4-130

The taxpayer let her neighbour's cattle graze on her pasture in consideration for a monthly fee per head, and agreed with her neighbour that he could crop-share her hay field. In finding that the activities of the taxpayer with respect to the pasture went beyond what was normally expected of the landlord in the maintenance of her rental property, Sheridan J. noted that the taxpayer cut brush and weeds along the fence line, trapped moles, harrowed the pasture to remove their burrows, kept water troughs full and salt supplies replenished. In finding that the taxpayer also was engaged in business activity with respect to the hay field, he noted that she had to fertilize and harrow the hay field and decide how often the hay should be cut in order to maximize the field production. In addition, her own equipment was used in the hay production and harvest and she cut brush, bailed hay and hauled bails.

The trustee in bankruptcy for a company ("Castor") which had essentially only engaged in investing in high-yield loans brought an action in its capacity of trustee for the Castor estate against the former auditors ("C&L") for $40 million in damages for breach of contract, and also began a "litigation support business" of providing assistance to most of the creditors (the "Participating Creditors"), including hiring professionals and experts, in connection with their action sounding in negligence against C&L for $800 million in damages. To the extent that, on settlement of the litigation, Richter was not able to recover its costs out of the proceeds of an award made to it on its own claim, Richter at such time would invoice the creditors for its remaining unrecovered costs, to be paid by set-off against loans they had made to it in the interim.

After noting (at para. 21) that "the word ‘undertaking' has been defined in … Drumheller v. M.N.R., 59 DTC 1177, 1180 (Exch. Ct.), as embracing ‘. . . trades, manufactures, professions, or callings, and any other conceivable kinds of enterprise as well," Archambault J stated (at para. 32):

[T]he litigation support services to the Participating Creditors constitute, if not a profession as defined in the Maxse case [[1919] 1 K.B. 647], at least an undertaking as this term is used in the definition of a "business". Given the nature of these activities and the continuous involvement required from the Estate in order to provide the services during the relevant period and that will be required from it in future years, this undertaking amounts to a business being carried on by the Estate.

See summary under s. 141.01(2).

In finding that the taxpayer, which exercised delegated powers to issue licenses and certificates to its members and exercised public control over those engaged in financial services, auditing and insolvency practice, was not engaged in a "business", Beldam L.J. referred to community jurisprudence that rested on the touchstone of "economic activities" and then stated (at p. 5365):

"... The concept of 'an economic activity' is an activity which typically is performed for a consideration and is connected with economic life in some way or another. But it is not an essential characteristic that it should be carried on with a view to profit or for commercial reasons but it must be an activity which is analogous to activities so carried on. An activity which consists in the performance of a public service to which the idea of commercial exploitation with a view to profit or gain is alien is not of an economic nature particularly where the activity is one typically of a public authority."

The appellant, who directly or through corporations, acquired equipment to refurbish and rent to junior oil companies, transferred to his corporation ("CHL") equipment which previously he had provided to CHL free of charge. His contention, that this transfer (made in consideration for a credit to his shareholder loan account) was not made in the course of commercial activity and was thus not a taxable supply, was directly contradicted by his testimony that his intention when acquiring the equipment was "to make money with it."

The appellant ("CCAN") was a not-for-profit organization which, in the second of the three years in question, was registered as a charity for the promotion of environmental responsibility. Part of this promotion entailed the production and distribution of tailgate magnetic stickers, posters, signs, etc., to discourage idle engine operation. CCAN printed its sponsors' logos on these materials. CCAN collected HST on the amounts received from the sponsors, which represented a mark-up over the related costs incurred by it. It claimed input tax credits for the HST on such expenses. C Miller J found that s. 135 deemed CCAN not to make a supply to each sponsor as "the sponsor's sole use was to publicize its business" (para. 10). However, CCAN was engaged in commercial activity as it made a margin in its sponsor dealings (para. 12), the publicity it provided to them was commercial in nature (para. 16) and "there is no reasonable expectation of profit test in the definition of commercial activity" (para. 15). The sponsor arrangements entailed both the promotion of the sponsor and the advancement of CCAN's mission, but with former characterized as merely a way to accommodate CCAN's mission (para. 18). C Miller J found the commercial portion of use of the promotional purchases was 30%. ITCs for HST incurred after CCAN became a registered charity was denied under s. 225.1(2).

The Appellant was a non-profit society which purchased and held title to all equipment used by the local fire department (a distinct entity consisting of volunteer firefighters). The Appellant claimed input tax credits ("ITCs") on its purchase of one such item of equipment (a boat) on the basis that some of the funding for the boat purchase came from the Nova Scotia government, and that such funding should be viewed as the consideration for a taxable supply of the boat to the government. The Minister denied the ITC claim on the basis that the boat instead was used in making exempt supplies for no consideration under Sched. V, Part VI, s. 10. In rejecting the Appellant's ITC claim, Campbell J found (at para. 37) that the Appellant had failed to adduce sufficient evidence to establish a "direct link" between the government funding and the purchase of the boat.

In order to settle a dispute between two insurance companies (Aviva and Underwriters) regarding the ownership of trademarks, the two companies agreed to a transfer of the trademarks to Aviva for $5 million. Underwriters first transferred the trademarks on s. 85 rollover basis to a related company, NN, to allow NN to utilize non-capital losses, before their on-sale by NM. Aviva paid GST to NN and applied to CRA for a rebate of tax paid in error. CRA refused. Woods J found that the sale by NN did not have "any of the characteristics of a trading transaction" (para. 24), noting that NN "did not negotiate the sale and likely acted as an accommodation party in order to minimize the income tax payable on the sale," so that the sale was not an adventure in the nature of trade. She also found that the sale was not a "business," noting that a business must be "carried on" to fall within para. (a) of the definition of "commercial activity" – nor was there any evidence that the sale was connected to any existing commercial activity of NM (including any connection which could engage ss. 141.1(1)(a) and (2)(a).) Accordingly, the sale was not a taxable supply and Aviva was entitled to the rebate.

The activity of the City of Regina in constructing highway connector routes was "an undertaking of any kind whatever" and, therefore, a commercial activity.

The appellant, which was the manager (and also trustee) for various mutual fund trusts, charged reduced management fees to the trusts to reflect the reduced management fees agreed with the larger investors (with a corresponding reduction in the GST collected). However, the Funds made special "Management Fee Distributions" to the large investors equal to the difference between the ‘gross" management fees they otherwise would have borne and the reduced management fee amounts. Before finding that the trust obligations to pay the Management Fee Distributions to the large investors was not part of the consideration that the Funds provided in exchange for the appellant's management services, Campbell J stated (at para. 35):

Pursuant to Commission Scolaire des Chênes and the common law definition of consideration, all that would be required for the Management Fee Distributions to constitute consideration for the taxable supply of management services would be a contractual obligation.

See detailed summary under ETA – s. 153(1).

The City of Quebec City paid a subsidy to a school board of $880,000 to enable the school board to renovate a school and expand its gymnasium. In return, the school board was required to make the new facility available to the City for free for 30 years. In finding that the school board was making a taxable supply, Lamarre Proulx J stated (at paras. 55-6):

[W]hat is involved is not a definition of the term "consideration" but a clarification in the case of a non-contractual situation. In such a situation, this term must be given its normal legal meaning. … If we refer to the definition of that term in this same reference work, we read:

Consideration provided by the person who receives a benefit in the synallagmatic contract; reciprocal benefit (perceived as equal) charged to a party to a contract, for example, wages in consideration for work, or the price in consideration for the article sold.

In the two agreements at issue, the benefit provided by the appellant was to construct and to provide the premises. What should the benefit provided by the city for the supply of the real estate have been? … We see from reading the agreements.. that the common intention of the parties is that, if the premises are destroyed, disposed of or expropriated, the full amount of the grant, that is, $880,660, shall be reimbursed, prorated according to the number of years remaining. I am therefore obliged to find that this amount is the consideration for the supply by way of lease.. .

The appellant bought and resold the right and obligation to acquire lots from a land developer. Hogan J found that the "non-refundable" deposits collected thereon were each a "debt security" under s. 123(1), given that the collection of a sum under a contract as a "deposit" implies an obligation to return the deposit if the collector does not perform the contract - in this case, if the land developer were unable to complete the lots on time (para. 24). In the alternative, the purchaser's assignment of the deposits to third parties was not a supply at all, because money is neither property not a service (para. 22, adopting Barnett 2011).

The registrant was a hotel company that paid franchise fees to a hotel franchise ("Marriott") in the United States. Marriott's fees were based on gross room revenues. Lamarre J. found that, because 30% of the registrant's revenue was from exempt stays (i.e. exceeding one month), 30% of the franchise fees were not incurred in respect of a "commercial activity" as defined in s. 123(1). Accordingly, she affirmed the Minister's assessment, which was made on the basis that the provision by Marriott of franchise rights was an "imported taxable supply" under s. 217, for which the registrant was liable to pay GST on the consideration paid on the basis that 30% of the franchise fees was not eligible for an input tax credit. One of the registrant's arguments was that the 30% franchise fees were not paid in respect of the long-term stays because 95% of its long-term bookings were not connected in any way with the franchise brand, and were booked through its internal management office. The court found that these numbers were closer to 75%, so it could not be said that the fees paid for the Marriott "banner" related exclusively to the short-term bookings. After noting that the meaning of "all or substantially all" must be left to the discretion of the trier of fact, Lamarre J. stated (at para. 29):

In my opinion, there is a limit to be observed. Parliament used the expression "all or substantially all," which means, in my view, that the figure must be closer to the totality than half-way between the majority and the totality.

The registrant acquired a passenger vehicle for $50,000, whose capital cost to the registrant for GST purposes was limited to $30,000, pursuant to s. 201. Woods J. disallowed ITCs on the vehicle, on the basis that the vehicle's commercial use was not "exclusive" as defined in s. 123(1). The registrant's business usage was only 54%, which was clearly not " all or substantially all" of the use of the vehicle. The registrant's argument, that the deemed cost was reduced to 60% of actual cost, and that 54% usage was 90% of this reduced amount, was irrelevant to the question of whether there was exclusive commercial use.

The registrant, which was the corporate successor to an income fund, acquired, as essentially its only asset, a 49% limited partnership interest in a partnership that carried on a newspaper business. In denying the registrant's ITC claims for GST on various of its costs including fees paid in connection with the income fund conversion and in connection with news releases regarding its dividends, Pizzitelli J. found that the receipt by the registrant of substantial partnership drawings ($3,865,500 for a six-month period) for distribution by it to shareholders represented financial services.

The registrant agreed with a bank (CIBC) that automatic banking services would be provided through ABM machines in the registrant's stores. Non-CIBC clients could use the machines for a $1.50 service charge, and CIBC paid a share of this revenue to the registrant. Hogan J., in dismissing the registrant's appeal, rejected its submission that it was making an exempt supply to CIBC of the service of arranging for financial services (the automatic banking services). An example of "arranging for" a financial service could be found in President's Choice Bank. Here, in contrast (para. 36):

The appellant did not help, assist and become directly involved in the provision of financial services by CIBC to ABM customers. Its role in the provision of such services was considerably more passive. The core element of its supply to CIBC was the provision of space in its stores.

The appellant ("Global") enabled casino patrons to use their credit cards to receive cash advances or, more precisely, to purchase cheques from Global which they could negotiate for cash. To this end, the patron first used his or her credit card at a kiosk on the casino premises (or at a cashier cage) to get the cheque-purchase transaction approved by the credit card issuer. The casino cashier then issued, on Global's behalf, a cheque made out by Global to the casino operator, which the casino operator then negotiated for cash (or gaming chips) provided to the patron. At issue was the taxability of the fees paid by Global to the casino operator.

Turning first to the activities of the casino operator in allowing kiosks on its premises and providing support services at the cashier cages, Woods J noted (at para. 70) that "the term ‘arrange for'…has been broadly interpreted," quoted from CRA Policy P-239 (since repealed), and then found (at para. 72) that these activities qualified as arranging for a financial service:

The Casinos are directly involved in the issuance of cheques and are actively engaged in doing so, since they allow kiosks on the premises and provide services such as transaction procedures and initiating transactions on behalf of patrons.

However, allowing kiosks on the casino premises was an excluded provision of property under para. (r.5) (para. 81); and the cashier support services were excluded under para. (r.4), as services provided in conjunction with the issuance of the cheques (a financial service) and consisting primarily of the collecting and providing of information, and document preparation and processing (para. 82). The casino operator's role of cashing the cheques (which was similar to that of a disbursing agent), was encompassed within the broad language of paras. (a) and (d) (para. 76). The above supplies (kiosk provision, cashier services and cheque cashing) were "not so interdependent that they should be considered a single supply" (para. 94), and "none of these elements are a minor part of the supply so as to be incidental" for purposes of s. 138 (para. 96). It was appropriate to allocate 25% of the fees paid to the casino operator as consideration for the exempt cheque-cashing service, and to treat the balance as taxable.

The registrant ("PC Bank"), a subsidiary of Loblaws, had agreed with a bank (CIBC) for CIBC to provide retail banking services under Loblaws' President's Choice trademark. Lamarre J. found that the related fees paid by PC Bank to CIBC were consideration for arranging for financial services and, therefore, consideration for an exempt supply. Unlike in Royal Bank, the registrant was not merely being paid for "the issuing of points or for granting CIBC exclusive use of PC's trademark"; on the contrary, the evidence showed that the registrant played a "major role in selling attractive financial products to its [customers]" (para. 34). For example, the fees were determined based on the number of new accounts opened under the arrangement, and on the total value of the accounts under the arrangement. The registrant used its leverage to ensure that services under its brand were more attractive than comparable CIBC offerings - for example, offering lower transaction fees. The registrant maintained between 10 and 15 employees to work with CIBC and determine terms to be offered on its financial products.

The Minister assessed the applicant, a mutual fund manager, on the basis that a payment to it by mutual funds of deferred sale charges received by the mutual funds from redeeming investors represented consideration for taxable supplies of services made by the applicant to the mutual funds.

Perell, J. concluded, on the evidence, that the mutual fund manager and the mutual funds intended that these amounts were to be paid to the fund manager as reimbursement in whole or in part for brokerage commissions previously paid by the mutual fund manager when the investor had purchased his units in the mutual fund, and granted an order of rectification of numerous contracts to accord with the form requested by the applicant. He stated (at para. 58) that "the Applicant does not seek to rewrite a contract to rewrite contractual history; rather the Applicant is seeking to rewrite a contract that does not correctly write the contractual history".

Before noting at para. 54, that it was conceded by the Crown that the appellant's principal activity was not the investing of funds (its principal activity being defending lawsuits against doctors), Bowman, C.J. found (at para. 54) that the discretionary investment management services provided to the taxpayer were not "management ... services":

The juxtaposition in paragraph (q) of the words "management" and "administrative" implies the type of managerial function associated with running a business. Management and administration fees are paid generally to individuals or corporations to handle the variety of matters necessary for the functioning of a business. I should not have thought that "managing" a portfolio of investments carried that type of connotation.

The Appellant (a car manufacturer) was the administrator of various defined benefit pension plans for its employees. It directed the trustee of the plans to pay the fees of third party portfolio advisors out of the trust assets.

After finding that the Appellant was eligible for input tax credits for the GST that was charged on the fees, Campbell J went on to indicate that the portfolio advisory services did not qualify as financial services given that the portfolio advisors did not actually trade in the securities held by the plans.

The registrant had an arrangement with Canadian Airlines International Ltd. ("CAIL") under which the registrant's credit card customers would receive frequent flyer points for using one of its Visa Canadian Plus credit card (the "Affinity Card"). Hershfield J. rejected the registrant's position that the payments to CAIL were payments for financial services. Hershfield J. stated (at para. 39):

To conclude, I find that CAIL's role in arranging the credit facility was incidental to its own business of selling Points. ... Selling Points was selling travel services. The Appellant purchased travel services as a reward for use of its Affinity Card which in turn increases its revenues. All else is incidental to this synergistic arrangement. It is simply not reasonable to find on the facts of this case that CAIL played any substantive role in arranging for the granting of credit by RBC.

The appellant ("CTM") sold mortgage loans made by it to arm's length securitization trusts and serviced the sold mortgages including collecting and accounting for payments, and dealing with renewals and defaults. The consideration for a sale for the most part comprised a "Closing Payment" paid by the purchaser trust out of the proceeds of commercial paper issuances and "Deferred Amounts" representing most of the cash subsequently generated to the trust from the purchased mortgages net of all other outlays. CTM did not explicitly charge the trusts for the servicing, but recorded fees for such services in its financial statements. In finding that there was a single supply of a financial service by CTM, Bowman ACJ quoted extensively from O.A. Brown, including a statement therein that "'the fact that a separate charge is made for one constituent part of a compound supply does not alter the tax consequences'," and stated (at para. 20):

[For there to be a single supply] there must be an inextricable interdependency between the two elements so that they are integral parts of a composite whole that cannot, as a matter of commercial reality, be sensibly separated into separate supplies. … Here we have a sale of mortgages of which the servicing is not only an integral part but is requisite as a matter of commercial exigency. There is an intimate commercial relationship between CTM and the trusts in which CTM not only holds the registered title to the mortgages in trust for the trusts, but also performs the very services which are essential to the commercial viability of the trusts' investment. For someone other than CTM to service the mortgages would, as a practical matter, be commercially infeasible and would be inimical to the raison d'être of the transaction.

After finding that the U.S. head office of the appellant (an auto insurer) did not render or supply services to the Canadian regional office, Bowman A.C.J. went on to find that if such services were rendered, they were financial services. He noted that the respondent's argument "would essentially restrict financial services, in the context of the insurance business, to the issuance of an insurance policy to an insured" and that the concept of underwriting was much broader than this. Further , if any administrative or management services were attributed to the categories of insurance performed by the head office for the Canadian regional office, they were incidental to the financial services, so that s. 138 applied.

After noting that "the measure of the 'principal activity' must be the importance of the activity to the achievement of the organization's goals or purposes", Bowie T.C.J. found that the "principal activity" of a pension plan was not the investing of funds (as contemplated by paragraph (q)). Given that its principal object was to provide pensions to retired employees, its principal (or most important) activities must be considered to be those that contributed most to achieving those objects and it could not accomplish its objects without the collection of the employer and employee contributions, and the computation of payment of payment benefits to retirees; whereas it could, at least in theory, have collected contributions and paid them out to retirees without ever investing its funds.

A fee received by the taxpayer for agreeing not to bid for the assets of an insolvent corporation did not represent consideration for a financial service.

The registrant was a wholesaler of products to independent retail pharmacies operating under the "I.D.A." name, and also provided franchisor-like services to them. One such service was to negotiate favourable terms with various banks for credit and debit card services. When a customer made a purchase from an IDA member, the bank would deposit the amount (which it debited to the customer's account) into the registrant's bank account, and the registrant would transfer the full amount of the funds to the member's bank account. However, as the bank charged its "discount fees" to the registrant's account, the registrant in turn debited the members for these amounts - which Bowie J found represented a reimbursement for such fees which it had incurred as the members' agent. In response to a submission of the Justice lawyer that the service which the registrant supplied to the members when it received funds from the banks for the credit and debit card transactions was an administrative rather than financial service (for which it was not a "person at risk" under the Financial Services (GST) Regulations), Bowie J found (at para. 21) that "there is no service to the members that is not a financial, and therefore exempt, service."

The registrant served retail travel agencies by booking and purchasing airline tickets for the agencies' customers, which resulted in the receipt by it of commissions from the airlines. Where the retail agencies had no agreement with the issuer of the customer's credit card, the registrant would act as the "merchant" insofar as the credit card issuer was concerned, so that the voucher amount for the ticket was advanced to it, with that amount being used by the registrant towards the cost of the ticket. In those situations, the registrant charged $15 per ticket to the retail agency to cover the charge of 2% to 3% by which the credit card issuer discounted the amounts which it paid to the registrant..

Archambault J found that the $15 fees of the registrant were consideration for supplies of services to the travel agencies, but that such supplies were exempt supplies under three aspects of the financial services definition, of which the most apt were paras. (l) and (i) (arranging for payment of a credit card voucher amount). Archambault J stated (at para. 31):

Skylink obtained payment of the amount of the credit card slip from the issuer pursuant to the obligation that the issuer had towards the credit card holder.

The amounts were not excluded by para. (n) (consideration for a taxable supply) and (t) (prescribed service). Archambault J stated (at para. 32):

In my view, paragraph (n) does not apply here since Skylink arranged not for obtaining payment of the ticket price, but rather for obtaining payment of the amount of the credit card slip by the issuer.

Regarding para. (t), Archambault J found that the collection of credit card voucher amounts was "solely the ... taking of the receipt ... of other amounts" under s. 4(2) of the Financial Services (GST) Regulations: "I do not see here any other kind of service" (para. 38). S. 4(2) also did not apply because, under s. 4(3)(a), the registrant was a "person at risk" for the amounts involved. Archambault J. stated (at para. 40):

Under the terms and conditions of its agreement with the issuer, Skylink could be required to pay back to the issuer the amount of the credit card slip. For example, if a customer does not sign the slip and disputes its validity, the issuer is entitled to require Skylink to repay it the amount appearing on the slip.... [I]n some instances, as a result of bankruptcy or for some other reason, the retail agency may be unable to reimburse Skylink.

The managment fees received by mutual fund managers, which also were the trustees of the mutual fund trusts which they managed, were taxable even under the pre-1997 version of para. (q). Rip J stated (at para. 75):

...one can interpret "on behalf of" as meaning "for the benefit of" if the context commands such an interepretation....I also agree with the respondent that any other interpretation would effectively deprive the provision of any meaning and effect.

The taxpayer provided storage lockers pursuant to rental contracts that provided for a monthly rental fee with a "prompt payment discount" for paying by the due date.

McArthur TCJ. found that the commercial reality or true nature of the transactions was that the reduced amount payable in the event of prompt payment was the true monthly rent, and that the additional amount paid by a defaulting tenant was a late payment fee. However, such fee was an exempt financial service on the basis that the services provided by the registrant to the defaulting tenant were part of the operation of an overdue account. McArthur TCJ. stated (at p. 9-5) that "the term 'other account' is wide enough ... to include the subject late fees owing in respect of the breach of the Agreement".

The appellant who carried on a business of finding missing heirs to property in estates of deceased persons was found not to be doing any of the things described in paragraph (d) of the definition of financial service and, therefore, was making taxable supplies.

The respondent provided five clearing banks with computer-related services which essentially replaced many of the clerical operations of the banks relating to the payment and collection of cheques and other settlement or payment services, the posting of transactions to customer accounts, maintenance of customer accounts and other records. It was found that these services did not come within the definition of a financial service in the Goods and Services Tax 1985 (New Zealand), which included "the issue, payment, collection, or transfer of ownership of a cheque or letter of credit" and "agreeing to do, or arranging any of [such] activities". The supply of computer services to the banks to enable them, in turn, to provide financial services was not itself a financial service.

The taxpayer argued that the credit card charges owing to it by cardholders arose as a result of an assignment of debts or other rights to it by the relevant retailers, and that the payments made by the taxpayer to the retailers accordingly represented the cash consideration for a supply by the retailers to it, rather than the consideration for the provision of a financial service by the taxpayer to the retailers (the Crown having conceded that the payment of money as the consideration for a supply of goods or services is not itself a supply).

In rejecting this submission, Woolf L.J. found that even though the agreements between the taxpayer and the retailers indicated that the taxpayer was purchasing the accounts from the retailer, when a cardholder signed the sales voucher she was unconditionally discharged from her liability to pay the retailer, and a fresh debt arose between her and the taxpayer. In any event, having regard to the reality created by the terms of the three-party arrangements, there was a supply of a financial service by the taxpayer to the retailers, namely, the service of assuring payment of the retailers in consideration for the earning of a discount from the face amount of the accounts by the taxpayer.

Between the time that the applicant presented an import entry for the importation of tobacco at the Port of Montreal, and the time that the tobacco was taken out of the customs warehouse in keeping with the normal practice, the rate of excise taxes was increased.

In finding that the lower rate of duty applied, the Board found that the goods were imported into Canada at the time when the applicant became liable for payment of the taxes, which occurred upon the entry of the goods (the filing of the B-3 form with Customs).

Given that the Customs Tariff Act, 1894 provided that duty was payable when goods were imported into Canada, it followed that it was intended that the time referred to was when the vessel in question entered the port of discharge rather than a Canadian port of call along the way to the port of discharge.

The Appellant was found to be subject to duty on the importation of sugar, which was imposed on importations that occurred after the time it did an interim reporting at the port of call (in Halifax) but before it reached the port of discharge (Montreal). In the case of goods that would not be discharged at a port of entry, it was noted that the time importation would be when they were brought within the limits of Canada.

The registrant, a jeweller, purchased gold bars with 99% purity on an exempt basis, and then cut the bars (sometimes with further modeling or rolling) into smaller rectilinear pieces, which it then sold to customers without charging GST. After noting the reliance by the registrant on the ordinary dictionary meanings of "bar," "ingot" and "wafer," Margenson J found that these terms should be given their technical rather than ordinary meaning. Accordingly, the pieces were required to have a readily ascertainable value, in order that they generally were readily transferable. Because the pieces instead had been tranformed out of standard deliverable form, this requirement was not satisfied as it was obvious that no bank or gold dealer would accept them for delivery without first having them assayed and weighed. Accordingly, the pieces did not qualify as "precious metals" as defined, and their sale was taxable.

The limited partnership units of the appellant were held by a sub-trust (the "Trust") of an income fund (the "Fund"). Unit subscription proceeds received by the Fund on its initial public offering ("IPO") and on a subsequent private placement of Fund units were used to acquire debt and units of the Trust, which in turn subscribed for LP units of the appellant. The appellant used those proceeds to acquire intellectual property and related rights to be used by it in a pizza franchising business. Before completion of the IPO, the Fund, Trust, appellant and its general partner entered into a "Financing Agreement" in which they agreed that all financing expense in connection with the IPO, other than the underwriters' fee, were to be incurred on behalf of the appellant; and at the same time the appellant entered into an "Administration Agreement" with the Fund in which it agreed to administer the Fund and "as agent of the Fund" to pay for all outlays and expenses incurred by it in such administration.

V. Miller J found that, as pursuant to the Administration Agreement, various expenses (principally relating to the IPO and private placement) were incurred by the appellant as agent for the Fund, the appellant was not the recipient of the related services and was not entitled to input tax credits therefor (para. 31). The Financing Agreement did not render the appellant the recipient of such supplies as the supplies were not made pursuant to that agreement (para. 26), nor could it be construed as causing there to be a re-supply of the services by the Fund to the appellant, as the services were consumed by the Fund (para. 32).

The Appellant (a car manufacturer) was the administrator of various defined benefit pension plans for its employees. It directed the trustee of the plans to pay the fees of third party portfolio advisors out of the trust assets. As it was the Appellant who was contractually obligated to pay those fees, and as s. 267.1 did not deem the portfolio advisory services to have been acquired by the trust, the Appellant was the recipient of those services.

(referred to with approval in City of Calgary.)

The appellants, which were community service agencies, received funding from Quebec City to operate summer play programs for children. Revenu Quebec assessed on the basis that this was consideration for taxable supplies by the City, notwithstanding that a supply of such services to the parents would have been exempt under Sched. V, Part VI, s. 12. Lamarre Proulx TCJ noted (at para. 52) that the City:

is, in part, the recipient of the service delivered to the [parent] third parties. The third party is also a recipient of the service, whether he has to pay part of the price or nothing at all.

She found (at para. 54) that where (as here) "there is a direct link between the subsidy and the price of the service, the subsidy must be regarded as the consideration, or part of the consideration, for the service, and it is taxable if the service is taxable." However, as it was accepted that the supply was exempt under s. 12, that consideration was not taxable.

The Appellant, which was entitled to issue its own bank notes, entered into a reciprocal agreement with other banks pursuant to which it was entitled to a flat fee per transaction when customers of the other banks were issued bank notes of the Appellant (or bank notes of the Bank of England) through ATMs of the Appellant.

The Appellant was unsuccessful in establishing that the fees received by it were eligible for zero rating under a provision that applied to "the issue by a bank of a note payable to bearer on demand". Rather than being properly so described, the reciprocity fee payable to the Appellant was received by it in consideration of its providing to the counterparty bank a supply consisting of a service to a customer of that bank in the form of a facility to withdraw cash, in whatever form it was dispensed.

The Appellant, which was in the business of building new homes, offered to prospective buyers of its homes the services of real estate agents who would act in the sale of their existing homes, and had undertook to pay the agents' fees provided that the purchase of the new house from the Appellant went through. Although the estate agents were supplying a service to the prospective buyers, the fact that the Appellant instructed them and paid their fees had the consequence that the transaction between them and the Appellant constituted a supply of services by them to the Appellant.

Passengers whose flights were delayed received meal vouchers from British Airways which they could present at various restaurants in the terminal. Macpherson of Cluny J. dismissed an appeal from a decision of the Commissioners that under this arrangement there was a supply of property by the restaurants to the passengers rather than to British Airways.

The registrant was correctly assessed for failure to collect GST on charges to its commercial tenants for property taxes, utilities and insurance.

An arrangement under which the taxpayer provided nurses and, therefore, their services, to hospitals and received from the hospitals commission payments and also reimbursement for the nurses' salaries was characterized as an "intermediary" situation (i.e., the taxpayer acted as a mere intermediary between the nurses and the hospital introducing the two so that the nurse could provide her services to the hospital) rather than a "vicarious performance" situation (in which the taxpayer was contractually obliged to provide the services of the nurses to the hospital). Accordingly, the taxpayer was not making supplies of (exempt) nursing services to the hospitals and could deduct input tax.

Agreements that the taxpayer entered into with gas station operators (the "merchants") and also with customers of the taxpayer were drafted on the basis that employees of the customers, who were issued cards by the taxpayer, would purchase fuel as agent for the taxpayer, with the fuel then being sold by the taxpayer to the customer. In rejecting this characterization with respect to situations where the fuel initially was property only of the merchant, the Commissioners noted (at. p. 856) that property in the fuel would pass at the pump from the merchant to the cardholder, and a measurable period of time would then pass before the cardholder signed the supply voucher. Accordingly, property in the fuel did not pass to the taxpayer, with the result that the taxpayer was not making a taxable supply of fuel to the customer.

n finding that the registrant, which provided dining, recreational and social facilities to employees of the Syncrude project in northern Alberta, was making taxable supplies to Syncrude in respect of grants received by it from Syncrude, Sobier TCJ. noted (at p. 75-4):

"The recipient of the supply, for the purposes of the Act, is the person liable to pay for the supply, even if the beneficiary of the supply is in fact a third party, as long as there is a direct link between the payment and the supply. In the instant case, Syncrude agrees to provide the appellant with monthly grants and the annual grant and the appellant agrees to provide activities and events to its members, Syncrude's employees. Syncrude derives the benefit of having good communication with its employee, better morale and therefore an increased productivity from having the appellant providing activities to its members in return [for] the grants. Consequently, Syncrude is the recipient of the supply of these activities ...".

The appellant along with seven individual employees was charged with manslaughter in connection with the sinking of its vessel. In finding that the appellant was the recipient of legal services provided by the separate counsel for each of the individual accused, the Tribunal stated:

"The Company, the evidence shows, not only approved the choice of solicitor but it also instructed the solicitor and agreed to pay it: and the solicitor would have had no right to recover costs and fees from the individual employee were the Company to be unable to or refuse to pay for any reason. The individual employee was admittedly a client of the solicitor, but that in no way displaces the fact that the Company was a client as principal in relation to each solicitor. The solicitors' services were, therefore, provided to the Company, notwithstanding that the individual employee also received the benefit of those services."

The appellant executed a contract for the purchase of a ski condominium unit to use personally as his residence from a vendor who had never resided there and instead used it for short term rentals. The Appellant paid GST on the purchase and successfully claimed a New Housing Rebate. He subsequently submitted a general rebate application for the entire amount of GST as an amount that was paid by him in error, which was denied by the Minister. Campbell J. concurred with the Minister that the condominium was not a residential complex in the absence of evidence that the vendors used it as their personal residence.

A housing trust that had been granted a licence by the local authority to use a number of properties for redevelopment as temporary accommodation for homeless persons and which signed an agreement with the plaintiff for occupation of a self-contained flat in one of the properties on a temporary basis on a weekly licence was found to have thereby created a tenancy in favour of the plaintiff because the agreement with the plaintiff had all the characteristics of a tenancy, including the grant of exclusive possession. The existence of a tenancy did not depend upon the plaintiff establishing a proprietary interest binding on third parties, and the fact that the trust was a licensee of the local authority also did not preclude the grant by it of a tenancy.

The registrant was not a "public hospital" given that it did not provide its patients with a high degree of complex medical care but, instead, provided assisting living in varying degrees, with the availability of trained nurses to dispense medication and render relatively routine medical assistance if required, but with there being no physicians on staff and the visits of a geriatrician being infrequent. Although the registrant was designated as a "hospital" for certain provincial regulatory purposes, such designation was on the basis that it qualified as a "community care facility" rather than as a hospital in the ordinary sense of that word.

The appellant was not eligible for the new residential rental property rebate in respect of its purchase of a property that was a "personal care home" under the Personal Care Homes Act and Personal Care Homes Regulations, 1996 (Saskatchewan) in light of evidence of the appellant that approximately $1,000 of the $1,750 monthly fee paid by residents of the home was attributable to personal care services. Baubier J. accepted the submission of the Minister that the appellant was making a single supply of services to the residents under the "Admission Agreements" with them.

The taxpayer sold vouchers to retailers at a discount of approximately 9% from their face value, and agreed with the retailers to accept the vouchers at face value from the retailers minus a discount of 10%. In the meantime, the retailers would distribute or sell the vouchers to the public, and accept the vouchers at face value from the public in exchange for goods.

The taxpayer was found to be providing a service to the retailers for which consideration was given in the form of the 10% discount from the amount which it otherwise would have been required to pay on redemption by it of the vouchers. Accordingly, on each redemption of vouchers by the retailers, VAT was payable by the taxpayer at a rate of 15% on the amount of the discount.

The registrant's renovations on a house included the digging of a basement and adding a 140 square-foot entrance hall, and increased the house's municipal evaluation from $52,900 to $114,200. Nevertheless, the renovations did not meet the definition of "substantial renovations" in the ETA because the main floor remained mostly unchanged (the only substantial replacements were some windows and bathroom fixtures).

The appellant ("Telus") operated a wireless carrier business which entailed providing roaming airtime ("RAT") services to customers, with Canadian billing addresses, who while in the U.S. made long-distance call to Canada. These calls essentially involved two steps, which were separately identified in the Telus billings:

• The customer's phone connected with a local cellular site, and then to a mobile telephone switching office ("MTSO").
• The MTSO connected the call to the Canadian recipient.

C Miller J found that Telus was required to charge GST on the fees it collected for both steps (rather than only the second step). As both steps constituted a single supply, that supply was deemed by s. 142.1(2)(b)(ii) to be made in Canada as that telecommunication service was received in Canada. After discussing Gestion Alger, BC Ferry and Jema, and after noting (at para. 27) that although "the RAT can be used independently of long distance charges, and therefore has a commercial efficacy as a standalone supply…that is only in the context of locally made calls" in the U.S. rather than calls from the U.S. to Canada, he stated (at paras. 35-36):

[The] integration approach, I believe, remains the essence of the single versus multiple supply. …Viewing the telecommunication service offered by Telus as a service of communication for customers to talk to another person, how that service is delivered is more akin to the delivery of pizza than provision of a separate stateroom service or vaccination service. The customer is simply paying to be able to make a call from his cell phone to Canada. The RAT and long distance service are fully and seamlessly integrated into making that happen.

Before finding that leases entailed a continuous supply by the lessor including, in this case, by a subsequent lessor by virtue of the purchase of apartments already subject to the leases, the Court stated (at para. 35):

Federal Commissioner of Taxation v Qantas Airways Ltd [(2012) 247 CLR 286, [2012] HCA 41] shows that it is wrong to consider that one transaction must always involve the making of just one supply. It is similarly wrong to consider that the making of a supply must always involve the taking of some action on the part of the supplier.

See summary under s. 133.

The appellant was denied input tax credits, in part, based on the supply by it of staterooms to passengers travelling on ferries (for which it made separate charges but did not charge GST) was part of the single supply of the ferry service. In allowing finding that there was a separate supply of the rental of the staterooms, Campbell J stated (at para. 65):

Common sense dictates that the provision of ferrying services remains a useful and valuable supply minus the rental of staterooms. Staterooms are not an essential component to the overall supply of transportation services. In fact, there are insufficient numbers of staterooms to accommodate every passenger, even if all of the passengers on any route wished to purchase a stateroom.

The appellant delivered pizza through self-employed individuals acting as its agents. The costs of the pizza and delivery were separately itemized. In finding that there was a single supply, Paris J stated (at para. 37):

[T]here were two ways of obtaining the food: go to the appellant's establishment in person or place an order for delivery. In the first case, the food was made available to the customers while at the restaurant. In the second, the food was made available to the customers upon delivery. What differs is the manner in which the supply was made available to the customers. As for the interconnection and separation of elements, it is clear that it was possible to obtain the food without delivery. However, to obtain delivery without food is simply illogical. By separating the two elements, such that all that remains is the delivery, a viable and useful service or property cannot be obtained.

Before going on to find that the appellant ("Caithkin") was not making exempt supplies of foster care services to Children's Aid Societies (see summary under s. 2 of Part IV of Sched. V), Graham J found that Caithkin was making a "re-supply" to the Societies of "care, supervision and place of residence services" that it in turn "acquire[d] from the foster parents" (para. 24).

The appellant entered into 14 purchase agreements with a property developer to acquire lots. The appellant assigned 12 agreements to third parties for $820,865 - $634,760 for deposit recoveries (i.e., reflecting that deposits paid by the appellant to the developer would now be held by the vendor to be credited to the assignees on completion of the purchases) and $186,105 in assignment fees. The Minister applied the single-supply doctrine to treat the entire amount as consideration for an interest in real property.

Hogan J granted the taxpayer's appeal. He discussed (at paras. 13-14) the indicia in O.A. Brown, that "a factor indicative of a single supply is the degree of interconnection and interdependence of the elements" and that "conversely, a factor indicative of multiple supplies is that each alleged separate supply could be purchased individually," and referred favourably to the analysis in Barnett 2011. The assignment of the purchase agreements and of rights to the deposits were not inextricably linked, as it would be quite possible to structure a sale where there was no assignment of the deposit and the assignee gave a fresh deposit to the property developer. Accordingly, there were two supplies: of a financial instrument and of real property. Alternatively, "a deposit can be characterized as a pool of money retained until such time as it is applied in partial payment or forfeited" (para. 32), and a supply of money is not a supply of property or a service under the ETA. Either way, the consideration paid for the deposit recoveries was not taxable.

The appellant provided advice to persons traveling outside of Canada respecting vaccinations that should be obtained before traveling to certain countries, and also provided those vaccines. No vaccination was given without first having a consultation, which could in fact result in no vaccination being necessary. In finding that the appellant made separate supplies of consultation and vaccination services, D'Arcy J stated (at paras. 35-36):

[A] person may attend at the clinic and the nurse may determine that he or she does not require any vaccines. The supply of the consultation has been made, but there is no supply of a vaccine. In other words, a supply of the vaccine is not required to make a supply of the consultation. …

…In addition, the supply of the consultation is a useful service even if a supply of a vaccine is not made.:

A Canadian airline ("CAIL") entered into an agreement with the appellant ("RBC") to promote use of RBC's credit card and to honour frequent flyer points to be awarded by it to RBC at the rate of one Point for every dollar of qualifying credit spending. In finding that such payments by RBC were the consideration for a taxable supply by CAIL of Points, Hershfield J stated (at para. 28):

Everything CAIL did from being involved in establishing the terms of the credit facility to advertising the program was to promote the use of the card by the issuance of Points and that is what it was paid for – the issuance of Points.

By contrast, in Customs and Excise Commissioners v. Civil Service Monitoring Association, [1998] BVC 21 (Eng. CA), where the participation of an automobile association in a credit card program was found to be exempt because the association was involved in the design and operation of the program, "the substantive element and real character of the supply…was to arrange favourable, special credit terms and benefits for its members from the financial institutions granting the credit facility….[and] there was no other supply, like a supply of Points" (para. 35).

The registrant served retail travel agencies by booking and purchasing airline tickets for the agencies' customers, which resulted in the receipt by it of commissions from the airlines. If the customers cancelled or revised their travel plans, the travel agencies were liable to pay an amount to the registrant, indicated as a penalty, cancellation charge, or, where appropriate, a replacement charge (collectively, the "cancellation charges").

Archambault J found that the registrant was obligated to collect GST on the cancellation charges on the basis that the fees arose from a taxable supply of services. After noting that the registrant's usual business model was to earn commissions from the airlines on ticket sales, Archambault J stated:

However, if no ticket is issued by the airline, Skylink is not entitled to a commission. And yet Skylink has provided services: it has done the necessary searches in the airlines; reservation systems and made a reservation. ... Regardless of whether that payment be charcterized as cancellation charges, penalty or replacement charges, its true nature is remuneration for services which Skylink has provided to the retail agencies.

Upon paying for membership in the Automobile Association, a member was considered to be paying not for the mere privilege of membership but for the benefits that a member received under his contract with the Automobile Association and, accordingly, the subscription price is apportionable among those services and facilities received by each member.

Doctors who personally administered drugs (e.g., vaccines) or other medical devices (e.g., contraceptive devices) to a patient were found to be making a single supply of a medical service to the patient rather than a separate zero-rated supply of the drugs or devices. Lord Hoffmann noted that in considering the question of whether transactions should be regarded as a single supply or as two or more distinct supplies, it should not be necessary to go back any further than the Card Protection case ([1999] 2 AC 601), and upheld (at p. 92) the finding of the VAT Tribunal that

Applying the guidance provided by the Court of Justice in the Card Protection case ... the personal administration of drugs to the patient by a doctor was merely ancillary to his supply of exempt medical services.

The appellant ("CTM") sold mortgage loans made by it to securitization trusts and serviced the sold mortgages including collecting and accounting for payments, and dealing with renewals and defaults. It did not explicitly charge the trusts for these services, but recorded fees fo such services in its financial statements. In finding that there was a single supply of a financial service by CTM (failing which , the rule in s. 138 or 139 would have applied), Bowman ACJ stated (at para. 20):

Here we have a sale of mortgages of which the servicing is not only an integral part but is requisite as a matter of commercial exigency. … For someone other than CTM to service the mortgages would, as a practical matter, be commercially infeasible and would be inimical to the raison d'être of the transaction.

The sale of serviced lots by a municipality, with a separate (as to 94% of the total consideration) municipal infrastructure charge was found to entail two supplies (the sale of land, and the provision of infrastructure services) given that land could have been sold independently of the installation or repair of sewer and water systems and given that the breakdown between the two charges appeared clearly in the sale contract.

The registrant was found to be making a single supply of institutional health care services to residents of a nursing home.

The taxpayer, which sold horticultural products by mail order, indicated in its catalogue that customers would pay an additional charge to cover the costs of postage and packing, and stated "we will then advance all postage charges to Royal Mail on your behalf." There was a separate supply consisting of the delivery of the bulbs from the taxpayer to the Royal Mail under a distinct contract between those two parties. However, under the contract between the customer and the taxpayer, arranging the delivery was ancillary to making the bulbs available; and what the customer wanted and what the taxpayer agreed to provide was bulbs delivered to the home. Accordingly, in reality, the sum paid by the customer was for one supply of delivered bulbs.

Fees which the Appellant received from credit cardholders were found to be consideration for a single supply of insurance services. After quoting the statement in Customs & Excise Commissioners v. Madgett, [1998] BTC 5440 that "a service must be regarded as ancillary to a principal service if it does not constitute for customers an aim in itself, but a means of better enjoying the principal service applied", Lloyd Slynn found (at p. 5090) that:

"If one asks what is the essential feature of the scheme or its dominant purpose, perhaps why objectively people are likely to want to join it, I have no doubt it is to obtain a provision of insurance cover against loss arising from the misuse of credit cards or other documents."

Various other services the cardholder was entitled to receive related to the administration of the scheme and were "ancillary or incidental to the main objective of the scheme, i.e., financial protection against loss".

The surrender of hand guns by the taxpayer to the government and the receipt of compensation therefor constituted a supply for consideration given that there was a transfer of title to the government.

The consideration received by the Appellant bank when it engaged, as market maker, in a foreign exchange transaction, was the net spread that it earned from engaging in such transactions over a period of time given that:

"A trader cannot normally foresee, when concluding one particular transaction, at what moment and at what price he may subsequently effect one or more transactions enabling him to eliminate or fix, at a specific amount, the risk of a change in rate to which he is exposed following the first transaction" (p. 5353).

The registrant, which was a livestock marketing agency, was found to be making a taxable supply of storage services rather than a zero-rated supply of feed when it provided through-load services to transporters of cattle as contemplated by section 148 of the federal Health of Animals Regulation, which provided that cattle could not be confined in a railway car for longer than 48 hours but, rather, must be unloaded for a period of not less than five hours into a suitably covered pen provided with straw, feed and water.

Sarchuk TCJ. noted (at p. 87-5) that "a through-load customer does not have the option of acquiring any of the particular elements of the service provided by the appellant separately, rather the provision of a particular element is entirely contingent on the provision of all the other required elements". As a separate matter, the registrant would agree with auction customers to store cattle, which they had purchased, at charge of $1.50 per day per head. It was found (in light, inter alia, of evidence that the charge was $2.50 per day per head in the case of third parties who had not purchased cattle) that in substance all of this charge related to the provision of feed to the cattle and, therefore, was zero-rated.

The appellant, which was a residential drywall contractor, was found not to be making supplies to unregistered subcontractors, who performed drywalling services, when it credited charges for various materials it had purchased and made available for use by them, against the amount that they otherwise were entitled to received for their services. McArthur TCJ. accepted the appellant's submission that the subtrades did not receive legal or beneficial ownership of the materials, nor did it have the right to sell the materials or use them on a job for a customer other than the appellant's.

The appellant provided limousine services at no extra charge to purchasers of first class tickets on its international flights. Before finding that the full ticket price was zero-rated as being in respect of the "transport of passengers ... from a place within to a place outside the United Kingdom or vice versa", Turner J. noted (at p. 5084) that it was permissible to consider the practical difficulties which would be thrown up" if the alternative interpretation was correct and (at p. 5085) that "while it may be fairly be said that the limousine service was physically separate from the flight it was not, without great difficulty, 'economically dissociable' from the price paid for the package offered by Virgin to its Upper Class passengers".

The appellant fed, inoculated and branded cattle it had bought, and then sold the livestock to its customers with separate charges being made for its disbursements and a "clearing commission". The Crown assessed on the basis that the appellant was selling two things, livestock and a service, with the service not being zero-rated. In finding that there was a single zero-rated supply, Rip TCJ. stated (at p. 40-8):

"The alleged separate supplies cannot be realistically omitted from the overall supply and in fact are the essence of the overall supply. The alleged separate supplies are interconnected with the supply of livestock to such a degree that the extent of their interdependence is an integral part of the composite whole ...".

In considering a marketing agreement which provided that property in goods which were manufactured by the Philips group of companies for export should pass to the taxpayer (an affiliated company) either immediately before delivery to the overseas customer or immediately before title passed to the overseas customer, Roch J. disagreed with a finding of the tribunal that in order for there to be a "supply of goods" title must rest with the transferee for a measurable length of time.

In finding that a parent corporation was making a taxable supply of the services of its employees to its subsidiary, Slade L.J. stated (p. 5084):

"If A agrees with B that B will perform certain services for A and that he will reimburse B for certain specified expenses which will be incurred by B in the performance of both services, the agreement to reimburse is, in my judgment, well capable of constituting sufficient consideration in law for those services. The bargain may be a bad one from B's point of view, but the courts do not enquire into the monetary adequacy of consideration."

The sale of the assets of an insurance agency business did not represent a taxable supply because it was not made in the course of a business of the vendor.

The appellant was a private, for-profit college which offered a two-year program leading to an associate of arts degree. Its business depended on its students' ability to transfer their credits to public universities in B.C., which, unlike it, offered baccalaureate degrees. It was not authorized under the Degree Authorization Act (B.C.) (the "DAA") to refer to itself as a university, but was authorized under that Act to grant associate degrees.

In finding that the appellant was not a "university" as defined in s. 123(1), so that its fee income was not exempted under Sched. V, Part III, s. 7, Lyons J stated (at paras. 68-70, 74):

[after citing Klassen and Zailo]...I find that an Associate Degree is insufficient and that a "degree" for the purposes of subsection 123(1)...must equate to a baccalaureate degree or higher.

...[T]he fact that the appellant has not sought, nor received, ...consent to call itself a "university" under section 4 of the DAA is a factor that undermines the appellant's position that it is recognized as an institution by the provincial government.

[C]onstruing the legislation...[literally] render[s] the phrase "organization that operates a college affiliated with" a university redundant if a degree-granting institution is interpreted as a "college" in subsection 123(1). Also, incorporating and construing the word "college" in the definition of "university" makes the definition of "public college" redundant in section 7.

[T]he appellant...is a college, not an institution.