Cases
The Queen v. Marchessault, 2008 DTC 6496, 2007 FCA 345
The deemed year end under s. 128(2)(d) of the Act applied only to a "bankrupt" as specifically described in s. 2 of the Bankruptcy and Insolvency Act (the "BIA"), and did not extend to an individual (such as the taxpayer in this case) who had made a proposal notwithstanding the statement in s. 66(1) of the BIA that the provisions of the BIA would apply "with such modifications as the circumstances require" to proposals. Trudel J.A. noted (at para. 67) that Parliament had "exactly identified" the definition of "bankrupt" in the BIA and that "Parliament did not refer to the law applicable to a bankrupt under the BIA".
La Survivance v. The Queen, 2007 DTC 5096, 2006 FCA 129
Noël J.A found that it followed from the fact that subsection 256(9) deemed there to be an acquisition of control of a corporation on the beginning of the day, there was a concomitant abandonment of control of the corporation by the taxpayer.
OSFC Holdings Ltd. v. The Queen, 2001 DTC 5471, 2001 FCA 260
Rothstein J.A. found (at p. 5480) that as s. 248(10) of the Act was a deeming provision (i.e., a provision that imports into a term a meaning that the term would not otherwise convey") rather than a definition provision, it was intended to widen the "common law" scope of the term "series".
Placements Serco Lté v. The Queen, 88 DTC 6125 (FCA)
After referring to the description in R. v. Verrette, [1978] 2 S.C.R. 838, at 845 of the function of a deeming provision, the Court found that a corporation which was deemed by s. 212.1 (a provision in Part XIII of the Act) to have paid a dividend, was thereby subject to withholding tax under subsection 212(2) of the same Part, notwithstanding that subsection 212(2) also, by its terms, applied to amounts that were deemed to be dividends by Part I or Part XIV of the Act.
The Queen v. Schafer, 2000 DTC 6542, Docket: A-414-98 (FCA)
The Court found that s. 334(1) of the ETA created an irrebuttable rather than a rebuttable presumption by deeming anything sent by first class mail to have been received on the day of mailing, given that a requirement for receipt of the notification would be administratively difficult, and s. 335(1) of the ETA would leave a gap in the legislative scheme if the presumption in s. 334(1) were rebuttable.
Terrador Investments Ltd. v. The Queen, 99 DTC 5358, Docket: A-229-95 (FCA)
In finding that the making of an election s. 93(1) in respect of a distribution to the taxpayer of a promissory note by a liquidating U.S. subsidiary precluded the taxpayer from later claiming a deduction under s. 20(1)(p) when the uncollected balance of the promissory note proved to be uncollectible, Décary J.A. stated (at p. 5362) that:
"What is deemed to have been paid cannot also be said to be due."
ITT Industries of Canada Ltd. v. The Queen, 99 DTC 5105 (FCTD)
Simpson J. accepted a submission of the Minister that where labelling definitions are used (i.e., "X") in this section referred to as ("Y"), only the words which precede the parenthesis describe the defined term.
Liampat Holdings Ltd. v. The Queen, 96 DTC 6020 (FCTD)
Cullen J. rejected a submission that the deeming of the accrual of interest pursuant to s. 17(1) created a rebuttable rather than an irrebuttable presumption for purposes of the Act.
Qit-Fer et Titane Inc. v. The Queen, 92 DTC 6071 (FCTD), aff'd on different grounds 96 DTC 6213 (FCA)
Rouleau J. applied the statement in Côté Interprétation des lois that:
"In reading a statute, one must also presume that each word, phrase, clause and subsection has been drafted deliberately in order to produce a particular result. The Legislature is sparing in its language: it does not speak in order to say nothing."
Derlago v. The Queen, 88 DTC 6290, [1988] 2 CTC 21 (FCTD)
Martin, J. held that a taxpayer should be assumed, in the absence of any provision to the contrary, to have received proceeds of disposition at the same time that he was deemed by s. 45(1)(a) to have disposed of the property. This view was reinforced by the deemed reacquisition referred to in s. 45(1)(a)(iv). "This indicates to me, in this fictional world of taxation, that Parliament must have intended the deemed proceeds to have been received by the plaintiff because it provided for the expenditure of the proceeds by the plaintiff immediately after their creation."
Dunstan v. Young, Austen & Young Ltd., [1987] BTC 530 (HCJ), rev'd [1989] BTC 77 (C.A.)
"[T]he word 'include' may be used in such a definition to enlarge the natural meaning of the word defined, or to clarify it, or to introduce examples of its meaning, or to introduce restrictions on that meaning, or for two or more of those purposes. Exceptionally it may be used to introduce an exhaustive definition of the word in question."
Midyette v. The Queen, 85 DTC 5565, [1985] 2 CTC 362 (FCTD)
"'The purpose of any deeming clause is to impose a meaning, to cause something to be taken to be different from that which it might have been in the absence of the clause.'"
Merchant v. The Queen, 84 DTC 6215, [1984] CTC 253 (FCTD)
Since "office" was defined in S.248(1) to "mean" X, X overrode the ordinary sense of the word "office".
I.R.C. v. Metrolands (Property Finance) Ltd., [1981] 1 W.L.R. 637 (C.A.), aff'd 82 BTC 8032 (HL)
At 646:
"When considering the extent to which a deeming provision should be applied, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to. It will not always be clear what those purposes are. If the application of the provision would lead to an unjust, anomalous or absurd result then, unless its application would clearly be within the purposes of the fiction, it should not be applied. If, on the other hand, its application would not lead to any such result then, unless that would clearly be outside the purposes of the fiction, it should be applied."
The Queen v. Farmparts Distributing Ltd., 80 DTC 6157, [1980] CTC 205 (FCA)
Heald J.A. accepted (at p. 6160) a submission of the Crown that the word "including" in s. 212(1)(d) was used in its extensory sense for the purpose of enlarging the meaning of the preceding words, so that payments described after the word "including" were subject to the charge of the section whether or not they could be said to be ejusdem generis with "rent, royalty or a similar payment".
The Queen v. Compagnie Immobilière BCN Ltée., 79 DTC 5068, [1979] CTC 71, [1979] 1 S.C.R. 865
At 5072:
"In the context of s. 20(5), the definitions of 'disposition of property' and 'proceeds of disposition' cannot be said to be exhaustive; these expressions must bear both their normal meaning and their statutory meaning; it would be wrong to restrict the former because of the latter."
Storrow v. The Queen, 78 DTC 6551, [1978] CTC 792 (FCTD)
"Where a definition section uses the word 'includes', as it does in ss.62(3), then the expression said to be defined includes not only those things declared to be included, but such other things' ... as the word signifies according to its natural import'".
Toronto General Trusts Corp. (Hilder Estate) v. MNR, 58 DTC 1162, [1958] CTC 223, [1958] S.C.R. 499
In considering what scope should be given to what then was s. 36 of The Wills Act (Ontario), Judson J. stated (p. 1167):
"The fiction should not be pushed beyond its purpose. There is the high authority of Lord Mansfield in Morris v. Pugh et al., (1761) 3 Burr. 1241 at 1243, 97 E.R. 811, for caution of this kind."
East End Dwellings Co. Ltd. v. Finsbury Borough Council, [1952] A.C. 109 at 132
"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it."
See Also
Cartier House Care Centre Ltd. v. The Queen, 2015 TCC 278,
Paris J rejected CRA arguments that independent contractors who provided personal care services to a B.C. for-profit residential care home, including assistance with bathing, dressing, grooming, feeding, and incontinence management, were not thereby providing a (GST-exempt) "homemaker service," which was defined to mean "a household or personal service, such as cleaning, laundering, meal preparation and child care, that is rendered to an individual who, due to age, infirmity or disability, requires assistance." He stated (at paras. 46-47):
The use of specific examples after a general term in legislation does not restrict the meaning of the general term to cases similar to the specific examples. Rather, the presumption is that, in using the specific examples, Parliament intended to extend the meaning of the general term to things that would ordinarily have been seen as not falling within the general term. This principle of interpretation was discussed by the Supreme Court of Canada in National Bank of Greece v. Katsikonouris, [1990] 2 S.C.R. 1029… .
See summary under Sched. V, Pt. II, s. 1 – home care service.
Presidential MSH Corporation v. The Queen, 2015 TCC 61
The refundable dividend tax account of the taxpayer was not reduced by amounts which it could have claimed, but failed to timely claim, as "dividend refunds." S. 129(1) provided that the Minister "may...refund...an amount (...[the] "dividend refund"...) equal to [a formula amount]." Notwithstanding that "refund" was used here as a verb, Graham J found that the defined term refers to a refund of the formula amount, rather than to the formula amount whether or not refunded. See summary under s. 129(1).
Vocalspruce Ltd. v. Revenue and Customs Commissioners, [2014] BTC 50, [2014] EWCA Civ 1302 (English CA)
The parent company (Brixton plc) of the taxpayer (Vocalspruce) subscribed for zero coupon notes of group companies, and transferred the notes to Vocalspruce in consideration for the issuance by Vocalspruce of shares whose nominal value was equal to the notes' discounted value, but with the shares being issued at a premium which would be paid up by capitalizing the profit to be realized by Vocalspruce on the notes, with such sums to be appropriated to Vocalspruce's share premium account.
After finding that such profits (i.e., realized discounts on the notes) were otherwise exempted from income tax under a provision which excluded "any amounts required to be transferred to the company's share premium account," Lewison LJ went on to find that this exemption did not apply by virtue of a further provision (para. 12 of Sched. 12 of the Finance Act 1996) which (in s. 12(1))referenced transactions in which one group company "directly or indirectly replaces the other…as a party to a loan relationship," and provided (in s. 12(2)) that "the transaction , or series of transactions, by virtue of which the replacement takes place shall be disregarded." He stated:
Mr Peacock [for Vocalspruce] said that because paragraph 12 (1) refers to a "related transaction" and a related transaction is narrowly defined as the acquisition of rights under the loan relationship, all that is required to be disregarded is the fact of Vocalspruce's replacement of Brixton plc. …
I cannot accept this argument. The term defined is a related transaction; and the defined term may itself colour the meaning of the definition. A transaction is (at least) a bilateral arrangement. It makes no sense to disregard part of the transaction, when the statute clearly requires the whole transaction to be disregarded, except for very limited purposes. … In addition it is a well-known method of interpreting deeming provisions that one must treat as real the inevitable consequences flowing from the deemed state of affairs: DCC Holdings Ltd v HMRC [2010] UKSC 58, [2011] 1 WLR 44 at [38]. If the acquisition by Vocalspruce had not taken place, the inevitable consequence would have been that the shares would not have been issued for a premium, and there would have been no requirement to transfer anything to the share premium account. The rights under the loan relationship would have remained with Brixton plc, which was under no obligation to transfer any amount to a share premium account, and that company would have been liable to pay tax on the gain.
Robert Dubois Inc. v. The Queen, 2014 DTC 1094 [3167], 2013 TCC 409, briefly aff'd 2015 CAF 235
Jorré J found that 18th or 19th century violins purchased by the taxpayer were caught by the description "antique furniture, or any other antique object" in Reg. 1102(1)(e)(iv). The taxpayer submitted that the words "shall be deemed" at the outset of Reg. 1102(1) indicated that the subsection created a set of legal fictions, and therefore each deemed exception to depreciable property should be construed narrowly. However, the word "deemed" had several meanings in statutory drafting, and not all of them create legal fictions - in this case, the word was used to establish a rule excluding certain things from the term "depreciable property" (para. 36).
Gill v. The Queen, 2012 DTC 1261 [at 3764], 2012 TCC 302
Subparagraph 56(1)(a)(i) provides that superannuation or pension benefits must generally be included in a taxpayer's income, "including, without limiting the generality of the foregoing," a number of items listed in ss. 56(1)(a)(i)(A)-(C.1). Hogan J. found that the general inclusion of "superannuation or pension benefits" at the beginning of s. 56(1)(a)(i) did not mean that clauses (A)-(C.1) were confined to only amounts that were superannuation or pension benefits - in the present case, clause (C.1) meant that the taxpayer was required to include in income an amount paid in redeeming a foreign retirement arrangement, regardless of whether that amount would normally be considered a superannuation or pension benefit (para. 35). The use of the word "includes" in a definition "enlarges the ordinary (or technical) meaning of the defined terms to include things that might normally be thought to fall outside their denotation" (Ruth Sullivan, Statutory Interpretation, 2d ed. (Toronto, Irwin Law, 2007), at p. 70).
Wunderlich v. The Queen, 2012 DTC 1040 [at 2676], 2011 TCC 539
The taxpayer was promoted to a management position, and the expanded responsibilities prompted him to move closer to work. The Minister disallowed his moving expenses on the basis that he had not moved to a "new" work location and, instead, had stayed put. Webb J allowed the taxpayer's appeal. The definition of "eligible relocation" in s. 248(1) requires that:
the relocation occurs to enable the taxpayer
(i) to carry on a business or to be employed at a location (in section 62 and this definition referred to as "the new work location") ... .
Webb J stated (at para. 8):
"[N]ew work location" is simply the name or the label that was placed on the particular location. The words used as part of this label (in particular new and work) should not be used to define the expression "new work location".
Klotz v. The Queen, 2004 DTC 2236, 2004 TCC 147, aff'd 2005 DTC 5279, 2005 FCA 158
Bowman A.C.J. applied a statement in Maxwell on The Interpretation of Status, 12th Edition, that "the word in respect of which 'includes' is used bears both its extended statutory meaning and 'its ordinary, popular and natural sense whenever that would be applicable" in interpreting the 'includes' definition of "personal-use property" in s. 54 of the Act.