|
Statutory Interpretation - 'Deeming'. Suncor Energy Inc. v. Canada
In Suncor Energy Inc. v. Canada (Fed CA, 2026) the Federal Court of Appeal allowed an income tax appeal, this brought against a Tax Court ruling respecting ITA s.13(31) ['Recaptured depreciation - Transfers of property'] and arm's-length transfers.
Here the court considers 'deeming' provisions as statutory fictions:[35] As noted by the Supreme Court of Canada in R. v. Verrette, 1978 CanLII 208 (SCC), [1978] 2 S.C.R. 838, at page 845, a deeming provision is a statutory fiction:... A deeming provision is a statutory fiction; as a rule it implicitly admits that a thing is not what it is deemed to be but decrees that for some particular purpose it shall be taken as if it were that thing although it is not or there is doubt as to whether it is ... . [36] In Canada (Attorney General) v. Scarola, 2003 FCA 157, this Court adopted the following description of a legal fiction:[19] …The purpose and operation of a legal fiction has also been described eloquently by Yan Thomas in an article entitled: ‘Fictio Legis. L’empire de la fiction romaine et ses limites médiévales’ (1995), 21 Droits -- Revue française de théorie juridique 17:[TRANSLATION] Fiction is a process that, as repeatedly noted, is part of the pragmatics of law. It consists first in misrepresenting the facts, stating them to be other than what they really are and extracting from that very adulteration and that false supposition the legal consequences that would flow from the dissembled truth, if that truth existed beyond the cloak of external appearances. . 2668602 Ontario Inc. v. GWL Realty Advisors Inc.
In 2668602 Ontario Inc. v. GWL Realty Advisors Inc. (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here involving "the interpretation and application of a Liquidation Process Order that governed the sale of assets in proceedings under the Bankruptcy and Insolvency Act".
The court considered the term "deemed", here from a statutory interpretation context:[79] The term ‘deemed’ or ‘deeming’ may create an irrebuttable or a rebuttable presumption. Though dealing with a statute, the Supreme Court noted in St. Peter’s Evangelical Lutheran Church v. Ottawa (City), 1982 CanLII 60 (SCC), [1982] 2 S.C.R. 616, at p. 629, these words are not always conclusive; they must be construed in the entire context of the statute concerned: see also Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., 2011 SCC 23, [2011] 2 S.C.R. 175, at para. 114. In a similar vein, the Manitoba Court of Appeal stated in St. Leon Village Consolidated School District 1425 v. Ronceray (1960), 1960 CanLII 256 (MB CA), 23 D.L.R. (2d) 32 (Man. C.A.), at p. 37:[I]n deciding whether or not the use of the words “deem” or “deemed” establishes a conclusive or a rebuttable presumption depends largely upon the context in which they are used, always bearing in mind the purpose to be served by the statute and the necessity of ensuring that such purpose is served. [80] In St. Peter’s, the City of Ottawa had failed to provide written notice of its refusal to grant a demolition permit to homeowners. The homeowners knew of the decision but under the governing legislation, absent notice, the City was deemed to have consented to the demolition. In those circumstances, they began to demolish the building. Ultimately, the Supreme Court decided that the deeming provision was irrebuttable. Its purpose was to give an element of finality to the proceeding. The court stated at p. 629:Where a statute sets up a scheme for the employment of special powers by a municipal body and clearly provides a detailed procedure which will protect the municipal authority and make lawful the exercise of those powers, and then provides a specific sanction for failure to follow the statutory procedure in the form of a deeming provision, it is difficult, indeed, to conclude that a conclusive deeming was not intended. Any other conclusion would frustrate and break down the whole scheme of the Act designed specifically to accomplish both the preservation of the heritage of Ontario and the protection of landowners. . Canadian Imperial Bank of Commerce v. Canada
In Canadian Imperial Bank of Commerce v. Canada (Fed CA, 2023) the Federal Court of Appeal commented on statutory deeming provisions:[39] In Novopharm Limited v. Her Majesty the Queen, 2003 D.T.C. 5195, this Court stated:[13] ... A deeming provision is a statutory fiction that replaces or modifies reality; it cannot be ignored.
|
