Policy Statement P-051R2 "Carrying on Business in Canada" 29 April 2005

In leasing transactions, the most important factors generally are where the lessor acquires the property and it is delivered to the lessee.

• Example 2: equipment is leased and delivered outside Canada and then imported by the lessee, who is responsible for maintaining the equipment and makes payments to the lessor in Canada who has a Canadian bank account but otherwise not much Canadian presence - lessor is not carrying on business in Canada.
• Example 3: the lease agreement is concluded in Canada and equipment delivered to lessee at its Canadian facility. Payments are made in Canada to the lessor who has a Canadian bank account but otherwise does not have much presence in Canada - lessor is carrying on business in Canada.
• Example 6: lessor is carrying on business in Canada by virtue of a net lease of Canadian real estate.

In services contracts, the the location of performance of the services is important. Isolated transactions in Canada may not result in carrying on business in Canada (e.g., Example 18 - one employee week in Canada).

Situs of leasing or services business

In the case of a supply of property by way of lease, factors that are typically of greater importance include the place where the property is acquired by the non-resident lessor and the place where the property is delivered to the lessee. In the case of a supply of a service that is the principal object of the contract (as opposed to a service that is merely ancillary to the supply of property), factors that are typically of greater importance include the place where the service is performed and the place where employees are located.

Ex. 1

A non-resident lessor (with a leasing business outside Canada) is considered to be carrying on business in Canada by virtue of a sale-leaseback transaction under which it purchases a conveyance from a resident registrant, with delivery under the sale agreement and under the lease-back to the resident (who will use the conveyance partly in Canada) occurring in Canada, notwithstanding no other significant connecting factors to Canada.

Ex. 2

Lease of industrial equipment entered into outside Canada, with lessee acquiring possession outside Canada and importing the equipment into Canada: non-resident lessor not carrying on business in Canada.

Ex. 3

Lease of industrial equipment entered into in Canada after the non-resident lessor has imported the equipment into Canada: non-resident lessor is carrying on business in Canada.

Ex. 8

Non-resident carrying on business in Canada where independent sales representative accepts orders and concludes contracts there, delivery is there, and advertising is directed to Canada

Ex. 9

Non-resident carrying on business in Canada where goods (manufactured outside Canada) are shipped from a rented warehouse in Canada pursuant to contracts concluded outside Canada

Ex. 10

Non-resident not carrying on business in Canada where, pursuant to unsolicited orders received outside Canada, goods are shipped directly from the non-resident's Canadian supplier to Canadian customers

Ex. 11

Non-resident not carrying on business in Canada where, pursuant to solicited orders received outside Canada, it delivers and installs specialized equipment at the customer's Canadian address

Ex. 14

Non-resident not carrying on business in Canada where it supplies downloadable audio files through its web site hosted at its main office outside Canada, notwithstanding that contracts are concluded in Canada and internet ads are directed at Canada

Ex. 15

Non-resident carrying on business in Canada where it uses web site stored on Canadian server of independent ISP to supply software to Canadian customers pursuant to contracts solicited and concluded in Canada.