Words and Phrases - "mutatis mutandis"

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.