The Federal Income Tax Act and Private Law in Canada: Complementarity, Dissociation, and Canadian Bijuralism

Canadian Tax Journal, Vol. 51, No. 1, pp. 1-63, 2003

63 Pages Posted: 11 Jul 2008

See all articles by David G. Duff

David G. Duff

Peter A. Allard School of Law, University of British Columbia

Date Written: July, 10 2008

Abstract

This article examines the relationship between the federal Income Tax Act (ITA) and provincial private law, evaluating judicial decisions and statutory provisions according to the goals of Canadian bijuralism expressed in the policy on legislative bijuralism adopted by the federal Department of Justice in June 1995, the preamble to the first Federal Law-Civil Law Harmonization Act, No. 1, and new sections 8.1 and 8.2 of the federal Interpretation Act.

The first part of the article reviews notable cases in which Canadian courts have recognized a relationship of complementarity between the ITA and provincial private law, looking at cases arising in Quebec in which courts have relied on the civil law, and cases arising in the rest of Canada in which courts have looked to the common law and applicable provincial statutes.

The second part of the article considers cases in which Canadian courts have dissociated the interpretation of the ITA from provincial law, examining key legal concepts that have been interpreted with little or no regard for the private law of the applicable province, such as the concepts of a gift and a charitable purpose or activity, the distinction between an employee and an independent contractor, the meaning of an individual's residence, and the concepts of an acquisition and a disposition of property. The third part of the article explains the goals of Canadian bijuralism set forth in the Department of Justice policy on legislative bijuralism and recent legislative initiatives, and the implications of these developments for the interpretation and amendment of the ITA. With respect to statutory interpretation, it is argued, new section 8.1 of the Interpretation Act mandates a reconsideration of several cases in which courts have dissociated the interpretation of the ITA from provincial private law. Where complementarity with provincial private law produces unacceptable differences in tax consequences among different provinces, however, the article proposes specific legislative amendments.

Full text version reproduced with the permission of the Canadian Tax Foundation.

Keywords: BIJURALISM, TAX LAW, STATUTORY INTERPRETATION, CASES, BILINGUALISM

Suggested Citation

Duff, David G., The Federal Income Tax Act and Private Law in Canada: Complementarity, Dissociation, and Canadian Bijuralism (July, 10 2008). Canadian Tax Journal, Vol. 51, No. 1, pp. 1-63, 2003. Available at SSRN: https://ssrn.com/abstract=1158138

David G. Duff (Contact Author)

Peter A. Allard School of Law, University of British Columbia ( email )

1822 East Mall
Vancouver, British Columbia V6T 1Z1
Canada
1-604-827-3586 (Phone)
604-833-8108 (Fax)

HOME PAGE: http://www.allard.ubc.ca/faculty-staff/david-g-duff

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