LA RESTITUTION DE TAXES INDUMENT PAYEES EN DROIT CONSTITUTIONNEL CANADIEN ET EN DROIT EUROPEEN
AbstractThe principle of restitution in respect of taxes improperly collected is recognized in both Canadian constitutional law and European law. In Canadian law, the principle flows from the application of the constitutional doctrine of ultra vires. In the European Community, the Court of Justice has recognized that the treaty establishing the European Economic Community creates the right in the individual to restitution of amounts collected contrary to Community law. In both systems the restitution action is subject to conditions as to form and substance which are dependent on the laws of the individual jurisdictions, that is to say, provinces in Canada and in member states in the European Community. In Canada the Supreme Court was required in Amax Potash v. Government of Saskatchewan to examine the effect of the doctrine of ultra vires and the scope of provincial law with respect to the repayment of provincial taxes declared to be unconstitutional. This article attempts, in the light of the well developed jurisprudence of the European Community Court of Justice on the matter, to explore in depth the constitutional issues arising in the Amax Potash case and to identify the problems that may arise in Canadian law because of the procedural autonomy of the provinces.
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