|
Highlights
STATUTORY INTERPRETATION
Technical Notes: an Emerging Contextual Factor
John Sorenson
John Sorenson explores the issue of
how much weight may be given to Technical Notes issued by the Department of
Finance in interpreting tax legislation. There is conflicting jurisprudence on
statutory interpretation generally, and on the use of extrinsic aids to
interpretation in particular, but, as the author explains, upon an analysis of
the cases some principles emerge. Where the text of a provision is found to be
quite clear, contextual factors play a secondary role in interpretation, but
where those words can bear more than one construction, context and purpose will
be considered more significant. If, however, the wording of a provision cannot
bear the construction suggested by the Technical Note, it may be disregarded.
Courts tend to favour a taxpayer's position where the taxpayer follows an
interpretation that is endorsed by the Department of Finance, but will often
regard the Crown's use of Technical Notes as "bootstrapping." The Supreme Court
of Canada's most recent guidance on statutory interpretation indicates that
contextual factors in interpretation, including Technical Notes, should always
be a part of the interpretative process and that their weight will vary with the
circumstances. The Supreme Court has also indicated that textual, contextual and
purposive factors interact, suggesting that a Technical Note may cast doubt on
the meaning of a legislative provision.
ADMINISTRATION AND ENFORCEMENT
Disclosing Information Regarding Unnamed Persons
Michel Bourque
Section 231.2 of the Income Tax Act
gives the Minister of National Revenue broad powers to obtain information from
any person for "any purpose related to the administration and enforcement" of
the Act, including information pertaining to unidentified third parties. Michel
Bourque explores the limits the courts have imposed on the Minister's ability to
collect and use the information obtained by means of a section 231.2
requirement. As the author explains, the Minister's powers are tempered by the
fact that judicial authorization must be obtained when third-party information
from taxpayers regarding such third parties is requested. The onus is on the
Minister to justify such a request for information and the Minister is expected
to make a full and frank disclosure regarding the basis for the request,
including facts that may be adverse to her position. If this procedure is not
followed, the Minister may be unable to use the information to pursue
enforcement against the unnamed third parties. The procedure does not, however,
displace solicitor-client privilege, and so legal professionals cannot be
compelled to provide information.
| |
Board
David C. Nathanson, QC
Editor-in-Chief
Lerners LLP
Jacques Bernier
Bennett Jones LLP
Tomas M. Boddez
Thorsteinssons LLP
Patrick J. Boyle
Fraser Milner Casgrain LLP
William I. Innes
Fraser Milner Casgrain LLP
Edwin G. Kroft
McCarthy Tétrault LLP
Clifford L. Rand
Stikeman Elliott LLP
Kenneth S. Skingle
Felesky Flynn LLP
David E. Spiro
Blake, Cassels & Graydon LLP
Roger E. Taylor
Couzin Taylor LLP
Matthew G. Williams
Thorsteinssons LLP
Adrienne K. Woodyard
Lerners LLP |