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5 Responses to Comments

  1. Mark Dorin says:

    As to REDA, Bill 2, and bloggers comments that the Surface Rights Board has expertise, there is a case that has been ongoing for 34 years and counting that could finally test just how expert such Board was in the past and is now (see Surface Rights Board Decision 2012/0468). All proceedings related to this matter are:

    SRB Decision C46/78
    Dorin v. Dyco Petroleum Corporation [1980] AJ No. 814
    SRB Decision 2003/0142
    SRB Decision 2012/0468

    The Board has finally recognized after some 34 years that it MAY have made errors in 1978, and decided to review compensation in relation to a right of entry order issued in 1977. A review will occur unless the oil comany prevails in its argument that the Surface Rights Board has no juridiction to determine compensation in relation to one of its own orders.

    Also in relation to this case, the ERCB ruled that the Surface Rights Board has jurisdiction to proscribe the location of roadways (the SRB does not, only the ERCB has such jurisdiction).

    Overlap (gaps more likely) between legislation is a serious problem.

    Registering private agreements so parties to such agreements can be forced to abide by the terms thereof is probably a good idea in theory. The oil companies in the above cases never kept their agreements. They presumably feel they are exempt from following the laws of Alberta, and who can blame them? So far, they have had a free pass.

    Only in Alberta.

    Mark Dorin

  2. Nigel says:

    Hi Mark,

    This Bill should improve the position of landowners in relation to the enforcement of surface agreements. In the future you will now be able to take issues of enforcement either to the Courts or the Regulator.

    This issue I raise in this comment is why the Regulator and not the Surface Rights Board (SRB)? Your response is that the SRB has made mistakes which it has been slow to correct. But perfection is more than any of us can hope for; the real issue might be what are the available remedies in the event somebody makes a mistake? It is probably easier to take an issue relating to the SRB to the court (Queen’s Bench) than it is to take a matter decided by the current ERCB or the proposed regulator (the Court of Appeal but only with leave on a point of law or jurisdiction).

    Nigel

  3. For what it is worth, and without making any comments about other cases considering it or applying it, I substantially agree with you as to the intend of the principles in Meads v. Meads.

  4. Roland and Valerie Priddle says:

    Re: TWU Your Tax Dollars at Work
    Nice to see that someone has come across the concept of Tax Expenditures.
    They seem to run several billion dollars annually at the federal level. See for example http://www.fin.gc.ca/taxexp-depfisc/2013/taxexp-depfisc13-eng.pdf
    Are you suggesting that someone (who?) should search through all those who benefit from tax expenditures and weed out ones that are contrary to “public policy”?
    How does one define “public policy” in the particular context of TWU?
    Is it a term of art used in the Income Tax Act and relevant Regulations?

  5. Saul Templeton says:

    Hi Roland and Valerie,

    Thanks, yes the tax expenditure budget you’ve linked to is an annual publication by the Department of Finance. Thus tax expenditures are tracked as spending by the federal government and the estimated value of that spending is made available to the public (subject to some caveats about Finance’s methodology in estimating the lost revenue represented by each expenditure).

    The question of who should review tax expenditures in Canada is an interesting one. I suppose I could suggest that the federal government strike a Royal Commission to review them and make recommendations about which ones to keep or scrap going forward. Academics do comment extensively on tax expenditures with some regularity, for example there is the excellent 2011 text edited by Lisa Philipps, Neil Brooks and Jinyan Li, Tax Expenditures: State of the Art. See https://www.ctf.ca/ctfweb/EN/publications/product_detail.aspx?prod=TE

    If I am understanding your comment correctly though, you are asking whose responsibility it is to ensure that beneficiaries of tax expenditures are legally entitled to them? The answer is the Minister of National Revenue, through the Canada Revenue Agency. The CRA is responsible for administering and enforcing most tax laws in Canada.

    The legal point about public policy applies specifically in the context of charity law, so unfortunately it cannot be used as a legal argument to invalidate other tax expenditures. The Canada Revenue Agency can audit specific charities and revoke their charitable status on the basis that the charity is pursuing activities that are contrary to public policy, and appeals of the CRA’s decisions in those cases end up in the courts. (See the discussion in my post of Everywoman’s Health Centre Society (1988) v Canada, [1991] FCJ 1162 (FCA)). What constitutes a contravention of public policy sufficient to revoke charitable status is thus a definitional problem that it is up to our judiciary to resolve as similar cases go to court. So, yes, “public policy” is a term of art here but it is not defined in the Income Tax Act or its Regulations. The concept has developed through hundreds of years of charity law both in Canada, and in old UK jurisprudence we have incorporated into our own body of charity law jurisprudence. (Canada incorporated the rule that charities cannot pursue activities contrary to public policy from, e.g., National Anti-Vivisection Society v Inland Revenue Commissioners, [1948] AC 31 (HL)).

    Many thanks for your comments,

    Saul

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