Hansard, explanatory notes, etc.

Elliott J found that CRA was not bound to follow a procedure in its Collections Manual that, by the time it actually implemented the action that the taxpayers complained about (merely withdrawing a certificate of taxes owing that CRA had filed under ETA s. 316 rather than permanently canceling it), had been amended by a subsequently-issued internal directive. She rejected an argument of the taxpayers (at para. 118) that “there was a legitimate expectation that CRA would follow their own policies and procedures as set out in the 2015 Manual.” She stated (at para. 120-121):

A legitimate expectation arises when a government official makes “clear, unambiguous and unqualified” representations within the scope of their authority to an individual about an administrative process that the government will follow: … Mavi, 2011 SCC 30 … .

Such representations will be considered sufficiently precise for purposes of the doctrine of legitimate expectations if, had they been made in the context of a private law contract, they would be sufficiently certain to be capable of enforcement: Mavi at para 69.

In applying this principle, she stated (at paras. 122-123):

I agree with CRA that an internal policy that was rescinded at the time that the certificates were filed is not a representation that is sufficiently precise to constitute a binding contractual obligation. As such, a legitimate expectation did not arise.

Even if a legitimate expectation did exist, an important limit on the doctrine is that it cannot give rise to substantive rights. The Court may only grant appropriate procedural remedies to respond to a legitimate expectation … .

A TFSA, which had been assessed on the basis that its securities’ trading was a business, had obtained, pursuant to an Access to Information request, a Finance table (prepared before the release of the TFSA legislation) comparing the treatment of an RRSP and the then-proposed “LSP” (an initial version of the TFSA), including a cryptic reference to non-exemption of income from an unrelated business. The taxpayer posed various written questions under Rule 113 regarding the table including whether it reflected an intent that related business income was to be exempted.

After having canvassed a number of authorities, including quoting the admonition in Pepper v. Hart that a court should “be very cautious in opening the door to the reception of material not readily or ordinarily accessible to the citizen whose rights and duties are to be affected by the words in which the legislature has elected to express its will,” and before confirming the dismissal by Pizzitelli J of the taxpayer’s motion to compel answers to these and other questions, Locke JA stated (at para. 31):

In the end, though there are good reasons to be reluctant to consider non-public documents in the exercise of statutory interpretation, it is difficult to state unequivocally that such documents could never be relevant. The better question is whether the documents in question in the present appeal have an institutional quality such that they could represent the government’s position concerning the legislation at issue. If not, such documents are not relevant.

Locke JA also found (at para. 36) that Pizzitelli J had not made reviewable errors in refusing to order production of unredacted copies of various other requested internal documents – and, in this regard, he agreed with Pizzitelli J’s application of the view “that earlier drafts of a final position paper do not have to be disclosed, and … that even where relevance is established, the Court has a residual discretion to refuse document production.”

Before going on to note that when s. 6(1)(b)(vii) was amended in 1991to take its current form, the Technical Notes confirmed that the purpose of this provision accorded with her textual interpretation of it, Dawson JA stated (at para. 29):

The Technical Notes are a relevant, extrinsic interpretive aid that adds context to the interpretation of subparagraph 6(1)(b)(vii). It reflects a policy decision made by Parliament that when an allowance is paid in respect of a travelling expense that is not reasonable, all of the allowance is to be included in the computation of income.

After finding on other grounds that an amendment (in s. 88(1)(d)(ii.1)) was consistent with the pre-amendment object and spirit of the s. 88(1)(d) bump rules, Noël CJ stated (at paras. 92-93):

...I reach this conclusion without placing any reliance on the Budget Supplementary Information document ... . The Crown relies on the distinction drawn in this publication between remedial amendments and clarifying amendments and emphasizes the assertion that in this case the amendments “clarify” the prior law (…Economic Action Plan 2012, pp. 414-415 ….)

While publications of this type, including Explanatory Notes, are considered as permissible extrinsic aids ... I do not believe that this particular publication, which the Crown urges upon us, should be given any weight in this case. This is because, as acknowledged at p. 415 of this publication, it was issued at a time when officials of the Department of Finance were aware that structures like the one here in issue were being challenged by the Minister. This raises the obvious concern that the publication may be self-serving, particularly in a GAAR context, where the object, spirit and purpose of the pre-amendment law is the matter in issue. As such, the opinion expressed in this publication must be disregarded.

Before finding that CRA was precluded from requiring an Alberta lawyer to provide detailed accounts receivables listings for his clients on constitutional grounds, the Court found that such accounting records were clearly intended in the s. 232(1) definition of solicitor-client privilege to be excluded from the protection for such privilege by the exclusion in the definition of that term for accounting records. This was further supported by the legislative history(Hansard confirmed that the accounting record exception was introduced to override the Brown decision ([1963] C.T.C. 1), which fouind that trust account and other accounting records were protected as they might contain privileged information.

After noting that the American authorities had been particularly concerned about tax evasion in seeking FATCA agreements, Martineau J stated (at para. 50):

Nevertheless, a statute should not be interpreted by politicians' statements used to rally public opinion, but rather by its object and the words used by the legislator.

Before concluding (at para. 43) that under a purposive interpretation of ss. 118.2(2)(g) and (h), "medical services" did not include "the salutary effects of the warm Thai and Indonesian climates," Ryer JA referred (at para. 40) with approval to the description in Tokarski, 2012 TC 115, of the stated purpose of these provisions in Hansard.

LeBel J. stated (at para. 58):

"The Minister also relies on statements made in the House of Commons at the time of the addition of s.20(1)(f) to the ITA, and on Technical Notes issued by the Department of Finance to explain the addition of, and amendments to, s.20(1)(f). Putting aside the question of the weight that should be given to these interpretative aids, the difficulty with the Minister's arguments is that although both sources support the view that discounts were in the contemplation of Parliament when it enacted s.20(1)(f), neither goes so far as to suggest that s.20(1)(f) is restricted to discounts. Since this is the very restriction the respondents are contesting, the interpretative aids invoked by the Minister are not dispositive of the issue, although they may shed some light on Parliament's intention."

Sexton J.A. stated (at p. 7119) that "Technical Notes are not binding on the courts, but they are entitled to consideration."

Sharlow J.A. found that there is no ambiguity in section 122.3 that would justify recourse to material such as Hansard, Minutes of Proceedings of Evidence of the Standing Committee on Finance, Trade and Economic Affairs, Budget Papers and Technical Notes published by the Department of Finance.

Reference was made to Hansard to determine Parliament's objective.

After referring to the statement in Finlay v. Minister of Finance, [1993] 1 S.C.R. 1080, at 1111 that legislative "debates may nevertheless serve to confirm the appropriateness of a particular statutory interpretation", Quijano J. determined, upon examining the House of Commons debates, that the purpose of s.127(3) "was to make public the sources of funding of political parties and to encourage more participation of small donors in those parties".

Before going on to find that the taxpayer's claim for investment tax credits did not satisfy the clear requirements of what then was s.127(9)(a), Linden J.A. stated (at p. 5327):

"The use of the Budget paper was not helpful in this case, because the words used in it were more general than those employed in the legislation itself. There is no ambiguity in the meaning of the words used in the Act so as to invite reliance on the Budget paper."

After finding that the trial judge had erred in excluding evidence as to administrative practice and parliamentary history, Hugessen J.A. went on to state (at p. 5414):

"Parliamentary debates and evidence of administrative practice are only useful as interpretative tools where the text is ambiguous. They cannot be used, as appellant's counsel seeks to do, to create ambiguity. In our view, this text is not ambiguous."

In interpreting the meaning of the phrase "for the purpose of manufacturing goods for sale or lease" as they then appeared in s.127(10(c)(i) and in s.(a)(i) of Class 29, Isaac C.J. referred to a speech of the Minister of Finance in opening the debate on the second reading of the relevant bill and from that inferred that "Parliament's objective in enacting the legislation was encouragement of increased production of manufactured and processed goods to be placed on the domestic and international markets in competition with foreign manufacturers" (p. 6548).

After reviewing statements made by the Minister of Finance with respect to the introduction of what now is s.31(1), Mahoney J. noted (p. 5084) that he was "persuaded that the government's intentions as told to Parliament in 1951 and 1952 may indeed not have been realized", given the interpretation of s.31(1) in Moldowan v. The Queen, 77 DTC 5213 (SCC). He concluded (p. 5085):

"The judiciary must interpret what Parliament has said, not necessarily what it may have intended to say."

A statement by the Financial Secretary to the Treasury when the Finance Bill 1976 was being considered clearly indicated that a construction which otherwise would have been given by the House of Lords to section 63 of that Act did not accord with Parliament's intention. Lord Oliver stated (p. 599) that the Parliamentary history could be consulted as an aid to statutory construction:

"Only where the expression of the legislative intention is genuinely ambiguous or obscure or where a literal or prima facie construction leads to a manifest absurdity and where the difficulty can be resolved by a clear statement directed to the matter in issue."

"Explanations given, particularly by departmental officials, in Senate or House of Commons Committee Proceedings may shed light on ambiguous statutory provisions. These must be used with care, however, since it is known that such proceedings take on an advocacy flavour ... Although one would not want to discount entirely statements by Ministers in the House of Commons these often will be even less reliable." (p. 6353)

In giving relatively little weight to possible inferences to be drawn from Budget Papers, MacGuigan J.A. stated (at p. 6132 and at 6134):

"... In its balancing exercise, a Court should give greater weight to clear words supported by their immediate context than to larger assertions of parliamentary intention, particularly those based on extrinsic evidence, which our Courts have always approached with extreme caution.

... I cannot think, that therefore in the weighing process necessary for interpretation, the vague and limited language of the Budget Paper could have been intended to outweigh the much clearer ordinary language employed by Parliament in Class 3(j) ..."

Jerome A.C.J., before referring to the budget speech of the Minister of Finance, noted that although it is "improper to look at Parliamentary Debate for the purpose of statutory interpretation", one may do so to "set the context, to clarify the purpose of the enactment" (p. 5644).

After noting that "budget speeches and similar sources are useful in indicating the 'mischief' or condition at which the legislature was directing its attention" (p. 6628) McNair J. went on to note that "budget speeches are not intended as comprehensive and technical aids to interpretation" (p. 6628).

"[C]ourts are entitled to look at parliamentary proceedings only to ascertain the 'mischief' that the legislation was designed to cure or address ... consequently, the statements made an introduction by the Minister and a senior official [of the Special Import Measures Act] show that the 'mischief' was for Canada to obtain rules, as generally outlined in the GATT and the Subsidies and Countervailing Duties Agreement, to deal with trade problems." (p. 649)

White, J. found that he could "take heed of extrinsic law reform material in construing the word 'spouse' as found in s.44 of the Succession Law Reform Act."

Statements of the Minister of Finance in a Budget Speech and in Committee as to the purpose and intended scope of the related-business provisions of s.149.1 were relied upon.

"Hansard may be used, like the report of a commission of enquiry, in order to expose and examine the mischief, evil or condition to which the Legislature was directing its attention". Reference was made to a budget statement of the Minister of Finance in order to establish that the investment tax credit provisions were introduced in order to stimulate investment.

Budget documents are admissible, but they may be accorded little weight because the details of implementation may change between the Budget date and the date of enactment of the relevant regulation or statutory provision.

Reference was made to an address made by the Minister of Finance to the House of Commons, in order to establish that subparagraph 66.1(6)(a)(ii) was intended to encourage exploration through a 100% write-off for Canadian exploration expenses.

The Carter Commission Report and a Finance White Paper were referred to for the purpose of establishing the mischief which the F.A.P.I. rules were designed to remedy.

Reference may be made to what was said in Parliament for the purpose of determining the mischief which legislation was introduced to remedy. (per Mason, J.)