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Significance of a Determination as to Whether the Siblings Previously Occupied the Property as a Residence Prior to the Start of the Assessed Reporting Periods [26] The main factual dispute between the parties in connection with these appeals is whether the siblings resided at the Property at some point in time before the start of the assessed reporting periods. [27] Residential occupancy at the Property by the siblings is relevant to each of the three exemptions. [28] It is indirectly relevant to the Section 2 Exemption because an individual will be considered a builder under the definition in subsection 123(1) of the ETA if the subject property was acquired in the course of a business or an adventure or concern in the nature of trade. ... There is nothing in the language to suggest that the nature of residential occupancy at the property has to be as the individual’s principal place of residence. [38] Therefore, if the siblings are found to be builders in relation to the Property, a self-supply of the Property after the completion of construction or substantial renovation would arise if the siblings are considered to have occupied the Property as a residence (subject to the exemption under subsection 191(5) of the ETA), notwithstanding that the siblings could also be considered to be resident elsewhere for part of the relevant timeframe. [39] The Appellants assert that they occupied the Property as their residence late in 2012 or the start of 2013. [40] The only direct evidence tendered by the Appellants in support of their position was their respective testimonies. ... But I accepted the siblings’ testimony that those were not services that they considered essential in their circumstances. [45] In the result, I have concluded on a balance of probabilities that the Appellants occupied the Property as a residence at, or shortly after, the end of the 2012 calendar year. ...

The First Reviewer also noted that investment losses are not considered a withdrawal. [8] In January 2023, the Applicant requested a second review for reconsideration and removal of the tax charges [Second Request]. ... The Second Reviewer summarized the Applicant’s submissions in her Second Request and noted that investment losses are not considered a withdrawal and not part of the TFSA contribution room. ... The Second Reviewer is presumed to have considered all evidence before her but was not required to respond to every argument, particularly if it were not central to the Second Request (Vavilov at para 128). ...

Bill McArthur, the Reviewing Officer, sworn on October 14, 2022. [32] The Reviewing Officer clearly set out all the materials considered in the course of the second review. ... As noted above, the CRA Notepads clearly document the numerous unsuccessful attempts to contact the Applicant to obtain further information necessary to validate their application for the CRB. [35] The record demonstrates that the Reviewing Officer considered all the documents submitted by the Applicant, as well as the Applicant’s explanations concerning his income during the relevant periods. ... The Reviewing Officer attempted to discuss the application with the Applicant as part of the Second Review Report; the Applicant was aware of the evidence needed to support his application following the first negative decision and provided further information, which was considered by the Reviewing Officer. [45] Similar to the situation before this Court in Larocque, the Applicant did not avail himself of the opportunity to discuss his application with the Reviewing Officer, despite having multiple opportunities to do so. [46] In the circumstances, there is no evidence that the Reviewing Officer breached any applicable principles of procedural fairness. ...

The Second Decision [14] A separate CRA official, not involved with the first level review, considered the Applicant’s request and submissions and confirmed that the Applicant’s circumstances did not support cancellation of the tax on the Applicant’s Over-Contribution. ... I find that it is. [32] I agree with the Respondent that the CRA considered the Applicant’s circumstances and the Second Decision provides responsive reasons on the first element of the test under subsection 207.06(1) of the Income Tax Act. ... This letter has been accepted in support of the Applicant’s procedural fairness arguments; it cannot be considered by this Court in considering the reasonableness of the Second Decision. [37] I therefore find that the Applicant has not shown the Second Decision to be unreasonable. ...

She also noted that Form T3012A is not necessary to withdraw the excess amount and any delays that result from having the withdrawal approved are not considered to be a reasonable error. [11] A CRA Resource Officer subsequently endorsed the Report and issued the Decision on behalf of the Minister, denying the Second Request. ... Both the outcome of the decision and its reasoning process must be considered in assessing whether these hallmarks are met (Vavilov at paras 15, 95, 136). [16] Such a review must include a rigorous evaluation of administrative decisions. ... As a result, the taxpayer’s innocence or lack of intent — which are subjective factors — are not determinative of the reasonableness of the error, though they may be considered in the Minister’s analysis (Froehling at para 26, citing Lepiarczyk v Canada (Revenue Agency), 2008 FC 1022 at para 19). ...