1096288 ONTARIO LIMITED Appellant v. HER MAJESTY THE QUEEN, 2010 FCA 332

Federal Court of Appeal Cour d'appel fédérale Federal Court of Appeal Cour d'appel fédérale Date: 20101206 Docket: A-260-09 Citation: 2010 FCA 332 CORAM: SEXTON J.A. EVANS J.A. PELLETIER J.A. BETWEEN: 1096288 ONTARIO LIMITED Appellant and HER MAJESTY THE QUEEN Respondent Heard at Toronto, Ontario , on December 6, 2010. Judgment delivered from the Bench at Toronto, Ontario , on December 6, 2010. REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A. Date: 20101206 Docket: A-260-09 Citation: 2010 FCA 332

CORAM: SEXTON J.A. EVANS J.A. PELLETIER J.A. BETWEEN: 1096288 ONTARIO LIMITED Appellant and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto , Ontario, on December 6, 2010) EVANS J.A. [ 1 ] This is an appeal by 1096288 Ontario Limited from a decision by the Tax Court of Canada ( 2009 TCC 292 ), in which Justice Paris (Judge) held that the Appellant, a builder, was required to collect GST on the sale of houses which it had moved from one lot to another. [ 2 ] GST is payable on the sale of a ​residential complex​ by the builder:

section 2,

Part 1 of

Schedule V of the Excise Tax Act , RSC 1985, c. E-15 (Act).

A ​builder​ is defined in subsection 123(1) of the Act as a person who carries on the ​construction or substantial renovation​ of a residential complex. ​Residential complex​ is defined in the same subsection as that part of the building in which one or more residential units are located, ​together with ​ the land immediately contiguous to the building that is reasonably necessary for the use and enjoyment of the building as a place of residence​. [ 3 ] The word ​construction​ is not defined in the Act and the Judge gave it its ordinary meaning: in particular, the act of forming something by putting together parts.

He reasoned that, since ​residential complex​ comprises the building and the land on which it stands, when the Appellant moved a house from its original lot, it ceased to be part of the previous ​residential complex​. By preparing the foundation on the new lot, installing the necessary services, and attaching the relocated house, the builder had thereby constructed a new ​residential complex​. [ 4 ] Counsel says that unless there has been a change to the frame of a residence there has been no ​construction​ of it. We disagree.

The term ​construction​ in its ordinary sense is not this narrow, but can include, as the Judge found, forming the residential complex by putting the house and the land together. [ 5 ] We see no error by the Judge in his formulation of the applicable legal test, and no palpable and overriding error in his application of the law to the facts. [ 6 ] For these reasons, the appeal will be dismissed with costs. "John M. Evans" J.A. FEDERAL COURT OF APPEAL

FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-260-09 (APPEAL FROM A JUDGMENT OF THE TAX COURT OF CANADA, DECISION OF JUSTICE B. PARIS DATED MAY 29, 2009, IN DOCKET NO. 2006-1882 (GST)

I) STYLE OF CAUSE: 1096288 ONTARIO LIMITED v. HER MAJESTY THE QUEEN PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: December 6, 2010 REASONS FOR JUDGMENT OF THE COURT BY: (SEXTON, EVANS & PELLETIER JJ.A.) DELIVERED FROM THE BENCH BY: EVANS J.A. APPEARANCES : A. Wilford FOR THE APPELLANT Anne Paré FOR THE RESPONDENT SOLICITORS OF RECORD : Barrister and Solicitor Hillsburgh, Ontario FOR THE APPELLANT Myles J. Kirvan Deputy Attorney General of Canada FOR THE RESPONDENT