Section 297

Notwithstanding that the appellant and his wife had already agreed to lease the condo, on their acquisition of a new condo the appellant provided a signed New Housing Rebate application form to the builder along with a statutory declaration indicating that he would be occupying the condo, and was credited with the rebate amount at closing by the builder. However, the builder did not submit the New Housing Rebate application form to the CRA until February 24, 2014 (approximately 22 months after the closing). CRA sought additional information from the appellant by letter dated January 6, 2015, and in an ensuing phone conversation, the appellant was told that the New Housing Rebate would be denied. This occurred by Notice of Assessment dated February 13, 2015. Shortly before this assessment, the appellant filed a Rental Rebate application with CRA, which was denied by Notice of Assessment, and to which the appellant objected.

Smith found that the Minister had acted “with all due dispatch,” as required by s. 297(1), in considering the application for the New Housing Rebate, stating (at paras 14, 18 and 19):

…[T]he expression “with all due dispatch” is the equivalent of “with all due diligence” or “within a reasonable time” but there is no fixed time period for the performance of the duty to assess or reassess: Ficek v. Canada (Attorney General), 2013 FC 502 (para.19) and Duchaine v. The Queen, 2015 TCC 245 (para. 26).

… [I]it is only relevant to determine whether the Minister acted “with all due dispatch” during the two months that followed receipt of the application from the Builder and I have no difficulty in concluding that the Minister has satisfied that requirement. Even if the issue had been whether the Minister had acted “with all due dispatch” in the 12 months or so that followed receipt, I would have found that this was an acceptable period of time. …

D’Arcy J dealt with a situation where a new home purchaser had claimed a new home rebate on the purchase, whereas in fact a new rental home rebate should instead have been claimed. He found that s. 296(2.1) is applicable where such an individual is assessed to deny a new home rebate.

In particular, after finding that an assessment of an amount owing under s. 264(1) is not made under s. 296 but, rather, under s. 297(2.1), D’Arcy J stated (at paras. 30, 32, 36):

[A]n amount is only payable under subsection 264(1) and assessed under subsection 297(2.1) if an amount has previously been paid to the person in respect of a rebate. …

When making the subsection 297(2.1) assessment for the overpayment of the rebate, the Minister must consider subsection 296(2.1) since she is assessing an amount that became payable by the person under Part IX of the Act. …

CRA in assessing must take into account any unclaimed new rental housing rebate that was available, as was the case here. However, CRA failed to do so, and the individual failed to file a notice of objection. The individual instead made a late filing for a new rental housing rebate, which was the incorrect thing to do as the two year deadline for making such a filing was inflexible (whereas there is no time limitation for requiring CRA to take that rebate into account at the time it assesses the individual to deny a new home rebate.)