Date: 20010202
Docket: 2000-1175-GST-I
BETWEEN:
MAURICE DIDKOWSKI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Counsel for the Appellant: Denise L. Batters
Counsel for the Respondent: Tracey Harwood-Jones
Reasons for Judgment
(Delivered orally from the Bench at Regina Saskatchewan, on
November 1, 2000)
McArthur J.
[1] In this appeal, the Minister of National
Revenue submits that the Appellant is not entitled to a goods and
services tax rebate pursuant to subsection 256(2) of the
Excise Tax Act because he did not file his application
within two years from the completion and occupancy of his home
pursuant to subsection 256(3) of the Act. Unfortunately
for the Appellant and his wife, a joint owner of the house in
question, the Respondent is correct. The governing legislation
reads in part as follows:
256(2) Where
(a)
a particular individual constructs ... or engages another
person to construct ... a residential complex that is a
single unit residential complex ... for use as the primary
place of residence of the particular individual ...
the Minister shall, subject to subsection 3, pay a rebate to
the particular individual equal to
...
256(3) A rebate under this section in
respect of a residential complex shall not be paid to an
individual unless the individual files an application for the
rebate within two years after the earliest of
(a)
the day that is two years after the day the complex is first
occupied ...
(a.1)
...
(b)
the day construction or substantial renovation of the complex is
substantially completed.
[2]
The Appellant and his wife purchased a building lot in November
1995 and then engaged a builder to construct a single family home
for them commencing in February 1996. The house was substantially
completed and the Appellant and his wife moved in on June 14,
1996. The rebate application was received by the Minister on
January 11, 1999, more than two years from the deadline set out
in subsection 256(3). Pursuant to the legislation, the deadline
for filing the application was June 14, 1998 and therefore, their
application filing was six or seven months late. I have no way of
extending the deadline nor does estoppel apply in their
instance.
[3]
Clearly, in this appeal, the Appellant or more specifically his
wife who completed the application, was misled by an officer of
the GST division of Revenue Canada who had advised that they had
four years to apply for a rebate and not two years. There are
many cases to cite as examples but I shall mention the case of
Waldron v. Canada, [1999] G.S.T.C. 31-1. The doctrine of
estoppel cannot be of assistance because as stated by Sarchuk J.
in Waldron, "the issue of estoppel has been
considered in a number of cases, and the principle which
generally can be taken therefrom is that no representation
involving an interpretation of the law by a servant or officer of
the Crown can bind it". Also, this rationale was set out by
Bowman J. in S. Goldstein v. Canada, [1995] 2 C.T.C. 2036.
A GST representative cannot change the legislation.
[4] I
have not had a more worthy instance for favorable treatment by
the federal cabinet than under the Financial Administration
Act for a Remission Order. I refer the Appellant and his
counsel to the editorial comment of the well-respected
writer, David Sherman, following his report of the Waldron
case at page 31-6, where he stated:
Since Revenue Canada admitted that it advised the Appellant
orally that the deadline was four years, the federal cabinet
granted a remission order under the Financial Administration
Act: Sharon Waldron Remission Order, SI/TR,
JUS-601168, August 25, 1999.
And he refers to several other Remission Orders that were
granted.
[5]
It is beyond comprehension while this elderly couple were put
through the turmoil of this appeal, they clearly relied on the
advice of a GST officer to their detriment. Apparently, no
suggestion for assistance through an application under the
Financial Administration Act was given. Someone somewhere
lacks fundamental fairness.
[6]
In conclusion, the Appellant cannot obtain the rebate pursuant to
subsection 256(2) of the Act having failed to file
the rebate application within two years from the date of
substantial completion or occupancy of the house as required by
subsection 256(3). An incorrect statement by an officer of the
Crown does not change the Act. The appeal is
dismissed.
Signed at Ottawa, Canada, this 2nd day of February, 2001.
"C.H. McArthur"
J.T.C.C.
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