A taxpayer, who donated an interest in ecologically sensitive land to two qualified donees in 2008, unsuccessfully argued that the gift was not made until 2009 for purposes of computing the five-year (now 10-year) carryforward period described in s. 110.1(1)(d)(iii), because it was not until 2009 that he received the certification from the Minister of the Environment as to the land's ecologically sensitive nature and value that was required under that provision. After confirming that the ecological gift instead was made in 2008 when ownership of the gifted property was transferred, Noël CJ went on to note (at para. 54) that “the existing process [under s. 118.1(11)] ensures that a taxpayer can claim a deduction in the year in which the gift is made and the subsequent five taxation years, even if there are delays in the final determination of the fair market value of the gifted property. In this regard, he stated (at paras. 49, 53):
While the permissive word “peut” (“may”) and the imperative word “shall” seem irreconcilable …, there is no discrepancy in this case. Both versions of subsection 118.1(11) compel the Minister to assess or reassess in order to give effect to a certificate or a court decision confirming or varying the certified fair market value. …
[T]he use of the word “peut” in the French version illustrates how “an official who is permitted to do a thing may, in addition, be obliged to do it” (Ruth Sullivan, Sullivan on the Construction of Statutes …). … Although the English text does not use the word “may” to denote the fact that the Minister is allowed to assess out of time, the statutory permission is equally present because the obligation to assess out of time necessarily brings with it the right to do so. So read, both texts require the Minister to abide by a fair market value certificate or the final court decision confirming it or varying it, and for that purpose, allow the Minister to assess out of time. …