Canada Case Law

Canada v. Hutchison Whampoa Luxembourg Holdings S.À R.L.

Court

Federal Court of Appeal

Court concluded Luxcos were not the beneficial owners because the legal substance of the securities‑lending arrangements—binding obligations in the Borrowing Requests to pay gross dividends to the Barbados shareholders, lack of collateral, hedges and related‑party financing and waivers—showed the Luxcos were conduits with narrow powers, lacked risk/control/use and enjoyment, and thus the 5% Luxembourg treaty rate did not apply; accordingly Husky's appeal was dismissed and Crown's protective appeals were dismissed as moot on GAAR.

Source excerpt

• Withholding tax
• Beneficial ownership
• Securities lending
• General anti-avoidance rule (gaar)
• Income tax act interpretation

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Laboucan v. The King

Court

Tax Court of Canada

The Tax Court dismissed Mr. Laboucan’s appeal, upholding income tax assessments and failure-to-file penalties after finding Treaty No. 8 did not establish a tax exemption.

• Tax-exempt status
• Failure to file penalties
• Capital gains assessment
• Treaty interpretation
• Income-tax
• Treaty-interpretation

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International Air Transport Association v. Canada (Transportation Agency)

Court

Supreme Court of Canada

La Cour suprême a rejeté l’appel: les Règlements de protection des passagers créent des droits standardisés de consommation, non une « action for damages » visée par l’article 29.

• Montreal convention exclusivity
• Ultra vires challenge
• Expert evidence admissibility (mohan)
• Consumer protection regulation
• Statutory interpretation
• State practice

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Little Black Bear First Nation v. Kawacatoose First Nation

Court

Federal Court of Appeal

The Tribunal reasonably interpreted PC 1151 by determining Crown intent from the documentary record (notably surveyor Nelson's surveys and Department records) and concluded the Crown intended IR 80A for the Kawacatoose group and Standing Buffalo but not the File Hills Bands; the Federal Court of Appeal dismissed the judicial review on the basis that the Tribunal’s decision was reasonable and entitled to deference under Vavilov.

Source excerpt

• Reserve creation
• Interpretation of order in council
• Oral history evidence
• Honour of the crown
• Standing
• Reasonableness review

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Nunavut Tunngavik Incorporated v. Canada (Minister of Fisheries and Oceans)

Court

Federal Court

Judicial review of a licence reissuance decision was allowed because the Minister did not sufficiently engage with Article 15.3.7 of the Nunavut Agreement.

• Judicial review
• Procedural fairness
• Modern land claims
• Licence transfer
• Honour of the crown
• Reconciliation

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Triskelion Projects International Inc. v. The Queen

Court

Tax Court of Canada

The Appellant conceded it provided at least 183 days of services in Canada within the twelve-month period March 19, 2015 to March 18, 2016; there was no evidence that the Minister had assessed the Appellant for 2015, so the Court could not accept the Appellant's reuse-of-days argument; under Article V(9) of the Canada-U.S. Tax Treaty that concession established a deemed services permanent establishment and the Minister's 2016 assessment was valid, so the appeal is dismissed.

Source excerpt

• Permanent establishment
• Deemed services pe
• 183-day rule
• Tax assessment
• Double taxation treaty

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Canada v. Alta Energy Luxembourg S.A.R.L.

Court

Supreme Court of Canada

The Supreme Court of Canada held that the GAAR did not deny Alta Luxembourg’s Canada–Luxembourg treaty exemption, and dismissed the appeal.

• General anti-avoidance rule
• Tax treaty abuse
• Residence
• Capital gains
• Treaty shopping
• General-anti-avoidance-rule

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Makivik Corporation v. Canada (Attorney General)

Court

Federal Court of Appeal

Appeal allowed in part: although the Minister had authority under NILCA to vary a Board decision, the Crown breached the honour of the Crown by failing to disclose and give the NMRWB an opportunity to respond to officials’ methodological concerns about ITK and by failing to disclose concerns about NQLs, and that conduct warranted declaratory relief; cross-appeal dismissed.

Source excerpt

• Judicial review
• Honour of the crown
• Modern treaty interpretation
• Standards of review
• Procedural fairness
• Cites and international trade

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West Moberly First Nations v. British Columbia

Court

British Columbia Court of Appeal

The Court of Appeal upheld a declaration that the western boundary of Treaty 8 follows the Arctic-Pacific Divide, rejecting claims of legal and factual error.

• Treaty 8 western boundary
• Arctic‑pacific divide vs rocky mountains watershed
• Availability of declaratory relief
• Honour of the crown
• Adhesion agreements
• Standard of review

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Canada v. Alta Energy Luxembourg S.A.R.L.

Court

Federal Court of Appeal

The appeal is dismissed: the Federal Court of Appeal held that Alta Luxembourg met the clear textual requirements of Articles 1, 4, 13(4) and 13(5) of the Luxembourg Convention and that the Crown failed to identify an object, spirit or purpose of those provisions that was frustrated by the transactions; the GAAR therefore did not apply and the Tax Court judgment allowing the treaty exemption was upheld.

Source excerpt

• Treaty-protected property
• General anti-avoidance rule (gaar)
• Capital gains
• Residence for treaty purposes
• Treaty shopping

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