Date: 20010626
Docket: A-108-00
Neutral citation: 2001 FCA 226
CORAM: ROTHSTEIN J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
JOYCE LIND
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
HEARD at Vancouver, British Columbia on Tuesday, June 26, 2001
DELIVERED from the Bench at Vancouver, British Columbia
on Tuesday, June 26, 2001
REASONS OF THE COURT DELIVERED BY: ROTHSTEIN J.A.
Date: 20010626
Docket: A-108-00
Neutral citation: 2001 FCA 226
CORAM: ROTHSTEIN J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
JOYCE LIND
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Vancouver, British Columbia
on Tuesday, June 26, 2001)
ROTHSTEIN J.A.
[1] In this application for judicial review from a decision of the Tax Court, the issue is whether the applicant is entitled to a GST rebate under Section 261 of the Excise Tax Act. The issue turns on whether the condominium acquired by the applicant was occupied by an individual as a place of residence prior to it being purchased by her. If it was, the applicant would be entitled to the rebate.
[2] The reasons of the Tax Court Judge consist of one paragraph:
The Appellant has presented an excellent case and if she were the only witness here, she'd probably win her appeal. But I accept entirely the credibility of what has to be considered an independent witness, Mr. Mackenzie, the alleged former resident. He has essentially convinced me that he was in no way establishing a place of residence in unit 303.
The Tax Court Judge dismissed the appeal.
[3] However, the evidence is clear, and the Crown concedes, that Mr. Mackenzie had an 11% interest in Contract Holdings Limited, the owner of the condominium prior to its sale to the applicant. Counsel for the Crown also concedes that if the applicant is entitled to a GST rebate, Contract could, if assessed, be liable for GST on the sale. Clearly Mr. Mackenzie was not an independent witness. The learned Tax Court Judge erred in so finding.
[4] Mr. Mackenzie had an interest in denying he used the condominium as a place of residence. As the Trial Judge's acceptance of Mr. Mackenzie's evidence over that of the applicant was based on his acceptance of Mr. Mackenzie's credibility, which in turn was based on his erroneous finding that Mr. Mackenzie was independent, and having stated that if the applicant was the only witness, she would probably win, the decision cannot stand.
[5] The application will be allowed with costs covering the applicant's disbursements and the matter remitted to a different Tax Court Judge for redetermination.
[6] The Crown has objected to producing a witness statement of Mr. Mackenzie. To the extent that the witness statement given by Mr. Mackenzie relates to issues relevant to this case, the Crown has not provided any compelling reason why it should not be disclosed.
"Marshall Rothstein"
J.A.
Email this Content