Below is a selection of GST cases delivered in the Tax Court of Canada and the higher Courts since October 2011

Recent cases

Canadian Legal Information Institute v The Queen 2020 TCC 56

• whether CANLII makes a taxable supply by operating its virtual library – whether CANLII makes a supply for consideration or for no consideration – whether entitled to input tax credits – meaning of “consideration”

Selected cases

703008 BC Ltd v The Queen 2015 TCC 208

• whether the supply of units in an apartment complex by way of a 99 year lease with an option to purchase was a supply by way of a “lease” or a “sale” – discussion of difference between a “sale” and a “lease, licence or similar arrangement” – discussion of whether provision of option to purchase equates to a sale

Alexander College Corp v The Queen 2015 TCC 238

• whether the taxpayer was a “university” as defined in s 123(1) of the Excise Tax Act, being “a recognised degree-granting institution or organisation that operates as a college affiliated with, or a research body of, such an institution”

Andrei 95 Holdings Ltd v The Queen 2015 TCC 224

• whether the taxpayer was entitled to input tax credits in respect of legal fees – whether legal fees incurred in the course of any commercial activity carried on by the taxpayer – no – also the legal fees related to the separation of business interests by way of a share buyout (an exempt transaction)

Calgary (City) v Canada 2012 SCC 20

• Single supply or multiple supplies  ― City acquiring and constructing transit facilities ― City claiming and receiving public service body rebates for portion of GST paid ― City also claiming input tax credits in respect of GST paid on purchases made for transit facilities ― Whether acquisition and construction of transit facilities constituting an exempt supply, a taxable supply or both ― Whether “transit facilities services” a taxable supply to the Province separate from exempt supply of “public transit services” to public –
• Case analysis

Caithkin Inc v The Queen 2015 FCA 118

• whether the supply of services by the taxpayer to various Children’s Aid Societies (being the location and training of foster parents and inspection of foster care homes) qualified as an exempt supply – whether the primary judge correct to restrict the exemption to a supply of services in the actual, physical locations or home where foster children resided

Canadian Imperial Bank of Commerce v The Queen 2018 TCC 109

• whether fees paid to Visa were consideration for a financial service and an exempt supply – at [55]: supply agreed to be a single compound supply comprised of several distinct but indivisible components that are “intertwined, interdependent and integral to one another” – held fees consideration for a taxable supply

Canadian Medical Protective Assn v Canada 2009 FCA 115

• whether research and analysis undertaken by investment managers used by the Canadian Medical Protective Association were the provision of a financial service – held a financial service as the research and analysis was done in service of the end result, which was the purchase and sale of financial instruments

Casa Blanca Homes Ltd v The Queen [2013] TCC 338

• whether GST payable on fees received by purchaser of real estate for assignment of contracts to third parties – whether fee payable for assignment of deposit an exempt supply of a financial service

Children’s Clean Air Network Society v The Queen 2013 TCC 352

• whether applicant (a NPO and registered charity) entitled to input tax credits and liable to pay GST – whether the applicant was carrying on a commercial activity

D-Win Computer Systems Inc v The Queen 2013 TCC 187

• claim by joint venture partner for input tax credits in respect of money spent by joint venture partner for acquisitions made by joint venture operator – effect of joint venture rules and deeming provisions

Erikson v The Queen, 2011 TCC 562

• entitlement to input tax credits for purchase of yacht – whether enterprise carried on – whether reasonable expectation of profit

FP Newspapers Inc v The Queen 2013 TCC 44

• whether partner in partnership entitled to input tax credits for services acquired for own benefit – whether partner carrying on commercial activities of the Partnership therefore entitled to input tax credits

GF Partnership v The Queen  2013 TCC 53

• whether builder and developer of residential subdivisions liable to GST on consideration including development charges – or whether development charges payable directly by purchaser and therefore not included in the price

Global Cash Access (Canada) Inc and The Queen 2013 FCA 269

• whether commissioner paid to corporations that operated casinos were consideration for a financial supply
• First instance – Global Cash Access (Canada) Inc v The Queen 2012 TCC 173 case analysis

Great-West Life Assurance Company v Canada [2016 FCA 316

• whether fees for services provided in connection with group health benefit plans offered to employees were consideration for a financial supply
• The Great-West Life Assurance Company v The Queen 2015 TCC 225

Invesco Canada Ltd v The Queen 2014 TCC 375

• determination of the value of consideration paid by various mutual fund trusts to the taxpayer for the supply of management services to the funds – whether certain management fee reductions to large investors were part of the consideration

Living Friends Tree Farm v The Queen 2016 TCC 116

• whether the taxpayer was carrying on a “commercial activity” of the farming of Christmas trees – whether the work undertaken, in respect to the preparation of the property with roads, fencing, wells, and construction of barn and greenhouse, was preparatory and that this type of agricultural activity meant that profit would not be immediate but would be expected at some point in the future when the trees matured – at [22]: the eligibility of expenses that give rise to ITCs in the start-up phase of any business will require that a taxpayer show not only a clear intention to commence a commercial enterprise but also evidence of the steps taken in support of that stated intention

Mac’s Convenience Stores Inc v The Queen [2012] TCC 393

• whether service charge received for allowing the Automated Banking Machines of third party bank on the appellant’s convenience stores consideration for an exempt supply of financial services or a taxable supply of real property – whether appellant entitled to input tax credits for the purchase of ATMs – whether the ATMs “relate to” the other activities of the convenience stores

Miedzi Copper Corporation v The Queen 2015 TCC 26

• whether holding company entitled to claim input tax credits on the basis that they could “reasonably be regarded as having been… acquired… for consumption or use in relation to the shares or indebtedness” of its subsidiary – discussion of meaning of “related to”

Rasmussen v The Queen 2015 TCC 34

• whether the taxpayer’s racecourse activities were “commercial activities” – whether the taxpayer had a reasonable expectation of profit

Sun Life Assurance Company of Canada v The Queen 2015 TCC 37

• whether the taxpayer was entitled to claim a higher proportion of input tax credits for rental costs on the basis that its amended apportionment methodology was fair and reasonable – discussion of the meaning of “fair and reasonable”

Surrey City Centre Mall Ltd v The Queen 2012 TCC 346

• whether GST payable on amount received for the breach/termination of an agreement to make a taxable supply –
• Case analysis.

SWS Communications Inc v The Queen 2012 TCC 114

• whether supply of telecommunication services zero-rated as an export to non-resident – whether supplier had a permanent establishment in Canada

Tan v The Queen 2015 TCC 121

• whether the absence of the GST number of suppliers on documents invalidates claim for input tax credits

Tele-Mobile Company v The Queen 2015 TCC 197

• whether the supply of a telecommunication service of roaming airtime in the US was part of a single supply of telecommunication services which included long distance calls from the US to Canada or a separate supply taking place entirely in the US

Tele-Mobile Company v The Queen 2015 TCC 197

• whether the supply of a telecommunication service of roaming airtime in the US was part of a single supply of telecommunication services which included long distance calls from the US to Canada or a separate supply taking place entirely in the US

Tele-Mobile Company Partnership and The Queen 2013 FCA 149

• entitlement to input tax credits as a result of Billing Credits and mail-in rebates provided to customers – whether credits and rebates a “coupon” or vouchers or simply a discount on the contract
• Case analysis
• First instance – Tele-Mobile Company Partnership v The Queen 2012 TCC 256

Twentieth Century Fox Home Entertainment Canada Limited v Canada (Attorney General) 2013 FCA 25

• application for judicial review of decision of Attorney General to refuse to exercise discretion to refund overpaid GST due to error in computer software where claim made out of time

Whitehorse (City) v The Queen 2012 TCC 298

• whether appellant entitled to a GST rebate on travel allowance paid to employees for round-trip airline tickets and related travel expenses

Yevzeroff v The Queen 2013 TCC 268

• whether taxpayer is entitled to input tax credits – whether taxpayer carried on any commercial activity – whether acquisitions substantiated – whether acquisitions incurred for the purpose of making taxable supplies