understanding of the law of stare decisis is that I am only bound by decisions of a court to which a decision of mine could be appealed....
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| Tax Topics - Other Legislation/Constitution - Charter (Constitution Act, 1982) - Section 8 | s. 231.3 invalid | 38 |
| Tax Topics - Income Tax Act - Section 231.3 - Subsection 231.3(3) | 38 |
Royal Bank of Canada v. Saskatchewan Power Corp., 90 DTC 6330, [1990] 2 CTC 285 (Sask QB)
The Saskatchewn Court of Queen's Bench was not bound by a decision of the Alberta Court of Appeal in respect of which the Supreme Court of Canada...
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| Tax Topics - Other Legislation/Constitution - Federal - Federal Courts Act - Subsection 17(1) | 32 | |
| Tax Topics - Income Tax Act - Section 224 - Subsection 224(1.2) | 40 |
Pilfold v. Skog Estate (1989), 64 DLR (4th) 186 (BCCA)
Even where remarks of the Supreme Court of Canada are obiter, those remarks should be followed if they were given after full argument on the point.
Re Cox, 88 DTC 6494, [1988] 2 CTC 365 (BCSC)
An opinion of Collier, J. was a bald statement which apparently was made without the benefit of argument on the relevant authorities. His opinion...
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| Tax Topics - General Concepts - Solicitor-Client Privilege | 65 |
Irving Oil Ltd. v. The Queen, 88 DTC 6138, [1988] 1 CTC 263 (FCTD), aff'd 91 DTC 5106 (FCA)
"[W]here a Court gives two or more reasons for allowing an appeal, each reason is binding and forms part of the ratio of the decision."
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| Tax Topics - General Concepts - Ownership | 50 | |
| Tax Topics - Income Tax Act - Section 165 - Subsection 165(1) | 27 | |
| Tax Topics - Income Tax Act - Section 245 - Old | 141 | |
| Tax Topics - Income Tax Act - Section 67 | expense fell within reasonable range | 156 |
The Queen v. Pollock, 84 DTC 6370, [1984] CTC 353 (FCA)
Pratte J.A. stated (p. 6371), in refusing to depart from the earlier decision of the Court in The Queen v. Atkins, 76 DTC 6258 that while...
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| Tax Topics - Income Tax Act - Section 5 - Subsection 5(1) | 13 | |
| Tax Topics - Income Tax Act - Section 54 - Adjusted Cost Base | cost incurred to acquire right to receive damages | 62 |
See Also
Canadian Imperial Bank of Commerce v. The Queen, 2021 TCC 71, aff'd 2023 FCA 91
CIBC realized an FX loss of C$126.4 million in 2007 when shares of a US subsidiary for which it had subscribed US$1 billion were redeemed for US$1...
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| Tax Topics - Income Tax Act - Section 40 - Subsection 40(3.6) | FX loss on share redemption arose under s. 40(1) and, therefore, was subject to s. 40(3.6) denial | 344 |
| Tax Topics - Income Tax Act - Section 39 - Subsection 39(2) | s. 39(2) historically applied only to FX gains or losses on liabilities and foreign currency dispositions | 275 |
| Tax Topics - Statutory Interpretation - Prior Cases | presumption that Parliament enacts with a knowledge of the jurisprudence | 93 |
Canada (National Revenue) v. Stankovic, 2018 FC 462
In briefly disposing of the taxpayer's Charter arguments, Russell J stated (at para. 64):
The issues raised by the Applicant on this point were...
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| Tax Topics - Income Tax Act - Section 231.1 - Subsection 231.1(1) | a taxpayer with an unreported Swiss bank account was not yet under criminal investigation | 436 |
| Tax Topics - Other Legislation/Constitution - Charter (Constitution Act, 1982) - Section 7 | use of stolen data provided by French tax authorities did not violate taxpayer's Charter rights | 202 |
| Tax Topics - Income Tax Act - Section 231.7 - Subsection 231.7(1) | mere suspicion of criminal activity did not oust s. 231.1 | 215 |
Construction S.Y.L. Tremblay Inc. v. Agence du revenu du Québec, 2018 QCCA 552
In the federal Construction S.Y.L. Tremblay case, Bédard J found that house-repair invoices, that did not give the house address or describe the...
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| Tax Topics - Excise Tax Act - Regulations - Input Tax Credit Information (GST/HST) Regulations - Section 3 - Paragraph 3(c) - Subparagraph 3(c)(iv) | failure of invoices to describe the supplies could not be remedied by testimony | 425 |
| Tax Topics - General Concepts - Abuse of Process | taxpayer’s attempt to relitigate an adverse TCC decision in the Court of Quebec was an abuse of process given that the new evidence to be tendered did not address its defective invoices | 412 |
| Tax Topics - Excise Tax Act - Section 169 - Subsection 169(4) | failure of invoices to describe supply was in itself sufficient to deny credit | 180 |
BCS Group Business Services Inc. v. The Queen, 2018 TCC 120
The Court disagreeing with the Court's prior finding in Masa Sushi and subsequent cases that Tax Court Rule 30(2) conflicted with section 17.1 of...
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| Tax Topics - Other Legislation/Constitution - Federal - Tax Court of Canada Rules (General Procedure) - Section 30 - Subsection 30(2) | corporation can appear “in person” without counsel | 329 |
Resource Capital Fund IV LP v Commissioner of Taxation, [2018] FCA 41 (Federal Court of Australia), rev'd on various grounds [2019] FCAFC 51
Two Caymans investment LPs (“RCF IV” and RCF V”) whose limited partners were mostly U.S. residents, realized gains from the disposal of...
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| Tax Topics - Income Tax Act - Section 9 - Capital Gain vs. Profit - Shares | private equity fund LP with 5-year holding objective realized share gain on income account | 175 |
| Tax Topics - Income Tax Act - Section 115 - Subsection 115(1) - Paragraph 115(1)(a) - Subparagraph 115(1)(a)(ii) | gains of a NR PE fund from disposals of Australian share investments that were managed in part in Australia were derived from Australia | 427 |
| Tax Topics - Treaties - Income Tax Conventions - Article 3 | each U.S.-resident partner of a Caymans PE LP carried on a U.S. “enterprise” | 234 |
| Tax Topics - Treaties - Income Tax Conventions - Article 13 | exclusion in Art. 13 of Aust.-U.S. Treaty for real property dispositions extended to shares of Australian holding company holding mining leases through grandchild | 420 |
| Tax Topics - Income Tax Act - Section 152 - Subsection 152(1) | assessment of partnership was assessment of partners | 89 |
| Tax Topics - Treaties - Income Tax Conventions - Article 6 | Art. 6 extends common law meaning of real property | 198 |
| Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Taxable Canadian Property - Paragraph (d) | shares of lithium mining and processing company were derived principally from the processing rather than mining operation and, thus, were not taxable Australian real property | 514 |
| Tax Topics - Income Tax Act - Section 218.3 - Subsection 218.3(1) - Canadian Property Mutual Fund Investment | shares of Australian mining company were primarily attributable to the processing rather than mining operations | 142 |
| Tax Topics - General Concepts - Fair Market Value - Other | processing assets of mining company were more valuable than its mining assets | 238 |
Scott v. The Queen, 2017 TCC 224
After quoting with approval the statement in R. v Prokofiew, 2010 ONCA 423, ¶21 that:
The orderly and rational development of the jurisprudence...
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| 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 - 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 - Statutory Interpretation - Specific v. General Provisions | termination payment that did not come within s. 6(4) should be treated as excluded from s. 6(1)(a) | 153 |
| 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 |
Revenue and Customs Commissioners v. Findmypast Ltd., [2017] CSIH 59
After discussion the leading cases on point, Lord Drummond Young noted (at para. 20) that additional cases raised by counsel for HMRC “were...
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| Tax Topics - Excise Tax Act - Section 123 - Subsection 123(1) - Service | supply of genealogical records by website in satisfaction of previously purchased credits was a service | 420 |
| Tax Topics - Excise Tax Act - Section 152 - Subsection 152(1) | the time of a supply of services was accelerated by prepayment only where the services were precisely identifiable | 829 |
| Tax Topics - Excise Tax Act - Section 168 - Subsection 168(6) | precise services to be purchased with credits were not yet identified | 156 |
Tallon v. The Queen, 2014 DTC 1148 [at at 3478], 2014 TCC 193 (Informal Procedure)
The taxpayer suffered from severe chronic pain. On the advice of her doctor, she helped alleviate the pain by wintering with her husband in warm...
J.K. Read Engineering Ltd. v. The Queen, 2014 DTC 1216 [at at 3872], 2014 TCC 309
Before finding that the taxpayers' argument was contradicted by the "authoritative obiter" in S.T.B. that s. 245(7) applied to third parties only,...
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| Tax Topics - General Concepts - Stare Decisis | weight of obiter depends on fulness of argument | 93 |
| Tax Topics - Income Tax Act - Section 161 - Subsection 161(1) | interest under GAAR assessments accrued from balance due dates | 54 |
| Tax Topics - Income Tax Act - Section 245 - Subsection 245(7) | GAAR applies to impose liability for abusive transactions from inception | 254 |
J.K. Read Engineering Ltd. v. The Queen, 2014 DTC 1216 [at at 3872], 2014 TCC 309
Before finding that the taxpayers' argument was contradicted by the "authoritative obiter" in S.T.B. that s. 245(7) applied to third parties only,...
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| Tax Topics - General Concepts - Stare Decisis | weight of obiter depends on fullness of argument | 93 |
| Tax Topics - Income Tax Act - Section 161 - Subsection 161(1) | interest under GAAR assessments accrued from balance due dates | 54 |
| Tax Topics - Income Tax Act - Section 245 - Subsection 245(7) | GAAR applies to impose liability for abusive transactions from inception | 254 |
Congiu v. The Queen, 2013 TCC 271, aff'd 2014 FCA 73
The appellant was appealing an assessment made by Revenue Quebec on behalf of the (federal) Minister under s. 270(4) of the Excise Tax Act in...
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| Tax Topics - General Concepts - Abuse of Process | judicial comity re Quebec decision | 299 |
| Tax Topics - General Concepts - Res Judicata | not res judicata where two different government litigants | 266 |
| Tax Topics - General Concepts - Judicial Comity | judicial comity re Quebec decision | 221 |
CAE Inc. v. The Queen, 2011 DTC 1362 [at at 2031], 2011 TCC 354, aff'd 2013 DTC 5084 [at 5944], 2013 FCA 92
Jorré found that the taxpayers' flight simulators could be depreciable property in a taxation year where the taxpayer rented the simulator out...
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| Tax Topics - Income Tax Act - Section 4 - Subsection 4(1) - Paragraph 4(1)(a) | flight training and leasing/sale operations were part of a single civil aviation simulator business | 64 |
Crown Forest Industries Ltd. v. The Queen, 2006 DTC 2321, 2006 TCC 47
In refusing to follow the decision in the Terra Mining Exploration case (84 DTC 6185) Hershfield J. stated (at p. 2326):
"While I am loathe to...
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| Tax Topics - Income Tax Act - Section 20 - Subsection 20(1) - Paragraph 20(1)(c) | 81 |
Sussex Square Apartments Ltd. v. R., 99 DTC 443, [1999] 2 CTC 2143 (TCC), aff'd 2000 DTC 6548, [2000] 4 CTC 203, Docket: A-40-99 (FCA)
Bowman TCJ. adopted the "illuminating discussion of the principle of stare decisis [in] the judgment of Master Funduk in Southside Woodwork v....
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| Tax Topics - Income Tax Act - Section 12 - Subsection 12(1) - Paragraph 12(1)(a) | assignment of lease v. rent prepayment | 117 |
| Tax Topics - General Concepts - Effective Date | Dale principle did not apply to "contractually agreed ... revisionism" | 212 |
La Compagnie Price Limitée v. The Queen, 95 DTC 428 (TCC)
The Minister reassessed the taxpayer in accordance with a Federal Court judgment issued pursuant to a consent to judgment (as subsequently...
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| Tax Topics - Income Tax Act - Section 171 - Subsection 171(1) | 141 |
Mourtzis v. The Queen, 94 DTC 1362 (TCC)
S.18.28 of the Tax Court of Canada Act merely indicates that the rules of stare decisis do not apply to the informal procedure decisions of the...
Dundas v. MNR, 90 DTC 1529, [1990] 1 CTC 2492 (TCC)
In applying obiter dicta of Pigeon J. in the Cewe case, Rip J. applied the following statement in Ottawa v. Nepean, [1943] O.W.N. 352:
"What was...
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| Tax Topics - Income Tax Act - Section 6 - Subsection 6(1) - Paragraph 6(1)(a) | 83 |
Bernier Estate v. MNR, 90 DTC 1220, [1990] 1 CTC 2535 (TCC)
Although Lamarre Proulx J. was inclined to interpret s. 62(1) differently than in the Haines and Bracken decisions, and although under the rule of...
Articles
Justice Marshall Rothstein, "An Overview of the Supreme Court of Canada", Bulletin for International Taxation (IBFD), January/February 2016, p. 20.
Stare decisis usually applies (p. 20)
As the Court recently noted: "stare decisis is not a straitjacket that condemns the law to stasis". [f.n. 10...