David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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This two-part article discusses the various doctrines to which Canadian courts have referred in interpreting the Income Tax Act, evaluates these doctrines, and proposes an alternative "pragmatic" approach that offers a more open, reasoned, and balanced method of statutory interpretation than each of the alternatives otherwise available. Part 1 of the article reviews the four main doctrines applied by Canadian courts in interpreting the Income Tax Act: strict construction, purposive interpretation, the plain meaning rule, and the words-in-total context approach. After the characteristics of each of these four doctrines have been explained, the article examines leading tax cases in which these doctrines have been defined and applied, illustrating the manner in which the applicable doctrine has influenced the courts' decisions and critically evaluating these decisions in light of the pragmatic approach developed in part 2. While strict construction and the plain meaning rule downplay the scheme of the Act, the object of the Act, and the intentions of Parliament, leading to decisions at odds with legislative intentions and statutory purposes (for example, the majority judgment in Friesen), purposive interpretation downplays the words of the Act, resulting in doctrinal confusion (for example, Bronfman Trust and McClurg) and decisions at odds with the text of the Act (for example, Neuman). Although the words-in-total-context approach affirms a more pragmatic outlook, according to which the words of the Act are to be read contextually and "harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament," the Supreme Court of Canada has yet to acknowledge this approach as an independent interpretive doctrine different from purposive interpretation and the plain meaning rule. Moreover, to the extent that the words-in-total-context approach limits the scope of contextual analysis and disregards the practical consequences of alternative interpretations, it is only partly pragmatic and fails to fully describe the interpretive process that the court implicitly employs. Part 2 of the article evaluates each of the interpretive doctrines examined in part 1, explains the essential features of an explicitly pragmatic approach to statutory interpretation, and advances an argument for this approach as an alternative to each of the interpretive doctrines currently employed.Reproduced with the permission of the Canadian Tax Foundation.
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