Citation: 2008 FCA 11
CORAM: DESJARDINS J.A.
WINDSOR URGENT CARE CENTRE INC.
MAJESTY THE QUEEN
Heard at Toronto, Ontario, on January
Judgment delivered from the
Bench at Toronto, Ontario,
on January 8, 2008.
REASONS FOR JUDGMENT OF THE COURT BY: DESJARDINS
Citation: 2008 FCA 11
WEST WINDSOR URGENT CARE CENTRE INC.
HER MAJESTY THE QUEEN
REASONS FOR JUDGMENT OF THE
(Delivered from the Bench at Toronto, Ontario, on January 8, 2008)
are all of the view that the Tax Court Judge made no reviewable error in
concluding that the appellant had no standing to seek a rebate under section
261 of the Excise Tax Act (the Act) (see West Windsor Urgent Care
Inc. v. the Queen,  TCC 405, Hershfield J., at para. 65.)
261 of the Act in its relevant parts states:
Rebate of payment made in error
261. (1) Where a
person has paid an amount
as or on account of, or
that was taken into account as,
net tax, […] or other obligation under this Part in circumstances where the
amount was not payable or remittable by the person, whether the amount was
paid by mistake or otherwise, the Minister shall, subject to subsections (2)
and (3), pay a rebate of that amount to the person.
Remboursement d’un montant payé
261. (1) Dans le
cas où une personne paie un montant au titre de la taxe, de la taxe nette […]
ou d’une autre obligation selon la présente partie alors qu’elle n’avait pas
à le payer ou à le verser, ou paie un tel montant qui est pris en compte à ce
titre, le ministre lui rembourse le montant, indépendamment du fait qu’il ait
été payé par erreur ou autrement.
Tax Court Judge made a careful study of the agreements governing the relations
between the appellant and the physicians. According to the facts he accepted,
the appellant was to bill OHIP for the service rendered to its patients by the
physicians and was authorized to receive the monies earned by the physicians.
The physicians were to invoice the appellant for medical services rendered by
them to the appellant’s patients at an amount of 50% of the monies received.
That percentage was later fixed at 60%. Of the monies received, the
physicians, in turn, paid overhead for facilities such as office and workplace,
equipment, support staff and a variety of other necessary and incidental
supplies, at a rate of 40% of the monies received. The same percentage applied
to the physicians retained under locum arrangements and to those
shareholder-physicians working under a group number. They were all independent
are unsure of the effect to be given to the Tax Court Judge’s comment at
footnote 5 of his reasons that the unsigned agreement between the appellant and
the physicians “accurately sets out the terms of the contract entered into
between the physicians and the Centre.” In our view, the evidence does not
support such a conclusion. The agreement is unsigned and is marked “Draft”.
There was no evidence that any physician signed such an agreement. On the
other hand, there was evidence that physicians hired on a contract basis signed
“locum” agreements in which they agreed to pay the appellant 40% of their
billings in exchange for the provision of services to them by the appellant.
Finally, the application for a rebate itself described the basis on which the
GST had been collected, namely that the appellant provided a series of services
to the physician, for which the physician allowed the appellant to retain 40%
of his or her billings. Counsel for the appellant was invited to draw our
attention to the evidence which would support the Tax Court Judge’s conclusion
on this point and was unable to do so. We therefore conclude that there was no
evidence to support the Tax Court Judge’s conclusion on this point.
Tax Court Judge summarized his findings at paragraph 17 of his reasons:
period relevant to this appeal, May 1, 1999 through January 31, 2001, GST
(calculated as seven percent of the Centre’s net 40 percent entitlement), was
deducted from the physicians’ 60 percent entitlement and remitted to the Crown
by the Appellant. Therefore, for each medical service performed at the Centre,
the Appellant would retain 40% of OHIP payments, the physician performing the
medical service would receive 57.2 percent of OHIP payments and the Crown would
receive 2.8 percent as GST (i.e. seven percent of the Centre’s net 40 percent
Tax Court Judge was therefore entitled to make the finding that the physicians
actually paid the GST. He wrote (at paragraph 49 of his reasons)
that “[t]he persons paying the tax, suffering the burden of the tax, were
clearly the physicians”. This conclusion was supported by the evidence.
appellant, which collected the GST and was obliged to remit it, did not bear
the burden of the payment of the tax. It is not the person described in
section 261 as authorized to claim the rebate.
appeal will be dismissed with costs.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
(APPEAL FROM A JUDGMENT OF THE honourable Mr. Justice Hershfield
dated November 16, 2005 in Windsor, Ontario, Tax Court File NO. 2002-2851
STYLE OF CAUSE: WEST WINDSOR URGENT CARE CENTRE INC. v.
MAJESTY THE QUEEN
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 8, 2008
REASONS FOR JUDGMENT
OF THE COURT BY: (DESJARDINS, SEXTON & PELLETIER JJ.A.)
DELIVERED FROM THE BENCH BY: DESJARDINS J.A.
Raphael Partners LLP
FOR THE APPELLANT
John H. Sims, Q.C.
Attorney General of Canada
FOR THE RESPONDENT