HENGAMEH RANJBAR Appellant v. HER MAJESTY THE, 2016 FCA 116

Date: 20160415 Docket: A-344-15 Citation: 2016 FCA 116 CORAM: DAWSON J.A. NEAR J.A. BOIVIN J.A. BETWEEN: HENGAMEH RANJBAR Appellant and HER MAJESTY THE QUEEN Respondent Heard at Toronto, Ontario, on April 13, 2016. Judgment delivered at Ottawa, Ontario, on April 15, 2016. REASONS FOR JUDGMENT BY: DAWSON J.A. CONCURRED IN BY: NEAR J.A. BOIVIN J.A. Date: 20160415 Docket: A-344-15 Citation: 2016 FCA 116 CORAM: DAWSON J.A. NEAR J.A. BOIVIN J.A.

BETWEEN: HENGAMEH RANJBAR Appellant and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT DAWSON J.A. [ 1 ] For reasons delivered orally on February 6, 2015, in Court File Numbers 2014-1454 (GST)I and 2014-1480 (GST)I, a Judge of the Tax Court of Canada dismissed the appellant’s appeals from an assessment made under the Excise Tax Act , R.S.C. 1985, c. E-15 (Act).

The appeals raised the issue of whether the appellant was entitled to claim the GST/HST new housing rebate in respect of the separate purchases of two residences: a condominium referred to as the “Thornhill property” and a townhome referred to as the “Richmond Hill property”. This is an appeal from the judgment of the Tax Court in respect of the Richmond Hill property only. [ 2 ] As the Judge correctly noted, purchasers are entitled to claim the new housing rebate if they satisfy the numerous conditions found in subsection 254(2) of the Act .

According to the Judge, the two relevant conditions were those contained in paragraph 254(2) (

b) and clause 254(2)(g)(i)(A). [3] The Judge found, based on the appellant’s testimony, that paragraph 254(2)(

b) was satisfied because, at the time theappellant entered into the agreement of purchase and sale, she intended to use the Richmond Hill property as her primary place ofresidence. [4] The Judge went on to find that clause 254(2)(g)(i)(

A) was not satisfied because the appellant never occupied the property. [5] On this appeal the appellant argues that the Judge erred in law by failing to consider that the appellant satisfied subparagraph254(2)(g)(ii) of the Act, and so would qualify for the new housing rebate. [6] The respondent agrees, stating that on the basis of the evidentiary record before the Tax Court, the appellant satisfiedsubparagraph 254(2)(g)(ii) of the Act and she did not have to satisfy subparagraph 254(2)(g)(

i) of the Act in order to satisfy subsection254(2). I agree. While the condition in each paragraph of subsection 254(2) must be met in order to qualify for the new housing rebate,paragraph 254(2)(

g) sets out alternative conditions in its two clauses, only one of which must be met. [7] The respondent submits, however, that this concession does not assist the appellant because the Judge erred in law by relyingsolely upon the appellant’s evidence about her intent when the Judge was also required at law to have regard to objective manifestationsof purpose (Symes v. Canada, (SCC), [1993] 4 S.C.R. 695, at page 736, 110 D.L.R. (4th) 470).

In support of hersubmission the respondent points to the Judge’s statement that “[a]fter hearing the testimony of the Appellant, I have concluded that atthe time she entered into the agreement of purchase and sale, she had the intention to use … the Richmond Hill property” as her “primaryplace of residence”. [8] I have two difficulties with this submission. [9] First, the evidence of objective manifestations was adduced by the Crown through the appellant’s oral testimony.

This makesthe Judge’s reference to “[a]fter hearing the evidence of the Appellant” at the least somewhat ambiguous. [10] My second difficulty with the respondent’s submission is that the Supreme Court has stated that “[t]rial judges are presumedto know the law with which they work day in and day out” (F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at paragraph 54,citing R. v.

Burns, (SCC), [1994] 1 S.C.R. 656, at page 664, 165 N.R. 374.). [11] It follows that the Judge is entitled to the presumption that he knew and understood the law applicable to ascertaining theappellant’s intent, even though the Judge did not explicitly articulate the relevant legal principles. [12] Applying this presumption, I am unable to conclude that the Judge made a palpable and overriding error when he found theappellant’s testimony to be sufficiently credible to overcome the circumstantial evidence relied on by the respondent to assert theinference that at the relevant time the appellant lacked the requisite intent. [13] More troubling is the fact that during closing argument the Judge stated that he did not “need to hear” from counsel for therespondent with respect to the Richmond Hill property.

The respondent does not argue that this, in the particular circumstances of thiscase, vitiates the Judge’s decision. Rather, she submits that had the Judge heard her submissions the Judge “might not” have fallen intoerror. [14] It is a fundamental principle of our adversarial system that a party has the right to be heard before a court makes a decisionadverse to the party’s interest. [15] This said, the issue of the appellant’s intention was squarely raised by the respondent in her Reply to the Notice of Appeal.

Indetermining that the appellant was not eligible for the rebate the Minister assumed that at “no time following the purchase of the[Richmond Hill] property did the Appellant intend that she or an individual related to her would reside at the [Richmond Hill property]and use it as their primary place of residence”.

The appellant was cross-examined on the Minister’s assumptions. [16] In this circumstance, I am satisfied that the issue of intent was in play such that the respondent was heard on this issue. [17] It follows that, despite the cogent submissions of counsel for the respondent, I would allow the appeal and set aside thejudgment of the Tax Court in part as it relates to the Richmond Hill property, and, pronouncing the judgment that should have beenmade, I would return the assessment to the Minister for re-assessment on the basis that the appellant is entitled to the GST/HST newhousing rebate in respect of the Richmond Hill property. [18] Having regard to the totality of the facts and circumstances, I would not make an award of costs. “Eleanor R.

Dawson” J.A. “I agree. D.G. Near J.A.” “I agree. Richard Boivin J.A.” FEDERAL COURT OF APPEAL

FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-344-15 STYLE OF CAUSE: HENGAMEH RANJBAR v. HER MAJESTY THE QUEEN PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: April 13, 2016 REASONS FOR JUDGMENT BY: DAWSON J.A. CONCURRED IN BY: NEAR J.A. BOIVIN J.A. DATED: April 15, 2016 APPEARANCES : Bobby B. Solhi, J.D. For The Appellant Christopher M. Bartlett For The Respondent SOLICITORS OF RECORD : TaxChambers LLP Toronto, Ontario For The Appellant William F. Pentney Deputy Attorney General of Canada For The Respondent