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Category: Supreme Court of Canada Page 15 of 23

The Big Picture – Supreme Court of Canada Sheds Light on Transfer Pricing

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On November 16, 2012

In Supreme Court of Canada, Tax

PDF version: The Big Picture – Supreme Court of Canada Sheds Light on Transfer Pricing

Decision commented on: Canada v GlaxoSmithKline Inc., 2012 SCC 52

Making Sense of Transfer Pricing

Multinational corporate groups often have entities which are located in various jurisdictions, according to the needs of the business and where different functions of the organization are conducted. In some instances, there is a need to price the products and services provided between the entities (and therefore between jurisdictions) – and this need is often derived from some advantage to performing certain functions in lower tax jurisdictions. For example, some corporations may price products or services at higher rates so that income in higher tax jurisdictions is decreased as a result of higher expense deductions, with these higher amounts being included in revenue of an entity in a lower tax jurisdiction. Some tax planning in this manner is appropriate, and often highly advantageous for competing successfully within our global economy. Transfer pricing rules are designed and in place to address unjustified skewing of profits and revenue toward lower tax jurisdictions.

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Consciousness and Consent in Sexual Assault Cases

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On June 17, 2011

In Criminal, State Responses to Violence, Supreme Court of Canada

PDF version: Consciousness and Consent in Sexual Assault Cases

Case considered: R. v. J.A., 2011 SCC 28

Can a person consent in advance to sexual activity that occurs while she is unconscious? A majority of the Supreme Court of Canada recently answered this question in the negative in R. v. J.A., 2011 SCC 28, taking the same approach as a majority of the Alberta Court of Appeal in R. v. Ashlee, 2006 ABCA 244. There were strong dissents in each case, however, indicating that the resolution of this issue is far from obvious for some judges. Also interesting is that judges on both sides of the issue frame their analyses in terms of the sexual autonomy of the complainant, and see their decisions as consistent (or at least not inconsistent) with the leading Supreme Court of Canada authority on consent, R. v. Ewanchuk, [1999] 1 S.C.R. 330. This comment will discuss the J.A. and Ashlee decisions and assess the merits of the different reasons for decision in light of the applicable statutory provisions and case law and the courts’ attention (or lack thereof) to context.

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Issue of Timing Arises Again: Alberta Court of Queen’s Bench Quashes Decision of Information and Privacy Commissioner for Reasonable Apprehension of Bias

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On February 25, 2011

In Administrative Law, Privacy, Supreme Court of Canada

PDF version: Issue of Timing Arises Again: Alberta Court of Queen’s Bench Quashes Decision of Information and Privacy Commissioner for Reasonable Apprehension of Bias 

Case considered: Alberta Teachers’ Association v Alberta (Information and Privacy Commissioner), 2011 ABQB 19 (“Wright“)

Once again, the issue of timing in the investigation of privacy complaints has been raised. In Alberta Teachers’ Association v Alberta (Information and Privacy Commissioner) (“Wright“), pending litigation on the issue of timing currently before the Supreme Court of Canada (“SCC”) prevented the Alberta Court of Queen’s Bench from dealing with the timing issue; see the “Supreme Court hears Alberta Privacy Case” post commenting on ATA News v Information and Privacy Commissioner, 2010 ABCA 26 (“ATA News“). Nevertheless, since timing was raised again as an issue in Wright, the outcome of the SCC decision in ATA News will be important.

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The Saskatchewan Court of Appeal’s Marriage Commissioners Decision – The Never-Ending Fight for Human Rights of Same-Sex Couples

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On February 23, 2011

In Constitutional, Human Rights, Supreme Court of Canada

By: Melissa Luhtanen

PDF Version: The Saskatchewan Court of Appeal’s Marriage Commissioners Decision – The Never-Ending Fight for Human Rights of Same-Sex Couples

Case and Legislation Commented On: In the Matter of Marriage Commissioners Appointed under the Marriage Act, SS 1995, c M-4.1, 2011 SKCA 3; Marriage Act, RSA 2000, c M-5

The Saskatchewan Court of Appeal considered two proposed amendments to the Marriage Act, S.S. 1995, c. M-4.1. The Act legislates on the solemnization of marriage in Saskatchewan. It provides for specific religious officials and marriage commissioners to solemnize marriages. The Lieutenant Governor in Council in Saskatchewan sought the Court’s opinion on potentially amending the Marriage Act after complaints from marriage commissioners who said that solemnizing same-sex marriages breached their rights under s.2(a) of the Charter.

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Supreme Court Broadly Interprets s. 99(1) of the National Energy Board Act

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On February 18, 2011

In Administrative Law, Costs, Oil & Gas, Supreme Court of Canada

PDF version: Supreme Court Broadly Interprets s. 99(1) of the National Energy Board Act 

Case considered: Smith v Alliance Pipeline Ltd., 2011 SCC 7

In Smith v Alliance Pipeline Ltd., 2011 SCC 7 (Smith) all nine judges of the Supreme Court of Canada endorsed a broad view of the power of the federal Pipeline Arbitration Committee (PAC) established under the National Energy Board Act, RSC 1985 c N-7 (NEBA) to award costs to a claimant to an arbitration proceeding. Committee costs may include solicitor-client costs of related litigation. The Court grounded its finding in subsection 99(1) of the NEBA, which if triggered requires a company to pay “all legal, appraisal and other costs determined by the Committee to have been reasonably incurred by that person in asserting that person’s claim for compensation,” and in the history of statutory reform of the law of expropriation, specifically the principle of full compensation for expropriation. The Court was silent on the Federal Court of Appeal finding that matters for which a committee may award compensation are restricted by section 84 of the NEBA, under which litigation costs are not compensable (Alliance Pipeline Ltd. v Smith, 2009 FCA 110 at para. 55 (Smith FCA)). The impact of Smith may be limited to cases in which compensation awarded by the committee exceeds 85 percent of the value offered by the company, as the statutory basis for the Court’s decision is subsection 99(1), and the subsection is triggered only where the 85 percent threshold is exceeded.

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