Words and Phrases - "means ... and includes"

The two bakery plants of the appellant in Toronto were staffed in significant part by temporary workers (“TWs”), who were sourced from third parties (the “Agencies”), which solicited for the TWs and directed them to the appellant. The appellant kept detailed records as to the hours worked by the TWs, which it provided to the Agencies for billing purposes, received invoices from the Agencies for the amounts identified in the invoices, and paid the Agencies therefor (including for HST) once it reconciled the amounts with its records. The Agencies cashed the cheques issued to them by the appellant and mostly paid the TWs in cash, which often was distributed to them in envelopes at the bakeries by the appellant’s supervisors.

CRA did not allege that the TWs were employees of the appellant. They also were not treated by the Agencies as its employees, so that it did not make any source deductions or remittances. They also did not remit any of the HST collected from the appellant. The appellant “chose to ignore the obvious signs that the Agencies were not treating the TWs as employees and/or were not meeting the obligations of an employer because the Appellant’s principal objective was to secure the TWs needed to run its plants at the lowest possible cost” (para. 215).

CRA denied the input tax credit claims of the appellant for the HST paid by it to the Agencies.

Owen J found (at para. 236) that the “Agencies provided a supply to the Appellant that comprised soliciting and directing TWs to the Appellant and paying the TWs for the services provided by those TWs to the Appellant” so that for “the supply provided by each Agency to the Appellant, the Agency was a ‘supplier”, and the Appellant was a ‘recipient’." Thus, the HST at issue had been payable by the appellant.

The Crown also took the position that the invoices received by Fiera did not satisfy the documentary requirements of ETA s. 169(4)(a) and the Input Tax Credit Information (GST/HST) Regulations (the “Regulations”), apparently on the grounds that the invoices were issued, not by the Agencies but, rather, by unauthorized “representatives” of the Agencies who in fact were not “linked” to the Agencies (see, e.g., paras. 155, 267). Before finding that such documentary requirements were met, Owen J indicated that:

• “Reading into paragraph 169(4)(a) a requirement regarding the form in which the information (including prescribed information) must be contained runs contrary to the precise and unequivocal words that Parliament has used” (para. 284).
• However, the specific information listed in s. 3 of the Regulations was required to be obtained by the ITC claimant in some form (para. 289), a requirement which was satisfied here.
• If (contrary to the view of Owen J), the definition of “supporting documentation” in the Regulations did not have a significant role to play, that definition “does not require that information prescribed by section 3 be in a particular form” (para. 301) and, in particular, para. (h) of that definition “does not impose a requirement that all forms in which information prescribed by section 3 is contained be validly issued or signed by a registrant in respect of a supply made by the registrant” (para. 309).