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Alta Energy: Taxpayer Wins in Supreme Court of Canada Treaty-Shopping Appeal

Posted on Dec. 20, 2021
Ilana Ludwin
Ilana Ludwin
Matias Milet
Matias Milet

Matias Milet is a partner and Ilana Ludwin is an associate with Osler, Hoskin & Harcourt LLP in Toronto.

In this article, Milet and Ludwin review the Canadian Supreme Court’s recent judgment in Alta Energy, explaining how the decision is important for understanding the relationship between treaties and domestic antiabuse rules.

On November 26 the Supreme Court of Canada released its decision in Alta Energy Luxembourg SARL.1 The Court upheld the decisions of both lower courts finding in favor of the taxpayer, Alta Energy Luxembourg SARL (Alta Lux), agreeing that Canada is not allowed to tax a capital gain arising on the disposition by Alta Lux of its shares of Alta Energy Partners Ltd. (Alta Canada). The case includes important pronouncements from Canada’s highest court on treaty interpretation, differing tax policies underlying treaty provisions, and the interaction between tax treaties and Canada’s domestic general antiavoidance rule. Although it is only directly applicable to Canada, the clear, thorough, and cogent analysis by the majority will be instructive to members of the international tax community and is likely to be of great interest and utility beyond Canadian borders, particularly the Court’s observations on tax treaty interpretation and addressing challenges encountered at the intersection of treaties and domestic antiabuse rules.

Alta Canada was a Canadian corporation that carried on an oil business in Alberta that included the right to explore, drill, and extract hydrocarbons from a particular area (the working interest).

There was no dispute between the parties that the Alta Canada shares were taxable Canadian property within the meaning of the Income Tax Act (Canada). Gains realized by nonresidents of Canada on the disposition of taxable Canadian property are subject to Canadian tax under the ITA unless an exemption applies under the applicable tax treaty, in this case the Canada-Luxembourg income tax convention (the treaty).

The exemption in Alta Energy is found in article 13(4) of the treaty. It generally provides that Canada has the right to tax gains arising on the disposition by a Luxembourg resident of shares if the value of those shares is derived principally from immovable property situated in Canada.2 However, “immovable property” is deemed to exclude immovable property in which the business of the corporation is carried on (business property exemption).

Alta Lux, a resident of Luxembourg, sold its shares of Alta Canada in 2013 and did not include the capital gain in computing its Canadian taxable income under the business property exemption. The capital gain was therefore only taxable in Luxembourg, where it was reported and subject to full taxation.

Before the Supreme Court of Canada, the Canada Revenue Agency did not contest the application of the business property exemption. The only issue was whether the GAAR applied. In a 6-3 decision, the majority confirmed that the GAAR did not apply, leaving the capital gain not taxable in Canada. The Supreme Court emphasized the contractual nature of tax treaties, which represent a bargain between two parties. The business property exemption was part of that bargain. Applying the GAAR to allow Canada to tax Alta Lux’s capital gain would contradict its purpose.

Alta Energy is the first time the Supreme Court has considered the GAAR in the context of a tax treaty. The tax treaty guidance provided by the Court will be of great interest going forward. The business property exemption is found in many of Canada’s tax treaties and is highly relevant to nonresident taxpayers deciding whether to make investments in Canada involving immovable property (including resource property classified as immovable property under treaties). Taxpayers will also turn to Alta Energy in situations involving the new principal purpose test, introduced into most of Canada’s bilateral treaties via the OECD Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting.3 Finally, this is only the fifth Supreme Court decision involving the GAAR and the first in a decade. Over that time, all but one of the Supreme Court justices have changed, making this case the first chance this Court has had to weigh in on its view of the GAAR.

Facts

Alta Canada was incorporated in 2011 by Alta Energy Partners LLC (Alta LLC, a Delaware limited liability company) to develop the working interest, comprising intangible property (licenses and leases) but no legal title to the surface of the land. This intangible property qualified as “Canadian resource property” under the ITA and, subject to the business property exemption, immovable property under the treaty.

The holding structure of Alta Canada was modified in April 2012. Alta LLC sold its shares of Alta Canada to Alta Lux, a newly formed Luxembourg SARL. The CRA conceded that Alta Lux was a resident of Luxembourg, presumably on the basis that it was incorporated there.

Alta Canada used the working interest to carry on business between 2012 and 2013, relying on some of its licenses and leases to drill wells while reserving others for future development.

Alta Lux sold its shares of Alta Canada to Chevron Canada Ltd. on September 10, 2013. The disposition resulted in a capital gain of approximately C $382 million.

The CRA reassessed Alta Lux on the basis that the gain was not exempt under the treaty and therefore was taxable in Canada, based on two arguments:

  • the business property exemption did not apply because Alta Canada’s business was not carried on in the working interest; and

  • in the alternative, the GAAR applied to deny Alta Lux benefits under the treaty such that the capital gain would be taxable in Canada.

Decisions of the Lower Courts

Statutory interpretation in Canada involves an analysis of the text, context, and purpose of the relevant provision. The trial judge conducted analyses of article 13(4) for both the technical and GAAR arguments raised by the CRA.4

For the technical argument (the CRA’s argument that the taxpayer had not satisfied the conditions of the business property exemption), the trial judge concluded that the business property exemption was a deliberate policy choice to carve out gains relating to the increase in value of immovable property from the normal rule that such gains are taxable by the state in which the immovable property is located. The purpose of the carveout is to encourage foreign investment in Canada, particularly in domestic real estate and resource businesses. The trial judge observed that tax treaties must be given a liberal interpretation to implement the parties’ true intention and concluded, after considering standard practice in the resource development industry, that the working interest constituted immovable property in which the business of Alta Canada was carried on.

The trial judge also concluded that the GAAR did not apply to override the business property exemption.

The GAAR applies when a tax benefit results from a transaction or series of transactions in which at least one was an “avoidance transaction” that would result in a misuse or abuse of one or more of the provisions relied upon to obtain the tax benefit, or the provisions read as a whole. An avoidance transaction is a transaction not entered into primarily for bona fide purposes (generally meaning the taxpayer’s primary motivation was to obtain the tax benefit in issue). If the GAAR applies, the government can impose tax consequences that are reasonable in the circumstances to deny the tax benefit. The GAAR applies to both the ITA (and other relevant domestic instruments) and to Canada’s tax treaties.

Alta Lux conceded that there was a tax benefit and an avoidance transaction — namely, the series of transactions that resulted in Alta Lux owning the shares of Alta Canada. The key disagreement between the parties in respect of the GAAR at all stages of Alta Energy was therefore whether the avoidance transaction resulted in a misuse or abuse of the ITA or the treaty.

The trial judge rejected the CRA’s arguments that there was any misuse or abuse of either the ITA or the treaty. The ITA argument was easily dismissed on the basis that the ITA provisions that would otherwise have taxed nonresidents on some capital gains did not apply to treaty-protected property and therefore could not have been misused or abused. The CRA’s argument that the treaty was abused because Alta Lux was only a resident of Luxembourg to avoid Canadian tax was also rejected. At the time it negotiated the treaty, Canada was presumed to be — and no doubt was in fact — aware that Luxembourg’s tax regime did not generally tax capital gains realized by its residents on the sale of shares of foreign corporations. Applying the GAAR to override the business property exemption on the basis that the capital gain, although liable to tax in Luxembourg, did not in fact result in Luxembourg tax would subvert Canada’s bargain. Because the policy of the business property exemption was “to exempt residents of Luxembourg from Canadian taxation where there is an investment in [Canadian] immovable property used in a business,” there was no misuse or abuse.5

At the Federal Court of Appeal, the CRA only relied on the argument that the GAAR applied to tax the capital gain. A unanimous court determined that the CRA failed to identify a clear rationale for the relevant treaty provisions other than what the words already reflected. The court determined that the CRA’s other arguments all amounted to attempts to read additional conditions into the treaty and otherwise modify its words, including by attempting to modify which entities should be considered Luxembourg residents. Agreeing with the trial judge’s conclusion that treaty shopping was not inherently abusive, the court rejected the CRA’s appeal and upheld the trial decision in favor of Alta Lux.

Supreme Court of Canada: Majority Decision

A six-member majority of the Supreme Court agreed with the lower courts and Alta Lux that the policy of the relevant treaty provisions did not support a finding that they were misused or abused. Before the Court, the CRA argued that the policy of the treaty was such that only persons with “substantive economic connections” to a contracting state should be accorded benefits under the treaty. Justice Suzanne Côté, writing for the majority, found no evidence in the text of the treaty or the relevant context supporting the CRA’s position. For that reason, because Alta Lux was a resident of Luxembourg, and because the capital gain met all the conditions of the business property exemption, the CRA’s argument that Alta Lux’s ties to Luxembourg were somehow insufficient was not a proper basis for applying the GAAR.

It is telling that the first paragraph of the majority decision emphasized the importance of “predictability, certainty, and fairness and respect for the right of taxpayers to legitimate tax minimization” and “respect for negotiated bargains between contracting states.”6 In contrast, the first paragraph of the dissent notes that “gaps and mismatches in international tax rules erode domestic tax bases and cost countries an estimated $100 to $240 billion in lost revenue annually.”7 Based on the opening paragraphs alone, the ultimate conclusions of the majority versus the dissent should come as no surprise.

The majority’s general remarks in the decision’s opening paragraph of the analysis section are also interesting. They note that although text, context, and purpose must all be considered in interpreting tax legislation, a largely textual interpretation is appropriate for provisions that are “drafted with ‘particularity and detail’” because of the Duke of Westminster principle that taxpayers are entitled to minimize their taxes.8 This explanation is different from that given in the Supreme Court’s first GAAR decision, Canada Trustco. In the earlier decision, the Court noted that the Duke of Westminster principle previously resulted in tax legislation receiving a strict interpretive approach (one that emphasized the text). The Court then confirmed that the strict approach was no longer appropriate because all legislation must be interpreted based on text, context, and purpose but that when a provision is specific and precise, the text may be emphasized.9 The majority’s remarks in Alta Energy represent a clearer and more emphatic endorsement of the primacy of the text when interpretating precise and detailed tax provisions. It is striking that the Duke of Westminster principle, far from being described as a basis for a dated literal interpretation approach (as was the case in Canada Trustco), is invoked as a foundational basis for giving greater weight (when appropriate) to a textual approach. This endorsement will be welcome to taxpayers because it improves certainty and predictability.

The reference to the Duke of Westminster principle is also a useful reminder that tax avoidance is not inherently abusive or otherwise objectionable, but rather something expected and at times encouraged by the Canadian tax system (for example, the various tax-free or deferred options available to individuals to encourage saving, including Tax Free Savings Accounts and Registered Retirement Savings Plans). That observation is consistent with the majority’s generally neutral and dispassionate references to “legitimate tax minimization,” which it clearly distinguished from “abusive tax avoidance” (though the majority acknowledges that the line between the two is not always clear). Indeed, one might say without irony that the majority decision bestows upon (non-abusive) tax avoidance a kind of dignity, associating the Duke of Westminster principle with the rule of law and calling it the “foundation stone of Canadian law on tax avoidance.”10

The preface to the majority’s GAAR analysis cautions against conflating tax motivations with misuse or abuse and suggests that this conflation had colored the dissenting judges’ entire analysis (discussed later). The GAAR test clearly distinguishes between whether a relevant transaction was motivated by the tax benefit — the second step — and whether that avoidance transaction results in a misuse or abuse — the third step or condition. Both steps must be satisfied, and the burden is on the CRA to establish that the third condition is satisfied. The majority quoted its earlier reasons in Copthorne that “determining the rationale of the relevant provisions of the Act should not be conflated with a value judgment of what is right or wrong nor with theories about what tax law ought to be or ought to do.”11

Refraining from value judgments is arguably even more important in the tax treaty context. As the majority notes, tax treaties have a dual nature: They are both statutory and contractual, representing a compromise between two sovereign nations. That compromise reflects policy choices made in relation to multiple, and potentially conflicting, goals — and these goals may not be shared or accorded the same weight by each party. Tax treaties are not intended to protect or increase government revenues alone; they also serve to facilitate and reduce barriers to international trade and investment. Tax treaties must therefore be interpreted — whether for their direct application or for purposes of the GAAR — to reflect their contractual nature by determining and implementing the contracting states’ true intentions at the time the treaty was entered into or amended. The emphasis laid by the majority on the bilateral nature of tax treaties serves as a bulwark against a one-sided attempt by one treaty partner to use domestic antiabuse rules to rewrite a bargain that its tax administrators might wish had never been reached.

The majority also considered the relevance of subsequent OECD commentaries when interpreting a Canadian tax treaty that was negotiated based on an earlier version of the OECD model treaty and commentary. This issue was important because while the treaty was signed in 1999, the CRA sought to support its anti-treaty-shopping position by reference to OECD model treaty commentary on article 1 that was published in 2003. The later commentary characterized treaty shopping as an abuse of the concept of residence.12 In the majority’s view, OECD model treaty commentaries that are issued after a treaty has been negotiated may assist in determining the parties’ intention if they expand upon or clarify concepts already found in the earlier, applicable OECD model treaty, but only if doing so does not “extend the scope of provisions in a manner that could not have been considered by the drafters” or otherwise conflicts with better evidence of the parties’ intentions.13 In respect of the treaty, for example, Luxembourg registered an observation on the 2003 OECD model treaty commentary on article 1, taking the position that “a State can only apply its domestic anti-abuse provisions in specific cases after recourse to the mutual agreement procedure.”14 Given the conflict between the 2003 commentary and Luxembourg’s expressed intentions, the majority determined that the CRA could not rely on the 2003 OECD model treaty commentary on article 1.

The core part of the bargain reflected in the treaty relevant to the GAAR issue in Alta Energy was the definition of residency. The treaty defines residency based on whether an entity is “liable to tax” based on some enumerated criteria, including domicile and place of management, or analogous criteria. The majority referred to its earlier decision of Crown Forest in noting that “the ‘liable to tax’ requirement is met under the Treaty when the domestic law of a contracting state exposes the corporation to full tax liability on its worldwide income because it has its residence in that state.”15 The majority writes that “residence is to be defined by the laws of the contracting state of which the person claims to be a resident” (emphasis in original) — here, Luxembourg — but implicitly recognizes, through its references to Crown Forest, that domestic Canadian law still plays a role in interpreting the meaning of “liable to tax” and whether the criterion used by the other contracting state is enumerated or analogous.16 Luxembourg’s choice to define residence by place of incorporation or place of management, and not require any particular level of substantive economic connection, satisfies the definition of residency for the treaty; it is also in line with international norms and within accepted usage.

The majority pointedly notes that Canada and Luxembourg are among the many countries that use the place of incorporation approach as one of their criteria for defining residency and thus for imposing comprehensive liability to tax on worldwide income. Although the OECD model treaty commentaries were amended in 2017 to say that residence, which may be based on a purely formal criterion like place of incorporation, is not in and of itself sufficient to obtain treaty benefits, this commentary did not exist when the treaty was signed. Luxembourg’s criterion for treating companies as residents was “broadly consistent with international norms”17 prevailing in 1999, and the 1998 OECD model tax commentary and the two countries’ treaty practice at the time gave no indication that residence, as defined under Luxembourg law, was an insufficient basis for Canada granting treaty benefits. It therefore could not be said that when the treaty was negotiated, the parties intended that an additional, unstated condition (the “substantive economic connection” proposed by the CRA) had to be met in order for a Luxembourg corporation to enjoy the benefits of the treaty.

Moreover, the 1998 OECD model tax commentary offered two possibilities for addressing the use of so-called conduit companies: (1) a look-through approach, which disallows treaty benefits to corporations that are resident in a contracting state but owned by residents of a third country and have “little substantive business activities” in the residence state; and (2) the exclusion approach, which denies treaty benefits to some types of companies that benefit from preferential tax regimes. The parties to the treaty clearly chose to employ the exclusion approach18 and by implication rejected the look-through approach. Canada would have made that choice knowing that Luxembourg was a low-tax jurisdiction, meaning the treaty did not include a policy to deny treaty benefits to companies lacking a sufficient substantive economic connection to Luxembourg.

As for the policy of the business property exemption specifically, the majority noted that “the theory of economic allegiance” — the right to tax active income falling primarily to the source state, with the residence state only having a residual right to tax — “is indeed the principle underlying the allocation of taxing rights.” This theory assumes that the value giving rise to active income (and any increase in value of related capital assets) is attributable to the source country. The business property exemption represents a deliberate departure from the theory of economic allegiance by restoring the ability of the residence state to tax in preference to the source state, even though the exemption covers scenarios in which the economic ties to the source state are generally greater. The majority concludes that this choice reflects “the fact that economic allegiance is not the sole principle or policy consideration underlying the rules applicable to source-based taxation; the principle of capital import neutrality, the concern to prevent tax base erosion, and the desire to attract foreign investment also underlie these rules.”19 Here, the dominant rationale of the business property exemption is to promote foreign investment. The majority states in paragraph 88 that “this is not an absurd proposition, as my colleagues [in dissent] assert” and points to a government document issued seven years before the treaty was signed in which the government noted “international norms limit the range of options available to the Canadian government and, in this context, the government’s policy has generally been to favour competitiveness concerns over those of revenue generation” (emphasis in SCC decision).

One might note here that the majority takes a slightly different approach than the Federal Court of Appeal. The Federal Court of Appeal determined that the rationale of the business property exemption was no broader than its text. The majority of the Supreme Court determined that the rationale was consistent with the relevant text but included an element not found in the words alone — that the purpose of the business property exemption was to “foster international investment.”20 As demonstrated by the different conclusion about the object, spirit, and purpose reached by the dissent (discussed later), this exercise of identifying and weighing potential policy rationales is one in which the outcome is not easily predictable.

The majority agreed with the lower courts that treaty shopping was not inherently abusive. While other treaties entered into about this time included provisions that curb treaty shopping, the Canada-Luxembourg treaty does not contain any such analogous provisions. The GAAR should not be used to read in additional requirements that would have the same effect as such anti-treaty-shopping provisions. To do so would be to ignore the bargain reached between Canada and Luxembourg, which would be inappropriate in light of the contractual aspect of the treaty. The majority noted that this bargain was reached at a time when, unlike today, there was no international consensus or push toward limiting treaty shopping. It is not unreasonable to conclude, as the majority did, that Canada made a deliberate choice at the time the treaty was negotiated to adhere to this general state of affairs rather than attempt to forge its own anti-treaty-shopping path.

The majority observed that “the GAAR was enacted to catch unforeseen tax strategies,” suggesting its application should be limited to circumstances that were both unforeseen and not in accordance with the underlying policy in existence at the time.21 The use of conduit corporations was known at the time the treaty was signed. There were numerous possible ways to address tax strategies involving conduit corporations, some of which were suggested in the OECD model treaty applicable at the relevant time. Canada and Luxembourg chose to omit all such possibilities. The choice to exclude these measures and instead include the business property exemption — which was not part of the OECD model treaty — reflected Canada’s prioritization of fostering competitiveness and investments from nonresidents over generating tax revenues. The GAAR should not be allowed at this later date to overturn this choice.

Supreme Court of Canada: Dissent

The three-member dissent determined that Alta Lux lacked a “genuine economic connection with the state of residence” and relied on this to conclude that there was a misuse or abuse, and therefore, the GAAR should apply. Although the CRA conceded that Alta Lux was a resident of Luxembourg, the dissent described Alta Lux’s presence in Luxembourg as being “mere gossamer” and “not genuine.”22

According to the dissent, the theory of economic allegiance is intended to grant the state with the closest economic connection with income (or gains on capital) the right to tax that income. The dissent viewed the policy of the business property exemption as reflecting that theory — in contrast with the majority, which viewed it as a deliberate departure from the theory — because it is intended to apply when the business activity drives the increased value of the property, not the immovable property itself. The dissent claimed that “the common intention of Canada and Luxembourg could not have been to provide an avenue for residents of third-party states to indirectly obtain tax benefits they could not obtain directly absent any real economic connection with Luxembourg.”23 The dissent accused the majority of assuming the Canadian government deliberately created “the conditions for unlimited tax avoidance” and that “our colleague [Justice Côté] seeks to legitimize such blatantly abusive tax avoidance.”24

Takeaways

Alta Energy confirms the Supreme Court’s view that for the GAAR to apply, the alleged abuse must be clear and based on the policy of the provisions at issue. Here, the provisions came from a treaty that should be viewed as a bilateral agreement that includes different policy strands, not all of them aimed at raising revenue. Applying the GAAR to a treaty in this manner increases — or should increase, if applied in accordance with the majority’s guidance — the predictability, certainty, and fairness of taxpayers’ ability to claim and rely on treaty benefits.

It is striking that six justices of the Supreme Court (plus four lower court judges) concluded that there was no abuse, while three justices of the Supreme Court concluded that there was clear, even blatant abuse. This stark difference raises reasonable concerns as to whether Canadian courts are applying a consistent and universal approach for establishing when the GAAR applies.

FOOTNOTES

1 Canada v. Alta Energy Luxembourg SARL, 2021 SCC 49, aff’g 2020 FCA 43, aff’g 2018 TCC 152.

2 Article 13(4) provides that:

Gains derived by a resident of a Contracting State from the alienation of:

(a) shares (other than shares listed on an approved stock exchange in the other Contracting State) forming part of a substantial interest in the capital stock of a company the value of which shares is derived principally from immovable property situated in that other State; or . . .

may be taxed in that other State. For the purposes of this paragraph, the term “immovable property” does not include property (other than rental property) in which the business of the company, partnership, trust or estate was carried on. [Emphasis added.]

Although we refer to the gains here being exempted from Canadian tax under article 13(4), it is in fact article 13(5) that prohibits Canada from taxing capital gains unless otherwise described in the preceding paragraphs of article 13. When the business property exemption causes property that otherwise would be considered immovable property for purposes of article 13(4)(a) to be carved out of that definition, this causes article 13(5) to exempt gains realized on the disposition of shares that derive their value principally from the property thus carved out.

3 Although addressing the interaction of Alta Energy and the principal purpose test is beyond the scope of this article, it will be a topic of keen interest going forward as the principal purpose test becomes more relevant.

4 For in-depth analyses of the decisions of the lower courts, see Matias Milet and David Wilson, “Canadian Tax Court Rejects CRA’s Treaty-Shopping Arguments for Canada-Luxembourg Tax Treaty,” Tax Notes Int’l, Sept. 10, 2018, p. 1119; and Michael N. Kandev and Jesse A. Boretsky, “Canadian Appeal Court Rejects Government’s Treaty-Shopping Arguments Against Luxembourg Holding Company,” Tax Notes Int’l, June 15, 2020, p. 1245.

5 Alta Energy, 2018 TCC 152, at para. 100.

6 Alta Energy, 2021 SCC 49, at para. 1.

7 Alta Energy, 2021 SCC 49, at para. 98.

8 Alta Energy, 2021 SCC 49, at para. 29, citing Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, at para. 10.

9 Canada Trustco, 2005 SCC 54, at para. 11.

10 Alta Energy, 2021 SCC 49, at para. 29, citing Brian J. Arnold, “Reflections on the Relationship Between Statutory Interpretation and Tax Avoidance,” 49(1) Can. Tax J. 1, 3 (2001). See also Alta Energy, 2021 SCC 49, at para. 47 for some emphatic remarks distinguishing tax avoidance from tax evasion and stating that not all tax avoidance is abusive.

11 Alta Energy, 2021 SCC 49, at para. 92, citing Copthorne Holdings Ltd. v. Canada, 2011 SCC 63, at para 70.

12 The CRA also sought to rely upon OECD model treaty commentary from 2017.

13 Alta Energy, 2021 SCC 49, at para. 41.

14 Alta Energy, 2021 SCC 49, at para. 44.

15 Alta Energy, 2021 SCC 49, at para. 54, referring to Crown Forest Industries Ltd. v. Canada, [1995] 2 SCR 802, at paras. 40 and 45.

16 Alta Energy, 2021 SCC 49, at para. 55.

17 Alta Energy, 2021 SCC 49, at para. 67.

18 Article 28(3) of the treaty denies the benefits of the treaty to specific holding companies established in Luxembourg. Alta Lux was not such a holding company.

19 Alta Energy, 2021 SCC 49, at para. 76.

20 Alta Energy, 2021 SCC 49, at para. 89.

21 Alta Energy, 2021 SCC 49, at para. 80. The majority’s statement may represent a new principle in applying the GAAR, as it is not obvious that the principle arises from earlier case law. That said, foreseeability may have played some role in some prior general antiavoidance rule cases. See, e.g., The Queen v. Imperial Oil Limited, 2004 DTC 6044 (FCA), where the foreseeability of the avoidance action taken by the taxpayer was found to be relevant in the misuse or abuse part of the analysis.

22 Alta Energy, 2021 SCC 49, at para. 167.

23 Alta Energy, 2021 SCC 49, at para. 171.

24 Id.

END FOOTNOTES

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