Benjamin Alarie's research while affiliated with University of Toronto and other places
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Publications (46)
We present here the first machine-generated law review article. Our self-interest motivates us to believe that knowledge workers who write complex articles drawing upon years of research and effort are safe from AI developments. However, how reasonable is it to persist in this belief given recent advances in AI research? With that topic in mind, we...
Tim Edgar's contributions to our understanding of tax avoidance and anti-avoidance remain ahead of their time. In this paper, the author argues that Edgar's work on building better general anti-avoidance rules (GAARs) was particularly prescient—correct in its claim that tax avoidance can and should be eliminated through effective anti-avoidance mea...
Outcomes of appeals to high courts will depend in part on the ideological preferences of the justices who decide the appeals. The institutional structure of a high court may affect how far these preferences influence outcomes. The US Supreme Court, for example, hears almost all appeals en banc, which means that there is no opportunity to 'game' the...
The Occupy Wall Street (OWS) movement has been criticized for not having a tax policy agenda. Critics contend that it has “no message,” “no goals,” and “no leaders.” This contribution accounts for this policy agenda deficit. Various tax policy prescriptions that address social resource inequality, including a wealth tax proposed by Pikkety and Gold...
High courts play an important law and policy-making role in most countries. Considerable professional and popular attention is justifiably paid to the outcome of appeals heard by high courts. However, in many jurisdictions, the prior step of the high court choosing which appeals to hear is arguably at least as important as the outcomes of the appea...
Both taxpayers and governments struggle to stay on top of the various complex sources of tax law and to apply them in a myriad of different contexts. Given the potential for confusion and disagreement (not to mention the sometimes very large financial stakes involved) it would make sense to have a process for taxpayers to appeal government decision...
Unlike its US counterpart, the Supreme Court of Canada does not always sit en banc. While the Canadian Court also has nine judges, the Chief Justice has the discretion to determine whether five, seven or nine judges will hear each appeal. Perhaps more importantly, the Chief Justice can set the panel’s composition. This panel-setting power can conce...
Unlike its US counterpart, the Supreme Court of Canada does not always sit en banc. While the Canadian Court also has nine judges, the Chief Justice has the discretion to determine whether five, seven or nine judges will hear each appeal. Perhaps more importantly, the Chief Justice can set the panel’s composition. This panel-setting power can conce...
Governments throughout the developed world claim to worry incessantly about the implications of sophisticated tax planning for their tax revenues. And yet the same governments routinely stop short of doing all that they can legally do to combat tax avoidance. Why? One response is that a thick conception of the rule of law constrains governments to...
These are slides from a recent conference on the judgment of the Supreme Court of Canada in Copthorne Holdings.
The concept of a series of transactions was a key issue in the Supreme Court of Canada’s decision in Copthorne Holdings Ltd. v. Canada. In light of that decision, this article reviews previous commentary on the topic and suggests a new approach based on the concept of family resemblance. Family resemblance recognizes that there are no core aspects...
In Canadian income tax law, winnings from gambling are taxable when they constitute “income from a source.” What is not clear is the basis for determining when, where, and how winnings from gambling activities can amount to “income from a source.” In light of recent decisions of the Tax Court of Canada, notably in Leblanc and Cohen, this article ex...
The source concept of income is difficult to pin down in Canadian income tax law. It is elusive and defies simple explication. Nowhere is this more true than in the context of gambling winnings. In this essay, the tax treatment of poker and other gambling winnings is used as a window into how the Canadian courts have reasoned about the source conce...
The US Supreme Court typically sits en banc. Historically, the House of Lords in the UK sat in panels of five. Its new successor, the UK Supreme Court, now sits in panels of five, seven or nine justices. A similar practice has long been in place at the Supreme Court of Canada, which routinely sits in panels of five, seven, or nine justices. We deve...
Governments throughout the developed world worry incessantly about the implications of sophisticated tax planning for their tax rev-enues. And yet the same governments routinely stop short of doing all that they can legally do to combat tax avoidance. Why? One response is that a thick conception of the rule of law constrains governments to adopt on...
Internet use has grown dramatically in Canada in recent years. This trend has joined with the increasing popularity and social legitimacy in Canada of gambling to produce an environment that is particularly receptive to the growth of online gambling. Online gambling sites compete with gambling options provided by provincial governments. This is pro...
Do interveners matter? Under Chief Justice McLachlin the Supreme Court of Canada has allowed an average of 176 interventions per calendar year and interveners have cumulatively made submissions in half of the cases heard by the Court. This level of activity suggests that interveners are doing something. But what is it that they are doing?In the abs...
In the constitutional moment known to Canadians as Confederation, in 1867 the UK Parliament passed the British North America Act, 1867 (now known as the Constitution Act, 1867), thereby creating the Dominion of Canada. From the time of Confederation, there have been, broadly speaking, two sets of issues addressed through Canadian federalism - cultu...
Despite its complexity and the harsh reception the Canadian Goods and Services Tax (GST/HST) was greeted with at its inception in the early 1990s, the story emerging from Canada’s value-added tax (VAT) experience is mostly a happy one. Indeed, a majority of the provinces will soon have replaced their retail sales taxes (RSTs) with harmonized VAT sy...
G Go ov ve er rn na an nc ce e a an nd d P Pu ub bl li ic c I In ns st ti it tu ut ti io on ns s Canadian provincial governments have broad authority to impose direct taxes by passing enabling legislation in their respective legislatures. Governments may also use regulation to set fees, for example, to recover the cost of services they provide, but...
Canadian provincial governments have broad authority to impose direct taxes by passing enabling legislation in their respective legislatures. Governments may also use regulation to set fees, for example, to recover the cost of services they provide, but cannot use regulation to impose taxes that raise general revenue. Doing so would be unconstituti...
It is accepted throughout the common law that agreements founded on a mutual misunderstanding are void ab initio. It follows from this that unenforcement is necessary and inevitable; indeed, there is simply no contract to enforce. Curiously, however, in cases involving mutual misunderstanding the parties themselves usually believe and behave as if...
Tax-free savings accounts ("TFSAs") became available in Canada in January 2009. A TFSA is a "tax prepaid" or "yield-exempt" investment account that does not provide any deduction for contributions and allows for tax-free compounding of investment returns in addition to tax-free withdrawals at any time. This article examines the theory surrounding t...
Michael Trebilcock is by all accounts one of his generation's most prolific and important scholars of law and economics. Through more than 200 articles, book chapters, books, edited volumes, and other academic publications, Trebilcock has made lasting contributions to many fields including (and this is a partial list): contracts, torts, consumer pr...
Donald R. Songer, an American political scientist, highlights in the introduction of his recent book, 'The Transformation of the Supreme Court of Canada: An Empirical Examination,' that he is not Canadian and has no legal training. Readers inclined to be uncharitable might take this admission as evidence that Songer is ill-suited to carry out the t...
This paper examines how justices on the Supreme Court of Canada voted in Charter appeals between 2000 and 2009. Charter appeals, at least in popular belief (and possibly also in theory), have the greatest potential to reveal voting that is influenced by extra-legal policy preferences. Confining the analysis to the time during which Chief Justice Mc...
On October 19, 2005, the Supreme Court of Canada released its much-anticipated decisions in The Queen v. Canada Trustco Mortgage Co. and Mathew v. The Queen, the first two cases from Canada's highest court addressing the general anti-avoidance rule (GAAR) in section 245 of the federal Income Tax Act. The Faculty of Law at the University of Toronto...
Until now the legal and regulatory measures that have been taken in the United States and Canada to combat excessive executive compensation have been largely ineffectual. The one possible exception is the tax deductibility cap of ý162(m) of the US Internal Revenue Code, which was introduced in 1993. A similar but improved provision ought to be cons...
This article examines a specific category of legal transfers between the United Kingdom and Canada, considering the legacy of UK tax concepts in Canadian income tax law. Two main areas are considered where, in our view, this influence has been most profound: (i) the concept of income deployed for Canadian tax purposes; and (ii) judicial approaches...
Although the positive externalities associated with higher education favour substantial government support, sound arguments also favour student contributions to the costs of post-secondary education, based on both the private benefits obtained and the regressive impact of general subsidies for higher education. At the same time, the central role th...
The General Anti-Avoidance Rule (the GAAR) was originally introduced in Canadian income tax law in 1988 with prospective effect. The GAAR was amended in May 2005 to broaden its scope (by bringing under its ambit the regulations, treaties, etc.) and to lessen the burden of persuasion faced by the Minister in the misuse or abuse demonstration. What i...
Interestingly, Canada has had relatively little recent experience with anything like the heated concerns expressed in American and EU tax policy circles regarding excessive compliance costs of corporate income taxes. The lack of debate regarding compliance costs cannot be attributed to a lackadaisical or uncritically accepting attitude toward perso...
Over the past 25 years, the justices of the Supreme Court of Canada have not exhibited the divergent policy views along party lines that have been characteristic of the justices of the United States Supreme Court. This apparent lack of partisan polarization in Canada may at first give rise to smugness about the appointments process in Canada; after...
The passing on defence is frequently invoked by defendants as a defence to claims for restitution. The defence was invoked by the Province in Kingstreet Investments v. New Brunswick in response to claims for the return of unconstitutional indirect taxes on sales of alcoholic beverages to licensees. Although the defence was accepted in principle by...
Canadian Prime Ministers appoint judges to the Supreme Court of Canada at their own discretion. This practice has been criticized as providing Prime Ministers with the ability to appoint judges whose policy preferences are regarded as politically congenial. We examine the Court's judgments in the post-Charter era to discern the apparent policy pref...
There are two widely shared views of Frank Iacobucci as a justice of the Supreme Court of Canada. The first is that he was a liberally inclined justice, particularly in the area of criminal law. That he has conventionally been regarded as a liberal despite being appointed in 1991 by the Progressive Conservative prime minister Brian Mulroney raises...
Class action legislation is a relatively new phenomenon in several Canadian provinces. The state of the law, particularly in Ontario, is at a pivotal stage. We have a sufficient number of decided cases to draw some conclusions about how well the Class Proceedings Act, 1992 as it is currently being interpreted and applied is meeting its goals, but n...
Contracts that contemplate alternative possible modes of performance, frequently referred to as alternative contracts, are common wherever written contracts are routinely used and relied upon. Nevertheless, courts in major legal systems have encountered enormous difficulty articulating a consistent and appropriate remedial principle to govern damag...
This article analyzes the economic benefits and costs of the income trust vehicle for entrepreneurs organizing their business affairs. In doing so it examines the precise nature of the relationships between capital structure, income taxes and income trusts, reaching the conclusion that neither tax advantages nor corporate finance efficiencies alone...
The Supreme Court of Canada in 1990 in Fries v. The Queen confirmed as a legal matter the longstanding administrative practice of characterizing strike pay as a non-taxable receipt by virtue of its not being income . . . from a source pursuant to paragraph 3(a) of the Income Tax Act. By contrast, in the United States, strike pay is generally subjec...
The subject of this paper is the impact of the new globalized order on the integrity of corporate governance. Corporate governance is the system of laws, markets and institutions that seeks to control and discipline corporate activity in the service of the public interest. Over the last several years, many critics have bemoaned the growing integrat...
Canadian Income Tax Law, 3rd edition provides an overview of the foundations of tax law and the critical cases that have shaped each component of the tax regime. Emphasizing both the legislative mechanisms and the common law tradition of tax enforcement, the authors set out the considerations needed when advising clients.
A b s t r A c t Tax-free savings accounts (TfsAs) became available in Canada in January 2009. TfsAs are "tax-prepaid" or "yield-exempt" investment accounts; they do not provide tax deductions for contributions but allow for tax-free compounding of investment returns, plus tax-free distributions of accumulated balances at any time. This article focu...
Citations
... Up till now, the debate over panel effects in courts has been US centric. Exceptions concern Canada (Hausegger and Haynie 2003, Alarie, Green et al. 2015), South Africa (Hausegger and Haynie 2003), Israel (Grossman, Gazal-Ayal et al. 2016), and arbitration panels set up under the umbrella of the International covenant for the settlement of investment disputes (Kapeliuk 2012). These comparative investigations have largely followed the scholarly US tradition. ...
... For a charge to be a fee, it must be based on covering the cost of providing the good or program. Furthermore, critics claim, even if " eco-fees " are considered a direct tax, they are imposed by fiat, which is again unconstitutional since provincial governments have the power to levy direct taxes only by legislation, not by regulation (Alarie and Poschmann 2010). However, similar programs, such as the deposit-refund system, have existed in Ontario and other provinces since the 1940s. ...
... TFSAs came in effect in 2009, allowing residents of Canada, who are 18 years or older and in possession of valid Canadian social insurance numbers to contribute after-tax dollars in these accounts throughout their lifetimes. The annual TFSA contribution limit for 2009, 2010, 2011was $5,000. For 2013and 2014 It was set at $10,000 for 2015. ...
... How did this happen? For constitutional reasons —since provinces are restricted to levying only direct taxes (Alarie and Bird 2011) — provincial retail sales taxes are imposed as taxes on purchasers rather than sellers. Separate quotation of the RST in part reflects this legal requirement, in addition to mirroring the common US practice of separate quotation of such taxes, with which many Canadians were familiar. ...
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... In the US, extensive theoretical and empirical research has been conducted about ideology in the courts, its influence on court decisions and different approaches to measure this influence (Bailey, 2016;Bailey, Maltzman 2011;Spitzer, Talley, 2013;Klein, Lindquist, 2012;Epstein, Landes, Posner, 2013;Fischman, Law, 2009). Modelled on the research in the US, similar research started emerging in Canada (Ostberg, Wetstein, 2007;Songer, Johnson, Ostberg, Wetstein, 2012;Wetstein, Ostberg, Songer, Johnson, 2009;Alarie, Green, 2008). Quite extensive research, also modelled on the American example, can also be found in relation to the work of British courts (Blanes i Vidal, Leaver, 2011Hanretty, 2012a;Iaryczower, Katz, 2016). ...
... A key decision made early on by O'Halloran was to increase strike pay to levels not normally seen in the Canadian labor movement. Most unions pay between $50 and $300 per week to workers partaking in picket-line duty (Alarie and Sudak 2006). O'Halloran increased picket pay to $8/hour, increasing to $10/hour after two weeks. ...
... 12 The mentioned principles were adopted in 1988 in Rio de Janeiro. 13 The next attempt of harmonization was in 1997 -the American Institute of Law (ALI) launched a project Principles and Rules of the Transnational Civil Procedure shared by the international institute for the Unification of Private Law (UNIDROIT) in 2000. The principales were introduced in 2004. ...
Reference: თსუ Journal of Law extract
... tomentosoides (hereafter, Codium) is one such species. Codium is thought to have originally been transferred to northeastern North America via oyster culture (Malinowski and Ramus 1973) and to Atlantic Canada with shellfish from the United States (Campbell 1997). Currently it is found in Nova Scotia, New Brunswick and Prince Edward Island (Hubbard and Garbary 2002) and in the Magdalen Islands, Quebec (Simard et al. in press) and often in association with bivalve aquaculture. ...
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... Ever since the late 18th century, when Nicolas de Condorcet identified problems and paradoxes that arise when combining the opinions of independent judges [1], it has been clear that it is difficult, if not impossible, to establish evaluation procedures that result in fair and accurate decisions234. Yet, evaluation is at the heart of many societal procedures including: governmental decisions5678, peer-reviewed processes910111213141516171819, and athletic competitions202122 . The recent revisions of evaluation procedures in areas as diverse as figure skating [21,22] and NIH grant review910111213 underscore both the inherent difficulties and the perceived importance of developing optimal methods. ...
Reference: The Calculus of Committee Composition
... On Canada, seeTate and Sittiwong (1989),Alarie and Green (2008),Alarie (2009), andSonger et al. (2011). On Germany, seeSchneider (2005) andVanberg (2005). ...
