GAAR in Action: An Empirical Exploration of Tax Court of Canada Cases (1997-2009) and Judicial Decision Making

This article presents a modest, exploratory empirical study of Canada’s general antiavoidance rule (GARR) in action. The study examines the entire body of GAAR cases decided by the Tax Court of Canada in the period 1997-2009, as well as certain personal and societal attributes of the judges who decided these cases. The findings support three tentative conclusions. First, GAAR has been a game changer, albeit a modest one, with respect to the courts’ approach to tax-avoidance cases. Second, while considerable uncertainty remains with respect to the application of GAAR, a pattern in judicial decisions appears to be emerging. Third, there are indications that a judicial smell test is at play in some GAAR decisions, in particular, judicial decision making in GAAR cases appears to have been influenced by the judge’s attributes, including experience on the Tax Court, gender, preappointment experience, and regional ties. Because the data sets examined in the study are very small, these findings are by no means conclusive. Nevertheless, the hope is that they will help to advance empirical understanding of GAAR in action