Upper Valley Dodge Chrysler Limited v. The Minister of Finance
The Regulation requires that the business be operated by an individual; 'individual' does not include a corporation and mere control of a corporation by a person does not satisfy that requirement; because the agreed facts established the corporation carried on the business the exemption was unavailable.
Source-derived case information.
- Citation
- C42963
- Parties
- Appellant: Upper Valley Dodge Chrysler Limited; Respondent: The Minister of Finance
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 11 July 2005
- Procedural Posture
- Appeal Under Land Transfer Tax Act / Court of Appeal Decision
- Outcome
- Appeal allowed; lower court order granting exemption set aside.
- Legal Topics
- Land Transfer Tax Exemption, Regulatory Interpretation, Corporate Attribution, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Upper Valley Dodge Chrysler Limited
Appellant
The Minister of Finance
Respondent
Procedural Posture
Appeal Under Land Transfer Tax Act / Court of Appeal Decision
Legal Issues
- 1 Whether exemption under s.3(1)(a) and (b) of O. Reg. 697 was available
- 2 Whether the term 'individual' in s.3(1) includes a corporation
- 3 Whether control of a corporation by a person means the business is operated by that person
Ratio Decidendi
The Regulation requires that the business be operated by an individual; 'individual' does not include a corporation and mere control of a corporation by a person does not satisfy that requirement; because the agreed facts established the corporation carried on the business the exemption was unavailable.
Court Disposition
Appeal allowed; lower court order granting exemption set aside.
Orders
- Appeal allowed; exemption under O. Reg. 697 s.3(1) denied and lower court order set aside.
- Respondents entitled to costs of the appellant's motion for leave to appeal to this court and the costs of this appeal on a partial indemnity basis fixed at $10,000 all in.
Full Case Text
Judgment text and source record
1 paragraphs
Upper Valley Dodge Chrysler Limited v. The Minister of Finance Collection Decisions of the Court of Appeal Date 2005-07-11 Docket numbers C42963 Judges Doherty, David H.; MacPherson, James C.; Cronk, Eleanore Ann Subject Civil Decision Content DATE: 20050711 DOCKET: C42963 COURT OF APPEAL FOR ONTARIO IN THE MATTER OF the Land Transfer Tax Act, R.S.O. 1990, c. L.6, as amended. RE: UPPER VALLEY DODGE CHRYSLER LIMITED (Appellant (Respondent in Appeal)) – and – THE MINISTER OF FINANCE (Respondent (Appellant in Appeal)) BEFORE: DOHERTY, MACPHERSON and CRONK JJ.A. COUNSEL: Dona M. H. Salmon for the appellant Nicholas D. C. Holland for the respondent HEARD & ENDORSED: July 5, 2005 On appeal from the order of Justices John J. Brockensire and Alan C.R. Whitten (Justice P.T. Matlow dissenting) of the Superior Court of Justice, sitting in the Divisional Court, dated June 18, 2004. APPEAL BOOK ENDORSEMENT [1] The appeal judge allowed the respondent’s claim for an exemption from land transfer tax on the basis that the requisite conditions for such an exemption as set out in ss. 3(1)(a) and (b) of O. Reg. 697 were satisfied. In particular, he concluded that the business at issue was operated exclusively by Mr. Morglan through his sole ownership and control of the respondent. A majority of the Divisional Court agreed. [2] In our view, the conditions precedent to the availability of the exemption, as set out in s. 3(1)(a) of the Regulation, were not satisfied here. We agree with the views expressed by Matlow J. in paras. 6 to 9 of his dissenting reasons in the Divisional Court. In particular, for the reasons given by Matlow J., we agree that the word “individual” as used in s. 3(1) of the Regulation does not include a “corporation” and, further, that if control over a corporation were intended by the Legislature to be a factor that could affect the determination of who “operated” a business, the Legislature would have so indicated in clear language. It is also significant that in an agreed statement of facts filed with the appeal judge, the respondent admitted that the business in issue was carried on by it. [3] Accordingly, the appeal is allowed. In accordance with the Order of this court dated January 18, 2005, the respondents are entitled to their costs of the appellant’s motion for leave to appeal to this court and the costs of this appeal on a partial indemnity basis, fixed in the amount of $10,000 all in.