Restitution Discussion Group Archives
| Sender: |
Eoin O' Dell |
| Date: |
Mon, 7 Dec 1998 12:41:26 |
| Re: |
Re Eurig Estate |
Hello all:
David Mullan tells us that the Ontario government has
introduced a statute to impose a tax retrospectively to achieve the same
effect as the tax struck down in Re
Eurig Estate.
Is this constitutional ? In those jurisdictions which
take seriously a constitutional prohibition upon retrospective legislation,
especially retrospective penal legislation, there would be serious questions
to be asked. In Ireland, there is such strong constitutional presumption
against retrospective criminal legislation, though retrospective legislative
change of the civil law is possible provided that the relevant statute
is clear and unambiguous on the point. Tax legislation is treated for
other purposes as penal in the same way as criminal legislation is (both
can affect the fortunes and economic liberties of the subjects in the
same way, and are thus characterised together for the purposes of the
public policy against enforcement of foreign penal judgments and for the
application of strict literal rules of statutory interpretation). If tax
legislation is treated as penal, and thus functionally equivalent to criminal
legislation, for constitutional purposes, then, such legislation as the
Ontario legislature introduced would be unconstitutional in Ireland. On
the other hand, in a previous message to this list, I pointed out that
a similar UK measure to regulate the position in the aftermath of Woolwich
passed muster when tested against the prohibition on retrospective (criminal)
legislation in the European Convention on Human Rights. My question is
whether there are similar constitutional arguments to be made in Canada,
and if so, what would the likely outcome be ?
Two further minor points. First, David Mullan tells us
that the ruling in Re Eurig Estate raised the
spectre of a massive number of law suits for
recovery of what was estimated to be $1.5 billion paid to the province
since the fees were first imposed in May of 1950. Recalling Kleinwort
Benson v Lincoln CC, would the claims have gone all the way back to
1950, or would there have been some limitation point to restrict the claims
?
Second, David Mullan tells us that the legislative re-enactment
of the tax did not apply to the Eurig estate:
Section 7(2) of the Act provides: "The estate
of Donald Valentine Eurig, who died on or about October 14, 1993, is exempt
from tax under this Act". In Ireland, the absence of such a saver would have amounted
to an unconstitutional attempt by the legislature to interfere in the
judicial process: do the Canadian separation of powers principles lead
to a similar result (in turn requiring the above saver), or did the milk
of human kindness flow in the veins of the parliamentary draughtsman (which
I am reluctant to believe: cp: "caution, otherwise known as the Treasury
...." Woolwich per Lord Goff) ?
Best regards to all Eoin
EOIN O'DELL
Barrister, Lecturer in Law
Trinity College
Dublin 2
Ireland
ph (+ 353 - 1) 608 1178
fax (+ 353 - 1) 677 0449
Live Long and Prosper !!
(All opinions are personal; no legal responsibility whatsoever is accepted.)
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