CANADIAN LEGISLATIVE BIJURALISM

THE LINK (November 10th 2004)

Thu, 11 Nov 2004 21:44:01 -0500

THE LINK (November 10th 2004)

The Tax Law Team of the Bijuralism & Drafting Support Services Group of the Department of Justice of Canada is pleased to keep you posted on the most recent harmonization news.

Harmonization Bill No. 2: On October 19, Harmonization Bill No. 2 was tabled in the Senate and became Bill S-10. It received first reading on October 19 2004 and second reading on October 26 2004 before being referred to the Standing Committee on Legal and Constitutional Affairs. Bill S-10 follows Bill C-37 which had been tabled in the House of Commons in May 2004 but died on the Order Paper.

"As its title indicates, Bill S-10 is the second of a series of bills, all of which have the same purpose: to harmonize federal law with the civil law of the Province of Quebec by amending certain federal statutes so that both the French-language and English-language versions take into account the common law and the civil law. With a few exceptions, this second series of harmonization proposals is designed to complete the harmonization of all of the Acts that were partially harmonized by the Federal Law–Civil Law Harmonization Act, No. 1 in 2001. As only some fields of private law were taken into account at that time, this second series of proposals covers the remaining fields of private law." ( Legislative Summary, prepared by Wade Raaflaub)

Certain taxation acts are partially harmonized in Bill S-10: the Employment Insurance Act, the Canada Pension Plan, the Customs Act and the Excise Act. The following concepts are harmonized in these acts: (1) the civil law term "liquidator of a succession" is added where reference is made to the "executor"; (2) in the English version, the civil law term "solidary liability" is added where the expression "joint and several liability" is used; and (3) in the English version, the civil law terms "hypothecary creditor" and "hypothecary debtor" are added where reference is made to the terms "mortgagee" and "mortgagor".

Study in Comparative Law: A comparative analysis of the civil law leasing and the common law's lease financing was published as in the A.P.F.F.’s Revue de planification fiscale et successorale (2004, vol. 25, No. 2) : "La location à bail, la location à titre de sûreté en common law et le crédit-bail du droit civil québécois". The paper is presently available only in French.

To add a name to the distribution list or for questions or comments, please send an email to Sandra Hassan.

THE LINK (May 4th 2004 )

Sun, 31 Oct 2004 22:16:04 -0500

THE LINK (May 4th 2004 )

The Tax Law Team of the Bijuralism & Drafting Support Services Group of the Department of Justice of Canada is pleased to keep you posted on the most recent harmonization news.

Research on Canadian Bijuralism: Professor Janet Walker from York University will be studying many conflict of laws problems that stem from the relationship between federal law and provincial private law. In her report she will be addressing, inter alia, the issue of the interaction between the interpretation rules found in sections 8.1 and 8.2 of the Interpretation Act and conflict of laws rules.

A special edition of the Program of Research Contracts on Canadian Bijuralism was held within the context of the international conference Codes et codification to celebrate the Civil Code of Quebec's 10th anniversary (September 2004). Two student research contracts were awarded: M. Jean-Paul Gakwerere will study the common law's influence on the concept of sale under Quebec civil law whereas M. Hoi Kong will study codal amendments in a bijural environment.

Publication on Bijuralism: The latest column on the harmonization of federal tax legislation, written by Mr. André Ouellette has been published in the A.P.F.F.'s Revue de planification fiscale et successorale (2003, vol. 24, No. 4) : "Bijuridisme et fiscalité : aspects internationaux".

Seminar on trusts: Ms Sandra Hassan gave a conference at the A.P.F.F.'s Colloque sur les fiducies last February 11 and 12. The paper "Impact du bijuridisme canadien en matière d'imposition de certains types de fiducies" is available via the A.P.F.F.; the English version will soon be available (on request).

To add a name to the distribution list or for questions or comments, please send an email to Sandra Hassan .

THE LINK (January 23th 2004 )

Sun, 31 Oct 2004 22:14:54 -0500

THE LINK (January 23th 2004 )

The Tax Law Team of the Bijuralism & Drafting Support Services Group of the Department of Justice of Canada is pleased to keep you posted on the most recent harmonization news.

Publication on Bijuralism: The latest column on the harmonization of federal tax legislation, written by Marie-Claude Gaudreault, has been published in the A.P.F.F.'s Revue de planification fiscale et successorale (2003, vol. 24, no. 3). In this column entitled "Bijuridisme législatif : fondements et mode d'emploi" ("Legislative Bijuralism: Its Foundation and Its Application"), the author describes the origins of Canadian bijuralism, the evolution of the drafting policies which led to legislative bijuralism and the reasons behind the harmonization of federal legislation. She explains the various harmonization techniques currently used, highlights why the typographical marking of federal legislation is not an option and presents the administrative tools available to facilitate the interpretation of a bijural text. The English version is available on request.

Program for Research Contracts on Canadian Bijuralism:The 5th edition of the Program is now closed. Two contracts have been granted: one in the tax field and one in comparative law. Mrs. Venetia Putureanu will be analysing the civil law's simulation and counter letter, the equivalent common law concepts and their application in Canadian Tax law. The second contract, granted to Etienne Giasson, pertains to the concept of sale in Quebec and the other provinces.

The English version of Véronique Denys' report titled "La dévolution irrévocable" is now available. She analyses the meaning of the term dévolution irrévocable for civil law purposes as well as the meaning of "indefeasibly vested" / dévolution irrévocable in a common law environment before looking at the problems encountered in tax law that stem from the use of these concepts

Seminar on Trusts: Marc Cuerrier and Sandra Hassan are invited to speak, with Mark Brender, at the APFF's "Colloque sur les fiducies" (Seminar on trusts) on February 11 and 12. Their presentation will cover the civil law and common law trusts as well as certain problems that flow from the interaction of the Income Tax Act and the Civil Code of Québec in this field.

To add a name to the distribution list or for questions or comments, please send an email to Sandra Hassan .

THE LINK (November 4th 2003 )

Sun, 31 Oct 2004 22:13:44 -0500

THE LINK (November 4th 2003 )

The Tax Law Team of the Bijuralism & Drafting Support Services Group of the Department of Justice of Canada is pleased to keep you posted on the most recent harmonization and bijuralism news.

Publication of An Article on The Concept of Gift / Don :The Fiscal and Financial Planning Association (A.P.F.F.) recently published an article written by Joseph Sirois of the Tax Law Team on the concept of gift: "Le concept de "don"/gift: Étude comparative droit civil - common law - droit fiscal", R.P.F.S., Vol. 24, no. 2, pp. 381-422. The article consists of an analysis of this concept from a provincial private law perspective (civil law and common law). The second part of his article pertains to the meaning of this concept in federal tax legislation. He concludes with comments on new subsections 248(30) and (32) of the Legislative Proposals Pertaining to the Income Tax Act released on December 20, 2002. These new provisions will ensure a uniform tax treatment regardless of differences between civil law and common law. Although the article is published in French, an English version is available on request.

Research Paper on Canadian Bijuralism: Véronique Denys finished her report titled "La dévolution irrévocable". She analyses the meaning of the term dévolution irrévocable for civil law purposes as well as the meaning of "indefeasibly vested" / dévolution irrévocable in a common law environment before looking at the problems encountered in tax law that stem from the use of these concepts.

Josée Vigeant produced her report entitled La prescription des dettes fiscales : tout se joue avec 6 ans! (French only). She analyses the Markevich decision as well as the limitation periods that apply to the collection of federal tax debts and the interruption and suspension of limitation periods.

The reports are available to all who are interested in reviewing them and providing us with feedback. The English versions will be available in the weeks to come.

To add a name to the distribution list or for questions or comments, please send an email to Sandra Hassan.

THE LINK (August 29th 2003 )

Sun, 31 Oct 2004 22:12:56 -0500

THE LINK (August 29th 2003 )

The Tax Law Team of the Bijuralism & Drafting Support Services Group of the Department of Justice of Canada is pleased to keep you posted on the most recent harmonization news.

Publication of a Canadian Tax Journal Dedicated to Bijuralism and Harmonization:The Canadian Tax Foundation (C.T.F.) recently issued a special edition of the Canadian Tax Journal dedicated to bijuralism and harmonization (2003, vol. 51, no. 1). It includes professor David Duff's article on complementarity, dissociation and bijuralism. Also enclosed are the following papers prepared for the Bijuralism Workshop held during the C.T.F.'s 2002 Annual Conference : Professor Catherine Brown's paper as well as Mark Brender's paper dealing with the concept of beneficial ownership as used in the Income Tax Act, Professor Diane Bruneau's paper in which she discusses the problems encountered in applying tax law to civil law trusts and finally a paper written by Marc Cuerrier, Sandra Hassan and Marie-Claude Gaudreault pertaining to Canadian bijuralism and harmonization. The article and papers are published both in English and French.

Publication on Bijuralism: Another column on the harmonization of federal tax legislation, written by Martin Lamoureux, has been published in the A.P.F.F.'s Revue de planification fiscale et successorale (2003, vol. 24, no. 1). This column focusses on the concepts of acquisition and disposition.

Program for Research Contracts on Canadian Bijuralism: The 5th edition of the Program has been launched. The new terms and conditions of this 5th edition are now available on Department of Justice website.

To add a name to the distribution list or for questions or comments, please send an email to Sandra Hassan.

THE LINK ( June 27th 2003)

Sun, 31 Oct 2004 22:11:53 -0500

THE LINK ( June 27th 2003)

The Tax Law Team of the Bijuralism & Drafting Support Services Group of the Department of Justice of Canada is pleased to keep you posted on the most recent harmonization news.

David Duff's Presentation in Ottawa: On July 3 and 4, 2003, professor David Duff of Osgood Hall (University of Toronto) will be presenting his paper entitled The Federal Income Tax Act and Private Law in Canada: Complementarity, Dissociation, and Canadian Bijuralism to a number of Federal government representatives. His paper deals with the impact of provincial laws on the interpretation and application of Canadian federal statutes. Professor Duff analyzes the interaction between federal and provincial legislation both from the perspective of the civil law of Quebec and the common law of the other Canadian provinces with a particular emphasis on Ontario. He studied over 50 years of jurisprudence and demonstrated that, where federal legislation is silent or incomplete, provincial law comes into play to complete and give meaning to federal legislation. Professor Duff also studied the anticipated impact of the new interpretation rules in 8.1 and 8.2 of the Interpretation Act on tax legislation.

Research Paper on Canadian Bijuralism: Josée Vigeant produced a preliminary report entitled La prescription des dettes fiscales : tout se joue avec 6 ans! (French only). In this preliminary report, she analyses the Markevich decision as well as the limitation periods that apply to the collection of federal tax debts and the interruption and suspension of limitation periods. She will produce her final report in the weeks to come. The preliminary report, and eventually the final report, are available to all who are interested in reviewing them and providing us with feedback.

Program for Research Contracts on Canadian Bijuralism: The 5th edition of the Program will soon be launched. We adjusted the terms and conditions of the Program in light of the comments received from the students and professors : the expected length of the research proposals will be shorter and applications can now be submitted at any time during the school year. The new terms and conditions of the 5th edition of the Program will be available on Department of Justice website starting August 15, 2003.

Please forward your questions or comments to Sandra Hassan.

THE LINK (April 16th 2003)

Sun, 31 Oct 2004 22:10:44 -0500

THE LINK (April 16th 2003)

The Tax Law Team of the Bijuralism & Drafting Support Services Group of the Department of Justice of Canada is pleased to keep you posted on the most recent harmonization news.

Caselaw: The Supreme Court of Canada released its decision in the Markevich case on March 6th. In that case, the taxpayer was assessed for the 1980 to 1985 taxation years. In 1986, after a partial payment, Revenue Canada sent the taxpayer a notice of assessment showing a balance due of approximately $235 000. In 1987, the debt was internally written off but was neither extinguished nor forgiven. From 1987 to 1998, Revenue Canada did nothing to recover the debt which did not figure on the statements sent to the taxpayer. In 1998, Revenue Canada sent the taxpayer a statement of account indicating a balance of approximately $770 000 (including interests and penalties) for the 1980-1985 taxation years. The taxpayer applied to the Federal Court, Trial Decision for judicial review of that claim and sought a declaration that the Crown was prohibited, because of the limitation period, from taking collection measures to recover tax debts for any taxation year prior to 1991. The taxpayer took the position that the Crown was prohibited from taking steps to recover the debt. He argued that the Crown Liability and Proceedings Act applied and consequently that the laws relating to prescription and the limitation of actions in force, in that case the British Columbia Limitations Act, applied to preclude the Crown from taking any measures to recover the debt.

The Court decided that section 32 of the Crown Liability and Proceedings Act applied. The majority was of the view, however, that the cause of action, the tax debt, did not arise in a province. Consequently, the Court applied the six (6) year limitation period provided in section 32 in fine and not provincial law.

On March 25, 2003, the Federal Court of Appeal applied the Markevich decision in MacKinnon (2003 FCA 158) in the part of its decision pertaining to the moment the limitation period begins to run and the effect, on the limitation period, of the registration of a certificate in accordance with subsection 223(3) of the I.T.A.

Finally, it is to be noted that the Federal Court of Appeal released the Manrell decision on March 11, 2003 on the taxation of payments under a non-competition agreement as well as the meaning of the concept of "property" as defined at subsection 248(1) I.T.A.

Publication on Bijuralism: Another column on the harmonization of federal tax legislation, written by Martin Lamoureux, will be published in the A.P.F.F.'s Revue de planification fiscale et successorale (Vol. 23, no. 4). This column focusses on the concept of dissociation of federal tax legislation with provincial private law.

Please forward your questions or comments to Sandra Hassan.

THE LINK (January 29th 2003)

Sun, 31 Oct 2004 22:09:27 -0500

THE LINK (January 29th 2003)

The Tax Law Team of the Bijuralism & Drafting Support Services Group of the Department of Justice of Canada is pleased to keep you posted on the most recent harmonization news.

Launching of the Collection of Studies in Tax Law: On Thursday January 30th, 2003, the Fiscal and Financial Planning Association (A.P.F.F.) and the Department of Justice will launch a collection of studies: "The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism: Collection of Studies in Tax Law". This collection of studies deals exclusively with the harmonization of tax legislation.

The launch will take place at 3:00 p.m. in the Atrium of the Departmental Library in Ottawa (East Memorial Building, 275 Sparks Street). This event will feature speeches by the Honourable Alban Garon, Chief Judge of the Tax Court of Canada, Mr. Mario Dion, Associate Deputy Minister of Justice and Mr. Yvon L. Caron, President and General Manager of the A.P.F.F. We cordially invite you to attend this book launch. If you have not already confirmed your attendance, please advise Nancy Bouffard at (613) 952-5376 or by e-mail at nancy.bouffard@justice.gc.ca by noon on Thursday.

Other Publication on Bijuralism: Another column on the harmonization of federal tax legislation, written by Benoit Mandeville, was published in the A.P.F.F.'s Revue de planification fiscale et successorale (Vol. 23, no. 3). This fifth column reviews the case law dealing with the rule of complementarity of federal tax legislation with provincial private law. The article analyzes the main decisions on the issue that have been rendered over the last fifty years.

Research contracts on Canadian Bijuralism: A research contract was awarded to Professors Catherine Brown and Diane Bruneau who will prepare recommendations in order to harmonize the provisions of the ITA in which the concept of "beneficial ownership" is used. In addition, discussion tables are currently being held with various experts, practitioners and professors - in order to identify problems related to bijuralism at the international tax level.

Please forward your questions or comments to Sandra Hassan.

This number of The Link was written by André Ouellette of the Tax Law Team.

THE LINK (October 22nd 2002)

Sun, 31 Oct 2004 22:08:31 -0500

THE LINK (October 22nd 2002)

The tax law team of the Bijuralism & Drafting Support Services Group of the Department of Justice of Canada is pleased to keep you posted on the most recent harmonization news.

Lauching of the Collection of Studies in Tax Law: On Thursday January 30th, 2003, the Association de planification fiscale et financière and the Department of Justice will launch the Collection of Studies in Tax Law: " The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism: Collection of Studies in Tax Law ". The book, published in October, contains, inter alia, research reports prepared for the Department of Justice on the following subjects: partnerships, the concepts of right and interest, the concept of licence, conditional obligations, the concepts of residence, business (entreprise), employee and independent contractor. Although it is the third collection of studies pertaining to the harmonization of federal legislation with Quebec civil law, it is the first dealing solely with tax law issues and it is also the first that is published in collaboration with the private sector. One will recall that the second publication, published in 2001, is available on the internet at: http://www.canada.justice.gc.ca/en/dept/pub/hfl/table.htm.

Workshop on Harmonization and Bijuralism:The Department of Justice and the Canadian Tax Foundation (C.T.F.) held a workshop on Canadian bijuralism and tax legislation in Toronto on Tuesday, October 1st, 2002. The topics covered were the following: caselaw and interpretation rules since the introduction of sections 8.1 and 8.2 of the Interpretation Act (David Duff), the interaction between civil law trusts and the Income Tax Act (Diane Bruneau), the use of the concept of beneficial ownership: a common law perspective (Catherine Brown) and the use of the concept in the Income Tax Act (Mark Brender). The C.T.F. will publish papers based on their research reports in an upcoming issue of the Canadian Tax Journal.

For those who could not attend on October 2002, a second workshop on harmonization and bijuralism will be held by the C.T.F. in Toronto on February 6, 2003.

The Markevich case: The Supreme Court of Canada will be hearing the appeal from the Federal Court of Appeal's decision in the Markevich case next December 4th, 2002. The issue to be debated consists in determining if, in matters of limitation periods for tax debts, the Income Tax Act is a complete code and is dissociated from provincial private law as was decided by the Trial Division ( T-250-98) or if there is complementarity and a necessity to refer to provincial private law, as was stated by the Federal Court of Appeal ( 2001 FCA 144 ).

Please forward your questions or comments to Sandra Hassan.

THE LINK (September 18th 2002)

Sun, 31 Oct 2004 22:06:50 -0500

THE LINK (September 18th 2002)

The tax law team of the Bijuralism & Drafting Support Services Group of the Department of Justice of Canada is pleased to keep you posted on the most recent harmonization news.

The Schreiber case: Although the litigation in Schreiber v. Canada pertains to the State Immunity Act, Justice Lebel also analyses, in the Court's unanimous decision, the interpretation of bilingual statutes and of provisions that have been subject to harmonization amendments. In the Court's decision, reference is made to the bijural terminology records as well as to the second collection of studies on harmonization and bijuralism. The Court states that "the purpose of the Harmonization Act is to highlight bijural terminology used by common law and civil law systems, and does not substantively change the law as set out in the statute". A copy of the judgment is enclosed, the part on harmonization having been highlighted (paragraphs 66 -80).

Workshop on Harmonization and Bijuralism: The Department of Justice and the Canadian Tax Foundation (C.T.F.) will be holding a workshop on Canadian bijuralism and tax legislation in Toronto on Tuesday, October 1st, 2002. The speakers will be Professors David Duff (interpretation and caselaw) and Catherine Brown (use of the concept of beneficial ownership: a common law perspective), Me Diane Bruneau (trusts: a civil law perspective) and Me Mark Brender (use of the concept of beneficial ownership in the Income Tax Act). The C.T.F. will publish papers based on their research reports in an upcoming issue of the Canadian Tax Journal.

Articles on Canadian Bijuralism: In a few days, the Association de planification fiscale et financière will publish a collection of studies, prepared in collaboration with the Department of Justice: "The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism: Collection of Studies in Tax Law". It contains, inter alia, research reports prepared for the Department of Justice on the following subjects: partnerships, the concepts of right and interest, the concept of licence, conditional obligations, the concepts of residence, employee vs. independent contractor and business (entreprise).

Please forward your questions or comments to Sandra Hassan.