Section 262

Ms. Simonetta acquired a new Toronto home pursuant to a purchase agreement that specified that the purchase price included any applicable HST. The vendors (two individuals) claimed that the sale was exempt from HST, so that it was evident that they did not consider Ms. Simonetta to have paid them any HST on the purchase, and that they would not complete the builder-required portion (“Section D”) of the form for the new housing rebate.

Sommerfeldt J found on the evidence (even though the vendors were not parties to the case) that the vendors had never occupied the home as a residence and had sold the home as an adventure in the nature of trade – so that they were builders, and the sale was subject to HST. Accordingly, Ms. Simonetta had established one of the mooted requirements for claiming the rebate, namely that she had paid HST on her purchase.

Regarding Section D, Sommerfeldt J found (at para. 103):

[I]t was not possible for Ms. Simonetta to obtain the business number (if any), address, telephone number and signatures of the Vendors [as required by Section D]. Therefore, Ms. Simonetta’s inability to obtain that information and those signatures does not vitiate her Application for the Rebate.

The appellant applied for the new housing rebate on his purchase of a new condo unit even though he had already agreed to lease it out effective the closing date. When this claim was denied after the two-year deadline in s. 256.2(7)(a), he then applied for the new rental housing rebate and argued that by virtue of s. 32, he should be treated as having applied for it at the same time as he had applied for the new housing rebate. In rejecting this submission, Smith J stated (at para. 23):

Since there was no indication in the New Housing Rebate application that the Property had been rented and no mention of the duration of the rental period, it seems apparent that this was much more than a mere “deviation” and that the Appellant cannot be said to have “complied substantially” with the requirements of subsection 256.2 of the Act.

After quoting s. 262(1), he then stated (paras. 25-27):

It is apparent that Parliament has used very clear and precise language. The wording is quite technical and must be considered “mandatory as opposed to directory:” Chandra v R, 2009 TCC 230, para. 4.

Even if the Court were to accept that it was not necessary to use the “prescribed form” (Form GST524), it would still be necessary to conclude that the “prescribed information” had been filed with the Minister.

In this instance, it is clear that the “prescribed information” required to support the Rental Rebate application was not included with the New Housing Rebate application … .

An agreement for the purchase of a new condo by the individual appellant was amended shortly before closing at the insistence of the mortgage lender (the "Credit Union") to add her (Ms. Richards) as a co-purchaser (with Ms. Richards receiving a 1% ownership interest in the condo at closing). Hershfield J declined to follow Al-Hossain, which suggested that the combined effect of ss. 254(2) and 262(3) was to deny the rebate as a (1%) interest in the condo was supplied to an unrelated person (Ms. Richards) who was not acquiring the condo as a primary residence.

He characterized the amended purchase agreement as instead entailing, at most, a supply of a 1% interest in the property by the appellant to Ms. Richards in consideration for Ms. Richards’s guarantee – and as not resulting in any interest in the condo also being supplied by the builder to Ms. Richards.

In addition, he applied (at para. 44) the “ultimate liability” Bondfield doctrine to find that because the appellant “accepted ultimate liability for payment to the builder in the unlikely event the builder was able to make a case against Ms. Richards,” the appellant was the sole “recipient” of the supply by the builder, so that the ETA s. 123 “recipient” definition deemed the builder to supply the condo solely to the appellant.

The appellant agreed to purchase a new home (the "Woodbine property"). Around the same time, his cousin ("Kwinson Ho"), cousin's spouse ("Chun Sim Yip"), and cousin's mother entered an agreement to purchase another new home (the "Heenan property").

Having financial problems, the appellant amended his purchase agreement to have the cousin and spouse added as purchasers. The appellant, Kwinson Ho and Chun Sim Yip closed the purchase of the Woodbine property. Kwinson Ho, Chun Sim Yip and Kwinson Ho's mother moved in; the appellant did not.

D'Arcy J rejected the appellant's appeal for the new housing rebate on the Woodbine property, as he was a member of the purchasing group who did not then occupy the property. He stated (at para. 43):

Clause 254(2)(g)(i)(A) as modified by subsection 263(2) does not contain any ambiguities. It clearly states that all of the individuals as a group must occupy the complex as a place of residence.