TITLE:

The Excise Tax Act and the Application of the Common Law Concept of Licence in a Quebec Civil Law Context .

AUTHOR(S): 

Laroche, Pascale

EDITOR:

Department of Justice Canada

This research report inspired an article published in:

• Laroche, Pascale, “The Excise Tax Act and the Application of the Common Law Concept of Licence in a Quebec Civil Law Context”, The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism – Collection of Studies in Tax Law, Montreal, Association de planification fiscale et financière, 2002, pp. 8 :1-122.

PAGE(S) :

SERIE(S) :

The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism  – Collection of Studies in Tax Law

SUBJECT(S):

Canadian Bijuralism
Tax law

EXTRACT:

This extract is an exact copy of the one published in The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism Collection of Studies in Tax Law.

One such problem involves the Excise Tax Act, under which the common law concept of licence must be applied in a Quebec civil law context.  That concept, as understood in a property law context in the common law, is meaningless in the civil law.  So how can the provisions of the Excise Tax Act that refer to it be interpreted and applied?  The purpose of this study is therefore to define the common law concept of licence in order to try to find its legal equivalent in Quebec civil law.  We will also try to make some recommendations for harmonizing the Excise Tax Act with Quebec civil law in relation to that concept using the various harmonization techniques developed by the Department of Justice Canada under the Program to Harmonize Federal Legislation with the Civil Law of Quebec.
 

TABLE OF CONTENTS:

INTRODUCTION

I. STUDY OF THE CONCEPT OF LICENCE

1.1  OVERVIEW OF PROPERTY LAW IN THE COMMON LAW: CLASSIFICATION OF PROPERTY

1.2 STUDY OF THE CONCEPT OF LICENCE IN THE COMMON LAW

1.2.1 Definitions

1.2.2 Nature and creation of licences

1.2.3 Types of licences

1.2.3.1 Bare licence

1.2.3.2 Contractual licence

1.2.3.3 Licence coupled with an interest

1.2.4 Rights and obligations of the licensor and the licensee

1.2.4.1 Revocability of licences

1.2.4.2 Enforceability against third parties

1.2.5 Criteria for distinguishing between licences and other rights

1.2.5.1 Licences and leases

1.2.5.2 Licences and profits à prendre

1.2.5.3 Licences and easements

1.2.5.4 Licences and bailment

1.1  CONTEXT IN WHICH THE TERM “LICENCE” IS USED IN THE E.T.A.

1.1.1  Various meanings give to the term “licence” in the E.T.A.

1.1.2   Licences and the expression “lease, licence or similar arrangement”

II. PROBLEMS WITH THE USE OF THE COMMON LAW LICENCE IN QUEBEC CIVIL LAW

2.1 PROBLEMS APPLYING THE E.T.A.’S PROVISIONS IN QUEBEC CIVIL LAW

2.2 LEGISLATIVE AMENDMENTS TO PARAGRAPH 25(F) OF PART VI OF SCHEDULE V

2.3 ADMINISTRATIVE POLICY OF REVENUE CANADA AND THE QUEBEC DEPARTMENT OF REVENUE

2.3.1 Paragraph (f) before the 1992 legislative amendment

2.3.2 Paragraph (f) since the 1992 legislative amendment

2.4 DOES THE COMMON LAW CONCEPT OF LICENCE EXIST IN QUEBEC CIVIL LAW?

2.4.1 Licences and property law in Quebec civil law

2.4.2 Licences and nominate contracts under the Civil Code of Québec

2.4.2.1 Loan for use

2.4.2.2 Contract of lease

III. HARMONIZATION OF THE EXCISE TAX ACT WITH QUEBEC CIVIL LAW

3.1 HARMONIZATION TECHNIQUES:  DOUBLE, NEUTRAL TERM, QUEBEC CLAUSE AND NEW DEFINITION

3.2  RECOMMENDATIONS

CONCLUSION