Cases
CNG Producing Co. v. Provincial Treasurer (Alberta), 2002 DTC 7537 (Alta CA)
An amendment that was stated to apply "to taxation years beginning after December 31, 1980" and that was enacted in 1997 clearly was intended to apply retroactively and, therefore, the presumptions that applied, in case of ambiguity, against retroactive operation of a statute and against interference with vested rights had no application. Further, the taxpayer's position was not advanced by it having commenced litigation based on the state of the law prior to the introduction of the amendment. "If an enactment operates retroactively, as it does in this case then, by definition, it applies to pending litigation." (p. 7543)
The Queen v. Corbett, 99 DTC 5624 (FCA)
Rothstein J.A. applied (at p. 5636) "the strong and well established presumption in statutory interpretation that the legislature does not intend to 'abolish, limit or otherwise interfere with the rights of subjects'".
Hokhold v. The Queen, 93 DTC 5339 (FCTD)
A retroactive amendment to s. 110(1)(f)(iii) of the Act was not contrary to ss.7 and 15 of the Charter.
Roseland Farms Ltd. v. The Queen, 92 DTC 6417 (FCTD)
The enactment of the current version of s. 179, which affected procedures to be followed following its enactment, did not represent retrospective legislation.
First Fund Genesis Corp. v. The Queen, 91 DTC 5361 (FCTD)
In finding that s. 194(4.2) had a retroactive effect, Joyal J. stated (p. 5369):
"Although there may be a presumption that statutes are not intended to be retrospective or retroactive in their application, such a presumption must give way when the language of the statute and the context in which the statute was enacted dictate that a retroactive effect be given to it."
Placer Dome Inc. v. The Queen, 91 DTC 5115 (FCTD)
In finding that a 1984 amendment to the Act should not be interpreted so as to give the Minister the ability to reassess a taxation year of the taxpayer which previously had been statute barred, MacKay J. stated (p. 5122):
"The presumption against retrospective application is ignored where the statute is deemed beneficial in its effects, or where it is merely procedural without affecting substantive interest, or where, within comparatively narrow limits it is deemed to be enacted to protect special public interests. The legislation here in question, in my view, fits none of those categories. Rather, if deemed to apply to past events its effects are primarily prejudicial or adverse to the substantive interest of the taxpayer, and the presumption against retrospective application applies."
Aluminium Enterprises Ltd. & Ors. v. The Commissioners of Income Tax, [1985] BTC 550 (PC)
"While it is always open to a sovereign Parliament to change tax rules for the future, and even to do so retrospectively provided that the requisite intention is made clear, one intention not readily to be attributed to the legislature is that of disturbing legitimate expectations upon the faith of which development companies had earlier made irrevocable elections not to claim initial allowances."
Laurentide Rendering Inc. v. The Queen, 84 DTC 6153 (FCTD), aff'd 88 DTC 6331, [1988] 2 CTC 200 (FCA)
Legislation was not retrospective merely because it took into account an event that took place prior to its enactment (namely, an expropriation), when it applied only when a subsequent event occurred (namely, the expropriation proceeds becoming "receivable").
Davis v. The Queen, 80 DTC 6056, [1980] CTC 88 (FCA)
The fact that capital appreciations that have accrued to the end of taxation year 1 may be initially exempt from capital gains tax in year 1 does not mean that the taxpayer has a vested right to be protected against retroactive legislative changes taxing those accrued gains.
Beique v. The Queen, 78 DTC 6452, [1978] CTC 646, aff'd 81 DTC 5050 [1981] CTC 75 (FCA)
The community of movables and acquests established in Quebec in 1971 was held not to have retroactive effect to the date of the taxpayer's marriage in 1939 in light of "a fundamental principle of law that, unless otherwise stated, an enactment is presumed not to have retroactive effect" and the consideration that "from a practical standpoint, giving a new regime acquired later in life retroactive effect to the date of marriage would plunge society into a state of chaos."
Agnew Estate v. The Queen, 78 DTC 6237, [1978] CTC 351 (FCA)
The principle was applied that "a statute should not be construed so as to have a greater retrospective operation than its language renders necessary."
Barkman Developments Ltd. v. MNR, 67 DTC 5227, [1967] CTC 325, briefly aff'd 67 DTC 5306 (SCC)
In finding that s. 138A(2) of the pre-1972 Act, which was assented to on December 5, 1963 and made applicable to 1964 and subsequent taxation years (including the taxation years of the taxpayers ending on February 29, 1964), was not retrospective, Cattanach J. stated (p. 5229):
"[s.138A(2)] does not purport to change the tax payable by the appellants in their 1963 and previous taxation years. That is the appellants' vested right. If an Act provides that as at a past date the law shall be taken to have been that which was not then that Act would be retrospective. That is not the present case. Retrospective operation is one matter. Interference with existing rights is another. There is a presumption that an Act speaks only as to the future, but there is no corresponding presumption that an Act is not intended to affect existing rights. Most Acts of Parliament do just that."
A.G. of Canada v. Compagnie de Publication La Presse LteƩ, 66 DTC 5492, [1967] S.C.R. 60
"[G]enerally speaking, a law is not to be interpreted as having a retroactive effect unless it contains express words or there is the plainest implication to the contrary effect."
See Also
Ben Nevis (Holdings) Ltd. v. Revenue and Customs Commissioners, [2013] BTC 485, [2013] EWCA Civ 578
Before rejecting the taxpayer's submission that the enacting U.K. legislation for Article 25A of the Convention between South Africa and the U.K., which if it permitted the South African Revenue Service to collect tax debts arising prior to the coming into force of the Convention through the respondent (HMRC) of South African taxes, would thereby entail retrospective application of such legislation, Lloyd Jones LJ, in confirming the decision below, referred with approval (at para. 48) to:
the distinction drawn by Lord Rodger in Wilson v First County Trust (No. 2) [2004] 1 AC 816 at paras. 186 et seq., between retroactive operation of legislation and statutes making prospective changes to existing rights. In the present case the judge found that an enactment is not retrospective in any objectionable sense where the enactment is simply applied at a time after its commencement to a state of affairs existing at that time, even though that state of affairs came in to existence before the commencement.
Collins & Aikman Products Co. v. The Queen, 2009 DTC 1179 [at 958], 2009 TCC 299, aff'd 2010 DTC 5164 [at 7293], 2010 FCA 251
In an obiter indication that ss.152(1.11) and (1.12), pursuant to which the Minister had made a retroactive redetermination of paid-up capital, should likely be interpreted restrictively, Boyle, J. stated (at para. 28) that "instinctively, it seems that retroactive determinations, like retroactive tax legislation, should be avoided except in cases where the legislator has clearly and unambiguously set out its intent to impose or permit the tax to be imposed retroactively."
MIL (Investments) S.A. v. The Queen, 2006 DTC 3307, 2006 TCC 460, aff'd 2007 FCA 236
Before going on to find that transactions engaged in by the taxpayer were not contrary to the general anti-avoidance rule notwithstanding subsequent retroactive amendments to that rule that expanded its potential application to transactions that the taxpayer had engaged in, Bell J. stated:
"Retroactive legislation, although within the power of Parliament is legal but undesirable. The inappropriateness of reassessing taxpayers who completed transactions in accordance with the law in force at the time of those transactions without any expectation of adverse retroactive effect is self-evident."
Upper Lakes Shipping Ltd. v. MNR, 92 DTC 2381 (TCC)
It was found that an amendment to s. 17(1), which replaced a requirement that loans made to non-residents have an interest rate of at least 5% by a requirement that the interest rate be the prescribed rate, should not be interpreted as having the retrospective effect of creating an obligation to increase the interest rate on existing loans to higher than 5%. Christie A.C.J. quoted Lambert J.A. who stated inter alia in Hornby Island Trust Committee v. Stormwell (1989), 53 DLR (4th) 435 (BCCA) that "... 'the legislature should not be presumed to have enacted a statute that treats those it affects, or some of them, not just adversely, but unfairly, with respect to acts they have undertaken in the past' ...".
Articles
Verchere, "Jurisprudence from Foreign Jurisdictions", 1992 Conference Report, pp.51:33-51:50
Discussion of the Decision in Carlton v. U.S., 972 F. 2d 1051 (9th Cir. 1992), where it was held that a retroactive amendment to a federal estates tax provision was not applicable to a taxpayer.