Cases
Tuccaro v. The Queen, 2014 DTC 5103 [at 7210], 2014 FCA 184
The taxpayer's tax appeal was based on an alleged exemption, in an aboriginal treaty ("Treaty 8"), from all taxation. The motions judge found that he was bound by the legal finding in Benoit that there was no such exemption in Treaty 8, and granted the Minister's motion to strike references to Treaty 8 from the taxpayer's pleadings.
Webb JA reversed the motion judge's decision. Benoit made a factual conclusion, on whether "the Aboriginal signatories understood that they would be exempted from taxation for any reason," finding that there was "insufficient evidence" to support this view - therefore, the question was not whether stare decisis applied on the findings of law in Benoit, but rather whether issue estoppel applied on the findings of fact (para. 21).
Issue estoppel did not apply. Although the issue was the same, there was no evidence that any litigant in Benoit was the present taxpayer or his privy.
The Queen v. Craig, 2012 SCC 43
After noting (at para. 25) that, before overruling a previous decision of the Court, "the Court must be satisfied based on compelling reasons that the precedent was wrongly decided," Rothstein J went on to find that this test was satisfied in the case of the previous decision of the Supreme Court in Moldowan, so that such decision should not be followed. He had previously noted that the Federal Court of Appeal in Gunn had also not followed Moldowan notwithstanding that Moldowan was "a precedent binding on the Federal Court of Appeal" (para. 18), and in this case what the Federal Court of Appeal ought to have done, rather than following its own decision in Gunn and not following Moldowan, was to merely state written reasons as to why Moldowan was problematic (para. 21).
Copthorne Holdings Ltd. v. The Queen, 2012 DTC 5006 [at 6536], 2011 SCC 63
The Canada Trustco decision, 2005 SCC 54, established that under the definition of "series of transactions" in s. 248(10), a transaction can be effected "in contemplation of" a series of transactions even if it occurs after that series of transactions. The taxpayer argued that this finding in Canada Trustco should be overturned because it ran contrary to the plain meaning of "in contemplation of," which the taxpayer alleged is forwards-looking only. Rothstein J. stated (at para. 57):
Trustco is a recent decision of this Court. Reversing a recent decision "is not a step to be lightly undertaken" (Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, at paras. 56-57, per McLachlin C.J. and LeBel J.). Before a Court will entertain reversing a recently decided decision, there must be substantial reasons to believe the precedent was wrongly decided. In this case, Copthorne has not met the "high threshold for reversing a precedent" (Fraser, at para. 60) and it is appropriate to reaffirm the Trustco interpretation of s. 248(10).
The taxpayer's reassessment under s. 245 was upheld.
Bozzer v. The Queen, 2010 DTC 5025 [at 6612], 2010 FC 139, rev'd 2011 DTC 5106 [at 5922], 2011 FCA 186
Shore J. found that he should apply a decision of the Federal Court of Appeal on the meaning of "taxation year" in s. 127(5) even though that section had since been repealed.
Kaulius and Mathew v. The Queen, 2003 FCA 371, 2003 DTC 5644 (FCA), aff'd 2005 DTC 5538, 2005 SCC 55
Before finding that the Court should not depart from its approach in OSFC Holdings Ltd. v. The Queen, 2001 FCA 260 (FCA), Rothstein J.A. noted that "the basic test for overruling a decision of another panel of the Court is that the prior decision is manifestly wrong in that the Court overlooked a relevant statutory provision or a case that ought to have been followed", and noted that before him the appellants were only raising some additional statutory provisions in support of an argument that was previously made, and that this was insufficient to cause the Court to consider overruling its prior decision.
ITT Industries of Canada Ltd. v. The Queen, 2000 DTC 6445, Docket: A-99-99 (FCA)
Before going on to decline to follow an obiter dictum in a previous case, Sharlow J.A. stated (at p. 6449):
"In my view, the obligation of the Court in this case is to consider whether or not the interpretation suggested by the obiter in Kettle River is correct, and to confirm it only if it is correct. Neither the passage of time since Kettle River was decided, nor the inaction of Parliament in the interim, relieves the Court of that obligation or requires the adoption of obiter that is found not to be correct."
Attorney General of Canada v. Mastri, 97 DTC 5420 (FCA)
With respect to a submission by the Crown that the earlier decision of the Court of Appeal in the Tonn case should be "overruled", Robertson J.A. stated (at p. 5422):
"It is important to recognize that although a decision of one panel of this court is not binding on another, it is incorrect to speak of a recent decision overruling an earlier one. The accepted rules of stare decisis dictate that both decisions are of equal weight."
The Queen v. Armstrong, 96 D.T.C 6315 (FCA)
After noting that the decision in The Queen v. Bryce, [1982] 2 F.C. 581 (C.A.) was reversed under a consent judgment made in the Supreme Court of Canada that allowed an appeal from the Court of Appeal decision and restored the judgment in the Trial Division (at 80 DTC 6304), Stone J.A. stated (at p. 6320):
"True, the Supreme Court of Canada upon a motion in chambers in turn reversed this Court's judgment but as its judgment was given on consent it has no precedential value. A consent judgment represents an agreement of the parties and although it is entered upon the record with the approval of a court and is therefore binding as between the parties it does not create a precedent by which an inferior court is bound."
Symes v. The Queen, 94 DTC 6001, [1993] 4 S.C.R. 695
Before stating (p. 6012) that he did not feel that he had to "slavishly follow those cases which have characterized child care expenses as personal in nature", Iacobucci J. referred to R. v. Salituro, [1991] 3 S.C.R. 654 where the Court stated (p. 670) that:
"Judges can and should adapt the common law to reflect the change in social, moral and economic fabric of the country".
Carlini Bros. Body Shop Ltd. v. The Queen, 92 DTC 6543 (Ont. Ct. J. - G.D.)
"My understanding of the law of stare decisis is that I am only bound by decisions of a court to which a decision of mine could be appealed. Federal Court of Appeal decisions, even in relation to the Income Tax Act, are not binding on me, but are entitled to the same consideration and persuasive weight as would be given by this court to the decisions of the highest appellate courts of the other provinces ...".
Royal Bank of Canada v. Saskatchewan Power Corp., 90 DTC 6330 (Sask QB)
The Saskatchewn Court of Queen's Bench was not bound by a decision of the Alberta Court of Appeal in respect of which the Supreme Court of Canada had refused to give leave to appeal, in light of the principle that a refusal to grant leave is not a disposal of the case on its merit.
Pilfold v. Skog Estate (1989), 64 DLR (4th) 186 (BCCA)
Even where remarks of the Supreme Court of Canada are obiter, those remarks should be followed if they were given after full argument on the point.
Re Cox, 88 DTC 6494, [1988] 2 CTC 365 (BCSC)
An opinion of Collier, J. was a bald statement which apparently was made without the benefit of argument on the relevant authorities. His opinion was not followed.
Irving Oil Ltd. v. The Queen, 88 DTC 6138, [1988] 1 CTC 263 (FCTD), aff'd 91 DTC 5106 (FCA)
"[W]here a Court gives two or more reasons for allowing an appeal, each reason is binding and forms part of the ratio of the decision."
The Queen v. Pollock, 84 DTC 6370, [1984] CTC 353 (FCA)
Pratte J.A. stated (p. 6371), in refusing to depart from the earlier decision of the Court in The Queen v. Atkins, 76 DTC 6258 that while the:
"... Court has the power to reconsider and refuse to follow one of its previous decisions, we are of opinion that we should do so only when we are convinced that our previous decision was wrong ..."
See Also
Tallon v. The Queen, 2014 DTC 1148 [at 3478], 2014 TCC 193
The taxpayer suffered from severe chronic pain. On the advice of her doctor, she helped alleviate the pain by wintering with her husband in warm climates. She claimed medical expense tax credits in respect of her travel and meal expenses.
Woods J found that the facts were materially identical to a 2008 case, decided by Lemarre J, involving the same taxpayer, medical condition and treatment. Therefore, although the Minister identified a 2001 decision that would potentially undermine the taxpayer's METC claim, Woods J stated (at para. 15):
There would be nothing wrong with this if the reasons of Justice Lemarre were provided to me so that I could consider them. But they were not, and no explanation was provided for failing to provide a transcript of these reasons. I find this situation to be very unfair to the taxpayer. If Ms. Tallon is to be deprived of the benefit of the prior decision for a subsequent year, it is only fair to her that the Court give careful consideration to the reasons in the prior case. I was not able to do this.
It was inappropriate, especially in an informal procedure case, to order a subsequent hearing to review the prior decision. Therefore, the taxpayer's METC claims were allowed.
J.K. Read Engineering Ltd. v. The Queen, 2014 DTC 1216 [at 3872], 2014 TCC 309
Before finding that the taxpayers' argument was contradicted by the "authoritative obiter" in S.T.B. that s. 245(7) applied to third parties only, Hogan J paraphrased (at para. 28) R. v. Henry, [2005] 3 S.C.R. 609 for the proposition "that obiter dicta move along a continuum and diminish in weight the further they stray from the dispositive point of judicial opinion," and noted (at para. 29) that in S.T.B. "the third party application of subsection 245(7)…was fully argued."
Congiu v. The Queen, 2013 CCI 271, aff'd 2014 FCA 73
The appellant was appealing an assessment made by Revenue Quebec on behalf of the (federal) Minister under s. 270(4) of the Excise Tax Act in respect of a debt of a corporation of which she had been a receiver. Angers J noted (at para. 4) that (TaxInterpretations translation):
The issues before me are essentially the same as those put before Justice Lareau of the Court of Quebec and on which he has already pronounced. Only the legislative provisions on which the assessments rest are different….[T]he decision…which dismissed the appeals, is under appeal before the Quebec Court of Appeal….
There was an agreed statement of facts based on the findings of Lareau J.
In finding that the issues before him were not res judicata, and after noting that both cases dealt with a sale of assets without a clearance certificate, Angers J stated (at para. 8):
It is more difficult for me to conclude that the provincial and federal assessments have the same subject. Their amounts and legal basis are different. Finally…there is not an identity of the parties, as the federal and Quebec governments are not the same person.
However, it would constitute an abuse of process to consider the issues in the present appeal given their similarity to those disposed of by Lareau J. A different outcome in this appeal would be viewed as contradictory to the earlier decision (para. 13), whereas the objective instead was that "judgments on the same question be coherent" (para. 16).
CAE Inc. v. The Queen, 2011 DTC 1362 [at 2031], 2011 TCC 354, aff'd 2013 DTC 5084 [at 5944], 2013 FCA 92
Jorré found that the taxpayers' flight simulators could be depreciable property in a taxation year where the taxpayer rented the simulator out (thereby allowing the taxpayer to deduct capital cost allowance), but also be inventory in the year the simulator is sold (thus forcing the taxpayer to treat the resulting gain as business income rather than a capital gain). In reaching this conclusion, Jorré J. noted that the Court in Friesen ([1995] 3 S.C.R. 103) made a comment indicating that his approach might be "inconsistent with the basic division in the Income Tax Act between business income and capital gain." Although he ultimately concluded that his findings did not contradict Friesen, he stated (at para. 139):
Does the excerpt from Friesen that I just quoted [regarding the income/capital gain division] apply? We are no longer in the era where Lord Halsbury stated that a judgment is authoritative solely for the issue it decides and nothing more. Ever since the Supreme Court's decision in Sellars v. The Queen [[1980] 1 S.C.R. 527], it has been clear that the Supreme Court's decisions have broader scope than they would under Lord Halsbury's classic approach.
Crown Forest Industries Ltd. v. The Queen, 2006 DTC 2321, 2006 TCC 47
In refusing to follow the decision in the Terra Mining Exploration case (84 DTC 6185) Hershfield J. stated (at p. 2326):
"While I am loathe to cast aside a precedent as long-standing as the Federal Court, Trial Division's decision in Terra, it is necessary to consider the issue at hand now, some 20 years later, in the light of more recent jurisprudence. While I would not advocate reconstructing the meaning of a statutory provision as and when the judicial thinking of the day changes, in this case, the express language of the Act was not, in my view, given effect in Terra."
Sussex Square Apartments Ltd. v. The Queen, [1999] 2 CTC 2143 (TCC), aff'd [2000] 4 CTC 203 (FCA)
Bowman TCJ. adopted the "illuminating discussion of the principle of stare decisis [in] the judgment of Master Funduk in Southside Woodwork v. R.C. Contracting et al. (1989) 95 A.R. 161 at pp. 166-167, paragraphs 51 and 53".
La Compagnie Price Limitée v. The Queen, 95 DTC 428 (TCC)
The Minister reassessed the taxpayer in accordance with a Federal Court judgment issued pursuant to a consent to judgment (as subsequently varied). The taxpayer objected to the reassessment on the basis that it did not properly compute its logging tax credit. In dismissing the taxpayer's appeal, Garon TCJ. noted that the reassessment accorded in every respect with the consent judgment and (at p. 433):
"If this Court were permitted to consider and decide a question that has not been examined and the decision rendered following a consent to judgment by the parties, it would follow that this Court would have the power vary its own judgment. We know that it is clearly recognized that a court of justice may vary one of its judgments only in certain quite specific circumstances that are described in ... Gunnar Mining ..."
Mourtzis v. The Queen, 94 DTC 1362 (TCC)
S.18.28 of the Tax Court of Canada Act merely indicates that the rules of stare decisis do not apply to the informal procedure decisions of the Tax Court and does not preclude the Tax Court from citing, analysing or following such decisions if it is disposed to do so.
Dundas v. MNR, 90 DTC 1529 (TCC)
In applying obiter dicta of Pigeon J. in the Cewe case, Rip J. applied the following statement in Ottawa v. Nepean, [1943] O.W.N. 352:
"What was said there may be obiter, but it was the considered opinion of the Supreme Court of Canada, and we should respect it and follow it, even if we are not strictly bound by it."
Bernier Estate v. MNR, 90 DTC 1220 (TCC)
Although Lamarre Proulx J. was inclined to interpret s. 62(1) differently than in the Haines and Bracken decisions, and although under the rule of stare decisis she was not bound by those decisions if they were not decisions of a higher court, nonetheless because "stability and consistency in the decisions of a Court are important" (p.1223), those decisions were followed by her. She also quoted the following passage from Stewart v. Bank of Montreal (1909), 41 SCR 516 at 534:
"'It is', said Lord Macnaghten, in New South Wales Taxation Commissioners v. Palmer, [1907] A.C. 179 at p. 184, 'impossible to treat a proposition which the court declares to be a distinct and sufficient ground for its decision as a mere dictum because there is another ground upon which, standing alone, the case might have been determined.'"