- The reasons and judgment of the Supreme Court of Canada in Deans Knight Income Corp. v. Canada, 2023 SCC 16 are appealed to the Bowman Moot Court for Tax Appeals.
- The questions in issue on appeal are:
i. Did the majority’s approach to determining the object, spirit and purpose of s. 111(5) fail to account for the central principle: that “the GAAR does not and cannot override Parliament’s specific intent regarding particular provisions of the Act”?
ii. In what way, if any, does a specific anti-avoidance rule affect the application of the GAAR?
i. The majority opinion of the SCC suggests an expansion to the concept of control that is based on a wide array of operational factors (referred to as the notion of “functional equivalence”). Does this approach depart from Parliament’s articulation of a de jure control test for restricting losses under s.111(5), having regard to the object, spirit, and purpose of that provision? Should the SCC’s approach be maintained? ii. Was there an abuse of s.111(5) of the Act?
- All other issues raised before the Tax Court of Canada, the Federal Court of Appeal, and the Supreme Court of Canada are not appealed from.
- The Moot is intended to promote advocacy pertaining to tax related issues, not to questions relating to administrative law or the standard of review. Participants are expected to make very short written submissions and refer the judges to their factum when they state orally the applicable standard of review. We have done our best to inform the judges that the standard of review is not at issue and have advised them to refrain from asking any questions pertaining to it.
- The moot problem is an actual case, and therefore the parties’ factums are to be original works, as opposed to any copy or mere imitation of existing filed court materials.
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