All Our Research Tips
How to Figure Out the Status of Proposed Federal Tax Legislation
While some of the paid tax resources provide reference tables that show what stage a proposed amendment to the Income Tax Act has reached, how do you figure this out if you don’t have access to one of these resources?
Step 1: What draft legislation are you interested in? Generally tax legislation is published as a “Notice of Ways and Means Motion” before it is introduced as a bill. The Department of Finance Canada provides a listing of all the Notice of Ways and Means Motions back to 2013 at https://www.fin.gc.ca/legislation/draft-avant-eng.asp. You can also find them on Taxnet Pro at Federal Income Tax > Legislation > Proposed Amendments and Explanatory Notes (Special Releases) and on Knotia under Federal Income Tax Collection > Legislation and Treaties > Proposed/Historical Amendments.
Step 2: Check the Income Tax Act to see it includes these changes. If the legislation has come into force, the Income Tax Act should reflect this. If the changes are not shown in the act, you should check the “Amendments Not in Force” section to see if your draft legislation has got as far as Royal Assent. The House of Commons Procedure and Practice notes that a “ways and means bill must be “based on” but not necessarily “identical to” the provisions of its ways and means motion.”
Step 3: Check the bills that have been introduced since your draft legislation was released. The Department of Finance Canada produces a list of bills that amend the Income Tax Act at https://www.fin.gc.ca/legislation/hist-eng.asp.
For example if you were asked “has Royal Assent been given to the draft legislation that was dated October 3, 2016?” you could proceed as follows:
- Using the October 3, 2016 date, find the Notice of Ways and Means referred to. You can see that it amends sections 40, 54, 107, 108, 152, and 220 at the ITA.
- If these amendments have come into force, there should be the following subsection in the definition of “principal residence” in section 54 of the Income Tax Act: (c.1)(iii.1) beginning “if the year begins after 2016…”. There is, so the answer to the question is yes.
— Susannah Tredwell
Linguistic redundancy, not the employment variety. In the linguistic category, there are both legal and non-legal redundancies.
We’ve seen these before (see ‘Gruesome twosomes‘), but they bear repeating.
Legalese is replete with pairs of words that mean the same thing and therefore don’t need to be used together (except to create a leaden, lawyerly effect).
- cease and desist [how about plain old stop?]
- free and clear [one or t’other, not both]
- full and complete [same comment]
- if and when [ditto]
- null and void [just say of no effect]
- of no force or effect [of no effect works here too]
- save and except [I hate this]
- separate and apart [except as a term of art in family law]
- unless and until [I hate this more than save and except]
Writing that is non-lawyerly (or not exclusively lawyerly) also suffers from redundancies. Here are some common ones:
- absolutely necessary [you need something or you don’t]
- added bonus [a bonus is always added]
- armed gunman
- blue in colour [no, it’s just blue]
- close proximity
- during the course of [please, just during]
- each and every
- exact same
- face mask [where else?]
- full gamut [there are no partial gamuts]
- general consensus [consensus is, by definition, general]
- mental telepathy [telepathy is communication from one mind to another; it’s always mental]
- moment in time [a moment is, perforce, in time]
- new recruit
- outward appearance [can there be an inward one?]
- personal belongings [unless you’re nicking someone else’s stuff from the overhead compartment, I guess]
- personal opinion [it’s no one else’s]
- PIN number [what do you think the N stands for?]
- pre-heat, pre-arrange, pre-existing, pre-owned, pre-plan, pre-prepared [all of these involve a prior action or condition before something else happens; pre- is unnecessary]
- reason why
- role model [just model, which doesn’t mean only the runway kind – ‘The rapper is not perhaps the best model for inner-city youth’]
- safe haven [yeah, you want to avoid the unsafe ones]
- software programme [that’s what software is]
- sum total [that’s like saying debit deficit]
- time period [one or the other; they mean the same thing]
- terminal building [a terminal is a building]
- United Together [optimistic but perhaps ill-advised slogan of the 2016 Democratic National Convention; as opposed to?]
- very true [the truth is not relative]
- very [or any other modifier] unique [something is unique or it ain’t]
- weather conditions [weather is a condition, and the conditions would generally include the weather]
Up next: one L or two?
–Neil Guthrie (@guthrieneil)
Stay Current With the Canadian Law Blogs List
Would you like to stay informed about Canadian legal news? It is essential for members of the legal profession to stay current with new developments in the legal field. However, this can be challenging. The multitude of blogs, websites, and information resources available online can make the task of staying up-to-date seem overwhelming.
Are you familiar with the Canadian Law Blogs List available at LawBlogs.ca? The Canadian Law Blogs List describes itself as “open directory of Canadian blogging lawyers, law librarians, marketers, IT professionals and paralegals in Canada.” It was launched in 2005 by Steve Matthews, founder and CEO of Stem Legal.
The Canadian Law Blogs List makes it easier to stay well-informed of developments in law. It is a single online location that collects and categorizes authoritative legal blogs. The blogs included in the directory are reviewed for authority, credibility, and currency. The Canadian Law Blogs List can be browsed by legal practice area, category, and jurisdiction. Readers can subscribe by RSS feed or email.
The Canadian Law Blog List homepage features recent posts from the blogs included in the directory. I encourage you to check it out.
[This tip by Alan Kilpatrick originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]
Did your studies in French get you as far as the subjunctive mood and all its weird variations (que je sois, que je fusse, que j’eusse été)?
Things are a little less complicated in English, but still not straightforward. This partly because the English subjunctive, while falling out of use (since the eighteenth century), isn’t dead yet – and was never consistently applied when more alive.
To refresh your memory, the subjunctive is the form of a verb that is used for an action or state that is conceived (but not actual), hypothetical or prospective; or for expressing a wish or command.
You may use the subjunctive without realising it:
- Go away!
- Convention be damned!
- Come what may
- Come the revolution …
- Be that as it may
- Far be it from me
- If I were you
- I wish I were there
- Would that it were true
There are times when you may need to think about it, though.
Not every if or though calls for the subjunctive. If I were you does, because I am not (and cannot) be you; but it’s If she eats [not eat] strawberries, she breaks out in hives because that’s a statement of fact.
The use (or non-use) of the subjunctive can change meaning. I insist that the contract is signed and I insist that the contract be signed mean different things: the first asserts that the contract has, in fact, been executed; the second, the strong desire that it should be signed. Fowler’s examples in Modern English Usage are more subtle: Though all care is exercised … (= in spite of the fact that care is exercised) as opposed to Though all care be exercised … (= even on the supposition that care has been exercised …).
There are also times when we could do without the subjunctive. It sounds antiquated beyond belief to say If it be no bother … or If I be incorrect about this …
The Economist recently took that view in the following headlines, which it decided would look ‘stilted’ (even if classically correct) with a subjunctive: If Donald Trump was president [no longer a hypothetical, that one], If the ocean was transparent. This prompted many letters from dismayed, subjunctive-loving readers: see ‘Would That It Were So Simple: The Strange Tale of the Subjunctive in English’ (Economist, 13 August 2016).
And then there is what is sometimes called the ‘American subjunctive’ (and the Yanks do seem to get into the subjunctive mood more than the Brits):
- It is moved that X be appointed secretary
- I suggested that he see a doctor
- We demanded that the other side disclose the contents of the file
- The associate insisted that she be admitted to the partnership
The meeting-minutes subjunctive is well-established, but in other constructions think about adding should (I suggested he should see a doctor) or using some other, less strained construction (We asked the other side to disclose; I insist that the other party is [or should be] present; The associate insisted on being admitted).
Next time: redundancy
–Neil Guthrie (@guthrieneil)
Received Law in Canada
Periodically the question arises: how does one determine which English acts are still in force in Canada?
The short answer is that there is no comprehensive list of what English statutes are still in force in Canadian jurisdictions. In J.E. Cote, “The reception of English law”, (1977) 15 Alberta Law Review, 29-92, the author lists a number of statutes and the provinces in which they were still in force in 1964. This list is based in part on Appendix C (pages 1060-1064) of W.H.P. Clement, The law of the Canadian constitution, 3d ed. (Toronto: Carswell, 1916) which listed a number of British statutes “the operation of which in the Colonies has been in question in the Courts”. However, Cote’s list was not exhaustive, and some of the acts have subsequently been repealed.
Some English statutes in force in Ontario were published in volume 3 of the Revised Statutes of Ontario 1897. This volume lists imperial constitutional acts, imperial statutes in Ontario ex proprio vigore, and a table of ”imperial statutes in force in Canada ex proprio vigore” as of 1901.
The Revised Statutes of British Columbia 1911, vol. IV contains a collection of English statutes, but “does not purport to be an exhaustive collection of English Acts that may be applicable in the Province of British Columbia.”
The British Columbia Courthouse Library’s “English Acts Applicable in BC” states that:
“The Law & Equity Act, R.S.B.C. 1996 chapter 253, sections 1 to 3, currently states that with the exception of section 28 of the Offences Against the Person Act, 1828 and all sections of the Real Property Act, 1845, the Civil and Criminal Laws of England as they existed on November 19, 1858 and insofar as they are not from local circumstances inapplicable, are in force in British Columbia, subject to change by BC law.”
If you are trying to determine if a specific statute is still in force for a given province, it is worthwhile checking the publications of that province’s law commission. For example, the Law Reform Commission of Saskatchewan’s Report on Disposal of English Statute Law in Saskatchewan (May 2006) lists English statutes that are still in force in Saskatchewan; this is the most extensive list produced by any of the provinces.
The status of a given statute may also be referred to in the case law, for example in McKenzie v. McKenzie, (1970) 11 D.L.R. (3d) 302, 73 W.W.R. 206 (BCCA) it was concluded that the Poor Relief Act, 1601, 43 Eliz., c. 2, as amended by the Poor Law Amendment Act, 1834 (U.K.), c. 76 was not a part of the laws of British Columbia. It is worth using the international volume of Carswell’s Canadian Statute Citations (or equivalent) to see if the English statute you are interested in has been considered in Canada.
— Susannah Tredwell
This is the grammatical term for the distinction between the singular and the plural.
Unsurprisingly, a singular noun takes a singular verb (takes being an example of that), while plural nouns take plural verbs (that was another example, in case you missed it).
Where there are two subjects in the sentence, the verb is generally plural (Diligence and enthusiasm are desirable in an articling student).
It’s easy to lose the plot, however, when the two components of a compound subject are separated by a lot of intervening material.
A case in point is a clause a lawyer recently asked me about. Which wording is correct?
- The division of this Agreement into articles and sections and the use of headings is for convenience of reference only and does not modify or affect the interpretation or construction of this Agreement or any of its provisions.
- The division of this Agreement into articles and sections and the use of headings are for convenience of reference only and do not modify or affect the interpretation or construction of this Agreement or any of its provisions.
It has to be version 2, because the subject of the sentence is The division … and the use – so the verbs should be are and do.
This is the general rule, but there are times when the two elements of a compound subject are inextricable, and therefore demand a singular verb: Scotch and soda is her favourite drink; gin and tonic is mine. Or where they could be said to constitute a single concept: Violence and killing is against moral law (the subject of the sentence being, in effect, violent killing: Fowler’s example from Modern English Usage).
On that rationale, the boilerplate provision about consideration could be the receipt and sufficiency of which is hereby acknowledged — but one also sees are hereby acknowledged.
Don’t stretch things too far with compound subjects, though.
And where it’s X or Y rather than X and Y, the verb will accord with the nearest element (in this case, Y): Either the company or its directing minds are liable BUT Either the directing minds or the company is liable.
Another common pitfall is the one in [larger number] formulation, which often ends up in error. It isn’t One in ten doctors smoke but One in ten doctors smokes. (The subject of that sentence is One (singular) not doctors (plural).)
Next: the subjunctive
–Neil Guthrie (@guthrieneil)
Finding Federal Regulations
The federal Justice Department’s Consolidated Regulations are organized by regulation title. So how do you find all of the regulations passed under a given statute?
Well, there are a couple of ways, the simplest of which is to go to the act itself in the Consolidated Acts, and select the first letter of the title in the A-Z menu. The left-hand column lists all the acts beginning with that letter, along with their chapter number –
and the right-hand column has PDF links to the acts and little yellow “R” boxes. Any guesses what the R stands for?
Good guess! R is for Regulations. Clicking on the yellow box will take you directly to a complete list of the regulations made under that act. If you scroll up from the list, you will find the main Table of Contents for the act – so a second way to see the regulations would be to open the act directly and scroll down.
[This tip by Ken Fox originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]
Confusing Pairs, Part 5
More in this series.
The first is a noun, most commonly used to mean ‘a person who depends on another for support or position’ (He is a single man with no dependants). Dependent is the adjectival form of the noun (Each dependent child will receive a payment …) Dependent also means, more generally, ‘contingent on or owing its existence to something else’ (Your success as an articling student is dependent on many factors, some of which may not be apparent to you).
In the US, dependant is almost never seen; Americans use dependent for both noun and adjective.
A guaranty is ‘the action or an act of securing, warranting, or guaranteeing’. It also means ‘security’ or ‘warranty’, and, more particularly in law, ‘a written undertaking made by a person … to be answerable for the payment of a debt or the performance of an obligation by another person’.
A guarantee is similar, but slightly different: ‘a person or party that makes a guaranty or gives a security; a guaranteeing party’; ‘something given or existing as security, e.g. for fulfilment of an engagement or conditions’; and ‘a person to whom a guaranty is given’.
Clearly there is some overlap, and you’ll never go wrong if you use guarantee for all senses. Guaranty is preferable where you mean ‘rather the act or fact of giving security than the security given or its giver’ (Fowler) – so, ‘a contract of guaranty‘.
Guaranty used to be the verb form; this is now always guarantee.
These used to be used more or less interchangeably, but have parted company.
Historical now means ‘belonging to, constituting, or of the nature of history; in accordance with history; treating of, based on, or depicting events from history; based on an analysis of development over a period of time’. For example, Your memo doesn’t need to provide a historical account of the law of unjust enrichment since Moses v Macferlan (1760); just give me an overview of the current state of Canadian law.’
Historic is now confined to the sense of ‘memorable’ or ‘worthy of a place in history’: On that historic day, the Dominion of Canada came into being.
One often sees an before these two adjectives (‘an historic occasion’), but this is unnecessary. The general rule is that you use an only before a word beginning with a silent H (so it is an honour, but a house). In front of historic, an is a hold-over from the days when an was usual before any word with an unaccented syllable beginning with H.
The first is a gland that men have (Prostate cancer can be treated effectively if detected early).
The second means ‘to throw oneself to the ground in reverence or submission’, ‘to knock down’, ‘to overcome, to reduce to helplessness’, ‘to reduce to extreme physical weakness or exhaustion’. As in That combination of intense heat and humidity will prostrate those who attempt overly vigorous physical activity.
Prostrate is occasionally used for the gland, but this is ‘non-standard’ (which is to say, wrong).
Wares (usually used only in the plural) are articles of merchandise or manufacture: Local hippies displayed their hideous wares in the market on the music festival grounds. Ware in the singular is less common, except where a descriptive word is tacked on: earthenware, glassware, hardware, silverware, software, tableware.
Wear, as a noun, can mean ‘what one wears or should wear’, as in men’s wear (often now compressed to menswear, not entirely properly). Outerwear and underwear are well-established, but there are less attractive coinages: beachwear, eyewear (can we not just say (eye)glasses or specs?), innerwear (used for underwear, but illogically; you don’t wear this stuff inside you, you wear it under other garments), knitwear (how about woollens?), nightwear, sleepwear, swimwear (OK, your humble scribe can’t think of better one-word terms for the last three, but they’re still icky).
Next time: number
–Neil Guthrie (@guthrieneil)
Noting Up US Case Law in Canada
It is straightforward to find out out how a Canadian case has been subsequently treated by Canadian courts; all you need to do is note it up on Quicklaw, WestlawNext Canada, or CanLII. However sometimes you need to find out if a US case has been mentioned in the Canadian case law and this is slightly more challenging to do.
The easiest way to note up a US case in the Canadian case law is by a Boolean search for the names of the parties and any citations for that case. For example, if you were trying to find out what Canadian cases had referred to Hiscott v. General Electric Co. (1975), 521 F. 2d 632, you might use the search string (Hiscott /4 General) OR “521 F. 2d 632”.
Depending on how common the names of the parties are, you may have to make the names used in your Boolean search more specific.
— Susannah Tredwell
Some Contractual Terms
I generally stay away from drafting issues, but thought I’d mix things up a bit.
Depositary and depository
Depositary in US contracts has always seemed wrong to me. Shouldn’t it be depository?
No, in fact. The two words, while ‘often confounded’ (as the Oxford English Dictionary Online puts it), mean different things.
A depositary is ‘a person [natural or otherwise] with whom anything is lodged in trust; a trustee; one to whom anything (material or immaterial) is committed or confided; …a bailee of personal property, to be kept by him for the bailor without recompense.’
A depository, on the other hand, is ‘a place or receptacle in which things are deposited or placed for safe keeping; a storehouse, a repository’.
So a depositary must be a person (including an artificial one at law) who holds onto things for you, while a depository must be a place or thing where or in which you put things.
I take some comfort, however, from the knowledge that depository used to be used of people too (but not since about 1878).
Indemnitor and indemnitee
Please, no. These are recent American coinages, and not attractive ones. Just say indemnifier and indemnified (or indemnified party).
There is no need for the faux neo-Latin and the clunky –ee back-formation.
It could be worse, however: the Oxford lists indemnificator – but says it’s ‘rare’ (only one example of usage, from 1827).
Whereas and witnesseth
I agree with Ross Guberman (Deal Struck: The World’s Best Drafting Tips (2014)) that these terms in contractual recitals are ‘substantively harmless’, but unless you’re drafting on parchment with a goose-quill, don’t use ’em.
Next week: confusing pairs, part 5
–Neil Guthrie (@guthrieneil)