OsgoodePD symposium to offer in-depth analysis of recent Supreme Court of Canada tax law decision

Photo of Professor Jinyan Li on white background.
Professor Jinyan Li

It’s the hottest case in Canadian tax law right now – and this week some of Canada’s foremost tax law experts will offer new insights at a special event hosted by Osgoode Professional Development (OsgoodePD).

The June 28 afternoon symposium will be led by Professor Jinyan Li and Torys LLP tax partner John J. Tobin, the co-directors of OsgoodePD’s respected LLM in Taxation Law program. It is sponsored by the Canadian branch of the International Fiscal Association.

The Supreme Court of Canada’s decision in Deans Knight Income Corp. v. Canada (2023 SCC 16), written by Justice Malcolm Rowe ’78, was released on May 26, instantly stirring up speculation about its impact on the Income Tax Act’s general anti-avoidance rule (GAAR). It is the sixth time that Canada’s highest court has rendered a tax ruling related to the GAAR – with the last one coming two years ago in Canada v. Alta Energy Luxembourg S.A.R.L. (2021 SCC 49).

“It’s getting people’s attention,” said Li, “because case number 5, Alta Energy, went in a way where the outcome was in favour of the taxpayer and could have rendered the GAAR meaningless.

Deans Knight,” she added, “goes beyond the letter of the law to look at the purpose of the original legislation. It’s good in a way because it says that rationale matters, in effect changing the court’s direction.”

Justice Suzanne Côté, who wrote the majority decision in Alta Energy, was the sole dissenting opinion in Deans Knight. Justice Rowe’s decision in Deans Knight cited research by Professor Li.

Along with Li and Tobin, the OsgoodePD symposium will include analysis from former Supreme Court Justice Marshall Rothstein, BLG LP tax lawyer Steve Suarez, who was counsel for intervenor the Canadian Chamber of Commerce, Osler LLP partner Pooja Mihailovich, Osler LLP partner Mark Brender and EY Law LLP partner Angelo Nikolakakis. Rounding out the afternoon lineup will be Blake, Cassels & Graydon LLP senior counsel Jeffrey Trossman and Thorsteinssons LLP partner Matthew Williams.

Topics up for discussion during the three sessions will include whether the Supreme Court’s analysis in Deans Knight is consistent with a taxable Canadian property (TCP) approach to object, spirit and purpose of the Income Tax Act, and how to square the Supreme Court’s 1998 tax decision in Duha Printers with Parliament’s choice of de jure control. Panellists will also discuss the language of the decision to examine what it means for the legal standards and tests applied to GAAR litigation and the implications of the decision for proposed amendments to the GAAR regime.

Li said opinion is divided in the tax law community about the significance of the Deans Knight decision. “Some people say this is a big change and others say no,” she added. “That’s why we’re having this symposium.”

Some tax law experts argue that the Supreme Court’s change in direction on the GAAR now relieves the pressure on Parliament to amend the Income Tax Act to strengthen the anti-avoidance rule.

“I think many people will be interested in coming and hearing what people have to say,” added Li.

To register to attend in person or online – or for an online replay on August 9, 2023 – click here.