Docket: A-344-15
Citation:
2016 FCA 116
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CORAM:
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DAWSON J.A.
NEAR J.A.
BOIVIN J.A.
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BETWEEN:
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HENGAMEH
RANJBAR
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Appellant
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and
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HER MAJESTY THE
QUEEN
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Respondent
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REASONS
FOR JUDGMENT
DAWSON J.A.
[1]
For reasons delivered orally on February 6,
2015, in Court File Numbers 2014-1454 (GST)I and 2014-1480 (GST)I, a Judge of
the Tax Court of Canada dismissed the appellant’s appeals from an assessment
made under the Excise Tax Act, R.S.C. 1985, c. E-15 (Act). The appeals
raised the issue of whether the appellant was entitled to claim the GST/HST new
housing rebate in respect of the separate purchases of two residences: a
condominium referred to as the “Thornhill property” and a townhome referred to
as the “Richmond Hill property”. This is an appeal from the judgment of the Tax
Court in respect of the Richmond Hill property only.
[2]
As the Judge correctly noted, purchasers are
entitled to claim the new housing rebate if they satisfy the numerous
conditions found in subsection 254(2) of the Act. According to the Judge, the
two relevant conditions were those contained in paragraph 254(2)(b) and
clause 254(2)(g)(i)(A).
[3]
The Judge found, based on the appellant’s
testimony, that paragraph 254(2)(b) was satisfied because, at the time
the appellant entered into the agreement of purchase and sale, she intended to
use the Richmond Hill property as her primary place of residence.
[4]
The Judge went on to find that clause 254(2)(g)(i)(A)
was not satisfied because the appellant never occupied the property.
[5]
On this appeal the appellant argues that the
Judge erred in law by failing to consider that the appellant satisfied
subparagraph 254(2)(g)(ii) of the Act, and so would qualify for the new
housing rebate.
[6]
The respondent agrees, stating that on the basis
of the evidentiary record before the Tax Court, the appellant satisfied
subparagraph 254(2)(g)(ii) of the Act and she did not have to satisfy
subparagraph 254(2)(g)(i) of the Act in order to satisfy subsection
254(2). I agree. While the condition in each paragraph of subsection 254(2)
must be met in order to qualify for the new housing rebate, paragraph 254(2)(g)
sets out alternative conditions in its two clauses, only one of which must be
met.
[7]
The respondent submits, however, that this
concession does not assist the appellant because the Judge erred in law by
relying solely upon the appellant’s evidence about her intent when the Judge
was also required at law to have regard to objective manifestations of purpose
(Symes v. Canada, [1993] 4 S.C.R. 695, at page 736, 110 D.L.R. (4th) 470).
In support of her submission the respondent points to the Judge’s statement
that “[a]fter hearing the testimony of the Appellant, I
have concluded that at the time she entered into the agreement of purchase and
sale, she had the intention to use … the Richmond Hill property” as her “primary place of residence”.
[8]
I have two difficulties with this submission.
[9]
First, the evidence of objective manifestations
was adduced by the Crown through the appellant’s oral testimony. This makes the
Judge’s reference to “[a]fter hearing the evidence of
the Appellant” at the least somewhat ambiguous.
[10]
My second difficulty with the respondent’s
submission is that the Supreme Court has stated that “[t]rial
judges are presumed to know the law with which they work day in and day out”
(F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at paragraph 54,
citing R. v. Burns, [1994] 1 S.C.R. 656, at page 664, 165 N.R. 374.).
[11]
It follows that the Judge is entitled to the
presumption that he knew and understood the law applicable to ascertaining the
appellant’s intent, even though the Judge did not explicitly articulate the
relevant legal principles.
[12]
Applying this presumption, I am unable to
conclude that the Judge made a palpable and overriding error when he found the
appellant’s testimony to be sufficiently credible to overcome the
circumstantial evidence relied on by the respondent to assert the inference
that at the relevant time the appellant lacked the requisite intent.
[13]
More troubling is the fact that during closing
argument the Judge stated that he did not “need to
hear” from counsel for the respondent with respect to the Richmond Hill
property. The respondent does not argue that this, in the particular
circumstances of this case, vitiates the Judge’s decision. Rather, she submits
that had the Judge heard her submissions the Judge “might
not” have fallen into error.
[14]
It is a fundamental principle of our adversarial
system that a party has the right to be heard before a court makes a decision
adverse to the party’s interest.
[15]
This said, the issue of the appellant’s
intention was squarely raised by the respondent in her Reply to the Notice of
Appeal. In determining that the appellant was not eligible for the rebate the
Minister assumed that at “no time following the
purchase of the [Richmond Hill] property did the Appellant intend that she or
an individual related to her would reside at the [Richmond Hill property] and
use it as their primary place of residence”. The appellant was
cross-examined on the Minister’s assumptions.
[16]
In this circumstance, I am satisfied that the
issue of intent was in play such that the respondent was heard on this issue.
[17]
It follows that, despite the cogent submissions
of counsel for the respondent, I would allow the appeal and set aside the
judgment of the Tax Court in part as it relates to the Richmond Hill property,
and, pronouncing the judgment that should have been made, I would return the
assessment to the Minister for re-assessment on the basis that the appellant is
entitled to the GST/HST new housing rebate in respect of the Richmond Hill
property.
[18]
Having regard to the totality of the facts and
circumstances, I would not make an award of costs.
“Eleanor R.
Dawson”
“I agree.
D.G. Near J.A.”
“I agree.
Richard Boivin
J.A.”
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