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Citation: 2003TCC398
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Date: 20030610
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Docket: 2001-746(GST)G
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BETWEEN:
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CLIVE TREGASKISS INVESTMENT INC.,
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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 ORDER
Bowie J.
[1] This appeal is from an assessment to goods
and services tax (GST) under Part IX of the Excise Tax Act (the Act).
The assessment results from the construction by the Appellant of a single
family residence in Windsor, Ontario for the use of Mr. Clive Tregaskiss, the
president of the Appellant company. The date of substantial completion of the
house was May 29, 1998, and Mr. Tregaskiss took possession under a lease on
August 1 that year. It is common ground that the Appellant comes within the
definition of a builder for purposes of the self-supply rules in the Act,
and so was required to remit GST on the self-supply of the residence at the
rate of 7%. The parties dispute the fair market value of the property on August
1, 1998. The Appellant says that it was not more than $1,500,000; the Minister
of National Revenue has assessed the Appellant on the basis that it was
$3,300,000.
[2] A representative of the Appellant was
examined for discovery on February 3, 2003. At the end of the examination 32
questions remained unanswered. The Appellant refused to answer 3 questions,
took 12 under advisement, and gave undertakings in respect of 17. The time
fixed for completion of undertakings ran out at the end of March, with no
answers having been given. Counsel for the Respondent wrote twice to counsel
for the Appellant requesting that the undertakings be fulfilled, once on
February 20 and again on April 1. Having received no reply to either letter, he
brought this motion for answers to the questions not answered on discovery, a
direction under Rule 77 permitting the Respondent’s appraiser to inspect the
residence, and an Order under Rule 54 permitting the Respondent to amend the
Reply to the Notice of Appeal. The motion was returnable on May 15 by way of a
conference telephone call; at the request of the Appellant it was adjourned,
and I heard it at Windsor on May 29. By that time, counsel for the Appellant
had provided answers to all but five of the questions in issue. The Appellant
refused to answer questions number 113, 116 and 126 on the basis of
solicitor-client privilege; number 156 was refused on the basis of relevance,
and is no longer pursued by the Respondent. Number 241 was a request by the
Respondent to permit an appraiser to inspect the property within the next
30 days (that is by March 5, 2003), and it was refused. Certain follow-up
questions were asked by the Respondent by letter dated May 22, and on May 23
counsel for the Appellant answered all but one of these; an answer to that one
was refused on the basis that it was not properly a follow-up question.
[3] The issues before me on this motion that
arise out of the discovery, then, are:
(i) whether questions 113 and 116
should be answered;
(ii) whether certain
documents referred to in the Reply to question 126 are subject to
solicitor-client privilege;
(iii) whether the follow-up question
relating to questions 129 to 131 should be answered; and
(iv) whether I should direct that the
Appellant permit an inspection by the Respondent’s appraiser.
In addition, the Respondent moves for leave to amend
the Reply to the Notice of Appeal by the addition of two paragraphs.
questions 113 and 116
[4] To deal with these two questions, it is
necessary to consider questions 112 to 116 and the responses to them in full.
Q.112 Mr. Campbell, can you
explain why the corporation was set up? Why was this Appellant set up?
MR. MORGA: If you know.
A. Yeah, that goes
back a few years. I don't recall, I'd have to give that some thought.
Q.113 Okay. Can I get an
undertaking to find out why the corporation was established?
MR. MORGA: We'll take that
under advisement.
(UNDERTAKING AND/OR REQUEST)
Q.114 Why was the house
owned by a corporation instead of just having it owned by Mr. Tregaskiss
personally?
A. That was some
advice that we had received. Again, I would have to go back and refer to the --
I'm sure there's a -- there was some recommendations that were made. I'd have
to refer to that.
Q.115 Do you know who would
have made those recommendations?
A. I believe it was
the firm BDO Dunwoody.
Q.116 Was this done for tax
money purpose?
MR. MORGA: If you know.
A. I'd have to go
back and -- I'd have to go back and -- refer to the document.
MR. EZRI: I'll
ask for an undertaking as to why the house was owned by the corporation instead
of by Mr. Tregaskiss personally.
MR. MORGA: I'll take that
under advisement and let you know.
(UNDERTAKING AND/OR REQUEST)
MR. EZRI: Okay.
MR. MORGA: Anything
that I take under advisement, I'll let you know within 30 days.
MR. EZRI: That's
fine. And also if you can confirm who gave the advice? He said he thought it
was BDO, but just in case he's not right about that.
MR. MORGA: The
same response.
(UNDERTAKING AND/OR REQUEST)
In answering the undertakings on May 20, this is
what counsel for the Appellant had to say about these questions:
Q. 113 The corporation was
established based in part on advice by counsel and as such, is not subject to
disclosure in the context.
Q. 116 The advice was given
by the accounting firm of BDO Dunwoody and the law firm of Corrent & Macri
is not subject to disclosure.
[5] Alicia T. Stein is an associate in the law
firm Wilson, Walker, Miller Canfield, counsel of record for the Appellant. She
swore an affidavit in opposition to the motion on May 26, 2003. The paragraphs
dealing with the issue of solicitor-client privilege read as follows:
6. During
the course of the examination for discovery of Robert Douglas Campbell on
behalf of the Appellant, the Respondent made inquiries with respect to the
decision to have the subject property owned by Clive Tregaskiss Investments
Inc. rather than by Mr. Tregaskiss personally. In response, the Appellant
advised that the advice with respect to the formation of the corporation to own
the subject property was received from the accounting firm of BDO Dunwoody and
the law firm of Corrent and Macri. As such, the communications are not subject
to disclosure as they are privileged. Correspondence and memoranda which have
been exchanged in respect of the formation of the corporation include the
following:
(a) Correspondence
from BDO Dunwoody to Corrent and Macri to the attention of J.P. Corrent dated
December 2nd, 1997;
(b) BDO
Dunwoody internal memorandum dated November 24th, 1997 which was provided to
Clive Tregaskiss for the use of counsel;
(c) BDO
internal memorandum dated December 15, 1997 which was provided to Clive
Tregaskiss for the use of counsel;
7. I have
reviewed the communications as between BDO Dunwoody and Corrent and Macri and
found that in the communications, the accountants placed two factual scenarios
before the legal representative for the appellant and required the lawyers to
carry out certain instructions to achieve the desired end.
8. It is
submitted that in the circumstances, these communications are protected from
disclosure on the basis of solicitor/client privilege as the accounting firm of
BDO Dunwoody stood in the shoes of the Appellant in providing instructions to
Corrent and Macri to obtain assistance in achieving a legal outcome.
[6] A number of difficulties with this
affidavit are immediately apparent. First, it is sworn by an associate in the
firm of counsel for the party on whose behalf it is filed, which is not
permissible,
except perhaps as to merely formal matters. The claim of privilege as to which
these paragraphs speak is a contested and substantive matter. Moreover, Rule 72
provides:
72. An
affidavit for use on a motion may contain statements of the deponent’s
information and belief, if the source of the information and the fact of the
belief are specified in the affidavit.
Paragraph 1 of the affidavit reads:
1. I am an
associate with the Wilson, Walker, Miller Canfield Law Firm, the solicitors of
record for the Appellant, and as such have knowledge of the matters hereinafter
deposed to. To the extent that I am relying on information obtained from others
named herein, I verily believe that information to be true.
[7] The affidavit gives no source for the
statement that the memoranda described as a) and b) in paragraph 6 were
"provided to Clive Tregaskiss for the use of counsel". These two documents
were provided to me in a sealed envelope by counsel for the Appellant, with the
concurrence of counsel for the Respondent. They are, as described in the
affidavit, internal memoranda. Nothing identifies them as being prepared by BDO
Dunwoody, or any other firm. One is from “Mike” to “File” re “Clive Tregaskiss
Investments Inc. (Cliveco) Purchase of House”, and the other is from “Ron St.
Pierre” to “Mike McCreight”, re “GST implications on transfer of house to a
holding company”. Obviously Ms. Stein must be relying on some other source of
information to depose that these “were furnished to Clive Tregaskiss for the
use of counsel”. The same is true of the statement that “the accountants placed
two factual scenarios before the legal representative for the Appellant and
required the lawyers to carry out certain instructions to achieve the desired
end”. No source for any of this is disclosed in the affidavit. Both because it
is made by an associate in counsel’s firm, and because it fails to specify any source
of information as to the important matter of the purpose for which the
memoranda were prepared, I give no weight to the affidavit. What I am left with
is two memoranda which on their face were not apparently prepared by lawyers or
prepared specifically for the use of lawyers in the business of the client. The
Appellant could have produced a proper affidavit from the accountants, from the
client, or from the lawyers, if in fact these memoranda were prepared for the
client to give to the lawyers as part of its instructions to them. That was not
done, and I conclude that the documents are simply tax advice given by an
accountant to a client, which of course is not subject to any privilege at all.
Nor, in my view, has it been shown that to answer questions 113 and 116 would
infringe any privilege. It is obvious from the context that the Respondent’s
counsel is not looking for the substance of any legal advice. Two memoranda
were apparently written for Mr. Tregaskiss, by accountants, as to the tax
implications of having a corporation own his residence. Nothing demonstrates to
me that lawyers were involved in giving any such advice. The Appellant shall
answer questions 113 and 116, and shall produce to the Respondent the two
memoranda referred to as (b) and (c) in paragraph 6 of the affidavit of Ms.
Stein. At the hearing Mr. Ezri conceded that the document referred to as (a) is
covered by solicitor-client privilege.
the
follow-up question to questions 129 to 131
[8] The questions and answers are:
Q.129 Can you tell me at
what point in time a decision was made to self-assess on the basis on a fair
market value of less than the cost of construction?
A. Do you want me to
recall when that decision was made?
Q.130 Well, what I'd like
to know is was it before or after you received the first appraisal report?
A. I don't recall,
that's -- that's going back some time now.
Q.131 Okay.
MR. EZRI: I'm
going to ask for an undertaking if there's any correspondence or memoranda in
the possession of the Appellant that indicates when they first decided the fair
market value of the house was less than the cost of construction.
MR. MORGA: I'm
going to ask that under advisement. Again, it's a question of whether or not
there was counsel involved. I don't know if such documents exist, but if they
do, it may be a question of counsel being involved at that stage.
MR. EZRI: Okay.
MR. MORGA: And
if there is, then of course, we get into that privilege issue again.
The response provided was:
The decision to assess the property at the
fair market value was made on or about May 29, 1998 upon obtaining the
appraisal report prepared by Ray Bower Appraisal Services Inc.
[9] Counsel for the Respondent then asked, as a
follow-up question:
Did the Appellant
anticipate, prior to May 1998 that the fair market value of the house might be
less that its construction cost, and if so when did it anticipate this result?
I agree with counsel for the Appellant that this
question does not arise out of the response to the undertaking. The Appellant does
not have to answer it.
inspection of the house by the Respondent’s appraiser
[10] Mr. Morga’s opposition to my giving a
direction for inspection, as I understood him, was based primarily upon the
fact that there was no affidavit evidence put forward by the Respondent in
support of that aspect of the motion. His contention was that the Rules require
an affidavit in support of any motion, and if there is none, as here, then the
Court cannot make the Order. He relied for this proposition on Shaw Industries
Ltd v. The Queen,
where it is said that “affidavits should be filed” in support of a motion. No
doubt that is so in cases where it is necessary to establish a fact that is not
otherwise susceptible of being established for purposes of the motion in question.
Subsection (1) of Rule 67 says:
The notice of motion
together with the affidavits or other documentary material to be used at the
hearing of the motion shall be served …
[11] Clearly, it does not require that an
affidavit be served if the nature of the motion does not require proof of
facts. The issue is the fair market value to be placed upon a residence at the
time of its first occupancy, one month after the date of substantial
completion. The Appellant contends for a value that is less than half of the
value arrived at by the Minister using the cost approach. The Appellant in its
Notice of Appeal alleges that:
12. In
the instant case, the Appellant has included in the construction of the
residence numerous super adequacies which are not normally included in the
construction of residential housing. The subject residence is unique and has
many amenities which an informed buyer would not be willing to pay for.
13. The
Appellant contends that the direct comparison approach produces the only means of
determining fair market value as it represents the actual sum a perspective [sic]
purchaser would be willing to pay for this property as opposed to what it would
cost for a perspective [sic] purchaser to construct same.
[12] The authority for the Court to make a
direction of the kind the Respondent seeks is Rule 77.
77(1) The
Court may, by direction, authorize the inspection of real or personal property
where it appears to be necessary for the proper determination of an issue in a
proceeding.
(2) For the purpose of the inspection, the Court may,
(a) authorize
entry on or into and the taking of temporary possession of any property in the
possession of a party or of a person not a party,
(b) permit
the measuring, surveying or photographing of the property or of any particular
object or operation on the property, and
(c) permit
the taking of samples, the making of observations or the conducting of tests or
experiments.
(3) The
direction shall specify the time, place and manner of the inspection and may
impose such other terms, including the payment of compensation, as are just.
(4) A
direction for inspection shall not be made without notice to the person in
possession of the property unless,
(a) service
of notice, or the delay necessary to serve notice, might entail serious
consequences to the moving party, or
(b) the
Court dispenses with service of notice for any other sufficient reason.
It is clear to me from the nature of the dispute that
it is necessary for the proper determination of the issue in this case that the
Respondent’s appraisal witness have the opportunity to see the property in
question, not just from the street or the river, but inside as well. He is
entitled to inspect the “numerous super adequacies”. Other than the absence of
an affidavit, Mr. Morga’s objections to permitting the inspection were that it
is too late for that as the trial is scheduled to begin July 14, 2003, and it
would constitute an intrusion on the privacy of Mr. Tregaskiss. Counsel for the
Respondent requested that the Minister’s appraiser be given access to inspect
the property during the examination for discovery of the Appellant’s
representative on February 3, 2003. The response was to take it under
advisement. No further response was given by the Appellant’s counsel until the
very belated response to undertakings delivered on May 20 some two weeks after
the returnable date of this motion. The response was a bald refusal, unadorned
by any reason. Mr. Morga offered no evidence of any circumstances related to
Mr. Tregaskiss’s personal life that need to be taken into account. My direction
under Rule 77 is that the Appellant shall, within 21 days of the date of my
Order, permit the appraiser designated by the Minister to have access to the
residence at 5656 Riverside Drive East, Windsor, Ontario, both inside and
outside the house and any other buildings, for the purpose of inspecting the
property and taking such measurements and photographs as he deems necessary. If
the parties are unable to agree as to the date and time for the inspection, the
motion may be brought back before me by teleconference.
amendment of the Reply to the Notice of Appeal
[13] The Respondent moves to add the following
two paragraphs to the Reply, in Part D -
grounds relied on and relief sought:
16. In the alternative it
is submitted that the Appellant is estopped from claiming that the FMV of the
Property is $1.5 million. The Appellant claimed ITCs on the goods and services
used to improve the property. However, subsection 170(2) of the Act only
allows ITCs to be claimed to the extent that the quality, nature, and cost of
goods and services used is reasonable having regard to the commercial activity
of the registrant. In this case, the only commercial activity of the Registrant
was the supply by way of sale of the Property at FMV pursuant to section 191 of
the Act. By claiming ITCs, the Appellant represented to the Minister
that it was commercially reasonable to use goods and services of extremely high
quality, nature, and cost to build a residential complex that would be deemed
to be sold at its fair market value. By remaining silent and not amending or
correcting its GST return the Appellant again represented that it was
commercially reasonable to spend $3.3 million to construct a residential
complex that would be deemed to be sold at fair market value. The Minister
relied on these representations and allowed the Appellant full ITCs up to the
time of substantial completion and beyond. It is therefore not open to the
Appellant to now argue that the FMV of the Property bears no relation to the
cost of construction or that the FMV of the Property represents less than 50%
of the cost of the Property and less than 35% of the FMV of the building.
17. In the further
alternative it is submitted that the assessment of Net Tax by the Minister was
correct for reasons other than those set out in the Notice of Assessment. Any
claim for ITCs by the Appellant in excess of $105,000, claimed during the
assessment period of January 15, 1997 to September 30, 1999 is
unreasonable having regard to the nature of the Appellant's commercial
activities and is not payable to the Appellant by virtue of subsection 170(2)
of the Act. As a result, the Net Tax of the Appellant remains unchanged
from the amount assessed by the Minister.
[14] The Appellant opposes the proposed
amendment on the basis of the decision of the Supreme Court of Canada in The
Queen v. Continental Bank of Canada.
There the Court held that the Minister may not assert a new basis for an
assessment for income tax after the limitation period has expired. That case
was followed by amendments to both the Income Tax Act and the Excise
Tax Act, which were clearly intended to overcome the Court’s decision. The
amendment to the Excise Tax Act added subsection 298(6.1):
The Minister may advance an alternative
argument in support of an assessment of a person at any time after the period
otherwise limited by subsection (1) or (2) for making the assessment unless, on
an appeal under this Part,
(a) there
is relevant evidence that the person is no longer able to adduce without leave
of the court; and
(b) it is not
appropriate in the circumstances for the court to order that the evidence be
adduced.
Mr. Morga opposes the proposed amendment in this case
on the basis that the amendment “seeks to advance a new basis for an assessment
[and is] tantamount to the Respondent appealing its own assessment after the
statutory barred period”. This, he submitted, goes beyond the alternative
argument in support of an assessment that subsection 298(6.1) sanctions.
[15] In Smith Kline
Beecham Animal Health Inc. v. The Queen,
Bonner J. had to consider a proposed amendment to the Reply filed in an appeal
under the Income Tax Act. The objection was raised in that case, as
here, that the proposed amendment was one that in effect raised a new
assessment after the limitation period had expired, and that this was
foreclosed by the Supreme Court's decision in Continental Bank. In
permitting the amendment, Judge Bonner said:
[14] In my view Continental
Bank was never authority for the proposition that the Minister is, when
defending an appeal from an assessment after the expiry of the subsection
152(4) period, confined within a conceptual prison called "basis of
assessment" comprising only the facts and statutory provisions relied upon
by the assessor. In my view Continental Bank is an application of the
long-standing rule governing litigation in appellate courts which rule prevents
litigants from raising points on appeal which were not pleaded and argued in
the trial court. Appellate courts cannot be expected to deal with a new issue
on appeal resting on an evidentiary record which is deficient by reason of the
failure to plead and direct evidence to that issue. Here the Respondent seeks
leave to amend well before the commencement of the trial. The situation is in
no way analogous to Continental Bank.
[15] Furthermore,
nothing said in Continental Bank suggests that subsection 152(4)
has a bearing on the amendment which the Respondent seeks. Subsection 152(4)
restricts the right of the Minister to "... reassess or make additional
assessments, or assess tax, interest or penalties ... ". The amendment now
in question would not effect a reassessment of tax. Rather it is an attempt to
defend the existing assessment of tax by asserting that, on the facts already
pleaded, liability is imposed by a provision of the Act other than that
relied on by the assessor.
[16] It is
long-settled law that the validity of an assessment depends on the application
of the statute to the facts and not on the assessor's analysis. It is, I
believe, unlikely that it was the intention of the Court in Continental Bank
(supra) to overrule decisions such as Minden (supra) and Riendeau
(supra) without referring to them. Accordingly, I am of the opinion that
nothing said in Continental Bank can apply to prevent the Minister from
relying on section 245 in the present case.
An appeal from his decision was dismissed by the
Federal Court of Appeal.
[16] An assessment for GST for any given period
is the computation by the Minister of the net amount that the taxpayer is
liable to pay under the Act, or in some cases to receive, made up of the
tax imposed for transactions taking place during the period, net of the
entitlement to receive input tax credits (ITCs) in respect of the same period:
see subsections 225(1) and 296(1). It is from this quantification that an
appeal lies (after objection). The Minister’s proposed amendment does not seek
to change that amount. Proposed paragraph 16 would raise an argument that the
taxpayer’s conduct in claiming certain ITCs gives rise to an estoppel as to the
value of the residence based upon facts that are a component of the assessment
appealed from (the ITCs claimed and allowed), and a provision of the Act
(subsection 170(2)). Proposed paragraph 17 simply argues that if the Appellant
is correct in its position as to the fair market value of the residence, then
the net tax is nevertheless correct, because that same subsection 170(2) has
effect to limit the Appellant’s entitlement for ITCs to 7% of that fair market
value, which is $105,000. Neither of these arguments involves a new basis for
the assessment. Counsel for the Appellant argued that the matter of entitlement
to ITCs in respect of the period covered by the assessment has long since been
closed, because the claimed ITCs were approved and paid. However, this argument
ignores the fact that the “net tax” that is the subject of the assessment
appealed from consists of two elements. It is defined in subsection 225(1) as A
‑ B. Omitting that which is not relevant for present purposes, A is the
GST collectible during the assessment period, and B is the aggregate
entitlement to ITCs. Proposed new paragraph 17 adds nothing to the factual
issues between the parties.
[17] The Appellant relied on the decision of
this Court in Rogic v The Queen.
That was a much different case, however, as the Minister there sought to resile
from facts that had been established in earlier litigation between the Minister
and a corporation whose shares were wholly owned by the taxpayers, and which
had been pleaded by the Crown. In any event, the Smith Kline decision
has been specifically approved by the Court of Appeal. If there were any
inconsistency between it and Rogic, I would be bound to follow Smith
Kline.
[18] Mr. Morga also
argued that it was too late for the Respondent to amend the Reply as the trial
is scheduled to begin in July. He did not, however, point to any prejudice that
the Appellant would suffer by reason of such a belated amendment. If that
argument had any validity at the time it was made, it no longer does as the
trial has since been adjourned at the request of the Appellant. The Respondent will have leave to amend the
Reply to add the two paragraphs proposed.
[19] The need for the present motion was largely
occasioned by the Appellant’s total disregard of its obligation to respond to
undertakings within the time fixed by Judge O’Connor’s Order of October 30,
2002, and its unreasoned refusal to permit an inspection of the property. The
filing of affidavits by counsel and their partner’s and associates should be
discouraged. The same may be said of the other deficiencies in the affidavit to
which I have referred. The Respondent will have costs of the motion in any
event of the cause, payable forthwith.
Signed at Ottawa, Canada, this 10th day of
June, 2003.
J.T.C.C.
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