GFL Environmental – BC Court of Appeal finds that assumptions: should be struck where there is insufficient evidence of their making; but they can contain statements of law

The taxpayer (GFL), for a monthly charge, provided portable toilets, cleaned them and disposed of the waste. Skolrood JA found that there were no reversible errors in the findings of the chamber judge that it was appropriate to “unbundle” the single consideration that GFL charged on a monthly basis to its customers for BC PST purposes: 80% to the non-taxable waste disposal service; and 20% to the taxable lease of the toilets and to the cleaning services provided “to” the toilets.

Before so concluding, Skolrood JA also confirmed the conclusion below that all of the Minister’s pleaded assumptions should be struck, as there was insufficient evidence on the record to permit the court to determine that those assumptions in fact had been made by the Minister.

He also stated:

I endorse the principle … in Preston that tax assumptions containing statements of mixed fact and law will not be invalidated simply on that basis if the factual underpinnings are clearly stated, there is no dispute about the legal principles and no prejudice results.

On this basis, he found that the chambers judge should not (in the alternative) have struck various assumptions involving issues of mixed fact and law or statements of law – it was generally only where the assumptions are “wholly conclusory and lack any factual basis to support the conclusions offered” that they should be struck.

Neal Armstrong. Summaries of British Columbia v. GFL Environmental Inc., 2024 BCCA 379 under PSTA (BC), s. 1(1) – related service, and General Concepts – Onus.