1096288 Ontario Limited v. Canada

1096288 Ontario Limited v. Canada Court (s) Database Federal Court of Appeal Decisions Date 2010-12-06 Neutral citation 2010 FCA 332 File numbers A-260-09 Notes Digest Decision Content Federal Court of Appeal Cour d'appel fédérale Date: 20101206 Docket: A-260-09 Citation: 2010 FCA 332 CORAM: SEXTON J.A. EVANS J.A. PELLETIER J.A. BETWEEN: 1096288 ONTARIO LIMITED Appellant and HER MAJESTY THE QUEEN Respondent Heard at Toronto, Ontario, on December 6, 2010. Judgment delivered from the Bench at Toronto, Ontario, on December 6, 2010. REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A. Federal Court of Appeal Cour d'appel fédérale Date: 20101206 Docket: A-260-09 Citation: 2010 FCA 332 CORAM: SEXTON J.A. EVANS J.A. PELLETIER J.A. BETWEEN: 1096288 ONTARIO LIMITED Appellant and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario, on December 6, 2010) EVANS J.A. [1] This is an appeal by 1096288 Ontario Limited from a decision by the Tax Court of Canada (2009 TCC 292), in which Justice Paris (Judge) held that the Appellant, a builder, was required to collect GST on the sale of houses which it had moved from one lot to another. [2] GST is payable on the sale of a “residential complex” by the builder: section 2, Part 1 of Schedule V of the Excise Tax Act, RSC 1985, c. E-15 (Act). A “builder” is defined in subsection 123(1) of the Act as a person who carries on the “construction or substantial renovation” of a residential complex. “Residential complex” is defined in the same subsection as that part of the building in which one or more residential units are located, “together with … the land immediately contiguous to the building that is reasonably necessary for the use and enjoyment of the building as a place of residence”. [3] The word “construction” is not defined in the Act and the Judge gave it its ordinary meaning: in particular, the act of forming something by putting together parts. He reasoned that, since “residential complex” comprises the building and the land on which it stands, when the Appellant moved a house from its original lot, it ceased to be part of the previous “residential complex”. By preparing the foundation on the new lot, installing the necessary services, and attaching the relocated house, the builder had thereby constructed a new “residential complex”. [4] Counsel says that unless there has been a change to the frame of a residence there has been no “construction” of it. We disagree. The term “construction” in its ordinary sense is not this narrow, but can include, as the Judge found, forming the residential complex by putting the house and the land together. [5] We see no error by the Judge in his formulation of the applicable legal test, and no palpable and overriding error in his application of the law to the facts. [6] For these reasons, the appeal will be dismissed with costs. "John M. Evans" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-260-09 (APPEAL FROM A JUDGMENT OF THE TAX COURT OF CANADA, DECISION OF JUSTICE B. PARIS DATED MAY 29, 2009, IN DOCKET NO. 2006-1882 (GST) I) STYLE OF CAUSE: 1096288 ONTARIO LIMITED v. HER MAJESTY THE QUEEN PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: December 6, 2010 REASONS FOR JUDGMENT OF THE COURT BY: (SEXTON, EVANS & PELLETIER JJ.A.) DELIVERED FROM THE BENCH BY: EVANS J.A. APPEARANCES: A. Wilford FOR THE APPELLANT Anne Paré FOR THE RESPONDENT SOLICITORS OF RECORD: Barrister and Solicitor Hillsburgh, Ontario FOR THE APPELLANT Myles J. Kirvan Deputy Attorney General of Canada FOR THE RESPONDENT