Tax Court of Canada Judgments

 

 

 

Docket: 2005-1424(IT)G

BETWEEN:

CASCADES INC.,

Appellant,

and

 

HER MAJESTY THE QUEEN,

Respondent.

 

[OFFICIAL ENGLISH TRANSLATION]

____________________________________________________________________

Appeal heard on December 11, 2006, at Montreal, Quebec.

 

Before: The Honourable Justice Lucie Lamarre

 

Appearances:

 

Counsel for the Appellant:	Wilfrid Lefebvre
Counsel for the Respondent:	Marie Bélanger Natalie Goulard

____________________________________________________________________

 

JUDGMENT

 

       The appeal from a determination of loss, the notice of which is dated January 23, 2004, made under subsections 40(3.3), 40(3.4) and 40(3.5) of the Income Tax Act (ITA) for the 2000 taxation year is allowed, with costs, on the basis that the appellant was entitled to claim a capital loss of $15,941,608 during its 2000 taxation year, as this loss is not deemed to be nil pursuant to subsection 40(3.4) of the ITA.

 

Signed at Ottawa, Canada, this 6th day of December 2007.

 

 

"Lucie Lamarre"

 

 

 

 

Translation certified true

on this 22nd day of January 2008.

 

 

 

 

Erich Klein, Revisor

 

 

 

Citation: 2007TCC730

Date: 20071206

Docket: 2005-1424(IT)G

BETWEEN:

CASCADES INC.,

Appellant,

and

 

HER MAJESTY THE QUEEN,

Respondent.

 

[OFFICIAL ENGLISH TRANSLATION]

 

REASONS FOR JUDGMENT

 

Lamarre J.

 

[1]     The appellant is challenging a determination of loss, the notice of which is dated January 23, 2004, whereby the Minister of National Revenue (the Minister) reduced the capital loss claimed by the appellant for the 2000 taxation year by $15,941,608. The Minister deemed that loss to be nil under subsection 40(3.4) of the Income Tax Act (ITA).

 

Agreed Statement of Facts

 

[2]     The parties filed an Agreed Statement of Facts, which reads as follows:

 

          [TRANSLATION]

1.             The Appellant is a company incorporated under Part 1A of the Companies Act and a taxable Canadian corporation within the meaning of the Income Tax Act (the Act).

 

2.             At the end of May 2000, the Appellant held 71.1% of the common shares of Les Industries Paperboard International Inc. (PII), a corporation whose shares are traded on the Toronto Stock Exchange (TSE).

 

3.             The adjusted cost base of the PII shares held by the Appellant was at that time $68,783,154 and their fair market value was $52,841,546.

 

4.             In June 2000, the Appellant presented a financial restructuring plan aimed at improving its worth on the financial markets and supporting its future growth. The proposed restructuring plan included exchanging all of the common shares in PII held by minority shareholders for new common shares of the Appellant.

 

List of documents showing the chronology of the transaction, Schedule A

 

Appellant's communiqué dated July 10, 2000,

Schedule B

 

5.             On September 8, 2000, 3715965 Canada Inc. was incorporated.

 

Certificate of Incorporation and Articles of Incorporation, Schedule C

 

6.             On October 17, 2000, the Appellant, PII, Papiers Perkins Ltée and Rolland Inc. entered into a consolidation agreement.

 

                        Consolidation Agreement, Schedule D

 

7.             On October 17, 2000, PII, 3715965 Canada Inc. and the Appellant entered into a merger agreement.

 

                        Merger Agreement, Schedule E

 

8.             On October 17, 2000, one preferred share of 3715965 Canada Inc. was issued to the Appellant, which thereby became the sole shareholder of 3715965 Canada Inc.

 

9.             On December 5, 2000, the Appellant sold 33,025,966 common shares, namely, all of the shares in PII that it held, to 3715965 Canada Inc. for consideration equal to the fair market value of those shares, thereby creating a capital loss of $15,941,608 (adjusted cost base of $68,783,154 minus the proceeds of disposition of $52,841,546). The consideration received by the Appellant was 33,025,966 common shares of 3715965 Canada Inc.

 

Contract of sale of shares entered into on December 5, 2000, Schedule F

 

10.         On December 5, 2000, 3715965 Canada Inc. redeemed the preferred share that it had issued to the Appellant.

 

                        Certified true copy of a resolution of the directors of 3715965 Canada Inc., adopted on December 5, 2000, Schedule G.

 

11.         On December 31, 2000, that is, 26 days later, PII and 3715965 Canada Inc. merged. It was a three-way merger, to which subsection 87(9) of the Act applied.

 

Merger Certificate and Articles of Merger, Schedule H.

 

12.         In the merger, all of the common shares of PII, other than those held by 3715965 Canada Inc., were exchanged for common shares of the Appellant. The class A and B preferred shares of PII were converted respectively into class A and B preferred shares of the merged corporation, 384894-9 Canada Inc. (PII Fusionco). For each of the common shares it issued to the holders of common shares of PII, the Appellant received one common share of PII Fusionco.

 

13.         Each of the common shares of 3715965 Canada Inc. held by Cascades was converted into a common share of PII Fusionco.

 

14.         The Appellant became the sole shareholder of PII Fusionco (except for the holders of class A and B preferred shares issued at the time of the merger).

 

15.         The Minister of National Revenue (the Minister) reduced the capital loss claimed by the Appellant for its 2000 taxation year by $15,941,608. A Notice of Determination of Loss to that effect was issued on January 23, 2004.

 

Notice of Determination of Loss and Form T7W-C, Schedule I

 

16.         The Appellant objected to this Notice of Determination of Loss by notice of objection dated January 29, 2004, and the Minister confirmed the determination by notice of confirmation dated February 21, 2005.

 

Notice of objection, Schedule J

Notice of confirmation, Schedule K

 

Issue

 

[3]     The issue is whether the appellant was entitled to claim the $15,941,608 loss immediately in its 2000 taxation year, when all of its shares in Les Industries Paperboard International Inc. (PII) were disposed of in favour of 3715965 Canada Inc. (371), a corporation affiliated with the Appellant within the meaning of section 251.1 of the ITA.

 

[4]     The respondent relied on subsections 40(3.3), 40(3.4) and 40(3.5) of the ITA, the import of which, when they are considered as a whole, is that the stop-loss rules should apply. These rules are aimed at preventing a corporation (in this case, the appellant) from recognizing a capital loss on capital property for as long as the property or identical property (the substituted property) is held by the transferor (the appellant) or a person affiliated with the transferor. The respondent relied on paragraph 40(3.5)(c) to argue that the corporation formed on the merger of PII and 371, namely 384894‑9 Canada Inc. (PII Fusionco), was deemed to hold the shares of PII (sold by the appellant and giving rise to the loss at issue) as long as it was affiliated with the appellant. The presumption in paragraph 40(3.5)(c) of the ITA is that when a transferor (the appellant) disposes of a share of the capital stock of a corporation (PII) that is then merged with one or more other corporations (371), the corporation formed on the merger (PII Fusionco) is deemed to own the share as long as it is affiliated with the transferor. If such was the case, the appellant's loss would be deemed to be nil under subsections 40(3.3) and 40(3.4) of the ITA and would be suspended until the property in question was no longer the property of the transferor (the appellant) or a person affiliated with the transferor.

 

[5]     The appellant argues that the presumption in paragraph 40(3.5)(c) does not apply in this case, and that, as a result, one of the conditions in subsection 40(3.3)—in particular that set out in paragraph 40(3.3)(c)—not having been fulfilled, subsection 40(3.4), which provides for the suspension of the loss where all the conditions of subsection 40(3.3) are met, cannot apply. According to the appellant, the loss in question is not nil under paragraph 40(3.4)(a).

 

 

Statutory provisions

 

 

Appellant’s arguments

 

[6]     According to the appellant, the wording of the preamble to subsection 40(3.5) and of paragraph 40(3.5)(c) is clear enough that the presumption of ownership of the shares set out in paragraph 40(3.5)(c) can only be relied on if subsections 40(3.3) and 40(3.4) apply first. In this case, however, for subsection 40(3.4) to apply so that the loss is deemed nil, the three conditions set out in subsection 40(3.3) must first be met. The appellant acknowledges that paragraphs 40(3.3)(a) and (b) apply since it (as transferor) disposed of capital property (its shares in PII) (paragraph 40(3.3)(a)) and, during the period commencing 30 days before and ending 30 days after the disposition, a person affiliated with the transferor (371) acquired the same property or identical property (substituted property) (paragraph 40(3.3)(b)). However, according to the appellant, the condition set out in paragraph 40(3.3)(c) was not met. In order for that provision to apply, at the end of the 61-day period specified in paragraph 40(3.3)(b), the transferor or an affiliated person must own the substituted property. The substituted property in this case would be the shares in PII. But, at the end of the 61-day period, these shares no longer existed, since 371, which held the shares, and PII were merged, thus eliminating the shares of PII. Since these shares no longer existed at the end of the 61-day period, it can no longer be claimed that the transferor (the appellant) or an affiliated person (371) or even PII Fusionco owned the substituted property because, again, this property no longer existed. The appellant therefore contends that the conditions of subsection 40(3.3) were not all met. This being so, it cannot be argued that subsection 40(3.4) applies to deem the loss to be nil, since subsection 40(3.4) can only apply because of subsection 40(3.3) to a disposition of a particular property (“le présent paragraphe [40(3.4)] s'applique par l'effet du paragraphe (3.3) à la disposition d'un bien”, according to the French version).

 

[7]     According to the appellant, if Parliament had intended that the presumption of ownership in paragraph 40(3.5)(c) be used first to determine whether subsection 40(3.3) applies, it would have so indicated more specifically, or it could have omitted any reference to the application of subsections 40(3.3) and (3.4) as it did in paragraphs 40(3.5)(a) and (b), to expand the concept of identical property. According to the appellant, paragraphs 40(3.5)(c) and (d) have to do with the rule of continuity. So if, after the 61-day period, events such as a merger or a winding up occur, the rule of continuity applies in order to preserve the loss until the property is no longer held by the transferor or a person affiliated with the transferor. The appellant argues that if the merger takes place within the 61‑day period, as was the case here, Parliament allows the transferor to recognize its loss. According to the appellant, Parliament deemed it appropriate to adopt a 61-day rule. The question of whether or not it is justified from an economic standpoint is not relevant.

 

[8]     Moreover, a parallel rule for superficial losses is found in section 54 of the ITA. A superficial loss is defined as follows: 

 

 

[9]     In the case of a superficial loss, if a taxpayer disposes of property and the same or identical property (substituted property) is acquired by that taxpayer or a person affiliated with that taxpayer during the period commencing 30 days prior to the disposition and ending 30 days after the disposition, and the taxpayer or a person affiliated with the taxpayer owns the substituted property at the end of this 61-day period, or is entitled to acquire it, the loss will be a superficial loss deemed to be nil under subparagraph 40(2)(g)(i) and will be carried over, increasing the cost of the newly acquired property by virtue of paragraph 53(1)(f) of the ITA. However, if the property is newly acquired after the 61-day period, the taxpayer will be entitled to claim the loss, as it will not be deemed to be a superficial loss.

 

[10]    Moreover, the fact that the property remains within the group of affiliated corporations does not in itself, according to the appellant, prevent the realization of the loss (reference was made to The Queen v. Donohue Forest Products Inc., 2002 FCA 422, paragraph 22, where it is stated that nothing in the ITA bars a taxpayer from realizing a loss on a corporation's securities sold to third parties, even if a significant portion of the assets to which the loss may be attributed remains within the group of corporations; for example, in the case of a winding up, under subsections 88(2) and 69(5) of the ITA).

 

[11]    Lastly, the appellant pointed out that in S.T.B. Holdings Ltd. v. The Queen, 2002 DTC 1254 (TCC), conf. 2002 FCA 386, the Tax Court of Canada, at paragraph 29, in analyzing the expression “following the application of this section” found in subsection 245(7) of the ITA, analyzed the word “applied”. Judge Campbell Miller of this Court stated the following at paragraph 29:

 

[29]      First, to further flush out the ordinary meaning of subsection 245(7) it is necessary to describe the different interpretations put upon the phrases “following the application of this section” and “involving the application of this section”. Does the ordinary meaning of “following the application of this section” suggest the GAAR provisions have already been applied? What is meant by “applied”? The Applicant argues that “application” means just the process of contemplation by the Minister and discussion with the taxpayer prior to assessment. I fail to see how such musing and communications constitute application. The Minister may consider GAAR, may talk to the taxpayer about GAAR and then may determine not to apply GAAR. This cannot in the ordinary sense be considered the application of the section. The section, as indicated previously, is an assessing tool for the Minister; it follows that an application of the section is only complete upon assessment. That being the case, “following the application” on an ordinary construction means following an assessment involving GAAR. Tax consequences to any person, following the application of this section, must then necessarily refer to tax consequences other than those in the original application of GAAR; it must refer to a subsequent application. It precludes a taxpayer from self-assessing by applying GAAR.

 

[12]    Thus, when one reads at paragraph 40(3.5)(c): "where subsections (3.3) and (3.4) apply to the disposition by a transferor of a share of the capital stock of a corporation ", it is to be understood that subsections (3.3) and (3.4) already apply before paragraph 40(3.5)(c) can be applied. According to the appellant, this is also what is to be understood from the technical notes of December 8, 1997 regarding subsection 40(3.5), which read as follows:

 

 

[13]    The appellant concluded that from a textual, contextual and tax‑policy standpoint, subsections 40(3.3), (3.4) and (3.5) do not, given the circumstances of this case, prevent the loss from being allowed in the same year it was incurred, namely in 2000.

 

Respondent’s argument

 

[14]    The respondent, referring to the principles of interpretation enunciated in the case law, argued that subsections 40(3.3), 40(3.4) and 40(3.5) must be read together to determine their meaning. These statutory provisions deal with specific stop‑loss rules. Thus, according to the respondent, subsection 40(3.3) establishes the conditions of application; subsection 40(3.4) states the actual rule that applies (suspension of the loss); and subsection 40(3.5) was adopted to define substituted property as such, as well as the concept of ownership at a given time. In the respondent's submission, subsection 40(3.5) is relevant for the purposes of determining whether the conditions laid down in subsection 40(3.3) have been met. Thus, the expression "where subsections (3.3) and (3.4) apply to the disposition by a transferor of a share of the capital stock of a corporation", found in paragraph 40(3.5)(c), must be read, according to the respondent, as stating: "where subsections (3.3) and (3.4) [related to or concern] the disposition by a transferor of a share". The respondent accordingly argues that this must be taken to mean that where one seeks to apply the rules set out in subsections (3.3) and (3.4) in a specific sale of shares, one must refer to paragraph (3.5)(c) to ascertain whether condition (c) of subsection (3.3) applies. Thus, according to the respondent, if there is a merger after the disposition of the shares, whether this merger took place within or outside the 61-day period set out in paragraph 40(3.3)(b), the corporation formed from the merger (PII Fusionco) is deemed pursuant to paragraph 40(3.3)(c) to own the shares disposed of at the end of the period in question. Under this presumption, even if the substituted property no longer existed at the end of the 61-day period, PII Fusionco is deemed to own it. The loss from the disposition of the PII shares will be deemed to be nil under subsection 40(3.4) as long as it remains within the group of associated corporations.

 

[15]    According to the respondent, the introductory words of subsection 40(3.5), namely, “[f]or the purposes of subsections (3.3) and (3.4)", and in French, “[l]es présomptions suivantes [a) à d)] s'appliquent dans le cadre des paragraphes (3.3) et (3.4)”, allow of the interpretation she gives paragraph 40(3.5)(c). All the more so, argues the respondent, as, if the conditions of subsection 40(3.3) had to be met before the presumption in paragraph 40(3.5)(c) could be considered, this presumption would never be relevant for the purposes of subsection 40(3.3). On the respondent's interpretation, the presumptions of subsection 40(3.5) are, in the case of paragraphs (c) and (d), an extension of the concept of ownership of identical property. If Parliament had wished to limit this presumption it would have clearly so indicated. This it did not do. Parliament uses the presumptions in subsection 40(3.5) to define the concepts of ownership and substituted property found at subsection 40(3.3). This interpretation would be consistent with the purpose of the stop-loss rules, namely, that the loss is suspended until it becomes a true economic loss caused by the disposition of property outside a group of associated corporations. According to the respondent, there would be no reason for Parliament to allow this basic rule to be circumvented through the loss being recognized where a merger takes place within the 61-day period, but refused if the merger takes place after the 61-day period. That would make it too easy to circumvent the rule.

 

Analysis

 

[16]    The principles of interpretation that apply to tax laws were summarized once again by the Supreme Court of Canada in Imperial Oil Ltd. v. Canada; Inco Ltd. v. Canada, 2006 SCC 46, [2006] 2 S.C.R. 447. LeBel J. restated them at paragraphs 24 to 29:

 

D.  Principles of Interpretation Applicable to Tax Statutes

 

24        This Court has produced a considerable body of case law on the interpretation of tax statutes.  I neither intend nor need to fully review it.  I will focus on a few key principles which appear to flow from it, and on their development.

 

25        The jurisprudence of this Court is grounded in the modern approach to statutory interpretation.  Since Stubart Investments Ltd. v. The Queen, [1984] 1 S.C.R. 536, the Court has held that the strict approach to the interpretation of tax statutes is no longer appropriate and that the modern approach should also apply to such statutes:

 

[T]he words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act…

 

(E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; Stubart, at p. 578, per Estey J.; Ludco Enterprises Ltd. v. Canada, [2001] 2 S.C.R. 1082, 2001 SCC 62, at para. 36, per Iacobucci J.)

 

26        Despite this endorsement of the modern approach, the particular nature of tax statutes and the peculiarities of their often complex structures explain a continuing emphasis on the need to carefully consider the actual words of the ITA, so that taxpayers can safely rely on them when conducting business and arranging their tax affairs.  Broad considerations of statutory purpose should not be allowed to displace the specific language used by Parliament (Ludco, at paras. 38-39).

 

27        The Court recently reasserted the key principles governing the interpretation of tax statutes — although in the context of the “general anti-avoidance rule”, or “GAAR” — in its judgments in Canada Trustco Mortgage Co. v. Canada, [2005] 2 S.C.R. 601, 2005 SCC 54, and Mathew v. Canada, [2005] 2 S.C.R. 643, 2005 SCC 55.  On the one hand, the Court acknowledged the continuing relevance of a textual interpretation of such statutes.  On the other hand, it emphasized the importance of reading their provisions in context, that is, within the overall scheme of the legislation, as required by the modern approach.

 

28        In their joint reasons in Canada Trustco, the Chief Justice and Major J. stated at the outset that the modern approach applies to the interpretation of tax statutes.  Words are to be read in context, in light of the statute as a whole, that is, always keeping in mind the words of its other provisions:

 

It has been long established as a matter of statutory interpretation that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see 65302 British Columbia Ltd. v. Canada, [1999] 3 S.C.R. 804, at para. 50. The interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role. The relative effects of ordinary meaning, context and purpose on the interpretive process may vary, but in all cases the court must seek to read the provisions of an Act as a harmonious whole. [para. 10]

 

 

29        The Chief Justice and Major J. then addressed the underlying tension between textual interpretation, taxpayers’ expectations as to the reliability of their tax and business arrangements, the legislature’s objectives and the purposes of specific provisions or of the statute as a whole:

 

As a result of the Duke of Westminster principle (Commissioners of Inland Revenue v. Duke of Westminster, [1936] A.C. 1 (H.L.)) that taxpayers are entitled to arrange their affairs to minimize the amount of tax payable, Canadian tax legislation received a strict interpretation in an era of more literal statutory interpretation than the present. There is no doubt today that all statutes, including the Income Tax Act, must be interpreted in a textual, contextual and purposive way. However, the particularity and detail of many tax provisions have often led to an emphasis on textual interpretation. Where Parliament has specified precisely what conditions must be satisfied to achieve a particular result, it is reasonable to assume that Parliament intended that taxpayers

would rely on such provisions to achieve the result they prescribe. [para. 11] 

 

(See also Mathew, at paras. 42-43.)

 

 [Emphasis added.]

 

[17]    Moreover, Binnie J., in the same decision, noted that, "[i]ssues of interpretation can be approached with a degree of confidence that in the various detailed provisions of the Act [ITA], Parliament can be taken at its word (or will quickly introduce an amendment if this turns out not to be the case)" (paragraph 73). Analyzing the purpose of the ITA, Binnie J. also referred to the observations by McLachlin J. in Shell Canada Ltd. v. Canada, [1999] 3 S.C.R. 622, at paragraph 43:

 

. . . courts must therefore be cautious before finding within the clear provisions of the Act an unexpressed legislative intention . . . . Finding unexpressed legislative intentions under the guise of purposive interpretation runs the risk of upsetting the balance Parliament has attempted to strike in the Act. [para. 43]

 

[18]    It is also worth citing Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at paragraph 12:

 

12        The provisions of the Income Tax Act must be interpreted in order to achieve consistency, predictability and fairness so that taxpayers may manage their affairs intelligently. As stated at para. 45 of Shell Canada Ltd. v. Canada, [1999] 3 S.C.R. 622:

 

[A]bsent a specific provision to the contrary, it is not the courts’ role to prevent taxpayers from relying on the sophisticated structure of their transactions, arranged in such a way that the particular provisions of the Act are met, on the basis that it would be inequitable to those taxpayers who have not chosen to structure their transactions that way.

 

See also 65302 British Columbia, at para. 51, per Iacobucci J. citing P. W. Hogg and J. E. Magee, Principles of Canadian Income Tax Law (2nd ed. 1997), at pp. 475-76:

 

It would introduce intolerable uncertainty into the Income Tax Act if clear language in a detailed provision of the Act were to be

qualified by unexpressed exceptions derived from a court’s view of the object and purpose of the provision.

           

 [Emphasis added.]

 

[19]    Moreover, in Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006 SCC 20, [2006] 1 S.C.R. 715, the Supreme Court of Canada states, at paragraph 45:

 

45        Under the presumption against tautology, “[e]very word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose”:  see R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 159.  To the extent that it is possible to do so, courts should avoid adopting interpretations that render any portion of a statute meaningless or redundant: Hill v. William Hill (Park Lane) Ld., [1949] A.C. 530 (H.L.), at p. 546, per Viscount Simon.

 

[20]    That being said, how should subsections 40(3.3), (3.4) and (3.5) of the ITA be interpreted?

 

[21]    From the wording of these provisions, it is obvious that the conditions of subsection 40(3.3) must all be met for subsection 40(3.4) to apply. But what of subsection 40(3.5)?

 

[22]    First of all, this provision comes after subsections 40(3.3) and (3.4). At first blush, subsection 40(3.5) is not a prerequisite for the application of subsections 40(3.3) and (3.4). However, according to the introductory words of subsection 40(3.5), the presumptions in paragraphs 40(3.5)(a) to (d) apply for the purposes of subsections (3.3) and (3.4). If we stop there, the text says that, for subsections (3.3) and (3.4) to apply, the presumptions in subsection (3.5) must be considered. The respondent would thus be correct in saying that all the presumptions in subsection (3.5) must be looked at to see whether they apply in analyzing the conditions to be met under subsection 40(3.3).

 

[23]    However, on reading paragraphs 40(3.5)(c) and (d), one sees that there is a difference between them and paragraphs 40(3.5)(a) and (b). Indeed, Parliament specifically states, in paragraphs 40(3.5)(c) and (d), that the presumptions found in these two paragraphs take effect "where subsections (3.3) and (3.4) apply to the disposition by a transferor of a share of the capital stock of a corporation, and after the disposition the corporation is merged with one or more other corporations [or the share is redeemed, acquired or cancelled by the corporation in the case of paragraph (3.5)(d)].”

 

[24]    If, as argued by the respondent, Parliament had meant "where subsections (3.3) and (3.4) [relate to or concern] the disposition by a transferor of a share of the capital stock of a corporation," in the sense that in all sales of shares paragraphs (3.5)(c) and (d) must first be referred to in order to ascertain whether the condition set out in paragraph 40(3.3)(c) has been met , it should have stated this explicitly. Not only did it not use the terms suggested by the respondent, it took pains to say "where subsections (3.3) and (3.4) apply". Given that it was already stated in the introductory words to subsection (3.5) that the presumptions in that subsection apply "[for] the purposes of subsections (3.3) and (3.4)", it was, contrary to what the respondent argues, no longer necessary to repeat, in paragraphs 40(3.5)(c) and (d), "where subsections (3.3) and (3.4) apply", if it wanted the presumptions in paragraphs (3.5)(c) and (d) to apply at all times, as is the case with those in paragraphs (3.5)(a) and (b).

 

[25]    As stated by the Supreme Court of Canada in Placer Dome Canada, supra, "[t]o the extent that it is possible to do so, courts should avoid adopting interpretations that render any portion of a statute meaningless or redundant" (paragraph 45). If we accept the respondent’s logic, it seems to me that the expression "where subsections (3.3) and (3.4) apply" used in paragraphs (3.5) (c) and (d) would be completely redundant given the introductory words to subsection (3.5), which specifically say "[f]or the purposes of subsections (3.3) and (3.4)". Parliament is supposed never to speak in vain. Had it meant what the respondent is suggesting, why would it have been necessary to make a second reference to the application of subsections (3.3) and (3.4) in paragraphs (3.5)(c) and (d), when those two subsections were already referred to in the introductory words of subsection (3.5)?[1] In the case of the presumptions set out in paragraphs (3.5) (a) and (b), moreover, Parliament makes no such second reference to subsections (3.3) and (3.4).

 

[26]    In my opinion, the wording of subsection (3.5) shows that Parliament intended to make a distinction in the case of the presumptions set out in paragraphs (3.5)(c) and (d). It did not mean simply that where shares are sold paragraphs (3.5)(c) and (d) have to be considered in analyzing the conditions stated in subsection (3.3). Parliament meant what it in fact said. Where subsections (3.3) and (3.4) apply, that is, when all the conditions of subsection (3.3) are met such that subsection (3.4) applies to suspend the loss, there will be a presumption of ownership of the shares if there is a merger after disposition thereof. Since there will only be a suspension of the loss if the substituted property still exists at the end of the 61-day period, paragraph 40(3.5)(c) gives the transferor the possibility of claiming its loss if there is a merger after the 61-day period, otherwise the entitlement to claim the loss would be lost.

 

[27]    It is perfectly logical, in my opinion, to say that the presumption in paragraph 40(3.5)(c) was established specifically to allow the eventual recognition of the loss in the case of a merger after the 61-day period, because otherwise the possibility of claiming this loss would be gone for ever since the property giving rise to the loss no longer exists. If the merger occurs within the 61-day period, there is no reason for the presumption because, since the substituted property no longer exists and is therefore no one's property, the transferor has already had entitlement to the loss. In other words, paragraph 40(3.5)(c) specifically addresses cases where the transferor would lose its entitlement to claim the loss if the merger could not, for any number of reasons, take place within the 61-day period.

 

[28]    In my opinion, this may very well be the purpose sought by the legislation. There is a parallel rule for superficial losses that applies to individuals, but in converse fashion. Thus, under this rule, an individual who disposes of property and acquires the same or identical property after a 61-day period will be entitled to the loss, whereas there would be no such entitlement if the acquisition of the substituted property took place within the 61-day period. In that case, the loss would be carried forward by being added to the cost of the property.

 

[29]    Why is it a 61-day period? That is a decision of Parliament, which fixed that period in order to allow the transferor to claim a loss immediately or claim it later, according to the provisions of the legislation. It is not for the courts to pass judgment on the legitimacy of the rule.

 

[30]    As stated by the Supreme Court of Canada in passages quoted above, the provisions in the ITA must be interpreted in order to achieve consistency, predictability and fairness so that taxpayers may manage their affairs intelligently. Where Parliament has specified precisely what conditions must be satisfied to achieve a particular result, it is reasonable to assume that Parliament intended that taxpayers would rely on such provisions to achieve the result they prescribe. Certainly, changing the wording of an Act, as the respondent wishes to do in this case, involves some risk. For example, one could find oneself in the opposite situation, where a taxpayer might want to deliberately suspend recognition of a capital loss by taking advantage of subsection 40(3.4) to maximize its capital dividend account (subsection 89(1) ITA) and thus distribute tax‑free capital dividends (subsection 83(2) ITA).[2] In a case where a merger occurred within the 61‑day period, the taxpayer in that example could make the same argument as the respondent has made here. The respondent could then in turn argue as the appellant has argued in the instant case, namely, that paragraphs 40(3.5)(c) or (d) would not apply for the purposes of verifying whether the conditions of subsection 40(3.3) have been met; the respondent could thus possibly contend that the loss should be recognized immediately instead of being deferred. This would reduce the capital dividend account by that amount and eliminate the tax-free capital dividends by the same amount.

 

[31]    In my opinion, this example is sufficient to show the importance to be given to legislation and the words chosen by Parliament in order to avoid any uncertainty. As McLachlin J. stated in Shell Canada, supra, "[f]inding unexpressed legislative intentions under the guise of purposive interpretation runs the risk of upsetting the balance Parliament has attempted to strike in the Act" (paragraph 43).

 

[32]    The respondent put forward the argument that the provisions in subsections 40(3.3), (3.4) and (3.5) were adopted in the context of a stop-loss rule, and that it would be too easy for the appellant to get around the rule by proceeding as it did, merging the corporations involved within the 61‑day period specified in paragraph 40(3.3)(b) of the ITA. According to the respondent, such cannot be Parliament’s intent. And if it is, then Parliament must be more explicit, in my opinion.

 

[33]    There are authors who have written about stop-loss rules. Starr Carson and Kelly Watson[3] stated in particular the following:

 

The Department of Finance has had a long standing history of enacting legislation in the Income Tax Act¹ to deny, restrict or suspend losses in numerous types of transactions involving taxpayers. The historical policy has been to identify persons who have "common economic interests" and restrict their ability to realize or transfer losses if they transact amongst themselves to prematurely realize a loss, or alternatively, to prevent them from transferring the tax benefit of losses to other taxpayers outside the economic unit. The recognition of the loss has often been deferred until a transaction has occurred with someone outside the group of persons having economic interests in common.

 

In the authors' view, the loss restriction rules may be categorized into the following groups:

 

1.      provisions which deny losses without relief²;

2.      provisions which deny losses and suspend the loss with eventual relief to the taxpayer disposing of the property³;

3.      provisions which deny a loss to the transferor of property and effectively transfer the loss with eventual relief to the taxpayer acquiring the property⁴; and

4.      provisions which prevent the utilization of losses between taxpayers who are not part of the same economic family.⁵

[Emphasis added.]

. . .

 

ENDNOTES

1          Income Tax Act, R.SC 1985, c.1, (5th Supp.), as amended (herein referred to as the "Act"). Unless otherwise stated, statutory references in this paper and the endnotes are to the Act.

2          See for example the provisions of subparagraph 40(2)(g)(ii).

3          See for example the provisions of subsections 13(21.2), 14(12) and 40(3.3), (3.4) where a denied loss is suspended with the transferor in an affiliated person transaction until such time as a "triggering event" occurs.

4          See for example the provisions of paragraph 40(2)(g)(i) and paragraph 53(1)(f) where the denied superficial loss is added to the cost of property acquired by an affiliated person.

5          See for example the provisions of subsection 69(11) (which technically allows a loss but deems vendor of property to have received proceeds equal to fair market value) and the loss restrictions on an acquisition of control contained in subsection 111(5).

 

[34]    In the case at bar, the merger occurred within the context of a financial restructuring project by Groupe Cascades; the aim of this project was to improve Groupe Cascades's worth on the financial markets and to support its future growth. Through this restructuring, all common shares held by the public in three companies controlled by the appellant (including PII) were to be exchanged for common shares in the appellant, to be issued for this purpose. This was done because they realized that [translation] "the relatively small size of the available share capital of the appellant's listed subsidiaries and their low volumes of transactions made it difficult to turn to share capital funding to finance their respective growth." This is why there was a proposal to [translation] "bring these three subsidiaries under a single public entity that would finance the growth of Cascades in its three main areas of activity" (see the appellant's communiqué dated July 10, 2000, at Schedule B to the Agreed Statement of Facts).

 

[35]    Camil Vachon,[4] addressing the matter of the particular aim of the provisions of subsections 40(3.3), (3.4) and (3.5), stated:

 

[TRANSLATION]

4.   Stop-loss rules: application of subsection 40(3.4) ITA.

 

In general, subsection 40(3.4) of the ITA is a specific anti-avoidance measure aimed at preventing a taxpayer (company, trust or partnership) from recognizing a latent capital loss on non-depreciable capital property as long as the property is held by that taxpayer or a person affiliated with the taxpayer.

 

[36]    In my opinion, the stop-loss rule in subsection 40(3.4) does not necessarily apply to the present case. That rule is a specific anti-avoidance measure to prevent taxpayers from immediately recognizing a latent capital loss on non-depreciable capital property. As seen above, the restructuring proposed by Cascades was not done for this purpose. It was not done with the intent to prematurely realize a loss.

 

[37]    Moreover, on reading the technical notes referred to above, I agree with counsel for the appellant that they do not indicate that Parliament intended that the presumption in paragraph 40(3.5)(c) should apply to all cases involving a disposition of shares, as the respondent is claiming. The technical notes state: " . . . paragraph 40(3.5)(c) clarifies the result where the property that gives rise to a deferred loss under new subsection 40(3.4) is a share of a corporation that is subsequently merged with one or more other corporations . . . . In such a case . . . the corporation formed on the merger . . . is treated as continuing to own the share as long as that . . . corporation is affiliated with the transferor."

 

[38]    There is nothing to indicate that paragraph 40(3.5)(c) must be used to determine whether the loss is deemed to be nil under subsection 40(3.4). On the contrary, the notes seem to be saying that subsection 40(3.4) must first give rise to the deferred loss and then paragraph 40(3.5)(c) would apply to determine what becomes of the deferred loss in the case of a merger.

 

[39]    At the very least, it cannot be said on a reading of these technical notes that Parliament's intent was that suggested by the respondent. In this context, it is preferable to stick to the terms used in the legislation, to the extent that it is possible to do so.

 

[40]    In view of my conclusion, I find the appellant is not subject to the terms of subsection 40(3.4) because, in my opinion, the conditions set out in subsection 40(3.3) were not all met so as to prevent the appellant from claiming its loss during the 2000 taxation year.

 

Decision

 

[41]    The appeal is allowed, with costs, on the basis that that the appellant was entitled to claim a capital loss of $15,941,608 during its 2000 taxation year.

 

Signed at Ottawa, Canada, this 6th day of December 2007.

 

 

 

 "Lucie Lamarre"

 

 

Translation certified true

on this 22nd day of January 2008.

 

 

 

Erich Klein, Revisor

 

 

 

CITATION:                                       2007TCC730

 

COURT FILE No.:                            2005-1424(IT)G

 

STYLE OF CAUSE:                          CASCADES INC. v. HER MAJESTY THE QUEEN

 

PLACE OF HEARING:                     Montreal, Quebec

 

DATE OF HEARING:                       December 11, 2006

 

REASONS FOR JUDGMENT BY:    The Honourable Justice Lucie Lamarre

 

DATE OF JUDGMENT:                    December 6, 2007

 

APPEARANCES:

 

Counsel for the Appellant:	Wilfrid Lefebvre
Counsel for the Respondent:	Marie Bélanger Natalie Goulard

 

COUNSEL OF RECORD:

 

       For the Appellant:

 

                     Name:                           Wilfrid Lefebvre

 

                     Firm:                             Ogilvy Renault

                                                          Montreal, Quebec

 

       For the Respondent:                    John H. Sims, Q.C.

                                                          Deputy Attorney General of Canada

                                                          Ottawa, Canada