This week the Supreme Court of Canada granted a leave application in the following case of interest to Canadian businesses and professions.

In Confédération des syndicats nationaux v. Canada (Procureur général) 2012 QCCA 1822, the Confédération challenged the most recent treatment of employment insurance premiums and surpluses by the federal government pursuant to legislation passed in 2010. The effect of the retroactive 2010 legislation was to close the Employment Insurance Account as of January 1, 2009 and create the Employment Insurance Operating Account. A balance in excess of $57 billion in the Employment Insurance Account was not transferred to the Employment Insurance Operating Account as a result of the 2010 legislation. Rather, the surplus funds became part of the general funds available to the federal government. In response to the challenge, the Attorney General of Canada filed an exception to dismiss arguing that the decision in Confédération des syndicats nationaux v. Canada (Attorney General) 2008 SCC 68 had determined the issues supporting the validity of the 2010 legislation. The Quebec Court of Appeal rejected the motion to dismiss because the instant case was based upon facts, including the legislation and accounting treatment of the surplus, that arose after the 2008 Supreme Court of Canada decision. In this context, new and undetermined issues of law arose.

The decision to be rendered by the Supreme Court of Canada in the instant case will consider the extent to which its 2008 decision determined the powers of the federal government to allocate funds collected under taxation and regulatory regimes.