[2011] 4 F.C.R. D-6
Customs and Excise
Excise Tax Act
Judicial review of respondent’s decision denying applicant’s request to be designated as “municipality” under Excise Tax Act, R.S.C., 1985, c. E-15, s. 259(1)—Applicant non-profit housing corporation, operating 112-unit rental housing complex—Units available on rent-geared-to-income basis—Offering personal care services to residents of complex by third-party service providers—Act not defining term “municipal service” nor setting legislative criteria for making municipal designation under s. 259(1)—Such designation involving exercise of ministerial discretion informed by administrative policy—2007 departmental guideline outlining basis for granting municipal designation regarding supply of residential rent-geared-to-income accommodation—Respondent denying applicant’s request for municipal designation on basis supply of residential accommodation “inextricably linked” to personal care services residents obliged to receive from designated third-party service providers under rental agreements—Apparent from 2007 departmental guideline that supply of municipally subsidized residential care accommodation in nature of nursing home or personal care home involving provision of meals, etc. will not qualify for municipal designation because representing form of competing commercial activity—However, nothing in guideline specifically addressing situation here involving contractually-linked supply of housing, personal care service—In absence of specific policy, respondent required to adopt principled position; respondent doing so—Clear that degree of contractual commingling between provision of housing, personal care services such that respondent unwilling to treat personal care functions as separate taxable supplies for purposes of municipal designation—Respondent’s decision transparent, intelligible, rationally supported by reasons given—Respondent also not fettering discretion since decision not suggesting departmental taxation guidelines on municipal designations elevated to set of immutable legal principles to exclusion of other relevant considerations—Fact respondent exercising discretion in particular way not meaning relevant matters overlooked—Application dismissed.
Wellesley Central Residences Inc. v. Canada (National Revenue) (T-1389-10, 2011 FC 760, Barnes J., judgment dated June 23, 2011, 13 pp.)