Docket: A-552-14
Citation:
2016 FCA 12
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CORAM:
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PELLETIER J.A.
STRATAS J.A.
GLEASON J.A.
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BETWEEN:
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LIPING LIU
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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
STRATAS J.A.
[1]
The appellant appeals from the judgment dated
November 13, 2014 of the Tax Court of Canada (per V.A. Miller J.): 2014
TCC 335.
[2]
The main issue before the Tax Court was whether
the appellant was entitled to a Goods and Services Tax/Harmonized Sales Tax New
Housing Rebate for some of the tax she paid for the purchase of land and the
construction of a house on that land in 2010. The Tax Court ruled against the
appellant.
[3]
Subsection 254(2) of the Excise Tax Act,
R.S.C. 1985, c. E-15 allows for a new housing rebate for “a single unit residential complex or a residential
condominium unit” purchased from a builder. Section 123 defines “a single unit residential complex” as both the house
and the land. In other words—and this is the interpretation adopted by the Tax
Court—a rebate is available only where a person buys the land and contracts for
the building of the house from the same entity.
[4]
On the same day in 2010, the appellant and her
spouse purchased a lot from one company and contracted with another company to
construct a house on the lot. On these facts, the Tax Court ruled that the
appellant had entered into two separate transactions on the same day and that
they could not be viewed as one. This meant that a rebate could not be claimed
under section 254 of the Excise Tax Act.
[5]
Unless there is an error of law or legal
principle, we can only interfere with the Tax Court’s finding on the basis of
palpable and overriding error. This is a high test. See Housen v. Nikolaisen,
2002 SCC 33, [2002] 2 S.C.R. 235 and on the meaning of palpable and overriding
error, see, e.g., Canada v. South Yukon Forest Corporation, 2012
FCA 165, 431 N.R. 286.
[6]
On this issue, the Tax Court did not err in its
interpretation of the relevant provisions, nor is there any palpable and
overriding error in the Tax Court’s assessment of how the provisions applied to
the evidence before it.
[7]
The Tax Court also held that the appellant could
not receive another rebate for tax—one for an owner-built home—because she
failed to claim it within the two-year legislative limitation period. Here
again, the Tax Court did not err in its interpretation of the legislation, nor
is there any palpable and overriding error in the Tax Court’s assessment of how
the legislation applied to the evidence before it. I also note that the Canada
Revenue Agency advised the appellant to file for the rebate for an owner-built
home in time but the appellant did not do so.
[8]
The appellant also submits that the delay of the
Canada Revenue Agency in dealing with her notice of objection and the delay of the
Tax Court in holding the hearing of her appeal was unfair and prejudiced her.
On the record before us, I see no unfairness and prejudice. It is true that the
Canada Revenue Agency did delay in dealing with her notice of objection but
nevertheless the appellant could have launched and prosecuted her appeal
promptly despite that delay: Excise Tax Act, above, section 81.22. As
well, she could have asked the Tax Court to expedite her appeal but did not do so.
[9]
The appellant also submits that any ambiguities
in taxation legislation should be resolved in her favour: Johns-Manville v.
The Queen, [1985] 2 S.C.R. 46 at page 72. This principle does not assist
her: no ambiguities arise from the application of the relevant legislative
provisions in this case.
[10]
Finally, the appellant also submits that she was
confused concerning the relevant provisions in this appeal and their effect. Nevertheless,
the relevant provisions are binding law and they must be applied according to
their terms.
[11]
For the foregoing reasons, I would dismiss the
appeal with costs.
"David Stratas"
“I agree
J.D. Denis Pelletier J.A.”
“I agree
Mary J.L. Gleason J.A.”
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