Words and Phrases - "occupancy"

The appellant agreed in July 2016 to purchase a new home for $413,847, but by the time of the closing in March 2018, he had lost his source of employment income and broken up with his partner. He nonetheless closed with financial assistance from his parents and from a private mortgage. He did not consume any meals at the residence, and only stayed there for approximately two nights per week. The only housekeeping items on the premises were a mattress, sheets and pillows and a table. He had occupational home insurance for the residence, as well as internet and natural gas for the stove and for heat. He eventually sold the residence for $455,000.

Rossiter CJ, in rejecting the Crown’s argument that s. 254(2)(g) required the appellant to have occupied the property as his primary place of residence, stated (at para. 22):

[I]t must be presumed Parliament intentionally chose to make a distinction when it used the words “primary place of residence” in paragraph (b) and “place of residence” in paragraph (g).

Rossiter CJ went on to find that, although the appellant satisfied the requirement under s. 254(2)(b) that, at the time of agreeing to purchase, he had intended to occupy the residence as his primary place of residence, he had not satisfied the requirement under s. 254(2)(g) that he had in fact occupied the residence as a place of residence, stating (at para. 24):

[O]ccupancy is something more than simply having a mattress with a set of sheets and pillowcases and a table on the premises. Although the Appellant did some measure of staying at the premises in question, two nights per week, this certainly could not classify one as occupying the premises.

Rossiter CJ went on to note that the appellant continued to live most of his time with his parents, where he kept most of his personal effects and mailing address. He accepted (at para. 26) the “frustrating event” doctrine from Sazio (2018 TCC 258), but stated (at para. 26):

To invoke frustration, the surrounding circumstances must make the frustrating event unforeseeable, beyond the buyer’s control, and deny the buyer any alternative pathway to having the property be their primary residence … .

Although the appellant pointed to the need to obtain a private mortgage, he did not establish that this interfered with an ability to occupy the residence.

Accordingly, the rebate was denied because s. 254(2)(g) was not satisfied.