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THE PERILS OF FEDERALIZING THE COMMON LAW: A CASE STUDY OF THE ITA GIFT CONCEPT.

I. INTRODUCTION

Every year, Canadian taxpayers contribute billions of dollars to registered charities, and then claim tax credits and deductions for their contributions. The question of whether these contributions are eligible for tax relief depends largely on whether they qualify as "gifts/dons" under section 118.1 (or section 110.1) of the federal Income TaxAct(ITA). (1) As the ITA does not define the term gift/don, the task of conferring meaning upon this statutory concept has fallen largely to Canada's federal courts. Over the last half century, the federal courts have adopted the position that, for federal tax purposes, the term gift/don carries its "common law meaning" of a voluntary transfer of property owned by a donor to a donee, which the donor makes without anticipation, expectation, or receipt of material benefit. (2)

The ITA gift concept has generated a long line of critical commentary. (3) The breadth and diversity of this commentary attests to the distinct challenges that the federal courts face in interpreting section 118.1, and applying it to reassessed taxpayers. From a tax policy perspective, the challenge is to properly balance the ITA's policy of encouraging charitable giving against its general prohibition on the deductibility of personal expenses. (4) However, this balancing is greatly complicated by the fact that the term Parliament chose, in 1948, to delineate the bounds of the charitable donation tax regime corresponds to a private law institution that is central to both the civil law and common law traditions, but which is conceived of differently in each.

The question of the proper relationship between these private laws of gift and the ITA's charitable donation tax regime gained increased prominence in the 1990s, with the federal government's initiative to "harmonize" Canada's federal statutes with the private law. In 2001, spurred by the enactment of the new Civil Code of Quebec, and the discordance it had created with federal legislation, the federal government added two rules of construction to the federal Interpretation Act. (5) These rules confirm that it is "the provincial law, in relation to property and civil rights... that completes federal legislation when applied in a province, unless otherwise provided by law." (6) In the wake of the enactment of sections 8.1 and 8.2 (7) jurists developed a general consensus regarding the proper approach to the interpretation of federal statutes. The general rule was "complementarity"--the situation of federal legislation relying upon the private law of the provinces. (8) However, Parliament could achieve "dissociation"--the situation of federal legislation disregarding or derogating from that private law--if it sufficiently manifested its intention to do so. (9) Adopting this framework, scholars and practitioners criticized the prevailing "unijural" interpretation of the ITA gift concept, arguing that the term had been given its private law meaning in the common law provinces, but not in the province of Quebec. (10) The critics alleged that this approach not only violated the integrity of Quebec's civil law tradition, but also excluded from Canadian tax law a private law concept that usefully reflected the economic substance of many donative transactions. (11)

In 2013, Parliament responded to this commentary by introducing a civilian-inspired concept into the charitable donation tax regime. Subsections 248(30)-(32) of the ITA provide that "[t]he existence of... an advantage in respect of a transfer of property [to a registered charity] does not in and by itself disqualify the transfer from being a gift" (12). They also allow a taxpayer to claim charitable tax credits for the remainder of his or her charitable contribution. (13) However, the introduction of the so-called "split receipting rules" has not resolved the conflict over the meaning of "gift/don". (14) The Canada Revenue Agency (CRA) has continued to reassess taxpayers who submit split receipts, on the basis that they did not intend to make a gift. (15) Taxpayers have continued to appeal the CRA's reassessments, relying on an identifiable disjunctive between provincial and federal authorities on the meaning of "gift". And the Federal Court of Appeal has been faced with increasingly innovative arguments on the proper interpretation of section 118.1, which have forced it to acknowledge the uncertain state of the ITA gift jurisprudence in the common law provinces. (16)

Why does the ITA gift concept continue to generate so much uncertainty? Certainly, the task of interpreting federal legislation in a multijural state poses significant challenges, as does the task of developing a tax concept that captures the complex social practice of gift giving. However, in this piece, I claim that the confusion surrounding section 118.1 has been substantially exacerbated by federal courts' use of the term "common law" to describe the gift concept that has evolved in that statutory context. I argue that, in fact, the meaning that federal courts have attached to the term gift/don under section 118.1 is an ordinary, non-technical meaning, which is distinct from both the civil law concept of gift (set out in Book V of the Civil Code of Quebec), and the common law concept of gift that forms part of the law of property in Canada's common law provinces. The widespread practice of describing the ITA gift concept as the "common law" has produced significant doctrinal uncertainty. This, in turn, has increased the already considerable discretion that the CRA wields in applying the donation tax regime to taxpayers, and created a disincentive to making major philanthropic gifts. It has also communicated misleading messages about tax law's relationship to the larger legal system, which are beginning to affect provincial private law. For these reasons of practice and principle, I argue that the federal courts should clarify that the ITA gift concept, which they have applied since the 1985 McBurney v R ("McBurney") decision, is an ordinary non-technical concept--even if this clarification forces the courts to confront difficult questions about section 118.1's relationship to provincial private law. (17) Ultimately, my analysis reinforces the conclusion that previous scholars have reached on other grounds: Parliament should either define "gift/don" for purposes of the ITA, or replace it with a term that is independent of Canada's private law traditions. (18)

My argument proceeds as follows. In Part II, I outline the differences between the common law meaning of gift and the ordinary non-technical meaning of gift that Australian, American, and Canadian courts have adopted for the purposes of interpreting tax statutes. I then explain how the two concepts came to elide under Canadian tax law. In Part III, I describe some of the doctrinal confusion that has resulted from this elision, focusing on two inter-court dialogues that have been prompted by charitable tax credit appeals in British Columbia and Ontario. In Part IV, I consider the elision of the ordinary and common law gift concepts from the perspective of tax law's relationship to the larger legal system. Building on a theme recently taken up by J Scott Wilkie and Peter Hogg, (19) I argue that the mischaracterization of the ITA gift concept matters, both because it creates the impression of a state of affairs that is inconsistent with our constitutional framework, and because it harms the integrity of the private law. I conclude with some comments on how these concerns might be addressed, and what is at stake when federal legislation relies on terminology that is integral to the private law.

II. THE MISCHARACTERIZATION OF THE ITA GIFT CONCEPT

A. THE COMMON LAW MEANING OF GIFT

The institutions of Western law have always struggled to define and classify the gift. Richard Hyland's treatise on the law of gift attributes this struggle to the fact that the gift is a complex and deeply entrenched social institution, which remains largely beyond the law's sphere of influence. (20) The leading anthropological studies of gift giving practices in various cultures have concluded that gift giving is not a discrete transaction, but rather a transfer that creates a debt; it is "[t]he fact that reciprocation takes place over time, and thus requires the parties to cultivate a relationship, [that] distinguishes the gift from the exchange". (21) From the perspective of the anthropologist, then, the gift is at once a unilateral act, and an act that must be reciprocated. Hyland argues that Western law has shown itself to be largely incapable of grasping this unique dynamic. (22) Nonetheless, it must take account of gift giving because it alters property relations. (23)

The complexity of the practice of gift giving is reflected in the multiplicity of ways that different legal traditions construct the gift. Classical Roman law understood the gift neither as a contract, nor a legal act, but merely as one possible cause for the transfer of property. (24) Modern civil law systems treat the gift as a species of contract. (25) The Civil Code of Quebec defines a gift as "a contract by which a person, the donor, transfers ownership of the property by gratuitous tide to another person, the donee". (26) It provides that a transfer of property in return for some level of remuneration may constitute a gift for the value in excess of the remuneration. (27) The common law, on the other hand, treats the gift as an institution of the law of property. (28) In Peter Birks' taxonomy of the English private law tradition, the gift is described as one of two primary modes through which property rights are acquired through the manifestation of another's consent. (24)

The primary function of the common law concept of gift is, thus, to ascertain whether a person has transferred a beneficial interest in property to another. The common law authorities have traditionally identified three essential elements of a legally valid gift inter vivos: (i) an intention to give (or animus donandi) on the part of the donor, (ii) an acceptance of the gift by the donee, and (iii) a sufficient act of delivery of the subject matter of the gift. (30) Case law tends to focus on the delivery requirement, (31) but a donor's animus may also be at issue where property is delivered to another and, subsequently, the donor claims to have made no gift. The common law has not traditionally required that a donor be motivated by altruism in order to show an intention to give. (32) Rather, what the donee must prove is that the gift was "the voluntary, deliberate, well-understood act of the donor, and that the donor was capable of fully appreciating and did fully appreciate its effect, nature, and consequence." (33) While words of gift will not always be required, the donor's intention to give "must nevertheless be made manifest and expressed with certainty." (34)

The common law arguably establishes a fourth defining element of gift, in that it requires gifts to be gratuitous. (35) The requirement of gratuitousness is well established (36) and shared by most Western legal traditions. However, the common law has diverged from other traditions in defining what gratuitousness means. (37) For example, Spanish law defines gratuitousness in terms of a lack of equivalence between two obligations, while the German conception of gratuitousness depends on whether two performances are subjectively linked in the minds of the parties. (38) At common law, on the other hand, gratuitousness means a transfer without a valid legal consideration. (39) The common law's understanding of gratuitousness is thus tied to the bright line it draws between gift and exchange; "if there be a consideration", one leading nineteenth-century treatise explains, "the transaction is no longer a gift, but a contract." (40)

B. THE ORDINARY MEANING OF GIFT

If the primary function of the gift concept at common law is to ascertain whether a person has transferred a beneficial interest in property to another, then the gift fulfills other functions in other legal contexts. These include the gift's tax law function, which is generally to delineate a category of beneficial transfers that are eligible for special tax relief. In situations where the term gift plays its tax law function, courts have sometimes chosen to interpret the word according to its ordinary non-technical sense. The decisions of the Australian courts are particularly instructive, as they have played a key role in the development of the position of our own Federal Court of Appeal.

The Australian courts' adoption of an ordinary concept of gift for tax purposes is traceable back to 1965, when an Australian taxpayer claimed a tax deduction of fifteen pounds for a donation to his son's school, which reduced the sum he would otherwise have been charged in school fees by a corresponding amount. (41) The tax authorities disallowed the deduction, claiming that the transfer could not properly be characterized as a gift under the Income Tax Assessment Act 1936-66. The resultant case, Federal Commissioner of Taxation v McPbail ("McPhail"), (42) was appealed to the High Court of Australia, where Owen J held that the undefined term gift in Australia's tax statute should be interpreted "in the sense in which it is understood in ordinary parlance." (43) Dictionary definitions of gift were too narrow for purposes of the statute. (44) Instead, Owen J held, "gift" should be understood in its "ordinary sense" of a voluntary transfer of property in which "no advantage of a material character was received by the transferor by way of return." (45)

Twelve years later, in a case involving the reassessment of a complex donation program that yielded little benefit for the ultimate charitable donee, the Federal Court of Australia reaffirmed that the word gift is used in its "ordinary non-technical sense" within Australia's Income Tax Assessment Act 1936. (46) The three concurring judgments in Leary v Federal Commissioner of Taxation ("Leary") emphasize that Australian law encompasses both a "technical" and an "ordinary" concept of gift, which each serve distinctive functions. (47) The reasons make clear that by "technical" gift concept, the court means the concept that operates within the common law of property. Brennan J held that, if the term gift under the Income Tax Assessment Act 1936 "connoted merely a mode of transferring the beneficial interest in property," the taxpayer's argument that "gift" had its technical legal meaning within the tax statute would be well founded. (48) But, Brennan J stated, since the Income Tax Assessment Act 1936 recognized gifts to funds and institutions lacking the legal personality to take a beneficial interest in property, Owen J's view that the term should be given its "ordinary" meaning must be correct. (49)

The ordinary concept of gift that the Australian courts adopted in McPhail and Leary reflects the basic common law requirements of intent, acceptance, delivery, and lack of consideration. Nevertheless, as the Leary court specifically recognized, the legal criteria applicable to an ordinary notion of gift differ in a number of specific ways from those applicable to the "technical" common law concept. (50) Two differences are particularly significant. First, unlike the common law gift concept, the ordinary gift concept does not distinguish between a return to a donor which is received as consideration under a contract and "a return which is furnished under some other arrangement or understanding". (51) Thus, the existence of a material advantage may disqualify a transfer from meeting the ordinary meaning of "gift", even if it comes indirectly, or from someone other than the donee. (52) Second, unlike the common law gift concept, the ordinary concept may exclude transfers of property on the basis that they do not proceed from a "detached and disinterested generosity". (53) "Once the technical meaning of gift is left behind," Brennan J wrote in Leary, the motive of the donor and the purpose of the disposition are "critical matters for consideration." (54)

C. "GIFT" UNDER THE ITA. A JOURNEY FROM LEGAL MEANING TO ORDINARY MEANING (AND BACK AGAIN)

In order to understand how the "technical" (common law) and "non-technical" (ordinary) meanings of gift have elided in Canadian tax law, it is helpful to review the history of the charitable donation tax deduction, and its treatment by the federal courts. Canada has had a charitable donation tax deduction since 1930, when Parliament amended the Income War Tax Act (IWTA) to allow any taxpayer to exempt up to ten percent of her net taxable income that was "actually paid by way of donation... to... any charitable organization in Canada". (55) The term "gift" which did not appear in the original provision, was introduced into Canadian tax law a half decade later. In 1935, Parliament introduced a gift tax applicable to transfers of property made "by way of gift or donation" into the IWTA. "[G]ifts or donations" to charitable organizations were specifically exempt from this tax. (56) Despite these and other relevant amendments, (57) however, the IWTA's charitable donation deduction provisions continued to refer to amounts paid "by way of donation" to qualified charities. It was not until the first non-war version of The Income Tax Act was enacted in 1948 that the charitable donation tax deduction was made applicable to "the aggregate of gifts made by the taxpayer in the year" to charitable organizations in Canada. (58) The gift tax provisions were also fine-tuned; references to "donations" were omitted, and the term gift used consistently throughout. (59)

As the value of the charitable donation tax deduction increased, (60) disputes inevitably arose between taxpayers and the Minister of National Revenue (che "Minister") as to whether particular transfers of property qualified as "gifts/dons". The earliest arbiter of these disputes, the statutory Tax Appeal Board (the "Board"), interpreted the term gift/don by reference to the underlying private law tradition of the province in which the disputes arose. Thus, in No 688 v Minister of National Revenue--the first in a long line of decisions involving payments made by taxpayers to the religious schools attended by their children--the Board gave the term gift its "long-accepted legal meaning", relying on common law dictionaries which defined a gift as "a voluntary transference of property without consideration." (61) In Aspinall v Minister of National Revenue, a case involving the reassessment of a Montreal taxpayer for a donation to the National Ballet, the Board interpreted the term gift/don by reference to the definition in the Civil Code of Quebec. (62)

As appeals from the Minister's decisions on charitable tax relief shifted from the Tax Appeal Board to the federal courts, (63) the practice of interpreting the term gift/don by reference to the private law of the taxpayers province gradually changed. The Federal Court of Canada first cited the High Court of Australia's decision in McPhail with approval in 1974, in a case that denied the deductibility of certain payments made by John Zandstra to Christian schools attended by his children. (64) However, it was in the 1985 case of McBurney v R that the Federal Court of Appeal resolutely shifted away from a "legal meaning" interpretation of "gift/don", and embraced Australia's "ordinary meaning" approach to the term. (65)

The dispute in McBurney, as in R v Zandstra before it, turned on the deductibility of payments made by a taxpayer to Christian schools attended by his children. The Federal Court Trial Division found for the taxpayer, accepting his argument that the payments were gifts within the meaning of the ITA because they did not represent tuition payments in "contractual consideration" of his children's education. (66) Any other benefits that the taxpayer may have received as a result of his monetary contributions, whether "big or small, real or imagined, physical or metaphysical, material or immaterial" (67) did not displace the conclusion that he had made a gift.

The Federal Court of Appeal overturned this decision, choosing, like the Australian courts, to interpret the term gift/don in an "ordinary" sense:
The word "gifts" is not defined in the statute. I can find nothing in
the context to suggest that it is used in a technical rather than in
its ordinary sense. This latter sense was attributed to that word by
courts of Australia as it appeared in alike context of an Australian
taxing statute allowing "gifts" to be deducted from income in certain
circumstances. (68)


Relying heavily on Leary and McPhail, the Federal Court of Appeal held that the taxpayer's payments to the Christian school did not conform to an ordinary notion of gift. (69) As in Leary, the Court took a broad view of the circumstances that were relevant to the transaction, noting that the taxpayer's payments to the school declined dramatically after his children ceased attending. (70) As the payments grew out of the taxpayer's sense of personal obligation to ensure a Christian education for his children, and were made according to a clear understanding that the taxpayer would contribute while his children were attending the school, they did not constitute a "gift/don" under section 118.1 of the ITA. (71)

The federal courts continued to apply the ordinary meaning of "gift" to contested charitable contributions in the years following McBurney, effectively narrowing the category of contributions that were eligible for charitable tax relief. Within a few years, however, the court's portrayal of the type of meaning it was attaching to the term gift/don began to subtly change. In 1991, in Friedberg v R ("Friedberg"), the Federal Court of Appeal cited McBurney's statement that "gift" is used in "its ordinary sense" (72) in the ITA. However, it also asserted that, in interpreting the undefined term, the Court relied on "the general principles of law with regard to gifts". (73) Seven years later, in Woolner v Canada ("Woolner"), the Federal Court of Appeal cited McBurney for the proposition that "a gift, within the meaning of the common law, is a voluntary transfer of property from one person to another gratuitously and not as the result of a contractual obligation without anticipation or expectation of material benefit". (74) The Federal Court of Appeal reiterated this analysis in the 2014 Canada v Berg decision, declaring that the meaning of the undefined term gift/don under the ITA:
is determined under the applicable law, which in this case is the
common law. The authoritative definition for this purpose is stated as
follows in The Queen v. Friedberg.

[...] a gift is a voluntary transfer of property owned by a donor to a
donee in return for which no benefit or consideration flows to the
donor. (75)


Today, in appeals from reassessments of claimed charitable gifts, it has become common for both taxpayers and the Crown to proceed on the basis that the Friedberg line of authorities represents the common law definition of the term. (76) The CRA takes the same position in its administrative proceedings, stating in its communications with taxpayers that the ITA term gift/don carries its "common law" meaning of a voluntary transfer of property "in return for which no benefit or consideration flows to the donor, directly, indirectly, or anticipatorily." (77)

Within the federal income tax sphere, then, we have in operation a flexible and somewhat narrow interpretation of the term gift/don; the term evolved from the ordinary non-technical gift concept articulated by the Australian courts, but is currendy being portrayed as "the common law". Does it matter? Is the only relevant question whether the ITA gift concept is accomplishing desirable tax policy objectives, or should we also concern ourselves with the semantics of the terms in which the gift concept is described?

In the next two sections, I argue that the semantics of the ITA gift concept do matter, for reasons related to doctrinal clarity, and tax laws relationship to the broader legal system. I outline the principled reasons for my position in Part IV. First, however, I describe how the ITA gift jurisprudence has created confusion in practice. I focus on two distinct inter-court dialogues that have arisen following the reassessment of taxpayers who participated in charitable donation programs in British Columbia and Ontario.

III. INTER-COURT DIALOGUES ON THE ITA GIFT CONCEPT

A. THE PROBLEM CASES

We have seen that, in the years since McBurney, the federal courts' adoption of an ordinary non-technical gift concept has effectively narrowed the category of transfers that are eligible for charitable tax relief. The two disqualifying criteria that distinguish the ordinary meaning of "gift" from the common law meaning (the extended concept of a donor "benefit", and the expanded scrutiny of the donor's motive) have functioned to remove a number of otherwise voluntary transfers from the scope of section 118.1 of the ITA. The federal courts have dismissed any number of appeals from reassessments of the Minister on the basis that the taxpayer received, or anticipated, some sort of direct or indirect benefit in association with his or her charitable contribution. (78) Though less consistent in their application of the second criterion, the courts have also relied upon the self-interested motives of taxpayers to deny them charitable tax relief. (79) "Everything depends on the reason why the individual undertook to make the gift", the Tax Court stated in Dupriez v R, "[a] gift is an act done gratuitously, with liberal intent and with no consideration in mind." (80)

Stepping back from the array of cases involving reassessed charitable contributions, we may identify two types of fundraising programs that have created particular challenges for the courts. The first type of program is the "targeted" bursary, or scholarship, program. Participants in these programs are typically invited to transfer funds to a registered charity, within an arrangement that envisions the participant's child, grandchild, or acquaintance becoming eligible for (and receiving) a scholarship or bursary from that charity. The second type of program is the leveraged donation program. Participants in these programs are typically invited to make sizeable donations to a registered charity, within an arrangement that involves the donor receiving very favourable financing for the large part of his or her donation.

Targeted scholarship programs and leveraged donation programs have different conditions and objects. However, both types of fundraising programs give rise to transfers of property that, arguably, meet the "technical common law" meaning of "gift", but not the "ordinary non-technical" meaning that is applied under section 118.1 of the ITA. A number of taxpayers have sought to capitalize on this doctrinal discrepancy in appeals from decisions of the Minister; which has produced an interesting dialogue between the federal and provincial courts. I will first examine the judicial treatment of targeted scholarship programs in British Columbia, and then turn to the inter-court dialogue generated by the CRA's reassessment of a large number of participants in leveraged donation programs in Ontario.

B. SCHOLARSHIP PROGRAMS IN BRITISH COLUMBIA

A two-pronged judicial dispute over donations made to a targeted scholarship program has brought to the fore the distinctions between the "ordinary" and "common law" meanings of "gift" in British Columbia. The companion cases of Neville v National Foundation for Christian Leadership (81) ("Neville") and Coleman v R ("Coleman") (82) originated from a fundraising program targeting the friends and family of students at certain religious schools. Pursuant to its Christian Higher Education Assistance Fund (CHEAF) program, a registered charity called the National Foundation for Christian Leadership (NFCL) encouraged students at designated Christian institutions to solicit donations to the NFCL. The NFCL then awarded bursaries and scholarships to the students in accordance with an established set of eligibility criteria. Donations to the NFCL could not be designated to a specific student, and the charity testified that it "regarded itself as having the discretion to award whatever amounts they saw fit to any individual they deemed worthy". (83) However, the Court found that, in practice, the NFCL informed students of the amount of the bursary for which they were eligible, issued tax receipts to their relatives for corresponding donations to the NFCL, and then provided bursaries to the students that correlated closely to the amounts that they had raised. (84) The CRA reassessed the taxpayers who had contributed to the CHEAF program, on the basis that the contributions "were not gifts in law because they were intended to directly or indirectly benefit a person who was not dealing at arms' length with the sponsor". (85)

Frustrated by this tax treatment of property that they claimed to have given away, the taxpayers soughr separate legal remedies in the provincial and federal courts. Federally, the taxpayers appealed the CRA's reassessment of their donations, arguing in the Tax Court of Canada, and then the Federal Court of Appeal, that the amounts they had transferred to the NFCL under the CHEAF program did constitute "gifts/dons" under the ITA. (86) The taxpayers also commenced civil proceedings in the BC Supreme Court, arguing that any "gift" they had made to the NFCL had been vitiated when the charity applied the property in a manner inconsistent with the charitable donation tax regime. (87) The proper remedy, the taxpayers submitted, was a declaration that the NFCL held their donations in constructive trust. (88) The strategy behind the dual proceedings was premised on the unity of the common law of gift: either the purported donations were not gifts at common law, in which case no effective transfer of property had occurred, or they were gifts at common law, in which case the taxpayers were entided to their claimed charitable tax credits under section 118.1 of the ITA.

The apparent logic of the taxpayers' position did not translate into a court victory. The taxpayers lost both sets of proceedings, with the provincial courts concluding they had made a gift, (89) and the Federal Courts concluding they had not. (90) Federally, the Tax Court relied on the McBurney/Woolner line of authority, and focused on whether any benefit or consideration had flowed to the donors." Miller J made the following observations based on his review of the federal cases:

I. The benefit to the donor need not arise as a result of meeting a legal obligation.

II. Anticipation of the benefit may be sufficient to deny a gift.

III. There must be a connection or link between the donor's payment and the benefit... (92)

Miller J held, and the Federal Court of Appeal affirmed, that the determination of whether a payment constitutes a "gift" under section 118.1 should be structured around a two-stage inquiry. (93) The first question is whether there was a benefit to the donor. The threshold for identifying a benefit was held to be low: any benefit beyond a "pure moral benefit" would require a court to continue to the inquiry's second stage. (94) The second question is whether there is a "sufficiently strong link between that benefit and the donation" to deny the latter's characterization as a gift. (95) According to Coleman, this is a flexible, multifactorial inquiry, which considers matters such as: how the money was donated; how the amount of the donation was determined; and what the donor, the charity, and the ultimate beneficiaries, respectively, knew or expected would happen to the donation. (96) A donor's anticipation that a related third party will receive a benefit would work against the characterization of the donation as a gift, even if there is an element of uncertainty as to whether the benefit will, in fact, materialize. (97) The fact that a donor intends to benefit a related third party through his/her gift is also a connecting factor. (98) Applying this multifactorial framework to the donations made under the CHEAF program, the Court concluded that the link between the donations and the benefit--the Christian education of the taxpayers' children--was sufficiendy strong that "there was no charitable gift." (99)

The BC Supreme Court, which had adjourned the action pending the outcome of the tax court proceedings, reached the opposite conclusion. (100) Cullen ACJSC accepted the Federal Court of Appeal's account of the nature of the NFCL scholarship program, including its finding that the taxpayers had received a material benefit, insofar as they had been relieved from paying the education expenses of their children and grandchildren. (101) However, in Cullen ACJSC's view, this benefit did not constitute evidence that the donation was something other than an absolute gift. Citing earlier private law authority on the common law meaning of gift, Cullen ACJSC framed his conclusion in the following way: "It does appear to me that the donations at bar were indeed gifts at common law, albeit clearly not for the purposes of the Income Tax Act given the decision of the Minister and the rulings in the Tax Court and Federal Court of Appeal upholding the Minister's determination." (102) The British Columbia Court of Appeal agreed with Cullen ACJSC's view. (103)

C. LEVERAGED DONATION PROGRAMS IN ONTARIO

The question of section 118.1's application to leveraged donation programs in Ontario has generated an inter-court dialogue that is less direct, but every bit as interesting, as that prompted by targeted scholarship programs in British Columbia. An Ontario corporation called Trinity Capital Corporation promoted and operated one such leveraged donation program between 2001 and 2003. (104) Participating taxpayers were invited to pledge a minimum amount of $100,000 to a registered charity for medical science and technology. (105) Trinity arranged for all participants to borrow 80% of the Pledge from another company (the "Lender") by way of a non-interest-bearing, 20-year loan. (106) The participating taxpayers agreed to pay the remaining 20% of their Pledges with their own resources, and to pay an amount equal to 10% of their Pledge to the Lender for fees, insurance, and a security deposit. The program was designed to be lucrative for participants: A taxpayer could expect to net approximately $14,000 on a gift of $100,000, based on an expected charitable tax receipt worth $44,000, less a cash outlay of $30,000. (107) Several hundred taxpayers participated as donors in the program, transferring over $200 million in pledged donations to the recipient registered charity. (108) Many of them did so on the basis of a tax opinion from a leading Canadian firm, stating that the transactions contemplated by the program should constitute charitable gifts, which would entitle the donors to tax credits. (109)

The charitable tax credits claimed by participants in the Trinity program were disallowed in their entirety, contrary to the legal opinion upon which many had relied. (110) A representative taxpayer, Mr. Marechaux, appealed the Minister's decision in Marechaux v R ("Marechaux [TCC]"), only to have his appeal dismissed by both the Tax Court of Canada and the Federal Court of Appeal. (111) The Tax Court held that the undefined term gift/don had been given "its general meaning" under the ITA. (112) While judicial decisions tended to describe the criteria of a gift in slightly different ways, it was sufficient for the matter before the Court to refer to Friedberg's definition of a gift: "[A] voluntary transfer of property... in return for which no benefit or consideration flows to the donor". (113) The appellant taxpayer had not made a gift to the foundation within the meaning of this definition "because a significant benefit flowed to the appellant in return for the Donation." (114) The disqualifying benefit was the interest-free loan that the taxpayer had received from the Lender, which provided him with a considerable economic advantage. (115) Mr. Marechaux disputed the Tax Court's conclusion on appeal, arguing that a benefit could only prevent a transfer from being a gift if the benefit was provided by the donee. (116) The Federal Court of Appeal rejected Mr. Marechaux's argument, stating that he had provided no authority for his argument. (117)

Had it not been for the issuance of a subsequent appellate decision in Ontario, the Federal Court of Appeal's summary dismissal of Marechaux v R ("Marechaux (FCA)") might well have ended the debate over the effect of third party benefits on the validity of a gift under the ITA. Shortly after the federal judgment was rendered, however, the Ontario courts were called upon to decide the same issue that Mr. Marechaux had raised: namely, whether a benefit to an alleged donor must come from the donee in order to prevent a payment from being a gift. McNamee v McNamee (118) ("McNamee") involved a dispute under subsection 4(2) of the Ontario Family Law Act, which excludes property "acquired by gift" during marriage from a spouse's net family property for the purpose of dividing marital assets. (119) The issue was whether a share transfer from a father to his son in the context of an estate freeze was by way of "gift", such that the shares should be excluded from equalization. (120) As the Family Law Act does not define the word gift, the issue fell to be addressed by reference to the common law.

The Ontario Superior Court of Justice concluded that the share transfer was not a gift. (121) The judgment relied implicitly on the two exclusionary criteria that distinguish the ordinary meaning from the common law meaning of "gift". (122) The trial judge applied an expanded notion of donor benefit, holding that the share transfer was not gratuitous because the father had intended to benefit, and had in fact benefited, from the corporate and tax effects of the estate freeze transaction. The trial judge also delved into the father's motivation, holding that, because the father had been motivated by the economic incidents of the share transfer, he lacked the requisite donative intent. (123) However, the Ontario Court of Appeal overturned the trial judge's decision. The Court held that, at common law, a gift is only vitiated by the donor's receipt of a benefit if that benefit is consideration provided by the donee. "'Consideration' in law is a contractual concept", the Court of Appeal stated, which represents "the value that flows from a promisee to a promisor as a result of a bargain." (124) The fact that the donor had received other benefits as a result of the share transfer, the Court held, did not disturb its classification as a gift:
It is helpful to remember that the issue is not whether the donor (or,
for that matter, the donee) received some benefit from the estate
freeze.... The issue is whether the donee has provided any
consideration to the donor for the transfer of the shares. For the
reasons outlined above, the appellant provided no consideration in that
regard. The fact that Mr. McNamee Sr. accomplished his corporate
planning goals--including capping his value in the company at $2
million, with the right to draw out more if he wished; protection from
creditors; and relief from possible tax consequences on his death--do
not amount to consideration flowing from the appellant to him. (125)


The Court of Appeal also rejected the trial court's analysis of the father's animus donandi, holding that the common law criterion pertains to the donor's intention, rather than his underlying motivation or purpose. (126) The common law does not require that a gift be motivated by altruism. (127) Thus, the fact that the father's primary purpose in transferring the shares was to underpin his corporate restructuring did not mean that he did not intend to gift the shares in order to achieve that purpose. (128) The transfer was a gift. (129)

The Ontario Court of Appeal's decision in McNamee highlights the tension between the ordinary and common law concepts of gift, which underlay the taxpayer's argument in Marechaux. In Kossow v R ("Kossow"), Ms. Kossow, a taxpayer who had been reassessed for her participation in a similar leveraged donation program, seized upon this development, arguing that McNamee superseded Marechaux (FCA), such that a gift was only vitiated where there was evidence of consideration flowing to the donor from the donee. (130) The Tax Court of Canada rejected Ms. Kossow's argument, and followed Marechaux (FCA). Rather than base its decision on the distinction between the ordinary and common law meanings of "gift", however, the Tax Court opined that the Ontario Court of Appeal had not intended its statement of the law of gift to be one of general application, and suggested that McNamee should be confined to the family law context. (131) The Federal Court of Appeal reinforced the interpretation that the Ontario Court of Appeal's decision articulated something other than the common law; it agreed with the Tax Court "that McNamee did not purport to change the generally accepted definition of gift as set out in Friedberg." (132) As Ms. Kossow had not brought a parallel proceeding in the provincial courts, the Ontario Court of Appeal had no opportunity to respond.

IV. THE ITA GIFT CONCEPT WITHIN THE LARGER LEGAL SYSTEM

Whatever the tax policy merits of the federal courts' current interpretation of the term gift/don, it is evident that the elision of the ordinary and common law meanings of "gift" in Canadian tax law has created considerable doctrinal uncertainty. It has become particularly difficult for Canadian lawyers to advise their clients on the legal effects of sophisticated donative transactions, such as those where the donor of a large-value gift can reasonably expect to have a building or scholarship named in his or her honour. Given the flexible and multifactorial nature of the disqualifying benefit test that the Tax Court articulated in Coleman, persons involved in nuanced philanthropic arrangements in British Columbia need to be advised that they may irrevocably give away very large sums of money, only to have their charitable tax credits denied by the CRA. The same advice may apply to charitable contributions in Ontario, depending on one's reading of the McNamee-Kossow exchange. The doctrinal uncertainty surrounding the ITA gift concept has increased the already considerable discretion that the CRA wields in applying the charitable donation tax provisions to taxpayers. It also almost certainly functions as a disincentive to major philanthropy in Canada. (133) Further, it contributes to the regularory anxieties of Canadian charities, which face very serious penalties for issuing tax receipts for contributions that are not "gifts". (134)

While the practical costs of this doctrinal uncertainty should not be underestimated, the current formulation of the ITA gift concept also raises important questions of principle about federal tax law's relationship to the broader legal system. J. Scott Wilkie and Peter W. Hogg addressed this relationship in a recent response to the work of one of Canada's leading tax scholars, Neil Brooks. (135) Brooks is a proponent of a "pragmatic and dynamic approach" to the interpretation of tax legislation. (136) He has argued that the interpretive responsibility of judges in tax cases is "to give a meaning to the statutory language that will lead to the most sensible tax policy result in the particular case". (137) Wilkie and Hogg are sympathetic to this tax policy focus, but emphasize that those responsible for the development and application of tax law must not lose sight of the larger legal system of which tax law is a part. "Tax law is not some sort of self-defining, self-perpetuating behemoth", Wilkie and Hogg claim; (138) "[t]he policy choices that the tax law implements, and that courts try to comprehend and effectuate when interpretative doubt arises, require adherence to the rule of law, that is, standards found both within but also beyond the tax law". (139) Interpretive principles might sometimes be "pushed and pulled, even stretched" to accomplish desirable tax policy objectives, the authors argue. Ultimately, however, tax law must respect its "constitutional, public, and private law footings", if the integrity of the tax system is to be maintained. (140)

As section 118.1 case law illustrates, giving meaning to a tax term while adhering to broader legal principles is not always a simple interpretive task. The interpretation of federal tax legislation often requires courts to choose between competing values and principles, all of which may fall broadly within the rubric of the rule of law. The principle that federal tax law should apply reasonably uniformly throughout the federation may compete with the principle that provincial law governs matters of property and civil rights. (141) The value of recognizing the economic substance of a transaction may compete with the value of recognizing the transaction's legal form. And the value of effectuating a desirable tax policy result may compete with the value of preserving the integrity of the legal system as a whole.

Because Parliament has built the charitable donation tax regime around a term that has meaning in both civil and common law, the federal courts must presently take into account all of these competing values and principles in interpreting ITA section 118.1. A perfect balance may be illusory. Nevertheless, I suggest that section 118.1 case law represents an area where the prioritization of uniformity, economic substance, and tax policy concerns have inflicted significant harm on provincial jurisdiction, and the integrity of the legal system as a whole. Whether or not the ITA gift concept effectuates a sensible policy on the tax treatment of charitable donations (an issue I have remained agnostic on in this piece), its current formulation as a "common law" concept is in tension with several fundamental constitutional principles. These tensions come into clearer focus upon the examination of two alternative hypotheses that follow logically from the inter-court dialogues that are described in Part III. This Part will first examine the constitutional deficiencies of each hypothesis. It will then consider the challenges that would flow from a judicial recognition that the meaning that the federal courts have attached to the term gift/don under section 118.1 is an ordinary non-technical meaning, which is distinct from both the civil law concept of gift set out in Book V of the Civil Code of Quebec, and the common law concept of gift that forms part of the law of property in Canada's common law provinces.

A. HYPOTHESIS # 1: THERE ARE TWO COMMON LAWS OF GIFT

A first conclusion that can logically be drawn from the recent gift jurisprudence is that there are in fact two "common laws of gift" in operation in Canada. This is a plausible reading of the Coleman--Neville exchange in British Columbia: The federal courts apply one "commonlaw" meaning of gift for purposes of the ITA, while the provincial courts apply a different "common law" meaning of gift for private law purposes. Members of the Supreme Court of Canada have given credence to this analysis by making a similar suggestion about the common law of charity. In Vancouver Society of Immigrant & Visible Minority Women v Minister of National Revenue, Gonthier J indicated that "common law" judicial interpretations of "charity" and "charitable" under the ITA "may not accord precisely with the way those terms are understood in the common law provinces, due to judicial decisions and provincial statutory incursions into the common law." (142)

The problem with this analysis is that it presupposes the existence of an unenacted body of federal common law, which cannot be amended by the provinces, and which acts as the default legislative dictionary for section 118.1 of the ITA. From a constitutional perspective, this is a very problematic proposition. The debate over the existence and scope of the federal common law in Canada is closely tied to debates over the limits of the federal courts' jurisdiction under section 101 of the Constitution Act, 1867. (143) In the landmark decisions of Quebec North Shore Paper Co v Canadian Pacific Ltd and McNamara Construction (Western) Ltd v R, the Supreme Court of Canada construed this jurisdiction strictly, holding that there was "no body of federal common law that was coextensive with the unexercised legislative competence of Parliament over matters assigned to it". (144) The mere fact of Parliament's legislative authority over a private law matter was, therefore, insufficient to support proceedings before the federal courts.

In recent years, the trend has been towards a more flexible approach to federal courr jurisdiction, (145) and acknowledgement that a body of federal common law does exist in areas such as the law of aboriginal title and the tort of false imprisonment. (146) However, as Roderick Macdonald has explained, the constitutional basis for the existence of the federal common law is that--at the time of Confederation--the Constitution Act, 1867 continued all of the law in force in each of the colonies, for all purposes, in each province; but it placed that law under the authority of either Parliament or the provincial legislatures, by virtue of sections 91 and 92. (147) The result is that any unenacted, pre-Confederation law that became subject to codification or amendment by provincial legislation may fairly be described as "provincial" common law, while unenacted, pre-Confederation law that falls within the legislative authority of Parliament may be described as "federal" common law. The term federal common law thus encompasses "any pre-Confederation [unenacted] common law in each colony that is insulated from direct supersession by provincial statutes". (148)

Given the federal common law's constitutional basis, and the narrow manner in which it has been construed, it is difficult to defend the existence of a federal common law of gift. The law of aboriginal title, the tort of false imprisonment, and the other doctrines that the courts have so far recognized as "federal common law" are constitutionally insulated from provincial amendment; therefore, they fall within Macdonald's definition. However, the common and civil laws of gift fall squarely within the provinces' legislative authority over property and civil rights. If the body of unenacted law that acts as the default legislative dictionary for the term gift/don under the ITA is a body of "common law", the Constitution of Canada requires that it be recognized as provincial.

B. HYPOTHESIS #2: THERE IS ONE COMMON LAW OF GIFT, THE CONTENT OF WHICH HAS BEEN ESTABLISHED BY THE FEDERAL COURTS

A second conclusion that could logically be drawn from the recent gift jurisprudence is that there is one common law of gift in Canada, the content of which was authoritatively articulated by the Federal Court of Appeal in Friedberg. This is a plausible reading of the McNamee--Kossow exchange in Ontario: Even where the provincial courts articulate a common law definition of gift for the purpose of giving content to a provincial statutory concept, this definition will not displace the generally accepted common law definition that the federal courts have set out.

There are a number of objections to this analysis, the first of which is that it positions federal tax law, rather than provincial private law, as the creative engine of the common law of gift. This positioning is inconsistent with a number of overarching legal principles, including the principle that there is no "common law of tax". (149) Tax law, which can only be created by legislative bodies, has long been understood as an "accessory system" that imposes fiscal consequences on legal concepts governed by provincial private law. (150) As the Tax Appeal Board explained in a case concerning the meaning of "contract":
If income tax is a creation of the Act which imposes it, that Act must
apply within the framework of the civil laws governing legal
relationships between individuals. The tax is grafted, as it were, on
the legal tree which covers with its shadow the rights and obligations
arising from the contracts.... the legal relationships of the parties
to a contract and the consequences of that contract must be respected
by the persons responsible for administering the Income Tax Act. (151)


It follows that, where provincial private law and federal tax law find themselves at odds on the common law meaning of a term, it is federal tax law that should yield, grafting itself onto the "legal tree" of the private law of the province.

If the McNamee--Kossow exchange wrongly communicates that provincial private law, rather than tax law, is the "accessory system" (152) in matters concerning the common law of gift, it also wrongly communicates that the federal courts, rather than the provincial superior courts, are the judicial body with primary responsibility for its development. Whether intended or not, the Kossow v R decisions have created the strong impression that the federal courts are prepared to articulate a common law concept of gift that serves their tax policy purposes, and to defend it against the competing common law concepts of the provincial superior courts. This is a problematic proposition, which raises sensitive questions about the relationship between the provincial superior courts and federal courts, and the proper bounds of the latter courts' constitutional role.

The provincial superior courts have always occupied "a position of prime importance" within our constitutional and judicial systems. (153) Their general and inherent jurisdiction is often contrasted with the exceptional and statutory jurisdiction of the federal courts. (154) The Supreme Court of Canada has described the provincial superior courts as "the foundation of the rule of law itself." (155) Section 96 of the Constitution Act, 1867 protects the superior courts against legislative measures that would erode their general and inherent jurisdiction. (156) Thus, governments are constitutionally prohibited from taking legislative action that would remove from a superior court any power that is a "hallmark" of the court, or part of the court's "core" jurisdiction. (157)

A more difficult issue is whether, and to what extent, section 96 protects the provincial superior courts against judicial action that might erode their primary constitutional role. This issue has become more pressing in recent years, due to the increasingly expansive approach that the federal courts have taken to their own jurisdiction. (158) Concerns have been raised that the existence and functioning of the federal courts may threaten the "preeminent position" of the superior courts within the judicial system. (159) The federal court judgments in Kossow v R appear to legitimate these concerns. It is clear that the federal courts have the jurisdiction to interpret the statutory term gift/don in deciding appeals from reassessments made under section 118.1. It is equally clear that the production of unenacted law is a "normal by-product" of this process. (160) However, in failing to affirm the authority of a provincial appellate court over the common law of gift, and in limiting the court's reasoning to a particular provincial statute, the Kossow v R judgments go beyond these accepted parameters. To the extent that the judgments can be said to erode the core jurisdiction of the Ontario superior courts over the development of the law of property and civil rights, the federal courts have done by judicial fiat what is forbidden the legislatures under section 96.

A final objection to the "one common law of gift" analysis is that it tends towards the "federalization of the private law", a term I use to describe what happens when the federal courts' interpretive practices function to modify the private law of the provinces. The McNamee--Kossow exchange provides a good illustration of the phenomenon. As we have seen in McNamee, the Ontario Court of Appeal held that a gift at common law means a voluntary transfer of property without "consideration", understood in the contract law sense of value for exchange. (161) The federal courts limited the application of this holding in Kossow, and treated the narrower ITA gift concept as the law of general application. Since the release of Kossow, the Ontario Superior Court of Justice has, at least twice, relied on federal court precedents for its common law definition of gift. (162) This implies that, in order to qualify as a gift for estate law purposes in Ontario, a property transfer must be made "without anticipation or expectation of material benefit". (163) This incorporation of the ITA gift concept into provincial private law decisions, in the face of conflicting provincial appellate court authority, is an example of what I refer to as the "federalization of private law".

The federalization of the common law of gift should be of concern to common law jurists because of its potential to harm the coherence and integrity of the private law. This is a familiar argument to civilian jurists, a distinguished line of whom have sought to defend the specificity and integrity of the Quebec civil law tradition against the pervasive influences of common law authorities and methodology. (164) It is a less familiar argument to common law jurists, but the colonizing tendencies of the ITA gift concept suggest that it is one which we should heed. It is beyond the scope of this paper to describe all of the ways in which the federalization of the common law of gift might impair the coherence and integrity of the private law tradition. There are multiple levels of incoherence in the ITA gift jurisprudence, and associated CRA policy, many of which have been ably analyzed by Adam Parachin in an earlier piece. (165) I will limit myself to two observations, which illustrate some of the perils of letting pragmatic tax reasoning seep into provincial private law.

First, to the extent that the federal court jurisprudence excludes selfishly motivated transfers made with the anticipation of a third-party benefit from the "common law" concept of gift, it implies the existence of a consensual mode of transferring property that has not previously been recognized by the common law. The common law recognizes a limited number of methods of acquiring title to property through the manifestation of another's consent. Blackstone catalogued the methods available for real and personal property. (166) By the nineteenth century, the English Court of Appeal appeared to have reduced this list to four: "[a transfer] by way of exchange or barter, or by way of bargain and sale for a consideration, or by way of and as a mere gift, or by will." (167) Peter Birks' taxonomy of English private law pares this list down to two modes of transfer: the gift and the sale. (168) The latter is distinguished from the former on the basis of the consideration requirement, which "is designed to assure that any particular transaction can be placed on one and only one side of the gift/bargain line." (169) The conceptual difficulty with the federal gift jurisprudence is that it appears to exclude consensual transfers with an anticipated third party benefit but without contractual consideration from both of the recognized modes of acquiring property by consent. This undermines the common law's gift/bargain dichotomy, and calls into question the intelligibility of the private law.

Second, to the extent that federal gift jurisprudence is focused on effectuating a sensible and just tax policy, its incorporation into private law judgments is likely to obscure the juridical relationship between the litigating parties. The strong version of this argument finds its classic expression in Ernest J. Weinrib's work In The Idea of Private Law, Weinrib distinguishes private law from "other legal orderings" based on the distinct justificatory structures and normative bases of corrective and distributive justice. (170) Private law's master feature, Weinrib claims, is "the direct connection between the particular plaintiff and the particular defendant." (171) "To the extent that private law relationships are characteristically bipolar, their coherence is a matter of corrective justice." (172) Public law, on the other hand, relates persons "only indirectly through the collective goals determined by state authority". (173) The coherence of these relationships is, thus, a matter of distributive justice. Corrective justice and distributive justice can both render external relationships coherent, but they are irreducible modes of order that cannot coherently be combined. "When a corrective justification is mixed with a distributive one," Weinrib claims, "each necessarily undermines the justificatory force of the other". (174)

One need not ascribe to the entirety of Weinrib's argument to acknowledge the importance of his insights to the common law of gift. There is little doubt that, in interpreting the ITA term gift/don, the federal courts have been driven by a desire to give effect to the major goals of the charitable donation tax regime: the encouragement of charitable gifts, and the prohibition on the deductibility of personal expenses. (175) Only such tax policy considerations can justify the various quirks of the federal gift jurisprudence, for example, the rule that the "no material benefit" criterion applies generally to third parties but does not apply to the significant tax benefit taxpayers receive when they file official tax receipts for their charitable contributions. (176) Distributive justice may be able to render this rule coherent, to the extent that filing charitable donation tax receipts is understood to encourage the redistribution of wealth from less needy to more needy persons. However, the rule makes no sense within a corrective justice or private law paradigm where the concern is to require "the actor [plaintiff] to restore to the victim [defendant] the amount representing the actor's self-enrichment at the victim's expense." (177)

C. THE REMAINING CONCLUSION: "GIFT" MEANS ONE THING FOR TAX PURPOSES, AND ANOTHER THING AT COMMON LAW

If Canada's legal architecture precludes both the conclusion that we have two common laws of gift, and the conclusion that we have one common law of gift with the meaning the federal courts have established, the remaining option is the one put forward in this article: We have one common law of gift whose contours have been established by the provincial superior courts, and a tax law of gift that has been developed by the federal courts. There is an "ordinary" meaning of gift that operates to fill the gaps in section 118.1 of the ITA, and a technical, "common law" meaning of gift that operates within the private law of the common law provinces. This, I have argued, is the most plausible reading of the gift jurisprudence as a whole.

The benefits that would flow from a judicial recognition that the ITA gift concept, as currently formulated, is an "ordinary meaning" concept should be apparent from this work. On a practical level, the recognition would clear up much of the doctrinal confusion surrounding the charitable donation tax regime. For philanthropists who value certainty in their financial planning, the multifactorial and malleable character of the ITA gift concept might continue to function as a disincentive to making major charitable contributions. However, lawyers would at least be able to advise their clients with confidence that the ITA gift concept is not congruent with the private law of the provinces, and offer separate legal advice on a contribution's property and tax law implications. On a principled level, recognizing the ITA gift concept as an "ordinary meaning" concept would extinguish lingering suggestions that there is a "federal common law of gift" and confirm the pre-eminent role of the provincial superior courts in developing the common law. It would also prevent the further federalization of the private law of gift.

However, if recognizing the "ordinary" nature of the ITA gift concept would alleviate several points of tension between Canadian tax law and the broader legal order, it would also test the federal courts' commitment to the constitutional principle of complementarity, which has been enshrined for almost two decades in sections 8.1 and 8.2 of the federal Interpretation Act. (178) Section 8.1 provides that if, in interpreting an enactment, it is "necessary" to refer to provincial rules or concepts that form part of the law of property and civil rights, reference must be made to those rules or concepts, unless otherwise provided by law. (179) Section 8.2 states:
Unless otherwise provided by law, when an enactment contains both civil
law and common law terminology, or terminology that has a different
meaning in the civil law and the common law, the civil law terminology
or meaning is to be adopted in the Province of Quebec and the common
law terminology or meaning is to be adopted in the other provinces.
(180)


The Supreme Court of Canada has not yet undertaken a detailed analysis of sections 8.1 and 8.2. (181) Section 8.1 leaves the door open for an argument that it is not "necessary" to refer to the provincial law of gift in interpreting section 118.1 in the common law provinces; however, section 8.2 is determinative. There is little doubt that the term gift/don qualifies both as "civil law and common law terminology", and as "terminology that has a different meaning in the civil law and the common law". (182) It is only slightly less certain that Parliament has not sufficiently manifested its intention to derogate from those private law traditions to dissociate the private law of gift from the charitable donation tax regime. (183) Provided this analysis is correct, section 8.2 requires the federal courts to interpret the ITA term gift/don not according to the ordinary non-technical meaning they have developed since McBurney, but according to the meaning given to it by the juridical system of the province in which the provisions are being applied.

V. CONCLUSION

The project of this paper has been to clear up some of the continuing confusion over the federal courts' interpretation of the ITA term gift/don, and its relationship to provincial private law. I have argued that much of the uncertainty surrounding the ITA gift concept is attributable to the federal courts' misuse of the term "common law" to describe the gift concept that is applied to taxpayers in the common law provinces. Canadian law, I have claimed, actually encompasses at least three distinctive gift concepts: (i) the civil law concept set out in Book V of the Civil Code of Quebec, (ii) the common law concept that describes a mode of transferring property at common law; and (iii) the ordinary non-technical concept that our federal courts adopted from the Australian tax context in 1985, and have developed in cases involving the reassessment of charitable tax credits under sections 110.1 and 118.1 of the ITA.

We have seen that neither a federal "common law" nor an "ordinary non-technical" interpretation of the ITA term gift/don can be entirely free of tension with Canada's broader legal order. The first interpretation challenges fundamental principles regarding our division of legislative and judicial authority, while the second conflicts with the complementarity principle enshrined in the federal Interpretation Act. (184) A provincial, "common law" interpretation of "gift/don" would adhere to constitutional principles, but might not effectuate Parliament's intended policy on the tax treatment of charitable contributions. As long as the ITA's charitable donation tax regime is structured around a term with a settled legal meaning in the civil law and the common law, the federal courts will face an unenviable interpretive task. All of this provides added support for the legislative solution proposed by earlier scholarship: Parliament should either define "gift/don" for purposes of the ITA, or replace it with a term that is independent of Canada's private law traditions. Until that happens, however, the federal courts should at least recognize that the ITA gift concept they have developed since McBurney is an "ordinary non-technical" concept, and not the common law. In this way, common law jurists may follow the civilians in defending the specificity and integrity of our private law tradition against the pervasive influences of federal tax law.

KATHRYN CHAN ([dagger])

([dagger]) DPhil (law) (Oxon); Assistant Professor, University of Victoria Faculty of Law, Canada. The author thanks Blake Bromley, Kim Brooks, Donna Greschner, Michael Lubetsky, James Parks and two anonymous reviewers for their helpful comments, and Shannon Smith for her able research assistance.

(1) Income Tax Act, RSC 1985, cl (5th Supp),ss 118.1, 110.1 [ITA]. Section 118.1 of the ITA provides a tax credit to individuals for gifts made to registered charities and certain other qualified donees. Section 110.1 provides a parallel tax deduction to corporations. While I focus on s 118.1 in this piece, my analysis is applicable to both sections.

(2) For a recent articulation of this position, see Canada v Berg, 2014 FCA 25 at para 23, [2014] 3 CTC 1. The development of this position is discussed in Part II.

(3) See e.g. Ellen B Zweibel, "Looking the Gift Horse in the Mouth: An Examination of Charitable Gifts Which Benefit the Donor" (1986) 31:3 McGill LJ 417 [Zweibel]; Joseph Sirois, "Le concept de 'dor'/gift. etude comparative droit civil --common law--droit fiscal" (2003) 24:2 RPFF 381; Blake Bromley, "Flaunting and Flouting the Law of Gift: Canada Customs and Revenue Agency's Philanthrophobia" (2002) 21:3 ETPJ 177 [Bromley]; David G Duff, "The Federal Income Tax Act and Private Law in Canada: Complementarity, Dissociation, and Canadian Bijuralism" (2003) 51:1 Can Tax J 1 at 21-23, 58 [Duff ]; Adam Parachin, "Reforming the Meaning of 'Charitable Gift': The Case for an Alternative to Split Receipting" (2009) 57:4 Can Tax J 787 [Parachin].

(4) See Zweibel, supra note 3.

(5) RSC 1985, c 1-21, as amended by Federal Law--Civil Law Harmonization Act, No 1, SC 2001, c 4 [Interpretation Act].

(6) Ibid, Preamble.

(7) Ibid, 8.1-8.2.

(8) See Duff, supra note 3 at 5.

(9) Ibid. See Martin Lamoureux, "Harmonisation des lois fiscales: La dissociation: un mecanisme d'exception Partie III" (2002) 23:4 RPFF 735 [Lamoureux].

(10) See Bromley, supra note 3; Duff, supra note 3. See especially ibid at 21-23, 58.

(11) See Bromley, supra note 3 at 178-79.

(12) Supra note l,s 248(30).

(13) The split receipting provisions operated as "non-law" for over a decade before being brought into force by the Technical Tax Amendments Act, 2012, SC 2013, c 34, s 358(30). Per subsection 358(54), they apply retroactively to gifts and monetary contributions made after December 2002.

(14) For a prediction of this effect, see Parachin, supra note 3 at 811-12.

(15) Canada Revenue Agency, "Income Tax Folio S7-F1-CI, Split-Receipting and Deemed Fair Market Value" (20 April 2017) s 1.5, online: <www.cra-arc.gc.ca/tx/tchncl/ncmtx/fls/s7/fl/s7-fl-cl-eng.html>. The Federal Court of Appeal has also suggested that certain types of donative transactions that produce advantages for donors will continue to be excluded from the concept of "gift/don" under the amended ITA, even if the amount of the advantage conferred on a donor falls below the statutory 80% threshold. See Marecbaux v R, 2009 TCC 587 at para 49, 2009 DTC 1379 (Eng) [Marechaux (TCC)]; Kossow v R, 2012 TCC 325 at para 75, [2012] 6 CTC 2140 [Kossow (TCC)]; Edwards v Canada, 2012 FCA 330 at para 4, 443 NR 352.

(16) See e.g. French v Canada, 2016 FCA 64 at paras 28-42, 397 DLR (4th) 746 (accepting the argumenr that the gift jurisprudence is so uncertain it is arguable that even prior to the split receipting amendments the ITA term "gift/don" encompassed the civilian notion of split gifts in the common law provinces).

(17) McBurney v R, [1985] 2 CTC 214,85 DTC 5433 (FCA) [McBurney].

(18) See Duff, supra note 3 (David Duff suggested the term "qualifying contribution" at 58-59); Parachin, supra note 3.

(19) J Scott Wilkie & Peter W Hogg, "Tax Law within the Larger Legal System" (2015) 52:2 Osgoode Hall LJ 460.

(20) Richard Hyland, Gifts: A Study in Comparative Law (New York: Oxford University Press, 2009) at 595.

(21) Ibid at 18.

(22) Ibid at 9-10.

(23) Ibid at 592.

(24) Ibid at 576, 589.

(25) Ibid at 575. See e.g. Burgerliches Gesetzbuch [Civil Code], Jan 2, 2002, Bundesgesetzblatt 142, as amended, [section]516, para 1 (Ger); Codice civile art 769 (It).

(26) Art 1806 CCQ.

(27) See art 1810 CCQ.

(28) See Hyland, supra note 20 at 589. There are a number of reasons for this, one of which is the role that the consideration doctrine plays in the common law of contract (see ibid at 575, 579). See Section IV(a), below.

(29) The other is the sale. See Peter Birks, ed, English Private Law (Oxford: Oxford University Press, 2000) vol 1 at para 4.378 (the law of gift is located in chapter 4, "Property: General Principles", under section F, "Acquisition of Property Rights").

(30) See Bruce Ziff, Principles of Property Law, 5th ed (Toronto: Carswell, 2010) at 157. See also Irons v Smallpiece (1819), 106 ER 467 (KB), 2 B & Ald 551; Re Waite and Waite, [1953] 3 DLR 142, 9 WWR (NS) 569 (BCSC); McNamee v McNamee, 2011 ONCA 533 at para 24,106 OR (3d) 401 [McNamee (Ont CA)].

(31) See e.g. R v Carter (1864), 13 UCCP 611, 1864 CarswellOnt 77 (actual delivery of a chattel is not required in a gift inter vivos, provided the conduct of the parties shows that ownership of the chattel has changed).

(32) See e.g. McNamee (Ont CA), supra note 30 at para 37.

(33) Kinsella v Pask, 12 DLR 522 at 526, 1913 CanLII 612 (Ont CA).

(34) Nolan v Nolan, [2003] VSC 121 at para 138, 10 VR 626.

(35) See Hyland, supra note 20 at 135; William Blackstone, Commentaries on the Laws of England, 14th ed (London: A Strahan, 1803) vol 2 at 440 [Blackstone]. In contemporary formulations, the gratuitousness requirement is often subsumed under the requirement that the donor intend to make a gift. See McNamee (Ont CA), supra note 30 at para 24.

(36) See Blackstone, supra note 35 at 440 (Blackstone explicitly distinguished gifts from grants and contracts on the basis of their gratuitous nature).

(37) See Hyland, supra note 20 at 135.

(38) Ibid at 143-47.

(39) Ibid at 136. See also Berry v Warnett (Inspector of Taxes), [1981] 1 WLR 1 at 18, [1980] 3 All ER 798 (CA), cited in Halsbury's Laws of England, 5th ed (London UK: LexisNexis, 2008) vol 52 at 201, n 2. In Canada, see Birce v Bine, 56 OR (3d) 226 at para 17, 2001 CarswellOnt 3481 (Ont CA).

(40) William Wheeler Thornton, A Treatise on the Law Relating to Gifts and Advancement (Philadelphia: T & JW Johnson, 1893) at 3, cited in Hyland, supra note 20 at 209.

(41) See Federal Commissioner of Taxation v McPhail, [1968] HCA 13, 117 CLR 111 [McPhail].

(42) Ibid.

(43) Ibid at 116.

(44) Ibid.

(45) Ibid.

(46) See Leary v Federal Commissioner of Taxation (1980), 47 FLR 414 at 415, 32 ALR 221 (FCA) [Leary].

(47) Ibid at 431, per Brennan J.

(48) Ibid at 430.

(49) Ibid at 430-31.

(50) Ibid at 431, per Brennan J.

(51) Ibid.

(52) Ibid.

(53) Ibid at 441.

(54) Ibid at 432, 433.

(55) Income War Tax Act, RSC1927, c 97, s 5(l)(j) [IWTA], as amended by SC 1930, c 24,s 3. The section also provided that the decision of the Minister in respect of any question arising under the new paragraph "shall be final and conclusive." This latter proviso was repealed in 1946 by SC 1946, c 55, s 4(6).

(56) Ibid, s 88, as amended by SC 1935, c 40, s 14.

(57) In 1941, for example, IWTA paragraph 5(1)(j) was amended to provide for a separate, lesser exemption for corporations that paid amounts "by way of donation" to charitable organizations in Canada: RSC 1927 c 97, s 5(1)(j) and (jj), as amended by SC 1940-41, c 18, ss 7, 8 and SC 1942-43, c 28, s 5(4).

(58) The Income Tax Act, RSC 1948, c 52, s 26(1) (a) [emphasis added]. The deduction was limited to 5% of a corporation's income, or 10% of an individual's income. See ibid, s26(1)(a)(i),(ii).

(59) See Wilkie & Hogg, supra note 19, Part III. The current practice of co-drafting federal legislation in French and English did not begin until the 1960s. However, the term "don" appears to have been used consistently in both translated and co-drafted versions of the ITA. See e.g. RSC 1970, c 1-5, s 30(l)(a).

(60) See Kathryn Chan, "Taxing Charities/Imposer les Organismes de Bienfaisance: Harmonization and Dissonance in Canadian Charity Law" (2007) 55:3 Can Tax J 481 at 489.

(61) No 688 v Minister of National Revenue, 1960 CarswellNat 80 at para 20, 60 DTC 130 (Tax App Bd). The board concluded the payments made "to the Associated Hebrew Schools were not charitable donations but were actually monies paid for the education of his three children" (ibid). The contributors, for the most part, were paying for what they received. It is patent that there was consideration for their payments or "donations" (ibid at para 21). (No 688 v Minister of National Revenue was applied with approval in David M Homa v Minister of National Revenue, [1969] Tax ABC 961, 69 DTC 673.)

(62) Aspinall v Minister of National Revenue, 1970 CarswellNat 179 at para 4, [1970] Tax ABC 1073 at 1669, 1670. This practice of referring to the CCQ in tax cases arising in Quebec has not been consistently followed. See R v Littler, 1978 CarswellNat 185, 78 DTC 6179 (FCA); the discussion in Bromley, supra note 3.

(63) See generally An Act to amend the Tax Court of Canada Act and other Acts in consequence thereof, SC 1988, c 61, s 18(1), which repealed sections 172(1) and (2) of the ITA, and allowed appeals to either the Tax Review Board or Federal Court upon the filing of an appeal under section 165 of the ITA. Under our current system, a taxpayer who objects to a decision on charitable tax relief may serve a notice of objection on the Minister. If the Minister confirms the assessment (or fails to respond), the taxpayer may appeal to the Tax Court of Canada, and from there to the Federal Court of Appeal. See ITA, supra note 1, ss 165, 169.

(64) See R v Zandstra, 74 DTC 6416, [1974] 2 FC 254 (FCTD). This decision ultimately turned on a finding that the parents had received "consideration" from the school in the form of the education of their children, however. Therefore, the discussion of McPhail was obiter. The Federal Court also failed to note the High Court of Australia's deliberate decision to interpret gift according to the "ordinary meaning" of the term.

(65) McBurney, supra note 17.

(66) McBurney v Canada (MNR), 84 DTC 6494 at para 25, [1984] FCJ No 707 (FCTD).

(67) Ibid at para 22.

(68) McBurney, supra note 17 at para 11.

(69) Ibid at para 14.

(70) at para 15.

(71) Ibid at para 14.

(72) Ibid at para 11.

(73) Friedberg v R, 1991 CarswellNat 669 at para 4, 92 DTC 6031 (FCA), aff'd [1993] 4 SCR 285, [1993] 2 CTC 306 [Friedberg].

(74) Woolner v R, [2000] 1 CTC 35 at para 7, 99 DTC 5722 (FCA) [Woolner] [emphasis added]. Woolner has been cited in a number of subsequent cases. See e.g. Jubenville v R, [2002] 4 CTC 2058, 2002 CarswellNat 1561 (TCC); Lobo v R, 2004 TCC 128, 2004 DTC 2704.

(75) Berg v R, 2014 FCA 25 at para 23, [2014] 3 CTC 1 [emphasis added, citations omitted].

(76) See Marechaux (TCC), supra note 15 (Appellant's Memorandum of Fact and Law at para 32); Kossow v R, 2013 FCA 283 at para 40, 2014 DTC 5017 [Kossow (FCA)] (Appellant's Memorandum of Fact and Law at para 40); Marechaux (TCC), supra note 15 (Respondenr's Memorandum of Fact and Law) ("[a]s the Act does not define 'gift', the courts have adopted an interpretation based on the ordinary meaning of the term from the private law context" at para 42).

(77) Extract from compliance agreement sent by a representative of CRA's Charities Directorate to a former client of the author.

(78) See e.g. Burns v Minister of National Revenue, [1988] 1 CTC 201, 19 FTR 275 (FCTD) [Burns]; Nadeau c R, 2004 TCC 433, 2004 DTC 2929; McPherson v R, 2006 TCC 648, [2007] DTC 326; Marechaux (TCC), supra note 15.

(79) See Tite v Minister of National Revenue, 86 DTC 1788 at para 15, 1986 CarswellNat 474 (TCC); Hudson Bay Mining and Smelting Co Limited v The Queen, 2003 TCC21, 2000 CanLII 924; Burns, supra note 78. See also Parachin, supra note 3 at 794.

(80) Dupriez v R, [1999] 1 CTC 2227 at para 26, 1998 CarswellNat 2209 (TCC). But, in other cases, the Tax Court has held that motive does not vitiate the tax consequences of a charitable gift. See Aikman v R, 2000 DTC 1874 at para 10, 2000 CarswellNat 219 (TCC); Klotz v R, 2004 TCC 147 at para 25,2004 CarswellNat 303. See also Parachin, supra note 3 at 795.

(81) Neville v National Foundation for Christian Leadership, 2013 BCSC 183, 2013 CarswellBC 290 [Neville (BCSC)].

(82) Coleman v R, 2010 TCC 109, 2010 CarswellNat 2846 [Coleman (TCC)], aff'd 2011 FCA 82, 2011 CarswellNat 1619 [Coleman (FCA)].

(83) Coleman (TCC), supra note 82 at para 3.

(84)" Ibid M14,50.

(85) Neville (BCSC), supra note 81 at 3.

(86) See Coleman (TCC), supra note 82 at para 2; Coleman (FCA), supra note 82.

(87) See Neville (BCSC), supra note 81 at para 28.

(88) Ibid at para 33.

(89) Ibid at para 36.

(90) See Coleman (TCC), supra note 82 at para 65-66.

(91) Ibid at para 36.

(92) Ibid at para 42.

(93) Ibid at para 45.

(94) Ibid at para 47.

(95) Ibid at para 45.

(96) Ibid at para 48.

(97) Ibid at para 52. See Coleman (FCA), supra note 82 at para 14.

(98) See Coleman (TCC), supra note 82 at para 57.

(99) Ibid at paras 64-65.

(100) See Neville (BCSC), supra note 81 at paras 4,36.

(101) Ibid at para 12.

(102) Ibid at para 24.

(103) See Neville v National Foundation for Christian Leadership, 2014 BCCA 38, 350 BCAC 7.

(104) For details of this program, see Marechaux (TCC), supra note 15 at para 15.

(105) Ibid at para 1.

(106) Ibid at para 15. The terms were altered at some point between 2001 and 2003 to provide that only 70% of the Pledge would come from the loan.

(107) Ibid at para 14.

(108) See Marechaux (TCC), supra note 15 at paras 15, 26.

(109) See Charette v Trinity Capl Corp, 2012 ONSC 2824 at paras 7-9, [2012] DTC 5100.

(110) See Marechaux (TCC), supra note 15 at para 32.

(111) See Marechaux v R, 2010 FCA 287, 2010 CarswellNat 3953 [Marechaux (FCA)].

(112) Marechaux (TCC), supra note 15 at para 30 [emphasis omitted].

(113) Ibid at para 31.

(114) Ibid at para 32.

(115) Ibid at paras 33-35. The financing agreement also anticipated a put option for the taxpayer, which the court viewed as a supplementary benefit.

(116) See Marechaux (FCA), supra note 111 at para 6.

(117) Ibid at para 7. The appellant cited passages from Leary and Coleman. See Marechaux (TCC), supra note 15 (Appellant's Memorandum of Fact and Law at paras 42-45, 47). However, these passages do not provide strong support for the proposition that consideration from a third party will not vitiate a gift.

(118) 2010 ONSC 674, 2010 CarswellOnt 7317 [McNamee (Ont SC)].

(119) Family Law Act, RSO 1990, c F3, s 4(2) (the Family Law Act excludes gifts received during the marriage from a spouse's net family property).

(120) See McNamee (Ont SC), supra note 118 at para 5.

(121) Ibid at para 283.

(122) Ibid at paras 221-30.

(123) Ibid at para 242.

(124) McNamee (Ont CA), supra note 30 at para 29.

(125) Ibid at para 31 [emphasis added].

(126) Ibid at para 34.

(127) Ibid at para 37.

(128) Ibid at para 34.

(129) Ibid at para 53.

(130) Kossow (TCC), supra note 15 at para 71.

(131) Ibid at paras 72-73.

(132) Kossow (FCA), supra note 76 at para 31, leave to appeal to SCC refused, 474 NR 397, 2014 CanLII 24496.

(133) See Bromley, supra note 3.

(134) These penalties include revocation of charitable status, and a penalty which tax experts have characterized as a "death sentence" for the sanctioned institutions: Nature Conservancy of Canada v Waterton Land Trust Ltd, 2014 ABQB 303 at para 295, 48 RPR (5th) 157 [Nature Conservancy of Canada]. The ITA contains specific gift tax penalties and more general penalties for acting not in accordance with the ITA. See ITA, supra note 1 at s 188.1 (7)-(10), 188.2, 168(1)(d), 163.2. See also Guindon v Canada (Minister of National Revenue, [1993] TCJ No 197 (TCC).

(135) Wilkie & Hogg, supra note 19 at 465.

(136) Ibid at 466.

(137) Neil Brooks, "The Responsibility of Judges in Interpreting Tax Legislation" in Graeme S Cooper, ed, Tax Avoidance and the Rule of Law (Amsterdam: IBFD Publications BV, 1997) 93 at 94.

(138) Supra note 19 at 465.

(139) Ibid at 465.

(140) Ibid at 462, 465.

(141) Department of Justice Canada, The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism: Collection of Studies in Tax Law, by Alban Garon, "The Civil Law's Place in Federal Tax Legislation" (Montreal: Association de planification fiscale et financiere and Department of Justice Canada, 2002) at 1:1.

(142) Vancouver Society of Immigrant & Visible Minority Women v Minister of National Revenue, [1999] 1SCR 10 at para 28, 169 DLR (4th) 34, Gonthier J.

(143) Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5.

(144) JM Evans, "Federal Jurisdiction--A Lamentable Situation" (1981) 59:1 Can Bar Rev 124 at 125, citing Quebec North Shore Paper Co v Canadian Pacific Ltd, [1977] 2 SCR 1054,71 DLR (3d) 111 and McNamara Construction (Western) Ltd v R, [1977] 2 SCR 654, 1977 CarswellNat 544.

(145) See JM Evans & Brian Slattery, "Federal Jurisdiction--Pendent Parties--Aboriginal Title and Federal Common Law--Charter Challenges--Reform Proposals: Roberts v. Canada" (1989) 68:4 Can Bar Rev 817 at 820-21 [Evans & Slattery].

(146) See e.g. Roberts v Canada [1989] 1 SCR 322 at para 29, 57 DLR (4th) 197; Chan, supra note 60 at 499-501.

(147) Roderick A Macdonald, "Encoding Canadian Civil Law" in Department of Justice Canada, The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism: Collection of Studies (Ottawa: Department of Justice, 1999) 138 at 173-85.

(148) Ibid at 176. See also Evans & Slattery, supra note 145 at 832, describing the federal common law as common law that has passed into the federal sphere of authority to become "a body of basic public law operating uniformly across the country within the federal sphere of competence" [emphasis in original].

(149) See Wilkie & Hogg, supra note 19 at 464.

(150) See R v Lagueux & freres Inc 1974 CarswellNat 215 at para 26, [1974] 2 FC 97 (FCTD) [Lagueux & freres].

(151) Perron v Minister of National Revenue 60 DTC 554 at 556-57, 25 Tax ABC 166. See also Quebec (Agence du Revenu) v Services Environnementaux AES Inc, 2013 SCC 65 at para 45, [2013] 3 SCR 838; Will-Kare Paving & contracting Ltd v R, 2000 SCC 36, [2000] 1 SCR 915.

(152) See Lagueux & freres, supra note 150 at para 26.

(153) Canada (Attorney General) v Law Society (British Columbia), [1982] 2 SCR 307 at 13, 1982 CarswellBC 133. See also MacMillan Bloedel Ltd v Simpson, [1995] 4 SCR 725 at para 36, 1995 CarswellBC 974 [MacMillan Bloedel].

(154) See e.g. Brian J Saunders, Donald J Rennie & Graham Garton, Federal Courts Practice 2016, 2016 ed (Scarborough, Ont: Thomson Reuters, 2015) at 1.

(155) MacMillan Bloedel, supra note 153 at para 37.

(156) Supra note 143.

(157) MacMillan Bloedel, supra note 153 at paras 35, 15.

(158) See e.g. Minister of National Revenue v RBC Life Insurance Co, 2013 FCA 50 at para 35, 2013 CarswellNat 2242 (the federal courts enjoy "plenary powers" analogous to the inherent powers of the provincial superior courts [ibid]).

(159) For an early identification of this concern, see Evans & Slattery, supra note 145 at 817-18.

(160) Ruth Sullivan, "The Challenges of Interpreting Multilingual, Multijural Legislation" (2004) 29:3 Brook J Intl L 986 at 1042

(161) McNamee (Ont CA), supra note 30 at para 23.

(162) See Columbos v Columbos, 2014 ONSC 1342, 2014 CarswellOnt 2708 [Columbos]; Picavet v Clute, 2012 ONSC 2221, 2012 CarswellOnt 4575.

(163) Columbos, supra note 162 at para 37.

(164) These jurists include Mignault J of the Supreme Court of Canada, Paul-Andre Crepeau, and Roderick Macdonald. For a useful summary of the historical movement for the affirmation of Quebec civil law, see Department of Justice Canada, "The Supreme Court of Canada and its Impact on the Expression of Bijuralism", by France Allard (Ottawa: Department of Justice, 2001).

(165) Supra note 3.

(166) Supra note 35.

(167) Cochrane v Moore (1890) 25 QBD 57 at 74 (CA).

(168) Supra note 29, at 4.378.

(169) JB Baron, "Gifts, Bargains, and Form" (1989) 64:2 Ind LJ 155 at 157.

(170) Ernest J Weinrib, The Idea of Private Law (Cambridge, Mass: Harvard University Press, 1995) at 19 [Weinrib] (see in particular s 1.7). See also the discussion in William Lucy, "What's Private About Private Law" in Andrew Robertson & Tang Hang Wu, eds, The Goals of Private Law (Portland: Hart Publishing, 2009) 47 at 52-58; Ernest J Weinrib, "Legal Formalism: On the Immanent Rationality of Law" (1988) 97 Yale LJ 949.

(171) Weinrib, supra note 170 at 10.

(172) Ibid at 73-74.

(173) Ibid at 8.

(174) Ibid at 73 ("distributive justice splits asunder what corrective justice joins together" at 75).

(175) See Zweibel, supra note 3 at 429.

(176) See Friedberg, supra note 73 at para 4.

(177) Weinrib, supra note 170 at 63. For a topical illustration of this argument, see Nature Conservancy of Canada, supra note 134 at para 578 (awarding a plaintiff compensatory damages for the breach of a contractual obligation to issue a charitable donation receipt within a reasonable time).

(178) Supra note 5. Courts have noted that section 8.1 did not create a new principle of law but merely codified the consritutional principles applicable to the construction of federal statutory schemes. See 9041-6868 Quebec Inc v Canada (Minister of National Revenue), 2005 FCA 334 at para 5, 2005 CarswellNat 3264; Grimard v Canada, 2009 FCA 47 at para 24, 2009 CarswellNat 323.

(179) Ibid. Accord Loi d'interpretation, LRC 1985, c 1-21, art 8.1 [Loi d'interpretation]:
s'il esc necessaire de recourir a des regles, principes ou notions
appartenant au domaine de la propriete et des droits civils en vue
d'assurer 1'application d'un texte dans une province, il faut, sauf
regle de droit s'y opposant, avoir recours aux regles, principes et
notions en vigueur dans cette province au moment de 1'application du
texte.


(180) Supra note 5, s 8.2. Accord Loi d'interpretation, supra note 179, art 8.2:
Sauf regie de droit s'y opposant, est entendu dans un sens compatible
avec le systeme juridique de la province d'application le cexte qui
emploie a la fois des termes propres au droit civil de la province de
Quebec et des termes propres a la common law des autres provinces, ou
qui emploie des termes qui ont un sens different dans l'un et l'autre
de ces systemes.


(181) See Aline Grenon, "Canadian Bijuralism at a Crossroad? Impact of Section 8.1 of the Interpretation Act" (2014) 51:2 Osgoode Hall LJ 501 at 510.

(182) Interpretation Act, supra note 5, s 8.2.

(183) See Duff, supra note 3 at 5; Lamoureux, supra note 9. CJ the appellants' argument in French v Canada, supra note 16 at para 5.

(184) Supra note 5, ss 8.1, 8.2.
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Title Annotation:Income Tax Act; Canada
Author:Chan, Kathryn
Publication:University of British Columbia Law Review
Date:Aug 1, 2017
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