Case information

Constitutional law — Constitutional interpretation — Canadian institutions — Senate — Civil proceedings — Income tax — Pleadings — Motion to strike — Applicant appealing tax reassessment — Applicant pleading Senate vacancies at time of enactment rendered legislation invalid — Motion judge striking pleadings — Correct approach to constitutional interpretation — Whether Governor General constitutionally required to fill Senate vacancies as they occur —Whether Constitution Act, 1867, ss. 21-22, define what constitutes a valid Senate for the passage of legislation – Whether Economic Action Plan 2014 Act, No.2, S.C. 2014, c. 39 unconstitutional due to passage by invalid Senate

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The Economic Action Plan 2014 Act, No. 2, S.C. 2014, c. 39 (EAP) amended a defined term in the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.). This amended definition provided the basis for a notice of reassessment, issued by the Minister of National Revenue, in respect of applicant FU2 Productions Ltd.’s 2011 taxation year.

FU2 Productions filed a notice of appeal which alleged, among other things, that the EAP was invalid because of vacancies that existed in the Senate at the time the legislation was passed. The respondent, His Majesty the King, moved to strike passages relating to this argument from the notice of appeal, on the basis that it had no reasonable prospect of success.

The motion judge granted the motion and ordered that the passages be struck. The Federal Court of Appeal unanimously dismissed FU2 Productions’ appeal.