Expressio Unius est Exclusio Alterius

After referencing the expressio unius or "implied exclusion" principle, Rothstein J agreed (at para. 108) with the taxpayer's submission that when a definition of paid-up capital ("PUC") "lists a series of specific 'grinds' [to PUC], without any indication of the possibility of making additions to that list, that it may be assumed that the list is exhaustive." However, he went on to find that this "implied exclusion argument" was misplaced when it was advanced to argue that the general anti-avoidance rule could not be applied to prevent reliance by the taxpayer on this definition in a manner that defeated the underlying rationale of the PUC provisions.

Rothstein J. rejected a submission of the Crown that because Parliament had enacted provisions of the Act respecting registered Canadian amateur athletic associations (RCAAAs), it should be considered to have established that athletic associations could not also qualify as charitable organizations. After noting (at para. 16) that "because of the degree of precision and detailed characteristics of many tax provisions, an emphasis has often been placed on textual interpretation when taxation statutes are concerned", he went on to state (at para. 17 and 18):

"Similar caution is necessary when assessing claims that imply unexpressed meaning into the RCAAA provisions, i.e., that the RCAAA provisions also preclude charitable status for non-nationwide sports organizations of all descriptions. ... Rather, Parliament created a clear position for RCAAAs, and left the rest to be determined in accordance with the long-standing practice under the common law."

A provision which deemed income transferred in circumstances of tax avoidance by individuals to non-resident corporations to be income of the transferor individual was found not to have the effect of deeming such income not to be income of the transferee corporations in light inter alia of comparison to other provisions which explicitly stated that amounts that were deemed to be income of one person were deemed not to be income of any other person.

It was appropriate to apply the maxim, expressio unius est exclusio alterius in finding that the failure of s. 127(8) to refer to an ability of taxpayers who carried on business in partnership to claim investment tax credits at the enhanced rate of 35% indicated that such rate was not available.

After referring to various provisions of the Act that established specific time limitations, the L'Heureux-Dubé J. went on to find that Regulation 1102(1)(c) should not be found to apply whenever a revenue-producing asset was held for only a few days:

"Had Parliament intended such time restrictions to apply to CCA, it would have said so - expressio unius est exclusio alterius."

After finding that s. 28(1) of the Personal Property Security Act was inconsistent with a broad interpretation of a licence of a debtor to sell without the proceeds being subject to the respondent's security interests, Iacobucci J. stated (at p. 5091):

"... this is an appropriate case for the invocation of the maxim expressio unius est exclusio alterius . The statute prescribes certain consequences for the security interest that follow a dealing with inventory. In particular, the statute contemplates defeasance of the interest if the debtor actually sells the inventory and applies the proceeds to an obligation to a third party. Significantly, the statute does not contemplate a defeasance on the happening of any other event. In my view, the statute occupies the field and crowds out other possible interpretations of the licence ..."

In noting that the presence of specific statutory relief for late elections did not establish that there was not an unexpressed availability of a late designation under paragraph 55(5)(f), Robertson J.A. stated (at p. 5057):

"I know of no case which holds that because an exception is provided by statute for one case and not another, that fact alone is determinative such that no other exceptions may exist."

In finding that Parliament should not be taken to have intended that the words "trader or dealer" in s. 39(5)(a) should be restricted to those who are so licensed by regulatory authorities, Létourneau J.A. noted that he was following the rule of construction applied in R. v. Multiform Manufacturing Co., [1990] 2 S.C.R. 624 where the Court "referred to the maxim expressio unius est exclusio alterius and ruled that the presence of a restriction in one paragraph reinforces the position that Parliament did not intend to restrict the scope of the other paragraphs in which the restriction did not appear" (p. 5118).

"Prima facie the same words in different parts of the same Statute should be given the same meaning unless there is a clear reason for not doing so." The word "spouse" was found to have a different meaning in s. 60(b) than in s. 73(1), in part, because the definition in s. 73(1.2) (a statutory ancestor of the present S.252(3) was made expressly applicable only to s. 73(1).

The plaintiff unsuccessfully argued that since s. 216(7) specifically provided that annuity income averaging was unavailable to a non-resident, by virtue of the rule exclusio unius inclusio alterius general averaging was available to non-residents. Annuity income averaging, in the absence of s. 216(7), would otherwise have been available to the plaintiff, whereas general averaging was not.

In rejecting a submission that s. 11(1)(f) of the pre-1972 Act (now s. 20(1)(p)), which permitted the deduction of bad debts in certain circumstances, impliedly prohibited a deduction for bad debts that did not fall within that provision, Jackett P. stated (at p. 5102):

"It might therefore had been thought, as the respondent contends, that a deduction for a 'bad debt' that is excluded from section 11(1)(f) by the qualifications expressed in it is impliedly prohibited. Such an interpretation would, however, have results that cannot in my view, have been contemplated. For example, a bond dealer, who, in effect, buys and sells 'debts', would, on such an interpretation, be precluded from taking into account losses arising from bonds becoming valueless ... ."

"[T]he rule expressio unius est exclusio alterius must be applied with caution in construing a statute. To apply it in this case would, in my opinion, defeat the intention of Parliament." (p. 1199)

In finding that reference to control by a person did not include control by persons, Cartwright J. stated (pp. 1192-1193):

"When section 127 by clause (b) provides that corporations controlled directly or indirectly by the same person shall be deemed not to deal with each other at arm's length it appears to me to negative the view that corporations are to be deemed not to deal with each other at arm's length when controlled not by the same person but by the same group of persons. Expressio unius exclusio alterius. When the wording of clause (b) of section 127 is contrasted with that of clause (a) it seems to me impossible to read the word 'person' in clause (b) as including the plural".