Canada (National Revenue) v Shopify Inc, 2025 FC 969; 2025 FC 968 (May 29, 2025)
Category: Statutory interpretation.
Context: These cases involve provisions of the Income Tax Act and Excise Tax Act that allow the Minister of National Revenue to obtain information and documents from an “ascertainable group” of “unnamed persons.” The statutes list two preconditions for the court to authorize a so-called “unnamed persons requirement" [UPR]: (1) there is an “ascertainable” group of persons whose information is requested; and (2) the request is made to verify compliance with the statutes [3]. Finally, the Court also retains a residual discretion to deny authorization or impose any condition.
Here, the Minister sought authorization in relation to “merchants” who use Shopify’s platform.
2025 FC 969 is a domestic UPR application. 2025 FC 968 is a UPR application in relation to a request from the Australian Tax Office.
Issue: While these cases involve questions of tax law, I highlight the Court (per Régimbald J)’s comments on statutory interpretation. Ultimately, Régimbald J denies authorization for both UPRs. In part, this conclusion was driven by his chosen method of statutory interpretation.
As I have noted in this newsletter many times, the Supreme Court’s recent statutory interpretation cases see the text as the “anchor” of the interpretive exercise (CISSS A,2024 SCC 43 at para 24, see Issue #162). This is where Régimbald J begins his analysis. He notes that the Supreme Court “has recently underscored the centrality of legislative text to the exercise of statutory interpretation” [45 in 2025 FC 969]. In the Australian case, Régimbald J makes an excellent point [218 in 2025 FC 968]:
[218] Of course, the text remains the “anchor of the interpretive exercise” and “the focus of interpretation,” insofar as it reveals “the means chosen by the legislature to achieve its purposes” (CISSS at para 24). The anchor is a fine metaphor for text. A docked ship is not necessarily immobile, but it never drifts too far from where it was meant to be moored.
This is a helpful extension of CISSS A’s metaphor.
In this case, that means close attention to the precise drafting choices made in tax statutes. Here, there was a precise statutory recipe: the preconditions listed for the authorization of a UPR. These precise requirements limit the need or justification for reliance on broad-based statutory purposes. As Régimbald J says, the case did not require an abstract assessment or balance between privacy rights and the enforceability of the ITA. Rather, it only required reading the words of the preconditions. Parliament itself already balanced the values and principles at stake when it expressed the preconditions [21 in 2025 FC 969].
There is an important point here. Extravagant versions of purposive interpretation ask courts to massage statutory language to best achieve certain statutory purposes. But in many cases, the legislature has already considered many of the purposes at stake. So, here, the legislature balanced privacy and enforceability concerns. It is for the court to implement that balance by paying close attention to the text. That is a different posture from re-designing the balance to better achieve stauttory principles.
In this sense, Régimbald J’s opinions are well worth reading in full. And they reflect major changes in how the Supreme Court has instructed lower courts to conduct statutory interpretation.
Federation of Nova Scotia Naturalists v Canada (Environment and Climate Change), 2025 FC 983 (June 2, 2025)
Context: From the Court’s decision:
[1] This is an application for judicial review of a decision by the Minister of Environment and Climate Change [the Minister] to prepare and, on September 29, 2022, publish the Recovery Strategy (Amended) and Action Plan for the Piping Plover melodus subspecies (Charadrius melodus melodus) in Canada [the Amended Recovery Strategy] under subsection 45(1) of the Species at Risk Act, SC 2002, c 29 [SARA]. Specifically, the Applicants, which are non-profit environmental organizations, challenge section 7.1 and Appendix C of the Amended Recovery Strategy, which identify critical habitat for the Piping Plover – melodus subspecies [Plover], an endangered shorebird found in Québec and Atlantic Canada [the Decision].’
Issue and Analysis: The Court (per Southcott J) allows the application for judicial review, and sends the matter back to the Minister for reconsideration in accordance with the Court’s reasons. Interestingly. he also says the following:
However, I will also suspend for 10 months the operation of the order quashing the Decision, to avoid a potential gap in the legislative protection of Plover while the Minister performs the required reconsideration. I decline to grant the declaratory relief that the Applicants seek.
This is an interesting remedy, suspending the quashing order. Southcott J found the decision unreasonable on the basis that the decision did not grapple with the applicants’ concerns and arguments [97]. The effect of finding the decision unreasonable, however, would be to leave a gap in protection for the Plover. This case represents the breadth of discretion afforded to judicial review courts.
This case reminded me of Meneen v Tallcree First Nation, 2025 FC 791 (Issue #177). There, Strickland J issued a “delayed mandamus order” where the applicant would receive the relief he sought if a reconsideration process had not been completed within a certain period. The order Southcott J issues in this case is slightly different: the effect of the order quashing the decision is delayed to facilitate the reconsideration itself.
Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own