Document Type

Book Chapter

Publication Date

2017

Source Publication

Legitimate Expectations in the Common Law World, eds. Matthew Groves and Greg Weeks, (London: Hart, 2016)

Keywords

Tax administration and procedure; Administrative law; Soft law; Canada

Abstract

This chapter examines the relationship between legitimate expectations and soft law. In what circumstances can an agency’s guidelines create law — or at least legally enforceable expectations? At first glance, the answer would appear obvious. The key reason for developing soft law is to provide guidance and transparency as to the process (and sometimes the substance) of administrative action. Soft law by its nature gives rise to expectations. Whether those expectations, in turn, give rise to legal effects is decidedly less clear. In fact, this question has vexed Canadian administrative law. Nowhere are questions of soft law and legitimate expectations more salient than in the context of tax administration.

We canvass the relationship between legitimate expectations and soft law in the context of Canadian tax administration. The analysis proceeds in three parts. In the first part, we consider the important roles of soft law in a tax administration system premised on self-assessment. Within this analysis, we list and describe six sources of soft law in the tax administration context. In the second part, we explore the development of the doctrine of legitimate expectations in Canada, and the implications of the Supreme Court of Canada’s (SCC) most considered treatment of soft law and legitimate expectations in Agraira v Canada. The third part of the chapter analyses when (and pursuant to which principles) soft law in the tax administration context (eg information circular, interpretation bulletin, or advance judgment) may give rise to a legitimate expectation.

We conclude that Canadian administrative law has only begun to grapple with legitimate expectations, and that its development in the context of soft law represents an important catalyst for sorting out a more coherent and transparent framework for the review of administrative action.

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