Subsection 45(2)

In rejecting the taxpayers’ submission that the introduction of s. 160(5) confirmed its narrow reading of s. 160(1), Noël C.J. stated (at para. 62) that “[n]ew enactments cannot be presumed to alter the state of the law or involve a declaration as to the previous state of the law” and “that the amendment, as it relates to the precise issue with which we are concerned, can only be read as a measure that confirms the prior state of the law.”

In the course of finding on other grounds that an amendment (in s. 88(1)(d)(ii.1)) was consistent with the pre-amendment object and spirit of the s. 88(1)(d) bump rules, Noël CJ stated (at para. 86):

Whether an amendment clarifies the prior law or alters it turns on the construction of the prior law and the amendment itself. As explained, the Interpretation Act prevents any conclusion from being drawn as to the legal effect of a new enactment on the prior law on the sole basis that Parliament adopted it. Keeping this limitation in mind, the only way to assess the impact of a subsequent amendment on the prior law is to first determine the legal effect of the law as it stood beforehand and then determine whether the subsequent amendment alters it or clarifies it.

Stratas JA found that in the years in question there was no provision requiring that the choice of method by the registrant for computing input tax credits be irrevocable, noted that such an absence was telling as "Parliament knows how to signal those legal consequences," (para. 42) and that, in fact, such a provision was subsequently enacted (para. 44):

The words of new subsection 141.02(17) of the Act are exactly the sort of precise words that one would expect to see if the respondent's interpretation in this appeal were sound. But in the version of the Act at issue in this appeal, words such as that are not present.

The taxpayer, who had been assessed under s. 227(10) for his joint liability under s. 227.1 for the taxes of the corporation of which he was a director, argued that s. 227.1 only made him jointly liable for the corporation’s unpaid tax debt, and that s. 161 did not make him liable for interest on that assessment because his liability under s. 227.1 was not for “taxes payable” by him, so that such interest was required to be assessed, which was not done. Evans JA agreed (at para. 40) with this proposition, but noted that s. 227(10) provided that the Part I provisions, including s. 161, applied “with any modifications that the circumstances require.” After noting (at para. 49) that Ketz v. The Queen, 79 DTC 5142 (F.C.T.D.) had indicated that authorities on interpreting mutatis mutandis, which the current drafting of s. 227(10) had replaced, “restrict the scope of the phrase mutatis mutandis to necessary changes in points of detail, as opposed to changes to the very substance of the provision in question” and (at para. 50) that the phrase “with any modifications that the circumstances require” had been considered in Lord Rothermere Donation v. The Queen, 2009 TCC 70, to “enable … more extensive changes to be made to a statutory provision than were permitted by mutatis mutandis” so that it was “no longer … limited to points of detail,” Evans J.A. remarked (at paras. 53-54):

It is reasonable to conclude that when Parliament in 1983 replaced the Latin phrase in subsection 227(10) with "plain" English and French words it merely intended to make the provision more accessible. This suggests that the change was in the nature of a consolidation of the law. There is a strong presumption that consolidations are not intended to make substantive changes to the law: Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ontario: LexisNexis Canada Inc., 2008) at 655-59.

On the other hand, the amendments to the pre-1983 version were enacted by Parliament as a small part of a large series of amendments to the ITA, and the change to the English text in 1997 was made for reasons other than the elimination of Latin. These considerations suggest that the amendments to subsection 227(10) may have been intended to have had a substantive effect.

However, he found that there was no need to express a concluded opinion on the scope of the current phrase given that, even under a narrow interpretation, "the modifications required to make subsection 161(1) applicable to assessments under subsection 227(10) in respect of liability imposed by subsection 227.1(1) do not change the very substance of subsection 161(1)" (para. 59), so that such modifications applied.

After referring to a subsequent amendment to the definition of Canadian-controlled private corporation, Sexton J.A. stated (at p. 7118) that "the Interpretation Act does not preclude the Court from drawing an inference that amendments to legislation are intended to change the legislation where the internal and external evidence warrants such a conclusion."

Dussault T.C.J. stated (at p. 468) that s. 45(2)

"Does not mean however that it cannot be inferred from the context of an amendment that the previous law has in fact been amended."

The enactment of s. 249(4) in 1987, whose provisions would have prevented the taxpayer from acquiring a corporation with an accrued but unrealized loss on inventory and receiving the benefit of that loss on a rollover basis under s. 88(1), was found to have not necessarily altered the previous state of the law in light of s. 45(2) of the Interpretation Act.

MacKay J. found that no assistance as to the meaning of the phrase "motion picture films" should be derived from subsequent amendments to the Canada-U.S. Income Tax Convention in light of s. 45(2) of the Interpretation Act.

Before finding that the introduction of paragraph 12(1)(x) effected a change in the law, Joyal J. stated (p. 5100):

"[s.45(2)] simply states that there is no presumption that a legislative amendment indicates a change in the law. This cannot mean that an amendment can never be interpreted as reflecting a change in the law, especially when there is external evidence to that effect."

It was noted that the use of "for greater certainty" language in S.164(4.1) precluded the application of the maxim inclusio unius est exclusio alterius to the provision that thereby was enacted.

In light of s. 45(2) of the Interpretation Act, it was held that it was not permissible to infer that the enactment of s. 12(1)(x) was an admission that before the amendment, inducement payments were not income.

A comparison of s. 256(1)(e) with s. 39(4) of the pre-1972 Act helped establish that in s. 256(1)(e) Parliament intended that the shareholding of one member of a group was insufficient to fulfill the cross-shareholding requirement in s. 256(1)(e).

An amendment to regulation 805(1) was not intended to change its meaning.

The enactment of s. 111(8)(c) did not effect a change in substance to the Act.

Semble, that it does not transgress ss. 45(2) and (3) of the Interpretation Act to refer to a subsequent amendment to a provision to establish that there was some "mischief" in that provision that was cured by that amendment.

A provision providing that the Minister of Revenue "may" refund overpayments of taxes, was amended to read that taxes that have been overpaid "shall" be refunded if certain conditions are met. The Court derived assistance from this change in rejecting an argument that the word "may" in the pre-amendment provision should be interpreted to mean "shall".

It was impermissible to infer from the enactment of subsection 18(2), which provided for the capitalization of realty taxes in situations where the property was being held as a capital investment, that prior to its enactment such taxes were deductible expenses.