Ontario’s Green Energy “Fee”: The Trouble with Taxation through Regulation

Canadian provincial governments have broad authority to impose direct taxes by passing enabling legislation in their respective legislatures. Governments may also use regulation to set fees, for example, to recover the cost of services they provide, but cannot use regulation to impose taxes that raise general revenue. Doing so would be unconstitutional. Governments nonetheless sometimes attempt to raise revenue by imposing levies that are deliberately mislabelled as “fees” – past efforts to do so have exposed provincial governments to successful constitutional challenges. This e-brief examines problematic example: the Ontario government recently ordered the Ontario Energy Board to impose a “fee” to be used to fund activities of the Ministry of Energy and Infrastructure; this fee is quite likely an unconstitutional tax.Governance and Public Institutions, Ontario Energy Board, Independent Electricity System Operator (IESO), taxation, regulation, unconstitutional tax

Intervenors at the Supreme Court of Canada

My aim in this paper is to offer a normatively attractive and explanatorily sound interpretation of the Supreme Court of Canada’s approach to third party intervention. The crux of my interpretation is that the policy the Court has developed on intervenors allows it to strike a reasonable balance among a number of competing democratic considerations, all of which have value in the context of judicial decision making. In this respect, the Court should be commended for identifying a way to liberalize a practice that possesses many democratically-attractive features, but also the inherent capacity to undermine the democratic standing of the Court. I buttress my argument against early literature on the subject, and use more recent works by Ian Brodie and Benjamin Alarie and Andrew Green as argumentative foils. Mon but dans cet article est d’offrir une interprétation normative attrayante et explicative de l’approche de la Cour suprême du Canada en matière d’intervention des tiers. L’essentiel de mon interprétation est que la politique que la Cour a élaborée à l’égard des intervenants lui permet d’établir un équilibre raisonnable entre un certain nombre de considérations démocratiques concurrentes, qui ont toutes une valeur dans le contexte du processus décisionnel judiciaire. À cet égard, il convient de féliciter la Cour d’avoir trouvé une façon de libéraliser une pratique qui possède de nombreuses caractéristiques attrayantes sur le plan démocratique, mais en même temps la capacité inhérente de miner la position démocratique de la Cour. J’étaye mon argument contre la littérature ancienne sur le sujet, et j’utilise les travaux plus récents de Ian Brodie et de Benjamin Alarie et Andrew Green comme contrepoids argumentatif

An Income-Contingent Financing Program for Ontario

Although the positive externalities associated with higher education favour substantial government support, sound arguments also favour student contributions to the costs of post-secondary education, based on both the private benefits obtained and the regressive impact of general subsidies for higher education. At the same time, the central role that higher education performs as a vehicle for social mobility and the general reluctance of private lenders to finance individual investments in higher education suggest that governments also have an important role to play in the area of student assistance - ensuring that higher education is accessible to all students on the basis of merit, irrespective of financial ability. The need for a well-designed student assistance program is more important than ever. Among many proposals for a restructured student aid system, one of the most promising is to replace existing \u27mortgage-style\u27 student loads with a financing arrangement involving repayment obligations that depend on the student\u27s income after graduation. To the extent that this \u27income-contingent\u27 approach reduces the risk to borrowers with respect to their investments in higher education, it will likely lessen the reluctance that students exhibit with respect to such borrowing. Moreover, where funding covers both the direct costs of higher education as well as living expenses, income-contingent financing programs may enhance accessibility by making higher education effectively free at the point of purchase - offsetting the \u27sticker shock\u27 associated with increased tuition fees as well as living costs which generally exceed the direct costs of higher education. Finally, collection through the income tax should reduce the incidence of nonpayment and dramatically lessen the costs of administering student financial aid. This paper proposes an income-contingent financing program (ICFP) for Ontario to replace the current system of mortgage-style loans, automatic debt remission, and interest and debt relief available under the Ontario Student Assistance Program. Part 1 reviews the current system of government-provided student aid in Ontario, providing an essential foundation for our subsequent proposal for an ICFP. Part 2 examines the experience with ICFPs in Australia, New Zealand, Sweden, and the UK, in order to derive lessons relevant to the design of an ICFP for Ontario. Part 3 considers the essential features of an ICFP, canvassing the competing arguments and making specific recommendations informed by our review of the current system in Ontario and the international experience with ICFPs

Symposium on Tax Avoidance after Canada Trustco and Mathew: Summary of Proceedings

On October 19, 2005, the Supreme Court of Canada released its much-anticipated decisions in The Queen v. Canada Trustco Mortgage Co. and Mathew v. The Queen, the first two cases from Canada\u27s highest court addressing the general anti-avoidance rule (GAAR) in section 245 of the federal Income Tax Act. The Faculty of Law at the University of Toronto hosted a symposium on November 18, 2005, which brought together academics, practitioners, representatives of the Canada Revenue Agency, and Chief Justice Donald Bowman of the Tax Court of Canada to discuss the implications of the decisions. This article summarizes the formal presentations and comments of participants in the proceedings

Charter Decisions in the McLachlin Era: Consensus and Ideology at the Supreme Court of Canada

This paper examines how justices on the Supreme Court of Canada voted in Charter appeals between 2000 and 2009. Charter appeals, at least in popular belief (and possibly also in the ory), have the greatest potential to reveal voting that is influenced by extra-legal policy preferences. Confining the analysis to the time during which Chief Justice McLachlin has led the Court aids in controlling for the effects of a particular Chief Justice in assessing the roles of ideology and consensus. Several of the Court’s members have exhibited sharply different voting proclivities in section 15 (equality rights) appeals as compared with Charter claims made in the context of criminal law appeals (and, indeed, other Charter appeals). This finding suggests that at least some of the justices on the Court have been influenced by policy preferences on at least some occasions in discrete areas of Charter rights adjudication. On the other hand, it also suggests that judicial policy preferences are richer and significantly more nuanced than can adequately be captured by a simple “right-left” or “conservative-liberal” characterization of these policy preferences. The paper discusses a number of implications of the analysis and findings

Judging by the Numbers: Judicial Analytics, the Justice System and its Stakeholders

This article considers the future of judicial analytics, its possible effects for the public, the judiciary and the legal profession, and potential responses to the rise of judicial analytics in Canada. Judicial analytics involves the use of advanced technologies, like machine learning and natural language processing, to quickly analyze publicly-available data about judges and judicial decision-making. While, in Canada, judicial analytics tools are as yet at the early stages of development and use, such tools are likely to become more powerful, more accurate and more accessible in the near-to-medium future, resulting in unprecedented public insight into judges and the work of judging. This article identifies benefits of mainstreamed judicial analytics, including increased transparency into the work of judging, and risks flowing from the rise of judicial analytics, including the propagation of inaccurate or misleading information about judges. In light of these benefits and risks, the article identifies voluntary third-party certification and the production of credible public tools as meaningful responses to the rise of judicial analytics and calls on judicial regulators to consider how information made available through judicial analytics tools may influence their work. Cet article examine l’avenir de l’analyse judiciaire, ses effets possibles sur le public, la magistrature et la profession juridique, et les réponses possibles à la montée de l’analyse judiciaire au Canada. L’analyse judiciaire implique l’utilisation de technologies avancées, comme l’apprentissage automatique et le traitement du langage naturel, pour analyser rapidement les données accessibles au public au sujet des juges et des décisions judiciaires. Bien qu’au Canada, les outils d’analyse judiciaire n’en soient encore qu’aux premiers stades de développement et d’utilisation, il est probable que ces outils deviendront plus puissants, plus précis et plus accessibles dans un avenir proche ou moyen, ce qui permettra au public d’avoir une vision sans précédent des juges et de leur travail. Cet article identifie les avantages de l’analyse judiciaire généralisée, notamment la transparence accrue du travail des juges, et les risques découlant de l’essor de l’analyse judiciaire, notamment la propagation d’informations inexactes ou trompeuses au sujet des juges. À la lumière de ces avantages et de ces risques, l’article identifie la certification volontaire par une tierce partie et la production d’outils publics crédibles comme des réponses significatives à l’essor de l’analyse judiciaire et appelle les régulateurs judiciaires à considérer comment les informations rendues disponibles par les outils d’analyse judiciaire peuvent influencer leur travail

Legislated Interpretation and Tax Avoidance in Canadian Income Tax Law

Predictable statutory interpretation helps ensure the reliable operation of contemporary systems of taxation. Tax liabilities that are not clearly expressed and articulated by legislatures lead to over-reliance on litigation as a means to enforce and clarify legislative intent. For this reason, modern legislatures continually amend and draft new tax provisions, reformulating existing rules and introducing new ones to address ever-changing social and economic environments. Moreover, legislatures also respond with amendments directed at judicial decisions with which they disagree, as well as the transactions and arrangements at issue in these cases. As these amended and new rules are then subject to application and interpretation by revenue departments, taxpayers, tax advisors, and the courts, all of which legislatures may respond to through further subsequent amendments, tax legislation at any given time can be regarded as the recursive product of an ongoing dialogue.At the same time, the proliferation of ever-more detailed provisions in tax legislation greatly increases the complexity of these statutes. The consequent tendency toward textual interpretation of tax legislation can facilitate tax avoidance that undermines the capacity of a tax system to raise revenue in a manner that is fair or equitable. For this reason, tax statutes like the Canadian Income Tax Act (ITA) typically combine detailed statutory provisions with more broadly-worded anti-avoidance rules that deny unintended tax advantages that might otherwise result from other statutory provisions. At the apex of these anti-avoidance rules stand general anti-avoidance rules (GAARs) like section 245 of the ITA. Section 245 denies tax benefits resulting from tax-motivated transactions that result in a misuse of other provisions of the ITA or other relevant enactments, or an abuse having regard to these provisions read as a whole.In order to “legislate” statutory interpretation, therefore, legislatures generally employ two different approaches: enacting detailed rules in response to changing circumstances and judicial decisions, while simultaneously directing courts to prevent abusive tax avoidance by applying more generalized standards that require them to go beyond or behind the text of the tax legislation in order to deny tax benefits claimed by taxpayers that conflict with the object, spirit or purpose of these provisions. As this paper explains, judicial experience in Canada demonstrates a tension between these two approaches, since the existence of detailed statutory rules can make courts reluctant to apply a general anti-avoidance rule that requires them to depart from the statutory text.This paper considers the GAAR in section 245 of the ITA as an example of legislated statutory interpretation, explaining the origins and structure of this provision and the extent to which it has shaped the interpretation of Canadian income tax law. Part II provides a background to the GAAR, contrasting the textual and formalist approach to tax statutes that was traditionally adopted by English and Canadian courts with the more purposive and substantive approach adopted by U.S. courts as well as English and Canadian courts in the 1980s and early 1990s. Part III explains the basic structure of the GAAR and the way in which Canadian courts have interpreted key elements of this provision. Part IV reviews key tax avoidance cases after the GAAR was introduced, illustrating a lingering affect of pre-GAAR interpretive approaches in the post-GAAR world, from which the courts have only begun to depart. Part V concludes

Assessing the Impact of Unilingualism at the Supreme Court of Canada: Panel Composition, Assertiveness, Caseload, and Deference

This paper is a first empirical foray in the debate concerning mandatory bilingualism for Supreme Court judges in Canada. The paper summarizes the main arguments, discusses the framing of bilingualism as a “legal” or an “identity” requirement, and uses empirical data to assess whether unilingualism has had an impact on four dimensions of the decision-making process at the Supreme Court of Canada: panel composition, assertiveness, individual caseloads and deference towards lower courts by unilingual and bilingual judges. Our results suggest that there is a correlation between the fluency in French and the first three elements but that there is no difference in the level of deference across linguistic groups towards francophone lower courts. Even if the paper is exploratory in nature and warrants further research, the general picture that emerges is that language proficiency superimposes itself as another kind of legal specialization in the inner-working of the Court