The Perils of Federalizing the Common Law: A Case Study of the Income Tax Act Gift Concept

Abstract

Civilian jurists have long been concerned to defend the integrity of the Quebec civil law tradition against the colonizing tendencies of federal legislation and its associated case law. In this piece, I argue that common law jurists should share these concerns. To illustrate this point, I focus on the federal courts’ misuse of the term “common law” to describe the meaning they have attached to the statutory term “gift/don” under sections 110.1 and 118.1 of the federal Income Tax Act. In fact, I argue, the meaning that the Federal Courts have attached to the term gift/don is an “ordinary non-technical” meaning, which is distinct from both the civil law concept of gift set out in the Civil Code of Québec and the common law concept of gift that forms part of the law of property in Canada’s common law provinces. I describe how the ordinary and common law concepts have elided under Canadian tax law, and describe the doctrinal confusion that has resulted from this elision. Finally, I consider the mischaracterization of the common law of gift from the perspective of tax law’s relationship with the larger legal system. Building on a theme recently taken up by J Scott Wilkie and Peter Hogg, I argue that the mischaracterization of the ITA gift concept matters, both because it creates the impression of a state of affairs that is inconsistent with our constitutional framework, and because it harms the integrity of the private law. I conclude that the federal courts should clarify that the ITA gift concept is an ordinary non-technical concept, even if it forces them to confront difficult questions about its relationship with provincial private law.

Keywords: law of gift, income tax act, statutory interpretation, federalism, bijuralism, federal courts