Rush Communications Ltd. v. Nova Scotia (Finance)

Rush Communications Ltd. v. Nova Scotia (Finance) Court Court of Appeal Date 1998-06-11 Citation 1998 NSCA 108 Docket 143431, 143432, 143433, CA 143430 Judge/Registrar/Adjudicator Flinn, Edward J. (Honourable Justice); Bateman, Nancy J. (Honourable Justice) (CA); Clarke, Lorne O. (Honourable Chief Justice) Document Type Decision Relations Library Sheet - Rush Communications Ltd. v. Nova Scotia (Finance) - 1998 NSCA 108 - 1998-06-11 - Library Sheet Decision Content Date: 19980611 Docket: C.A. 143430 C.A. 143431 C.A. 143432 C.A. 143433 NOVA SCOTIA COURT OF APPEAL Cite as: Rush Communications Ltd. v Nova Scotia (Finance), 1998 NSCA 108 Clarke, C.J.N.S.; Bateman and Flinn, JJ.A. BETWEEN: RUSH COMMUNICATIONS LIMITED, OCEAN ) Alexander S. Beveridge PAVING LIMITED, SEABOARD TIRE SERVICE) for the Appellants and STRAIT OF CANSO CABLE TV LIMITED ) ) Appellants ) ) - and - ) ) Jennifer L. Palov ) for the Respondent MINISTER OF FINANCE OF NOVA SCOTIA ) ) Respondent ) Appeal Heard: ) June 11, 1998 ) ) ) Judgment Delivered: ) June 11, 1998 ) ) ) ) ) ) ) ) THE COURT: Appeal dismissed per oral reasons for judgment of Flinn, J.A.; Clarke, C.J.N.S. and Bateman, J.A. concurring. FLINN, J.A.: (Orally) The appellants are four business enterprises owned by Joseph Shannon. A fifth business enterprise, Seaboard Offshore Services Limited (Seaboard), is also owned by Mr. Shannon. Mechanics employed by Seaboard serviced vehicles used by the appellants in their respective businesses. Seaboard issued invoices to each of the appellants for the repair work done. No health services tax was charged, or collected, by Seaboard from any of the companies for the repair work. The Provincial Tax Commission issued notices of assessment for tax on the value of the repair work. The appellants objected to the assessment, contending that the repair work is exempt from taxation because it is being done by employees of a “sister company” (Seaboard). The appellants argue that, since the business enterprises are “associated persons”, the repair service is tax exempt because the definition of taxable “repair service” does not include repair service to a person’s own property, by himself or his employees. The assessments were confirmed by the Provincial Tax Commissioner, and the appellants’ appeals to the Nova Scotia Utility and Review Board (Board) were rejected. An appeal to this Court, from any order of the Board, lies only upon “any question as to its jurisdiction or upon any question of law” (s. 30(1) Utility & Review Board Act, S.N.S. 1992, c. 11). No issue of jurisdiction is raised here. In separate decisions, with respect to each of the appellants, Linda Garber, a member of the Board, said the following: [The appellant] sent its equipment to Seaboard Offshore Services Limited, a separate company, to be repaired. Repair services are taxable under both the Health Services Tax Act [R.S.N.S. 1989, c. 198] and the Revenue Act [S.N.S. 1995-96, c. 17] unless the repair work is done by the person who owns the equipment being repaired or employees of that person. In this case the equipment is owned by one person, the Appellant, and the employees who did the repair work are employees of a separate company, Seaboard Offshore Services Limited. They are not employees of the Appellant. Even if the two companies are considered to be part of an association of persons, the equipment was not owned by nor was it repaired by the association. We have reviewed the record of the proceedings before the Board, and we have considered the submissions of counsel, both written and oral. We are of the unanimous opinion that the Board made no error in law in its interpretation of the taxing provisions relating to repair service; and in deciding that the repair services which are the subject of the assessments under appeal, are not tax exempt. The appeals are dismissed. The appellants will pay to the respondent costs in the amount of $750.00 inclusive of disbursements. Flinn, J.A. Concurred in: Clarke, C.J.N.S. Bateman, J.A. C.A. No. 143431 C.A. No.143432 C.A. No. 143433 NOVA SCOTIA COURT OF APPEAL BETWEEN: RUSH COMMUNICATIONS LIMITED, OCEAN PAVING LIMITED, SEABOARD ) TIRE SERVICE and STRAIT OF CANSO ) CABLE TV LIMITED ) ) Appellants ) - and - ) REASONS FOR ) JUDGMENT BY: MINISTER OF FINANCE OF NOVA ) SCOTIA ) FLINN, J.A. ) (Orally) Respondent ) ) ) ) ) ) )