Respondent Her-Majesty-the-Queen

Transcription

Court File No.: 33804
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE FEDERAL COURT OF APPEAL)
BETWEEN:
CITY OF CALGARY
Appellant
(Respondent)
and
HER MAJESTY THE QUEEN
Respondent
(Appellant)
RESPONDENT’S FACTUM
(Pursuant to Section 42 of the Rules of Supreme Court of Canada, (SOR/2011-74)
Counsel for the Appellant
Felesky Flynn LLP
Barristers & Solicitors
5000, 150 6th Avenue S.W.
Calgary, AB T2P 3Y7
Per: Ken S. Skingle, Q.C.
Tel: (403) 260-3309
Fax: (403) 263-9649
Email: [email protected]
Counsel for the Respondent
Myles J. Kirvan
Deputy Attorney General of Canada
Department of Justice
234 Wellington Street
Ottawa, Ontario K1A 0H8
Per:
Gordon Bourgard/Michael Lema
Marta E. Burns
Tel:
(613) 952-9810/(780)
(780)
Fax:
(613) 946-7449/(780)
(780)
[email protected]
[email protected]
Agent for the Appellant
McMillan LLP
Barristers & Solicitors
50 O’Connor Street, Suite 300
Ottawa, Ontario K1P 6L2
Marie-France Major
Tel.: (613) 232-7171
Fax: (613) 231-3191
Agent for the Respondent
Christopher Rupar
Bank of Canada Building,
234 Wellington Street, Room 1216
Ottawa, Ontario, K1A 0H8
Per:
Christopher Rupar
Tel:
(613) 941-2351/
Fax: (613) 954-1920
i
TABLE OF CONTENTS
PAGE
PART I - STATEMENT OF FACTS
1
OVERVIEW
1
FACTS
i) Provincial legislative framework
ii) Three funding agreements
3
3
4
PROCEEDINGS IN THE COURTS BELOW
i) Decision of the Tax Court of Canada
ii) Decision of the Federal Court of Appeal
10
10
11
PART II – QUESTIONS IN ISSUE
13
PART III – ARGUMENT
14
A. SUPPLIES AND TAXABLE SUPPLIES IN THE SCHEME OF THE GST
15
B. THE CITY MADE NO SUPPLY TO THE PROVINCE
16
i) No supply and no commercial activity
ii) No supply when acquisition of capital assets is for use in city’s own activities
iii) Receipt of grant funding does not create a “service”
iv) There is no supply associated with accountability requirements
v) The Court of Appeal did not introduce any novel concept into the “supply”
analysis
vi) The funding agreements were products of their legislative framework
vii) The City misunderstands the legislative framework
C. TAX POLICY DEMONSTRATES THE CITY’S ARGUMENT IS
MISCONCEIVED
16
19
21
24
24
25
26
29
i) Accepting the City’s premise would undo Parliament’s design of the GST
29
ii) Other negative tax policy consequences of the City’s position
33
D. THE ANALYSIS ENDS BECAUSE THERE WAS NO SUPPLY
34
E. THE DIRECT LINK TEST ONLY FOLLOWS A FINDING OF SUPPLY
35
F. CONCLUSION
37
PART IV – COSTS
38
PART V – ORDER SOUGHT
38
PART VI – TABLE OF AUTHORITIES
39
PART VII - STATUTES RELIED ON
45
-1Respondent’s Factum on Appeal
Facts
PART I - STATEMENT OF FACTS
OVERVIEW
1.
Many public sector organizations engage in activities with a public purpose that do not
attract any GST from the ultimate consumer. However, the organizations may have paid GST
on the goods and services that they need in support of those activities. When the GST was
introduced, Parliament decided that certain public service organizations, including
municipalities, would receive a partial rebate of sales tax paid on their purchases to ensure that
their tax burden would be no greater than under the federal sales tax that the GST replaced.
2.
The City of Calgary supplies municipal transit services to the public. Because the Excise
Tax Act treats these services as a tax exempt supply and not as part of a commercial activity
requiring that GST be charged, the City was eligible to claim these partial rebates but was
ineligible for input tax credits. Initially the City claimed and received the appropriate rebate for
a municipality.
3.
In an attempt to circumvent the restriction on its ability to claim input tax credits, which
allow for full recovery of GST paid when an input has been acquired for consumption, use or
supply in the course of a commercial activity, and recover more of the GST paid than it
recovered through the rebates initially claimed, the City now seeks to characterize the
acquisition and upgrading of some of its transit infrastructure as a supply to the Province of
Alberta. It does so by conceiving of a taxable service of “acquiring, constructing and making
public transit facilities available to the citizens of Calgary”. To substantiate a claim for input tax
credits it then characterizes provincial funding as consideration for that “supply” in an effort to
have the Province become the “recipient” of a taxable supply.
4.
In reality there is only one supply being made here by the City: the GST exempt supply
of municipal transit services by the City to Calgary Transit System passengers. The
development of transit infrastructure is an input to, and an integral part of, that single supply;
there is no separate supply to the Province of acquiring infrastructure. Provincial funding
provided under a capital grant agreement to be used by the City to improve its own
infrastructure does not, for GST purposes, create a supply from the City to the Province.
5.
Facts
The City rationalizes its characterization by arguing that it acquired property and
services so that the Province could fulfil a constitutional obligation to supply a transit service to
the citizens of Calgary. The Province does not have such an obligation, and it cannot delegate a
responsibility it does not have to the City. The City has a statutory obligation to provide the
transportation system to its own citizens whether or not grant funding is provided. The Province
has a statutory discretion to contribute funds in support of provincial public policy objectives.
The capital grant agreements establish a necessary accountability framework for the use of
public funds.
6.
Treating the Province’s contribution to the City’s transit infrastructure as consideration
for GST purposes in the circumstances of this case could result in grant funding being
consideration for GST purposes in many circumstances, contrary to tax policy decisions made
by Parliament when the GST was introduced. The scheme of the Excise Tax Act treating all
standard municipal services, integral to the role of local government, as exempt supplies would
be impaired. Moreover, the City’s tax gain would be fleeting, because once the property was put
to its true exempt use in the transit system, the Excise Tax Act’s change of use provisions would
be engaged, requiring the City to repay input tax credits claimed on capital property now used in
making these exempt supplies, negating the incremental ITC gain. The City’s approach would
also create adverse consequences for non-profit organizations receiving grant assistance, which
may also be required to register for GST purposes and collect GST on activities currently having
no GST consequences.
.
Facts
FACTS
7.
The respondent accepts the facts stated by the City except the statements in paragraphs
11 and 14 that the City acquired and constructed transit facilities under certain Agreements
between the City and the Province and that the Agreements dealt with only the acquisition and
construction of transit facilities. The Agreements are grant agreements making funds available
to the City which, if it chooses, it may use to fund transportation projects meeting eligibility
criteria. The Agreements do not oblige the City to acquire or construct anything.
8.
The respondent considers the additional facts which follow to be relevant.
i) Provincial legislative framework
9.
Under the Municipal Government Act (MGA), one of the City’s purposes is to provide
services, facilities or other things that, in the opinion of council, are necessary or desirable for
the municipality. The MGA imposes both its own duties and the duties of other enactments,
including the City Transportation Act (CTA), on the City.1
10.
Under the CTA, the City is responsible for the costs of establishing and maintaining the
public transportation system described in its comprehensive transportation study and adopted in
its bylaw, as approved by the Province.2 The most relevant provisions of the CTA establishing
the legislative framework are:
2
Each city is responsible for the costs of establishing and maintaining all
transportation facilities subject to its direction, control and management but may
qualify for financial assistance from the Government by complying with this Act.
3
The city shall prepare a comprehensive transportation study report for the
development of an integrated transportation system designed to service the needs of
the entire city.
4(1) The city council shall by bylaw establish a transportation system in
accordance with the transportation study report and the bylaw shall designate the
transportation system.
...
(6)
The city council shall submit the bylaw to the Minister for approval by the
Lieutenant Governor in Council and the Lieutenant Governor in Council may vary or
1
Municipal Government Act, R.S.A. 2000, c. M-26, ss. 3-6, 7(d).
Court of Appeal Reasons, para., 3 [Appellant’s Record, Tab 5, p.31]; Tax Court Reasons, paras. 1, 5, 6, 7
[Appellant’s Record, Tab 3, pp. 4, 5]; City Transportation Act, R.S.A. 2000, c. C-14, ss. 2, 3, 4, 6, 7.
2
Facts
approve the bylaw in whole or in part and if the bylaw is varied or approved in part
only, it shall be enforced and take effect as approved.
...
6(1) When a city considers that a transportation facility included in the
transportation system should be constructed it shall submit the proposal to the
Minister.
(2)
If the proposal is approved by the Minister, the Minister may enter into an
agreement with the city with respect to the sharing of costs of establishing the
transportation facility.
...
7
The title to all transportation facilities forming the transportation system is,
subject to any Act or agreement to the contrary, vested in the city.3
11.
The City provides municipal transit services to the general public through the Calgary
Transit System. The system’s assets, including its light rail transit (LRT) lines, LRT and bus
fleets, stations and related facilities, are owned by and are under the direction, control and
management of the City.4
12.
The City prepared a comprehensive new transportation plan in the early 1990s and was
anxious to secure funding sources to proceed with the planned capital investments.5
ii) Three funding agreements
13.
The Province’s Ministry of Transportation and later the Ministry of Infrastructure
established and administered grant programs for municipalities.6
14.
The City applied for and received provincial funding for the expansion and upgrading of
its transit system under three programs – Basic Capital Grant (April 17, 1989), Transit Capital
Grant (November 24, 1998), and the City Transportation Fund (March 13, 2000) (collectively
“the Funding Agreements”).7
3
City Transportation Act, R.S.A. 2000, c. C-14; Court of Appeal Reasons, para. 3, [Appellant’s Record, Tab 5, p.
31]; Tax Court Reasons, paras. 5, 6, 7[Appellant’s Record, Tab 3, pp. 5-6], Agreed Partial Statement of Facts,
paras. 8, 9, 10, 13, 15, 16 [Appellant’s Record, Tab 8, pp. 62-63].
4
Tax Court Reasons, para. 7 [Appellant’s Record, Tab 3, p. 6], Agreed Partial Statement of Facts, paras. 14, 15,
16 [Appellant’s. Record, Tab 8, p. 63].
5
Evidence, Holmes p. 201, l. 24-25; p. 202, l. 1-3 [Respondent’s Record, Tab 11].
6
Evidence, Holmes, p. 199, l. 14-17; [Respondent’s Record, Tab 10]; Basic Capital Grant Memorandum of
Agreement, April 17, 1989 [Appellant’s Record, Tab 9, p. 76]; Transit Capital Grant Memorandum of Agreement,
Nov. 24, 1998 [Appellant’s Record, Tab 10, p. 128]; City Transportation Fund Memorandum of Agreement,
March 13, 2000 [Appellant’s Record, Tab 11, p. 136].
7
Court of Appeal Reasons, paras. 4, 5, 6; [Appellant’s Record, Tab 5, p. 32]; Tax Court Reasons, paras. 2, 8
[Appellant’s Record, Tab 3, pp. 4, 6]; Basic Capital Grant Memorandum of Agreement, April 17, 1989
15.
Facts
Basic Capital Grant application procedures required that every Application for Program
Acceptance include a Project Profile form indicating whether the project was either
reconstruction or rehabilitation of an existing facility or an addition to the city’s urban
transportation system.8
16.
The Funding Agreements provided for capital grants to be made, on various
accountability terms and conditions, for City-proposed transit projects meeting the eligibility
criteria of the particular grant program.9
17.
All of the Funding Agreements contain substantially the same terms and conditions for
provincial funding, namely:
a.
an application process to determine whether grant eligibility criteria are met;
b.
separate accounting;
c.
accountability through annual reporting and certification;
d.
the investment of funds advanced and use of interest earned;
e.
the application of unexpended funds;
f.
audit and inspection obligations; and
g.
when carrying out work, compliance with prevailing legislative and industry
standards, such as the National and Alberta Building Codes, and the American
Railway Engineering Association standards, and with standards set down in the
CTA.10
18.
The Province would not fund any activity relating to the administration of the grants.11
19.
The City spent the grant funds on LRT extensions, LRT platform work (including a
major station rework in the downtown), LRT vehicle rebuilds, LRT vehicles, bus purchases, bus
[Appellant’s Record, Tab 9]; Transit Capital Grant Memorandum of Agreement, Nov. 24, 1998 [Appellant’s
Record, Tab 10]; City Transportation Fund Memorandum of Agreement, March 13, 2000 [Appellant’s Record,
Tab 11].
8
Basic Capital Grant Memorandum of Agreement, April 17, 1989, s. 1.7 Grant Application Procedures; s. 1.7.1
How to Complete the Project Profile [Appellant’s Record, Tab 9, pp. 95, 97].
9
Tax Court Reasons, paras. 8, 9 [Appellant’s Record, Tab 3, p. 6-7].
10
Tax Court Reasons, para. 10 [Appellant’s Record, Tab 3, paras 10, 11]; Basic Capital Grant s. 2, 4, 7, 8
[Appellant’s Record, Tab 9, pp .77-79]; Transit Capital Grant s. 2, 3, 5 [Appellant’s Record, Tab 10, pp. 131133]; City Transportation Fund, s. 8, 10, 11, 12 [Appellant’s Record, Tab 11, p. 140-142]; Evidence, Chaput, p.
110, l. 6-25; p. 111, l. 1-25; p. 112, l.1.-7 [Respondent’s Record, Tab 5].
11
Evidence, Chaput, p. 88, l. 3-21; [Respondent’s Record, Tab 3]; Basic Capital Grant s. 2(k), s. 1.4 “GeneralAdministrative” [Appellant’s Record, Tab 9, pp. 78, 92]; Transit Capital Grant s. 2(l) [Appellant’s Record, Tab
10, pp. 133]; City Transportation Fund, s. 11 [Appellant’s Record, Tab 11, p. 142].
Facts
refurbishment, a bus storage garage, a radio communications system, transit signals and transit
fare collection equipment.12 Title to all these assets vested in the City.13
20.
The objectives of the Basic Capital Grant were (1) to work in partnership with the cities
to provide a safe and cost-effective transportation system recognizing broad municipal, regional
and transportation objectives and (2) to assist cities by providing capital grant support for the
development of major components of the transportation system. The City Transportation Bylaw
was the primary basis for establishing the cost-sharable transportation system.14
21.
The Basic Capital Grant project eligibility criteria for transit services included:
a) construction and major rehabilitation of LRT lines which must be designated in the
City’s Transportation System Bylaw, station structures, park and ride facilities, and
LRT maintenance facilities;
b) construction and rehabilitation of major public transit terminals and bus garages;
c) purchase of “low-floor” standard 40 foot and accessible community public transit
vehicles and specialized transit vehicles for seniors or persons with disabilities;
d) purchase of articulated transit buses;
e) major rehabilitation of public transit vehicles;
f) transit stop retrofit programs to achieve a “barrier free path of travel”;
g) construction or implementation of transportation systems management projects;
h) enhancements or improvements for the safety of users of the transportation systems;
i) right of way purchases;
j) city-wide transportation planning studies and major systems planning reviews; and
k) planning and design studies for public transit capital projects.15
22.
The City Commissioner for Planning and Transportation presented recommendations
from planning and design studies for transit projects to City Council. It was up to Council to
decide which projects the City would undertake.16
23.
While the Basic Capital Grant agreement was still in place the City approached the
Province for assistance in purchasing additional light rail vehicles for the City’s LRT system
12
Agreed Partial Statement of Facts, para. 45 [Appellant’s Record, Tab 8, p. 70.
Court of Appeal Reasons, para. 3 [Appellant’s Record, Tab 5, p. 31].
14
Basic Capital Grant, April 17, 1989, s. 1.1 Objectives [Appellant’s Record, Tab 9, p. 84 ].
15
Basic Capital Grant, s. 1.3 [Appellant’s Record, Tab 9, pp. 87- 89].
16
Evidence, Chaput, p. 85, l. 9-25; Holmes, p. 197, l. 12-23 [Respondent’s Record, Tab 2; Tab 9].
13
Facts
because the City was having trouble meeting the public’s demand for service. In November
1998, in response, the Province established the Transit Capital Grant.17
24.
The Transit Capital Grant eligible expenditures are similar to those of the Basic Capital
Grant. As with the Basic Capital Grant, any construction or rehabilitation of LRT lines, stations,
Park and Ride Facilities and LRT Maintenance Facilities had to be for LRT lines designated in
the City’s Transportation System Bylaw. The new grant program extended to the purchase of
LRT vehicles, construction of dedicated bus ways on arterial streets and right of way
acquisitions for both the LRT line and dedicated bus ways.18
25.
Contributions under the Basic Capital Grant and the Transit Capital Grant were
calculated on a per capita basis and depended on funds being available in the annual Provincial
budget. The Province would conditionally grant 75% of the funds for eligible capital projects;
the City raised the other 25% of project expenditures from taxes, user fees, levies and other
revenues.19 The provincial contributions were to be advanced after approval of the City’s
application and announcement of the City’s program.20
26.
The City Transportation Fund was created to provide funding for capital transportation
infrastructure.21 Eligible transit expenditures under the City Transportation Fund included those
of the prior agreements. Transportation categories eligible for funding included LRT
Construction and Extensions, LRVs, Buses, and the Overall Transportation System. As with the
earlier agreements, construction and major rehabilitation of LRT lines required that the lines be
designated in the City’s Transportation System Bylaw. The Overall Transportation System
category included system-wide capital improvements or upgrading projects. The City had
negotiated for the inclusion of new eligible expenditures including the purchase, development
and rehabilitation of major capital security devices, communication equipment and other public
safety enhancements to the transit system. The radio system in the City’s transit fleet was
17
Evidence, Chaput, p. 115, l. 21-25; p. 116, l. 1-6 [Respondent’s Record Tab 6].
Evidence Chaput, p. 116, l. 5, 16-25; p.117, l. 1 [Respondent’s Record Tab 6]; Transit Capital Grant, Exhibit A
[Appellant’s Record, Tab 10, p. 135].
19
Tax Court Reasons, paras. 8, 12 [Appellant’s Record, Tab 3, pp. 6-7]; Evidence, Chaput, p. 104. l. 2-22
[Respondent’s Record, Tab 4].
20
Basic Capital Grant, preamble, s. 2(a), (c), (g), s. 1.2, “Grant Funding Available”, s. 1-7 “Grant Application
Procedures”, p. 1-12 [Appellant’s Record, Tab 9, p. 76, 77, 85, 95]; Transit Capital Grant, preamble, s. 2(a), (c),
(g) [Appellant’s Record, Tab 10, p.130, 131, 132]; Evidence, Holmes, p. 216 l. 15-25, p. 217, l. 1-25
21
City Transportation Fund, preamble [Appellant’s Record, Tab 11, p. 137].
18
obsolete and the City was facing a replacement cost of $10 million.
Facts
Other new eligible
expenditures, for landscaping and noise attenuation barriers, were in response to local pressure
on the City to mitigate the impact of the LRT near residences.22
27.
The City Transportation Fund agreement no longer required that the City contribute 25%
to the cost of eligible projects and also had no sunset clause. The City knew how much grant
money would be available over a much longer period, enabling it to plan long-range capital
investments. Grant funding under the City Transportation Fund was determined by a formula
applying five cents per litre against the amount of taxable gas and diesel fuel delivered to
service stations and bulk dealerships in the City.23
28.
When the City Transportation Fund was established in 2000, the Province advanced
$239 million as the estimated fuel tax revenue for the next three years.24 The Province’s news
release announcing the Transportation Fund Agreement stated: “The City of Calgary and the
Province have signed a trust agreement for infrastructure funding, based on five cents per litre of
on-road fuel sold in the city… The city will be able to invest these funds in their own
transportation priorities”.25
29.
Robert Holmes was the City Commissioner for Planning and Transportation and for a
year was seconded to the Province to serve as Deputy Minister of Municipal Affairs.26 As City
Commissioner, he was involved in the negotiations for the City Transportation Fund agreement.
His evidence was that the agreement did not oblige the City to construct any particular transit
project or build any transportation infrastructure at all.27
30.
The City contracted with third parties for the property and services necessary to
complete the eligible transit projects. The City paid for and received the property and service
22
City Transportation Fund, s. 13 II Transit, III – General – Roadway/Transit E, K; Schedule-Potential
Transportation Categories ss. 2-5 [Appellant’s Record, Tab 11, pp. 143-144; 155-157]; Evidence, Chaput, p 127,
l. 16-26.; p. 128, l. 8-25, p. 129 l, 1-7; [Respondent’s Record, Tab 7] Evidence, Holmes p. 211, l. 20-25; p. 212, l.
1-25 [Respondent’s Record, Tab 13].
23
Tax Court Reasons, para. 12 [Appellant’s Record, Tab 3, p.7]; City Transportation Fund, preamble,
[Appellant’s Record, Tab 11, p. 137]; Holmes, p. 205 l. 14-25; p. 206, l. 1-12[ Respondent’s Record, Tab 12].
24
Tax Court Reasons, para. 12 [Appellant’s Record, Tab 3, p. 8]; Exhibit, Memo to Mayor and Council, March
16, 2000 [Respondent’s Record, Tab 15].
25
Exhibit, Alberta Infrastructure News Release, March 16, 2000 [Respondent’s Record, Tab 16].
26
Evidence, Holmes, p. 197, l. 6-25;. p. 198, l. 15-18; [Respondent’s Record, Tab 9].
27
Evidence, Holmes, p. 216, l. 15-25; p. 217, l.1-25; p. 218, l. 1-10. [Respondent’s Record, Tab 14].
Facts
inputs for those transit projects. The City used all those property and services for its municipal
transit system, and the City became the owner of what was acquired and upgraded.28
28
Tax Court Reasons, para. 14 [Appellant’s Record, p. 8]; Evidence, Chaput, p. 186, l. 13-25; p. 187, 1-11
- 10 Respondent’s Factum on Appeal
Facts
PROCEEDINGS IN THE COURTS BELOW
i) Decision of the Tax Court of Canada
31.
The Tax Court of Canada found that the Province had contractual, statutory and
constitutional obligations that required it to pay the City for municipal transportation facilities.
Accordingly, the Tax Court found that the City infrastructure purchases and improvements that
were inputs into its municipal transit service were acquired for use in the course of a commercial
activity, that the City made a taxable supply to the Province, and that the City was eligible for
full input tax credits (ITCs) rather than partial rebates.
32.
The Tax Court held that the City had, in the context of a business relating to the Funding
Agreements, made an Excise Tax Act (ETA) “supply” of the service of acquiring, constructing
and making available transit facilities for the citizens of Calgary.29 The Tax Court next had to
identify the “recipient” of the supply as the City’s entitlement to ITCs for GST paid relating to
various transit projects would turn on the person(s) to whom that supply was made.30
33.
The Tax Court characterized the provincial grants as the consideration paid for the City’s
supply, meeting one of the ETA tests to determine the “recipient” of a supply.31 In the Court’s
view, the Province had a legal obligation under the Funding Agreements to pay for the transit
services, and there was a direct link between the funding and the service of development of the
transit facilities.32
34.
Underlying the Tax Court’s interpretation of the Funding Agreements was its
determination that the constitutional and statutory relationship between the Province and the
City created a legal obligation on the Province to fund Calgary’s transit facilities. The Tax
Court’s understanding was that provincial jurisdiction over local works and undertakings in
subsection 92(10) of the Constitution Act, 1867 required either that the Province carry out the
local works and undertakings itself or delegate its responsibility to some other authority.
According to the Tax Court, a delegation was initially made through the CTA and was followed
29
Tax Court Reasons, paras. 30-35, 65, 68 [Appellant’s Record, Tab 3, pp. 13-15, 23-25].
Tax Court Reasons, paras. 35, 36 [Appellant’s Record, Tab 3, p. 15].
31
Tax Court Reasons, paras. 36-38, 43, 44 [Appellant’s Record, Tab 3, pp. 15-18].
32
Tax Court Reasons, paras. 44, 45, 46, 48 [Appellant’s Record, Tab 3, pp. 17-19].
30
Facts
up by the grant agreements. Having delegated its responsibility, the Province then had a legal
obligation to fund. 33
35.
Finally, the Tax Court found that the “municipal transit service” exemption in ETA Part
VI, Schedule V, s. 24 did not apply as it was limited to “a supply made to a member of the
public”. In this case, the supply by the City of the “service” of acquiring, constructing and
making available transit facilities for the citizens of Calgary was made to the Province34 and was
an “independent commercial activity” separate from the supply of a municipal transit service to
the public.35 This entitled the City to claim ITCs.
ii) Decision of the Federal Court of Appeal
36.
The Federal Court of Appeal found no supply to the Province. Rather, the property and
services on which the GST was paid were inputs for the City’s municipal transit service, which
is an exempt supply.36 To reach that conclusion the first step of the Court of Appeal’s two-step
analysis was to interpret the CTA.37 The second step was to interpret the Funding Agreements.38
With no dispute as to the facts, the Court of Appeal was faced with questions of law, which it
reviewed on a standard of correctness.39
37.
The CTA established the respective obligations and rights of the City and the Province
resulting from an approved transportation plan. The City constructs and operates what was
approved, and the Province has statutory discretion to provide the City with financial assistance
and, if it chooses to assist, to select the manner of assistance.40
38.
The Funding Agreements were made in the legislative context of the CTA, to which the
City was subject41 and “exist to provide a framework for the administration of the financial
assistance authorized by the CTA.”42 They were administrative and accountability frameworks
33
Tax Court Reasons, paras. 49-56 [Appellant’s Record, Tab 3, pp. 19-21].
Tax Court Reasons, para. 48, 59-60 [Appellant’s Record, Tab 3, pp. 19, 22].
35
Tax Court Reasons, paras 65, 68 [Appellant’s Record, Tab 3, pp. 23-25].
36
Court of Appeal Reasons, paras. 2 and 62 [Appellant’s Record, Tab 5, pp. 31, 52].
37
Court of Appeal Reasons, para. 35 [Appellant’s Record, Tab 5, pp. 40-42].
38
Court of Appeal Reasons, paras. 36, 54, 57 [Appellant’s Record, Tab 5, pp. 42, 48-49].
39
Court of Appeal Reasons, paras. 29, 54 [Appellant’s Record, Tab 5, p. 39, 48]; New Brunswick (Board of
Management) v. Dunsmuir [2008] SCC 9, [2008] 1 S.C.R. 190 at para. 66 [Respondent’s Authorities, Tab 20];
Geoff R. Hall, Canadian Contractual Interpretation Law, (LexisNexis Canada Inc., 2007) at pp. 106-110
[Respondent’s Authorities, Tab 54].
40
Court of Appeal Reasons, paras. 3, 33-35 [Appellant’s Record, Tab 5, pp. 31, 41-42].
41
Court of Appeal Reasons, para. 57 [Appellant’s Record, Tab 5, p., 49].
42
Court of Appeal Reasons, para. 63 [Appellant’s Record, Tab 5, pp. 52-53].
34
Facts
for the disbursement of public funds only, creating no contractual obligation on the City to make
a supply of transit services to anyone, let alone the Province.43
While the City incurred
expenditures for transit projects such as LRT extensions and new buses, the City did not do so in
the course of fulfilling any obligations under its agreements with the Province.44 Even if the [sic
“City” in the Court of Appeal’s Reasons, but in context should be “Province”] was obliged to
make payments under the agreements, the payments did not determine the nature of the
supply.45 The City remained responsible for the cost of constructing a municipal transit system.
To meet the requirements of its Funding Agreements, it had to construct those portions of the
system for which it received provincial funding in accordance with prevailing legislative and
industry standards.46
39.
The Court of Appeal understood that ITCs only arise under s. 169 of the ETA when
property or services have been acquired for consumption, use or supply in the course of
commercial activity, which by definition excludes the making of an exempt supply. The City
paid for property and services consumed, used or supplied in the course of making exempt
supplies of municipal transit services. There was no separate taxable supply to the Province of
any property or services as the acquisitions were an integral part of the Calgary Transit System.
43
Court of Appeal Reasons, para. 38-43, 46, 51,52, 57 [Appellant’s Record, Tab 5, pp. 43-45, 47- 49].
Court of Appeal Reasons para. 55 [Appellant’s Record, Tab 5, p. 49].
45
Court of Appeal Reasons, para 63 [Appellant’s Record, Tab 5, pp. 52-53].
46
Court of Appeal Reasons, para. 40, 43, 44 [Appellant’s Record, Tab 5, p. 44, 45].
44
- Respondent’s Factum on Appeal
13
Questions in Issue
PART II – QUESTIONS IN ISSUE
40.
The issue is whether the City made a supply to the Province in the course of a
commercial activity entitling the City to claim input tax credits.
41.
The Crown’s position is that the City made no supply to the Province.
Argument
PART III – ARGUMENT
42.
The GST is designed to be a tax on the consumption of taxable supplies. A “supply” under
the ETA requires the provision of property or a service in any manner. Under the Funding
Agreements in this case the City provided no property or service to the Province and so made no
supply to the Province.
As title to all transportation facilities forming the municipal
transportation system vested in the City, the City’s acquisition, construction and making available
of transit facilities was for itself and constituted inputs into its exempt municipal activities. The
only supply made was of a “municipal transit service” to Calgary Transit System users, which is
an exempt supply under the ETA. The City was not entitled to recover, by way of input tax
credits, tax paid on property and services acquired for use in making the exempt supply of
municipal transit services to the public because this was not a commercial activity. It was entitled
to partial recovery of that tax by way of public service body rebates as originally claimed.
43.
The City misinterprets its obligations under the Funding Agreements with the Province
and as a result makes a claim for input tax credits (ITCs) to which it is not entitled.
44.
The CTA makes the City responsible for the costs of establishing and maintaining the
transportation facilities in its transportation system. If the City decides that a transportation
facility included in the transportation system should be constructed the City submits a proposal to
the Province, and if the Province approves the construction, the Province may enter into a cost
sharing agreement with the City.47
45.
The objective of the Funding Agreements was to provide capital grant support for transit
infrastructure projects which were components of the City’s transportation system.48 When the
Province provided the City with capital grant funding it did so to enable the City to invest the
funds in its own transportation priorities.49 In acquiring and improving its own assets with that
funding, the City made no supply to the Province.
47
Respondent’s Statement of Facts, Provincial Legislative Framework, supra, para. 10
Respondent’s Statement of Facts, Three Funding Agreements, supra, para. 14, 19
49
Respondent’s Statement of Facts, Provincial news release, supra, para. 28
48
Argument
A.
SUPPLIES AND TAXABLE SUPPLIES IN THE SCHEME OF THE GST
46.
In Reference re Goods and Services Tax50 this Court provided an overview of the role of
supplies and taxable supplies in the operation of the GST:
1… The Goods and Services Tax ("GST") is calculated at the rate of 7 per cent and this
rate applies to most sales of taxable supplies, which include most goods and services.
Provincial governments are not liable to pay tax on their purchases. However, a number
of subordinate entities created by the provincial governments such as municipalities,
universities, public colleges, public hospitals, schools and school authorities, for
convenience referred to as the "MUSH sector," are liable to pay the tax.
2
The GST is designed to be a tax on consumption. To this end, the GST Act
contemplates three classes of goods and services. Taxable supplies attract the tax of 7
per cent each time they are sold. To the extent that the purchaser of a taxable supply
uses that good or service in the production of other taxable supplies, it is entitled to an
"input tax credit" and can recover the tax it has paid from the government. The MUSH
sector is entitled to claim input tax credits to the extent that its purchases are used in
making taxable supplies, and it is eligible for a special rebate of a portion of the tax paid
on other purchases.
3
By definition, to the extent that taxable supplies are not used by the purchaser to
produce other taxable supplies, they are consumed by the purchaser. To this extent, the
purchaser cannot recapture the tax already paid through the input tax credit mechanism.
Hence, the GST is collected and refunded down through each stage of the product
process to the ultimate consumption of a taxable supply, at which stage the tax paid is
not recoverable by the purchaser.
4
Exempt supplies and zero-rated supplies do not attract any tax from the ultimate
consumer. However, in respect of exempt supplies, the vendor, while paying the GST
on purchases, is not entitled to an input tax credit. In consequence, in the case of exempt
supplies GST is paid to the federal government at the penultimate stage in the
production chain rather than by the ultimate consumer. In principle, zero-rated supplies
attract the GST in the same way as any other taxable supply as they move through the
production chain to the ultimate consumer. However, the consumer pays a tax set at
"0%," and suppliers are entitled to the input tax credit, so that no net revenue is raised
for the federal government at any stage in the production chain by the production and
sale of these goods.
47.
To prevent the cascading of tax, generally ITCs are available to registrants who pay GST
on property and services acquired for consumption, use or supply in the course of commercial
activities. While tax must be collected on such supplies, the tax paid on those inputs is fully
recoverable. Commercial activities, by definition, exclude the making of exempt supplies. No
GST is collected on exempt supplies and ITCs are not available.51 The supply of a municipal
50
51
Reference re Goods and Services Tax , [1992] 2 S.C.R. 445 at pp. 456-457 [Respondent’s Authorities, Tab 30].
ETA ss. 169(1), ss. 123(1) “commercial activity” and “business”.
Argument
transit service to a member of the public is an exempt supply under s. 24 of Part VI of Schedule V
of the ETA.
48.
The ETA provides for rebates to recognize the fact that public service bodies frequently
make exempt supplies of property or services to the public and so are not entitled to receive ITCs
for GST paid on inputs purchased to make those supplies. The rebates at the time provided for a
partial (57.14%) recovery of the GST incurred on municipal transit service inputs, including the
acquisition of and improvements to the transit infrastructure by the City (100% since 200452).
49.
To establish entitlement to ITCs in respect of the GST paid on the transit infrastructure,
the City must show that (1) acquiring, constructing and making available transit infrastructure to
the citizens of Calgary was a commercial activity and not part of the exempt supply of transit
services to the City’s transit passengers; and (2) the grant funding was consideration for that
supply.
B.
THE CITY MADE NO SUPPLY TO THE PROVINCE
i) No supply and no commercial activity
50.
The paramount question is what supply or supplies the City made in the course of
operating its municipal transit service. It is clear that the transit projects were inputs to the
municipal transit services that the City supplied to the users of its transit system. In other words,
there was no separate supply and thus no commercial activity. The City's contention attempts to
transform the transit project inputs into outputs and into a separate and distinct supply to the
Province – which it characterizes as the service of “acquiring, constructing, and making available
public transit facilities” that form part of the transit system itself. The authorities do not support
this conclusion.
51.
First, when answering the question of what, if anything, has been supplied for GST
purposes, courts call for a common sense appreciation to be brought to the facts and the substance
and reality of the transaction being considered. It must be possible to say with confidence what
constitutes the supply.53
52
ETA s. 259(1) “specified percentage” at (e) “municipality”.
Hidden Valley Golf Resort Assn. v. The Queen [2000] G.S.T.C. 42 (F.C.A.) referring to O.A. Brown Ltd. v. The
Queen at paras. 17-18 [Respondent’s Authorities, Tab 12]; Lethbridge (County) v. The Queen 2009 TCC 42,
[2009] G.S.T.C. 5 (T.C.C.) at para. 11 [Respondent’s Authorities, Tab 15]; Commissioners of Customs and Excise
53
52.
Argument
Under the ETA “supply” means “… the provision of property or a service in any manner,
including sale, transfer, barter, exchange, licence, rental, lease, gift or disposition.”54 A common
feature of those words is that they do not contemplate the provision of something to oneself.55
The GST is a value-added, or transactional, tax,56 imposed when there is a “recipient” of a
“taxable supply” either as the party liable to pay the consideration for the supply or, if no
consideration is payable, the party to whom possession or use of the property is delivered or made
available or a service is rendered.57
53.
The City acknowledges that it did not, in expanding and enhancing its own assets, provide
any property to any outsider; instead it argues that these activities constitute a service supplied to
the Province. The City’s premise that it undertakes these improvements to enable the Province to
satisfy its primary constitutional responsibility to make transportation systems available to the
citizens of Calgary is the Achilles heel of its argument.
Absent such responsibility, the
foundation of the argument disappears, and no separate supply exists.
54.
Acquiring assets yields a platform on which activity takes place, which may or may not
result in taxable supplies. Assembling the platform is preparatory to the activity: it cannot be the
commercial activity in and of itself. In Maritime Life Assurance Co. v. The Queen the Federal
Court of Appeal appreciated that work preparatory to, or in order to make, a supply does not itself
become a separate service subject to GST.58 In MBNA Europe Bank Limited v Commissioners of
HM Revenue and Customs the High Court found that taking steps and engaging in activities that
are the necessary pre-conditions to a supply do not become supplies themselves.59 The reality of
the transaction is that, in acquiring or improving transit infrastructure, the City is doing work
preparatory to the supply of a municipal transit service; these are inputs only.
55.
The City artificially attempts to separate its transit infrastructure acquisitions or
improvements from its municipal transit service business by treating the acquisitions or
v. British Telecommunications Plc [1999] 1 W.L.R. 1376 (H.L.), Lord Slynn at p. 1384 [Respondent’s Authorities
Tab 6]; Church Schools Foundation Limited v. Commissioners of Customs and Excise [2001] EWCA Civ 1745 per
Arden L.J. at paras. 96, 100 [Respondent’s Authorities, Tab 5].
54
Excise Tax Act, ss. 123(1) “supply”.
55
Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (LexisNexis Canada Inc., 2008), “Associated
Words” at pp. 227-231 [Respondent’s Authorities, Tab 57].
56
Reference re Goods and Services Tax, supra note 50, at paras. 2, 3; MBNA Europe Bank Ltd. v. Commissioner of
HM Revenue and Customs [2006] EWHC 2326 (Ch) at para. 17 [Respondent’s Authorities, Tab 18].
57
ETA, ss. 123(1) “recipient”, “taxable supply”.
58
Maritime Life Assurance Co. v. The Queen [2000] G.S.T.C. 89 at para. 18 [Respondent’s Authorities, Tab 16].
59
MBNA Europe Bank Ltd. v. Commissioners of HM Revenue and Customs, supra note 56 at paras. 102, 108.
Argument
improvements either as separate supplies or as a separate business. It fails to meet the applicable
tests in both cases.
56.
O.A. Brown Ltd. v. The Queen is the leading Tax Court of Canada case on separate
supplies. It puts the focus on the substance of the transaction:
…It is then necessary to consider whether the overall supply comprises one or
more than one supply. The test to be distilled from the English authorities is
whether, in substance and reality, the alleged separate supply is an integral part,
integrant or component of the overall supply. One must examine the true nature of
the transaction to determine the tax consequences.60
57.
O.A. Brown asks “whether or not the alleged separate supply can be realistically omitted
from the overall supply” and “whether it would be possible to purchase each of the various
elements separately and still end up with a useful article or service”.61 While in O.A. Brown the
issue was whether there were just one or several supplies to the same recipient, the approach
advocated by the Court of looking at whether an element of a supply can be realistically omitted
from the overall supply is instructive. Here the obvious supply is the provision of exempt
municipal transit services. The City concedes the existence of this supply, but it points to grants
received in respect of transit projects pursued under the Funding Agreements as evidence of a
separate supply to the Province.
58.
The City also attempts to cast these activities as a business separate from its municipal
transit service business; such an argument is based on a fundamental mischaracterization of the
Funding Agreements and fails because the facts meet the generally accepted single business test
of inter-connection, interlacing and interdependence.62 The City itself recognizes in footnote 60
of its factum that the transit facilities are intended to dovetail into its municipal transit system. 63
59.
The City does not explain how the inputs of constructing LRT lines and acquiring buses
can be realistically omitted from the exempt supply of the Calgary Transit System. The Tax
60
O.A. Brown Ltd. v. The Queen [1995] G.S.T.C. 40 (T.C.C.) para. 22 [Respondent’s Authorities, Tab 21]; Canada
Revenue Agency, GST/HST Policy Statement P-077R2 - Single and Multiple Supplies [Respondent’s Authorities
Tab 41].
61
O.A. Brown Ltd. v. The Queen, supra, note 60 at paras. 23, 24.
62
Dupont Canada Inc. v. The Queen 2001 FCA 114, [2001] 2 C.T.C. 315 at para. 11 [Respondent’s Authorities,
Tab 8]; Canada Revenue Agency, GST/HST Policy Statement P-167R ‘Meaning of First Part of Definition of
Business” at p. 2 “Activities” [Respondent’s Authorities, Tab 42].
63
O.A. Brown Ltd. v. Canada, supra, note 60 at paras. 22, 29-31; Hidden Valley Golf Resort Assn. v. Canada, supra,
note 53 at paras. 18-20; see also GST/HST Policy Statement P-077R2, supra, note 60 (“Single and Multiple
Supplies”) at “Discussion” (third paragraph) and at “Input, Part of a Supply, or a Supply”.
Argument
Court judge did not explore the question of what, if anything, disconnects the “acquisition,
construction and making available transit facilities to citizens” from the operation of its municipal
transit service and converts them into an output to the Province. These “transit facilities” are a
component of the City’s transit infrastructure and consequently are an input to the supply of the
transit service to the public; they have no use and provide no service unless integrated with the
Calgary Transit System. They did not create a stand-alone undertaking of a different character or
lead to new kinds of activity; rather, they were used in the same way as the pre-existing system
assets and had the same users - the general public.
60.
For those reasons, the City’s reliance on the London Life64 decision at paragraph 110 of its
factum is inapt. London Life, which provided exempt financial services to its clients, also
supplied construction improvements to its landlord in return for tenant improvement allowances.
Those improvements immediately became the property of the landlord.65 The different facts in
London Life, involving a clearly identifiable and separate supply from London Life to the
landlord, do not support the outcome desired by the City.
ii) No supply when acquisition of capital assets is for use in the city’s own activities
61.
The scheme of the ETA confirms that acquiring and improving one’s own assets does not
equate to the provision of that property to another party. Paragraph 169(1)(c) of the ETA allows
ITCs to the “extent ... to which the person [here, the City] acquired … the property or service …
for consumption, use or supply in the course of commercial activities of the person.” This
wording distinguishes between the acquisition of the property or service on which GST was paid
– i.e. the input phase -- and the consumption, use or supply of the property or service in the course
of the person’s business activities, i.e. the output phase.
62.
In order to be entitled to an ITC, paragraphs 169(1)(b) and (c) and section 199 of the ETA
require that particular inputs be acquired for consumption, use or supply in the course of
commercial activities. The sequence is acquiring property and services followed by using the
improved property or the property or service in one’s commercial activities.
63.
Where capital property is acquired, the ETA focuses on the intended use of the assets.
Subsection 199(2) states (in part) that no ITC is available on the acquisition of capital personal
64
65
London Life Insurance Co. v. Canada [2000] G.S.T.C. 111 (F.C.A.) [Appellant’s Authorities, Tab 9].
London Life Insurance Co. v. Canada, supra, note 64 at para. 21.
Argument
property “… unless the property was acquired … for use primarily in commercial activities of the
registrant.” Section 209 of the ETA makes section 199 applicable to acquisitions of capital real
property by public service bodies and also extends the application of subsection 199(4),
concerning improvements to personal property, to real property improvements made by such
bodies.
64.
Similarly, “making available transit facilities” is not a supply in these circumstances. To
the extent that “making available” assets means something more than obtaining them, making the
assets available does not involve providing anything to the Province or constitute the making of a
supply. Consider the example of an LRT vehicle purchase. The City has one more LRT vehicle
on the rails of the Calgary Transit System, ready for service. Making it available provides
nothing to the Province, but rather is an input into the supply of the City’s municipal transit
service. The Province does not acquire title to the assets and does not acquire the possession, use
or enjoyment of the assets. The assets are not “made available” to the citizens of Calgary until
they are used in the municipal transit system for which they were intended.
65.
The grant funding at issue here involves the provision by the Province of funding to the
City. Nothing is provided in return.
The only supplies at the so-called acquisition and
construction stage are made by the construction companies, LRT vehicle and bus manufacturers
and others supplying property and services to the City as it undertook improvements to its own
transit system, for which it was responsible.
66.
The City effectively asserts a business of acquiring assets for itself. Paraphrasing para.
169(1)(c) ETA, it acquired assets for use in acquiring assets for itself.
Such circularity
demonstrates the insular nature of the alleged “service”, in which nothing in reality is provided to
another party. While the City labels its acquisition activities as a “service” to the Province, the
label does not reflect reality in the absence of anything being provided to the Province and does
not reflect the Province’s announcement that “the City will be able to invest these funds in their
own transportation priorities”.66
67.
In certain circumstances, this not being one, Parliament has recognized that it is necessary
to deem a person to have made a self-supply. For example, builders are deemed to make a “selfsupply” of property to themselves in order to trigger an otherwise non-existent GST liability on
66
Alberta Infrastructure News Release, March 16, 2000 [ Respondent’s Record, Tab 16].
Argument
the fair market value of buildings in certain situations, in order to maintain a level playing field
with other persons who do not construct, but rather purchase buildings from third parties.67
Accordingly, absent special rules, a municipality does not make a supply to anyone simply
because it acquires transit infrastructure for itself with a public purpose grant from a province.
68.
Even if it is accepted that the purchase of the capital personal property is an input into a
taxable supply made by the City to the Province, once the City begins to use that property in its
transit system it becomes an input into the making of an exempt supply. The change of use
provisions for capital personal property would be engaged, and the City would be required to
include the GST deemed collected in its next reporting period calculation.68
iii) Receipt of grant funding does not create a “service”
69.
The receipt of money does not necessarily indicate that a supply has been made.
70.
The City argues that since the ETA definition of a “service” covers anything that is not
property or the provision of money, it must, by default, have provided a service in exchange for
the capital grant funding received.
Of necessity it characterizes its capital grant funding
agreements as agreements to provide a service.
71.
Grant funding may be provided to persons to assist in carrying out their own activities.
Such funding does not result in the provision of property or of a service to the grantor, and as is
the case here, does not result in a supply being made at all.
72.
Grants, contributions and subsidies are made for many reasons. For government, they are
key instruments in furthering broad policy objectives and priorities. These transfer payments may
be unconditional payments not subject to being accounted for by a recipient, or may be subject to
specified performance conditions.
Where public funds are involved, transparency and
accountability mechanisms will inevitably form part of a grant agreement between the
government and the applicant or recipient.69
67
ETA s. 191.
ETA s. 200(2) and s. 225(1).
69
Canada Revenue Agency, GST/HST Technical Information Bulletin B-067, Goods and Services Tax Treatment of
Grants and Subsidies [Respondent’s Authorities Tab 43]; Glaces Rachelli Inc. v. Canada (1989) 29 F.T.R. 169
(T.D.) at paras. 11, 12 [Respondent’s Authorities Tab 10]; see for example, see the Treasury Board of Canada
Secretariat, Policy on Transfer Payments, online at http://www.tbs-sct.gc.ca/pol/doc-eng. [Respondent’sAuthorities,
Tab 51]
68
73.
Argument
Courts interpret grant agreements as they would any contract. As Hershfield J. put it in a
case involving a grant from the Province of Manitoba to a non-profit snowmobile club:
…it is important to note that the real basis for the discussion generally comes down
to analyzing a contractual relationship and determining at law the nature of the
contractual commitments. In this regard the intentions of the parties are relevant.70
74.
The Funding Agreements in this case are unilateral contracts. They did not oblige the City
to pursue and complete a given approved infrastructure project, and the Province could not
compel the City to do so.71
75.
As the Federal Court of Appeal said in 251798 Ontario Inc. v. The Queen,72 expenditures
made by grant recipients are not necessarily made in performance of any obligation owed to the
Crown:
… a feature of both of the alleged [grant] contracts was that neither of the [grant
recipients] became obligated to the Crown to undertake construction of or to
complete either of the plants in respect of which the incentive grants were to be
paid. Each of the contracts was unilateral in the sense that the undertaking of the
Crown was simply to pay an incentive grant if the Company concerned complied
with the conditions set out in the alleged contract. Neither expressly nor impliedly
was there any undertaking by either Company that it would perform those
conditions. It follows that expenditures made by the [grant recipients] were not
made in performance of any obligation owed to the Crown under the alleged
contracts.
76.
Here, the City’s acceptance of the grants and compliance with accountability
requirements, and the resulting expansion and upgrading of its own transit system, were not a
supply of any service back to the Province or to third parties.
77.
At paragraph 69 of its factum, the City observes that supplies have been found in all of the
reported GST grant cases, inferring that a supply should be found in this case. The fact that a
source of funds is a grant has no bearing on whether or not there has been supply; property or a
70
Thompson Trailbreakers Snowmobile Club Inc. v. The Queen 2005 TCC 269, [2005] G.S.T.C. 124 (TCC) at para.
21[Respondent’s Authorities, Tab 33].
71
Sail Labrador Ltd .v. Challenge One (The) [1999] 1 S.C.R. 265 at para. 33 [Respondent’s Authorities, Tab 31];
United Dominions Trust (Commercial) Ltd. v. Eagle Aircraft Services Ltd. [1968] 1 W.L.R. 74 (CA) per Diplock L.J.
at pp. 83-84 [Respondent’s Authorities, Tab 35]; S.M. Waddams, The Law of Contracts, 6th ed. (Toronto, Canada
Law Book, 2010) at pp. 121-127[Respondent’s Authorities, Tab 59] ; Sir Guenter Treitel, The Law of Contract, 11th
ed. (London, Sweet and Maxwell, 2003) at pp. 37-41[Respondent’s Authorities, Tab 58].
72
251798 Ontario Inc. v. The Queen [1980] 1 F.C. 706 (C.A.) at para 15 [Respondent’s Authorities, Tab 1]; see
also Glaces Rachelli Inc. v. Canada, supra, note 69 at para. 11 [Respondent’s Authorities, Tab 10].
Argument
service has to have been provided by one party to another. In these cases, it was determined that
an identifiable supply had taken place, for example where: an employer purchases activities and
events for employees from a club; an international association purchases videos for marketing
copper from a not-for-profit association; a village contracts with a malting company to purchase
real property facilities; a town purchases a pool committee’s management services for the town’s
pool; a city constructs highway improvements on routes owned by a province; a school board
provides bus transportation under contracts with independent carriers; a school provides access to
its facilities through a real property lease; an association provides snowmobile trail maintenance
services for a province; a county constructs and maintains a road owned by a province;
community service agencies operate specific summer play programs for children; Skytrain transit
assets are leased; and access to a local transit service is given to holders of metropolitan system
transit tickets.73 However, these situations are not comparable to this case, where the City made
no supply to the Province.
78.
As the Court of Appeal found, a supply is not created simply by a transfer of money and
particularly not where the money is transferred for the purpose of assisting persons to undertake
their own activities.
A supply requires the “provision” of something, and if there is
“consideration”, it must be “for” the supply.
79.
This is consistent with the decision of the majority in the English Court of Appeal’s
Church Schools Foundation Limited v. Commissioners of Customs and Excise, which recognized
that grant funding may be provided although not “for” a supply:74
For example a loan facility provided by a bank to a property company for use on a
specific development gives rise to both a legal relationship, debtor/creditor, and
73
Club 63 North v. The Queen [1995] G.S.T.C. 75 (T.C.C.) at para. 15 [Appellant’s Authorities, Tab 3] ; Canadian
Copper & Brass Development Assn. v. The Queen [1997] G.S.T.C. 11 at para. 3[Appellant’s Authorities, Tab 2];
Westcan Malting Ltd. v. The Queen [1998] G.S.T.C. 34 (T.C.C.) at para. 46 [Respondent’s Authorities, Tab 36];
Meadow Lake Swimming Pool Committee Inc. v. The Queen [1999] G.S.T.C. 96 (T.C.C.) at para. 20 [Respondent’s
Authorities, Tab 17]; Regina (City) v. The Queen [2001] G.S.T.C. 68 (T.C.C.) at para. 21 [Appellant’s Authorities,
Tab 11]; Des Chênes (commission scolaire) v. The Queen 2001 FCA 264, [2001] G.S.T.C. 120 (F.C.A.) at para. 2
[Appellant’s Authorities, Tab 5]; Decouvreurs (Commission scolaire) v. The Queen 2003 TCC 295, [2004]
G.S.T.C. 49 (T.C.C.) at para. 41[Respondent’s Authorities, Tab 7]; Thompson Trailbreakers Snowmobile Club Inc.
v. The Queen, supra, note 70 at para. 29; Lethbridge (County) et al. v. The Queen 2005 TCC 809, [2006] G.S.T.C. 16
(T.C.C.) supra, note 70 at para. 94 [Appellant’s Authorities, Tab 7]; Loisirs de Neufchatel v. The Queen 2006 TCC
339, [2006] G.S.T.C. 74 (T.C.C.) at para. 46 [Appellant’s Authorities, Tab 8]; B.C. Transit v. The Queen 2006 TCC
437, [2006] G.S.T.C. 103 (T.C.C.) at para. 8 [Respondent’s Authorities, Tab 3]; Laval (Societe de Transport) v. The
Queen 2008 TCC 14, [2008] G.S.T.C. 212 at paras. 25, 30 [Respondent’s Authorities, Tab 14].
74
Church Schools Foundation Limited v. Commissioners of Customs and Excise, supra, note 53 per Buxton L.J. at
paras. 41, 45, 46.
Argument
reciprocal performance, drawdown/application. There is a direct link between the
carrying out of the development and the drawdown of the loan. But the
development is not a supply of services “for” the loan; rather it is effected “with”
the loan. It is not a quid pro quo but a quid cum quo.
iv) There is no supply associated with accountability requirements
80.
Complying with agreed accountability measures does not constitute a supply to the
Province. That compliance is merely adherence to the conditions under which the grants were
made.75
81.
However, even if the City’s compliance with the accountability terms of the agreement
was a supply to the Province, such performance was not the supply for which the grants were
made.76 The City’s necessary compliance with accountability requirements can only be viewed as
incidental to the City’s core activity, namely, improving the municipal-transit system with the
grant money and its own funds. The accountability requirements were unrelated to the ITCs
claimed. The agreements clearly provided that the funding could not be applied to any activity
relating to the administration of the Funding Agreements. The Province did not contribute
funding to obtain a supply of accountability-measure performance by the City; the contributions
only went to assist the City with the capital costs of improving its municipal transit system.
v) The Court of Appeal did not introduce any novel concept into the “supply” analysis
82.
In paragraphs 64 to 68 of its factum, the City states that the Court of Appeal introduced
the concept of “Required Obligation Principle”. However, the City misreads the Court’s decision,
which largely responded to the City’s misinterpretation of the CTA and the Funding Agreements.
The Court did not adopt a “Required Obligation Principle”, and the ETA does not include one.
The ETA definition of “supply” does not require that the provision of a property or service be the
result of any particular obligation, but it does require that property or a service be provided.
83.
The Court of Appeal identified the statutory and contractual obligations of the City and
Province to determine which party was responsible for constructing the transit system. This was
one step in deciding whether the City made a supply to the Province for which the grant funding
was consideration.
75
MBNA Europe Bank Ltd. v. The Commissioners of HM Revenue and Customs, supra, note 56, at para. 22;
Hillingdon Legal Resources Centre Ltd. v. The Commissioners of Customs and Excise [1991] VATTR 39, (London
Vat Tribunal) at p. 7 [Respondent’s Authorities, Tab 11].
76
Canada Revenue Agency, Technical Information Bulletin B-067, supra note 69, p. 3, para. 3.
84.
Argument
The Court of Appeal concluded that the Tax Court erred in law in finding that the City
made a taxable supply of a municipal transit system to the Province pursuant to the Agreements.77
The Court reached that conclusion because it found that the City was mistaken in its interpretation
of its obligations under the Funding Agreements. The Court of Appeal rejected the City’s
argument that the Funding Agreements required the City to provide a municipal transit system to
the Province, determining them to be framework funding agreements only. The City’s only
obligation under the agreements was to administer the funds in the agreed way.
vi) The Funding Agreements Were Products of Their Legislative Framework
85.
Both the Tax Court and the Court of Appeal approached these Funding Agreements as
products of, and interpreted them in, their legislative context.
86.
The Court of Appeal correctly understood the effect of the CTA on the interpretation of the
agreements; the agreements provided a framework for the administration of the financial
assistance authorized by the CTA.
87.
However the Tax Court’s misunderstanding of constitutional principles led it convert
constitutional jurisdiction into constitutional duty, with important and incorrect interpretative
consequences. Having gone down that path, the Tax Court found that the Province had a duty to
either provide the City with transit facilities, or, if it did not do so, a duty to delegate that
responsibility. The Tax Court then found that the Province had delegated this duty to the City
through the medium of the CTA. In the eyes of the Tax Court that delegation of responsibility
created a legal obligation on the Province to make funding available to the City, which was then
provided by means of the Funding Agreements. Without those constitutional and statutory props,
the Tax Court’s finding of a legal obligation to pay for the City’s construction or acquisition of
transit facilities for its own transportation system is unsupported, as is its conclusion that there
was a “supply”.
88.
The Tax Court’s theory of constitutional duty and delegated responsibilities plays a pivotal
role in the City’s “supply” argument. It is found at several places in the City’s factum: on page 3,
in the diagram summary of its position; at paragraphs 33 and 36, where the City, relying on the
Tax Court’s theory of constitutional responsibilities, asserts that it is the delegate of the
Province’s “duty” to establish transportation facilities that, pursuant to the Constitution, the
77
Court of Appeal Reasons, para. 64 [Appellant’s Record, Tab 5].
Argument
Province would otherwise would have to undertake itself as part of its jurisdictional responsibility
for local work and undertakings; and at footnote 63 on page 14, where the City relies on those
paragraphs of the Tax Court decision in which the Tax Court explains its view of applicable
constitutional principles. Indeed, given that the supply the City alleges to have made is the supply
of the service of making public transit facilities available to the citizens of Calgary, the emphasis
on that position is understandable. In the absence of some obligation on the part of the Province to
establish public transit facilities, it cannot be said that the City is carrying out a role that would
otherwise be performed by the Province, and the supply to the Province disappears.
vii) The City misunderstands the legislative framework
89.
The Legislature of Alberta exercises legislative power pursuant to the jurisdiction
conferred upon it by s. 92 et seq. of the Constitution Act, 1867.78 This grant of legislative power
does not, in and of itself, impose a duty on the Legislature to enact statutory provisions in relation
to each and every matter within its legislative competence. The terms of s. 92 of the Constitution
Act, 1867, are clear in that regard: “In each Province the Legislature may exclusively make Laws
in relation to Matters coming within the Classes of Subjects next hereinafter enumerated”
(emphasis added). If the framers of the Constitution had wished to impose a duty, they would
have employed the imperative term “shall”, not “may”.79
90.
The view that there is no constitutional duty on the Legislature to legislate to provide
transportation facilities to the residents of Calgary, nor, a fortiori, upon the executive government
of Alberta, conforms to a system characterized by parliamentary sovereignty.
Decisions to
legislate or not are policy choices reflecting the sovereign will.80
91.
The government and the Legislature may feel that they have a responsibility to ensure that
the residents of Calgary enjoy appropriate access to transportation facilities. The government of
the day may introduce legislation, and the provincial legislature, acting within its sovereign
sphere, may choose to enact the legislative measures in question – here making it incumbent on
the City to provide transportation facilities. However, that is not the same thing as suggesting that
78
Constitution Act, 186, (U.K.), 30 & 31 Vict., c. 3, s. 92, reprinted in RSC 1985, App II, No. 5.
Re Manitoba Language Rights [1985] 1 S.C.R. 721 at p. 737 [Respondent’s Authorities, Tab 28].
80
Reference Re Canada Assistance Plan [1991] 2 S.C.R. 525 at pp. 548-549, 559-560 [Respondent’s Authorities,
Tab 29]; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources) [1989] 2 S.C.R. 49 at pp.
103-104 [Respondent’s Authorities, Tab 4].
79
Argument
either the government or the Legislature was under an a priori constitutional obligation to
proceed accordingly.
92.
This Court, per McLachlin J. (as she then was), rejected the argument that constitutional
jurisdiction creates a legal obligation in Regional Municipality of Peel v. Canada and Ontario:
… There was no constitutional obligation on either the federal or the provincial
government to provide for the care of these children; as the courts below noted, the
power to legislate does not give rise to an obligation to legislate. Nor were the
federal or provincial governments under a statutory or legal liability to provide for
the care of the children. The provincial statutes relied on by the municipality as
evidence of the province’s obligation generally create a discretion in the province
to finance the acquisition or construction of institutions for the care of children and
in some cases to finance the operation of these institutions with others. The benefit
which the federal government is said to have received is the care of “prisoners”
which it might otherwise have had to provide itself (even though they are not
obliged to; provincial prisons house many persons convicted of federal offences),
and a more general “political” benefit of having the goals of its legislation
furthered. The benefit which the province is said to have received is the discharge
of responsibilities which it might have undertaken because conscience required
that someone do so. So there was no legal liability on either government as
required by the traditional tests.81
93.
McLachlin J. also considered and approved the statements of constitutional principles in
both the Federal Court of Appeal and the Ontario Court of Appeal in the parallel proceedings
which had reached the Supreme Court.
The Federal Court of Appeal understood that
constitutional principles establish no federal liability to pay the costs of federal laws;82 that
Parliament often imposes obligations on individuals and corporations which entail the
expenditure by them of their own money in compliance with the law, with no obligation placed
on the executive other than to monitor compliance;83 and that Parliament has a political, not a
juridical, obligation to pay for the proper administration of its laws.84 Similarly, the Ontario
Court of Appeal recognized that while legislative authority may carry with it a moral obligation to
81
Peel (Regional Municipality) v Canada; Peel (Regional Municipality) v. Ontario [1992] 3 S.C.R. 762, McLachlin
J. at para. pp. 791-792; Lamer C.J.C. at p. 771 [Respondent’s Authorities, Tab 23].
82
Peel (Regional Municipality) v. Canada [1989] 2 F.C. 562 (C.A.) at paras. 15, 17, 19 [Respondent’s Authorities,
Tab 24].
83
Peel (Regional Municipality) v. Canada, supra, note 82 at para. 15.
84
Peel (Regional Municipality) v. Canada, supra, note 82 paras. 15, 24.
Argument
enact specific legislation, a clear and important distinction between moral and legal obligations
remains, with only the latter imposing a requirement to pay. 85
94.
The City ignores this more recent jurisprudence in favour of the Tax Court’s reliance on a
short passage from the 1939 Privy Council decision in Ladore v. Bennett, -- “Sovereign within its
constitutional powers the province is charged with the local government of its inhabitants by
municipal institutions. If local government… becomes ineffective... it is not only the right, but it
would appear to be duty, of the Provincial Legislature to provide the necessary remedy”86. The
City takes this to establish the constitutional foundation for the legal obligation on the Province to
carry out local works and undertakings.
However, the “duty” to which the Privy Council
adverted in obiter was not part of any wider circle of analysis and should be taken as a comment
intended to be helpful, rather than binding, and which is inconsistent with this Court’s considered
judgment. 87
95.
Since it is understood that the role of municipalities closely mimics that of the provincial
government from which they derive their existence, the Tax Court should not have imported a
constitutionally driven legal obligation into the City’s role under the Funding Agreements.88 The
proper approach, followed by the Court of Appeal, recognizes that municipalities exercise only
those powers which are explicitly conferred upon them by a provincial statute.89 A court should
look to the purpose and wording of the provincial enabling legislation when deciding what the
municipality has been empowered to do.90 Even then, it is recognized that a subordinate body
tasked with delivering services in an area of provincial jurisdiction is nevertheless carrying out its
own mandate or business and is not carrying out the mandate or business of the Province.91
96.
The City recognizes this in footnote 60 to its factum, acknowledging that there are transit
facilities acquired or constructed by the City that form part of the overall transit system and that
85
Ontario v. Peel (Regional Municipality) (1990) 1 O.R. (3d) 97 (O.C.A.) at para. 51 [Respondent’s Authorities,
Tab 25].
86
Ladore v. Bennett [1939] 3 D.L.R. 1 (P.C.) at para. 5 [Respondent’s Authorities, Tab 13].
87
R. v. Henry 2005 SCC 76 ; [2005] 3 S.C.R. 609 at para. 57 [Respondent’s Authorities, Tab 27].
88
Nanaimo (City) v. Rascal Trucking Ltd. 2000 SCC 13, [2000] 1 S.C.R. 342 at para. 31 [Respondent’s
Authorities, Tab 19].
89
R. v. Greenbaum [1993] 1 S.C.R. 674 at p. 687 (f) [Respondent’s Authorities, Tab 26].
90
Nanaimo (City) v. Rascal Trucking Ltd., supra, note 88 at para. 19.
91
Toronto District School Board v. The Queen 2009 FCA 324, [2009] G.S.T.C. 160 (FCA) at para 5 [Respondent’s
Authorities, Tab 34]; Ottawa Hospital Corp. v. The Queen 2010 TCC 53 [2010] G.S.T.C. 15 (TCC) at para. 46
Argument
are funded 100 per cent by the City. Having stated the fact, the City does not explain why it
undertakes those activities if the Province has the legal obligation to carry out those local works.
97.
In this case, the controlling legislation is the CTA, which imposes statutory obligations on
the City to prepare a transportation plan and implement that plan by constructing a transportation
system which the City would own and for whose costs it is responsible. The CTA also enables the
Province, if it chooses, to provide the City with financial assistance. This may be contrasted to
the position of the local authorities in Edinburgh Leisure v. Commissioners of Customs and
Excise or in The Pre-School Learning Alliance v. Commissioners of Customs and Excise,92 where
the local authorities actually had a statutory duty to provide recreational facilities and playgroups
to the public and made grants to leisure centres and to pre-school and special needs trainers to
fulfill those duties on their behalf. The centres and service organizations with trainers and special
needs helpers were found to be supplying a service to the local authorities by fulfilling that duty.
98.
Since the legislative framework of the CTA provides no support for the City’s position,
only the Funding Agreements are left to support an argument that there was a “supply” from the
City to the Province. As noted above, the Funding Agreements provide a framework for the
administration of financial assistance. The Funding Agreements did not provide for a supply of
transit facilities to the Province.
C. TAX POLICY DEMONSTRATES THE CITY’S ARGUMENT IS MISCONCEIVED
i) Accepting the City’s premise would undo Parliament’s design of the GST
99.
The ability to claim ITCs in respect of property and services ultimately used by the
recipient as inputs to its exempt supplies is inconsistent with the intended application of the GST
to Public Service Bodies (PSBs). Pursuant to Part VI of Schedule V of the ETA, various supplies
by PSBs are exempt from GST. In such cases, PSBs are considered the final consumers of the
taxable inputs used in making their exempt supplies. They claim a PSB rebate at a specified
rebate rate rather than recovering the full GST paid on those inputs through ITCs.
92
Edinburgh Leisure, South Lanarkshire Leisure and Renfrewshire Leisure v. Commissioners of Customs and Excise
[2005] LLR 41 (VATD Tribunal (Edinburgh Tribunal Centre)) at pp. 2, 9 [Respondent’s Authorities, Tab 9]; The
Pre-School Learning Alliance v. Commissioners of Customs and Excise, 2000 VAT Decisions 16928 (interim) at
paras 56-60; 2002 VAT Decisions 17737 (VATD Tribunal (London) at paras. 23, 27, 29, 30 [Respondent’s
Authorities, Tab 32].
100.
Argument
The City’s position that grant funding can be characterized as having been paid for a
service to the grantor of “acquisition, construction and making available”, even when the grantee
is only using the funding to meet its own obligations, would result in grant funding being
consideration in many more circumstances, contrary to the tax policy decisions relating to grants
and contributions made when the GST was introduced.
101.
While the ETA does not specifically address the GST/HST treatment of grants and
subsidies, the policy intent was clearly established in Department of Finance technical papers
issued when the GST was implemented.
The GST Tax Technical Paper of August 1989
expressed the approach of the drafters of the GST to grants and subsidies:
Governments often provide grants and subsidies to private sector organizations, as
well as to institutions within the public sector. Grants and subsidies made by
public sector bodies will have no GST consequences for recipients – they will not
be treated as consideration for a supply.93
102.
In his GST Tax Technical Paper, Finance Minister Wilson described the policy treatment
for purchases by selected public sector organizations:
The public sector encompasses many organizations which perform key functions
in the areas of health, education and local government. To the extent these
organizations make taxable supplies in the course of a commercial activity, they
will be required to charge tax just like any other vendor. However, as is the case
with provincial governments, most of the supplies made by these public sector
organizations will be tax exempt.
Again, without special provisions, these organizations would be subject to a
substantial increase in federal taxation. However, as stated in the April 1989
federal budget, selected public sector organizations – hospitals, schools,
municipalities, libraries, colleges and universities – will receive partial rebates of
sales tax paid on their purchases to ensure that the reform of the federal sales tax
imposes no greater burden than before reform.
The rebate will apply with respect to any GST paid on goods and services
purchased by these organizations for their own use in pursuing their objectives.
Consistent with the provisions set out in Section 8 regarding rebates for non-profit
organizations and charities, some restrictions will be placed on the eligibility of
rebate claims for certain purchases of goods and services which are not for use by
the organization.94
93
Department of Finance, Goods and Services Tax Technical Paper, August 1989, 9.1 (h) “Grants and Subsidies”,
pp. 134-135 [Respondent’s Authorities, Tab 46].
94
Department of Finance, Goods and Services Tax Technical Paper, supra, note 93, 9.2(c) “Purchases By Selected
Public Sector Organizations” p. 137.
103.
Argument
In a technical paper on the GST tabled in the House of Commons on December 19, 1989,
the Minister of Finance explained that the policy choice made for the treatment of grants and
subsidies received by charities and non-profit organizations followed consideration of their
varying treatments in other value-added tax jurisdictions. Recognizing that the broader GST base
meant additional costs for these organizations, the GST would incorporate two important features
– the treatment of grants and subsidies, and rebates.95
104.
Some countries chose to tax a grant while others treated it as consideration for an exempt
supply, limiting the ability to claim ITCs. Canada’s different approach was to neither tax nor
limit the effect of a grant on a claim for ITCs available to the recipient where the recipient makes
taxable supplies. As a result, an organization in receipt of a grant would not be required to collect
GST on the funds received, nor would the receipt of those funds limit the organizations’ ability to
claim for ITCs where it makes taxable supplies. At the same time, recognizing that charities and
non-profit organizations would be paying GST on purchases for which they would not be able to
claim ITCs, a rebate for GST paid on purchases for non-commercial use was to be introduced as
part of the overall treatment of the sector.96
105.
Parliament’s clear intent was that organizations making taxable supplies to third parties
should be entitled to claim full ITCs regardless of whether their activities were funded through
the receipt of a grant or consideration. Alternatively, where the grantee uses grant money to fund
activities which are exempt, that would not affect that person’s entitlement to a partial rebate of
tax in accordance with s. 259 ETA.
106.
The GST legislation provides exempt status for a variety of supplies made by PSBs in the
course of their public purpose activities. Two examples of the carefully constructed scheme
applicable at the time included measures to provide exempt status for goods and services provided
by PSBs for no consideration and for certain supplies made by PSBs for consideration less than
the direct costs of the inputs to the supply on the basis that these supplies are not commercial
activities to which GST should apply.97
95
Department of Finance, Goods and Services Tax, Hon. Michael Wilson, Minister of Finance, Dec. 19, 1989,
Section 7, “Charities, Non-Profit Organizations and Selected Public Sector Bodies, A. Introduction, pp. 71-72
[Respondent’s Authorities, Tab 48], and see above.
96
Department of Finance, Goods and Services Tax, supra, note 95 at pp. 71-72.
97
Department of Finance, Explanatory Notes to Bill C-62 (May, 1990), Schedule V, Part VI, s. 6 and 10 at pp. 218219; Part VI, s. 6 no longer applies to municipalities after May 2004. [Respondent’s Authorities, Tab 45].
107.
Argument
At the inception of the GST, the policy for standard municipal services integral to the role
of local government was to treat them as exempt supplies. Accordingly, supplies of municipal
transit services provided by a municipality were made GST exempt,98 consistent with the
treatment proposed in the Government’s White Paper on Tax Reform of June 18, 1987.99
108.
Recognizing that charities and non-profit organizations would be paying GST on
purchases in respect of exempt supplies for which they would not be able to claim ITCs, a rebate
for GST paid on purchases for non-commercial use was introduced as part of the overall
treatment of the sector.100 Because a grant would not be consideration for a supply, where the
grantee uses grant money to fund activities which are exempt, that person’s entitlement to a
partial rebate of tax in accordance with s. 259 ETA would not be affected.
109.
PSB rebates were established after an analysis of the impact of the previous federal sales
tax to ensure that municipalities, universities and public colleges, schools and hospitals did not
bear a greater burden as a result of GST tax reform than they did under the federal sales tax
regime. The rebate rate for municipalities was established to be 57.14%.101
110.
That tax policy changed when, effective February 1, 2004, the municipal public service
body rebate was increased from 57.14% to 100%. Finance Minister Goodale explained that the
full rebate was intended to provide an additional source of funds and a boost to municipalities to
address infrastructure priorities such as public transit.102
111.
In effect, the tax policy decisions made in respect of grants and subsidies were designed to
provide the overall desired result for the public sector. Special self-supply rules for the public
sector were determined not to be necessary because of the decision to provide selected public
service organizations with rebates.103 Unravelling one part of this scheme by treating the grants
and subsidies at issue here as consideration would undermine the result Parliament sought to
achieve for the PSB sector.
98
Department of Finance, Goods and Services Tax Technical Paper, supra, note 93, 9.1(e) “Standard Municipal
Services” at pp. 133-134.
99
Department of Finance, Sales Tax Reform, June 18, 1987, p. 93 [Respondent’s Authorities Tab 44]; Department
of Finance, Explanatory Notes to Bill C-62, supra, note 97 at p. 222.
100
Department of Finance, Goods and Services Tax, supra, note 95 at p. 71.
101
Department of Finance, Goods and Services Tax, A Summary, October 1989, p. 101 [Respondent’s Authorities,
Tab 47]; Department of Finance, Goods and Services Tax Technical Paper, supra, note 93 at 137; Public Service
Body Rebate (GST/HST) Regulations, Rebate Percentages, s. 5(e).
102
Department of Finance, News Release and Backgrounder, Finance Minister’s Proposal for 100% Rebate, Feb. 3,
2004 (2004-007) [Respondent’s Authorities, Tab 50]; ETA s. 259(1) “specified percentage” (e) .
103
Department of Finance, The Goods and Services Tax Technical Paper, supra, note 93 at p. 139.
112.
Argument
The policy intent that grants should only sparingly be treated as consideration for a supply
was confirmed with the retroactive amendment to section 141.01 ETA in 1997 adding subsection
(1.2). 104 The intent reflected in s. 141.01 ETA is that ITCs should not be available for inputs to
taxable supplies made neither for consideration nor a grant (i.e. free supplies) unless those free
supplies are made to further other taxable supplies for consideration. The amendment clarified
that where a grantee receives a grant (or similar type of financial assistance) “that is not
consideration for a supply” from a specified body, and the funding is provided to fund activities
resulting in the making of taxable supplies for no consideration, the grant is deemed to be
consideration for those supplies. Finance’s 1997 Technical Notes explained that the amendment
dealt with the unintentional restriction on grantees making taxable supplies fully funded by grants
or subsidies to claim ITCs.105
The City’s argument makes the amendment to subsection
141.01(1.2) unnecessary. Practically, there would be no need to deem funding as consideration if
grants used by grantees to make supplies to third parties are always consideration for “making
available” the benefits of those supplies to the grantor.
ii) Other negative tax policy consequences of the city’s position
113.
Many non-profit organizations are not subject to the registration requirements under the
ETA as they meet the definition of small suppliers and can choose not to register, to collect tax or
to claim ITCs. The threshold is annual total consideration for world-wide taxable supplies of
$30,000 or, in the case of a PSB, $50,000. Accepting the City’s argument would convert much
government funding into consideration for a taxable supply as opposed to a grant, and as a result
many more non-profit grant and contribution recipients would be forced to register and become
subject to the reporting requirements under the ETA, contrary to the Government’s policy
objective to minimize the compliance burden for small business and non-profit organizations.106
114.
Municipalities may provide funding to non-profit organizations providing social services
to the municipality’s residents. The City’s argument would view those non-profits as providing a
taxable supply to the municipality. Such funding would not have previously been viewed as
consideration for a supply, having no tax implications for the municipality. Based on the City’s
104
ETA s. 141.01(1.2) added by by S.C. 1997, c. 10 ss. 5(2).
Department of Finance, Technical Notes, ETA s. 141.01, February, 1994 and July 1997 [Respondent’s
Authorities, Tab 49]
106
Department of Finance, The Goods and Services Tax Technical Paper, supra, note 93 at p. 91; Department of
Finance, Goods and Services Tax, supra, note 95 at p. 72.
105
Argument
argument, the municipality would now have to pay GST/HST on this funding. As municipalities
in the harmonized sales tax provinces are not entitled to a full rebate of the provincial portion of
the HST this would have a negative impact on their budgets. Although the present 100% rebate
for GST makes it largely irrelevant for municipalities in Alberta and other provinces that do not
have the HST whether they claim a rebate or an ITC, the distinction is relevant for municipalities
in HST provinces because their rebate rates for the provincial part of the HST are not 100% but
rather 57.14% for Nova Scotia and New Brunswick, 0% for Newfoundland, 78% for Ontario and
75% for British Columbia.107 The distinction is also relevant for other public service bodies that
have no rebate entitlement or are only entitled to partial rebates of GST or federal or provincial
parts of HST.
115.
Unlike provincial government entities with no unrecoverable tax because of their
constitutional immunity from GST/HST, many other grant or subsidy payers would face
additional unrecoverable GST/HST costs if tax applied to their grant and subsidy payments. For
example, a self-funded non-profit parents’ organization donating funds to a school for
construction of playground equipment would have to pay the additional cost of GST/HST if the
funds for this purpose were treated as consideration for a taxable supply by the school to the
organization, and it would not be able to recover any of the tax that it paid.
D.
THE ANALYSIS ENDS BECAUSE THERE WAS NO SUPPLY
116.
Because the Court of Appeal correctly found that there was no supply by the City to the
Province, its analysis ended. It was clear to the Court of Appeal when it looked at paragraph (a)
of the definition of “commercial activity” in the ETA that the one business being carried on by the
City involved the making of exempt supplies.108 It had no separate business of “acquiring,
constructing and making available transit facilities” and, per the ETA definition of “commercial
activity”, no commercial activity at all and thus no entitlement to ITCs.
107
Public Service Body (GST/HST) Regulations, SOR/91-37 as amended, s. 5 (v); ETA s. 259(1) “specified provincial
percentage” [Respondent’s Authorities, Tab 37].
108
Court of Appeal Reasons, paras. 60-62 [Appellant’s Record, Tab 5].
Argument
E.
THE DIRECT LINK TEST ONLY FOLLOWS A FINDING OF SUPPLY
117.
If a supply were found, the question is then whether “the parties intend the purchase of the
supply for consideration”.109 The definition of “consideration” in ss. 123(1) ETA would require a
determination of whether an amount is payable for a supply by operation of law.110 The direct
link test would be the appropriate way to make that determination.
118.
A number of courts have consulted, and referred favourably to, the direct link test
suggested by the Canada Revenue Agency in its administrative bulletin (TIB-067) to determine
whether a grant will be regarded as consideration for a supply.111 The analysis asks whether a
transfer payment is made for a purchase purpose (does the grantor intend to purchase property or
a service with the payment?) or a public purpose (does the grantor make the grant so that the
grantee can further one of its own activities that benefits the public or a segment of the public?).
What characterizes a grant as opposed to consideration is that it is not recompense for
something;112 in this case the City seems to have lost sight of the fact that governments may act
with only the general welfare in view.113 A direct link exists between a grant and a supply if the
payment is directly related to the provision of a supply to the grantor or to a third party by the
person who accepts the grant. The more specific the supply and the parties, the stronger the
suggestion that the transfer payment is consideration for that supply.114
119.
The “direct link” test as a means of determining the degree of connection between a
supply and possible consideration predates the ETA. At the inception of the GST, the “direct
link” test was well-anchored as the test for determining whether consideration is “for” a supply in
109
Thompson Trailbreakers Snowmobile Club Inc., supra, note 70, at para. 21.
ETA ss. 123(1) “consideration”.
111
Canada Revenue Agency, GST/HST Technical Information Bulletin B-067, Goods and Services Tax Treatment of
Grants and Subsidies, supra, note 69;; Westcan Malting Ltd., supra, note 73 at para. 47; Meadow Lake Swimming
Pool Committee Inc. supra, note 73 at para. 19; Regina (City) supra, note 73 at paras. 28, 29; Des Chênes (F.C.A.),
supra, note 73, at paras. 28, 30; Thompson Trailbreakers Snowmobile Club Inc., supra, note 70, at paras. 18-21;
Loisirs de Neufchatel, supra, note 73 at paras. 53-54.
112
Church Schools Foundation Limited v. Commissioners of Customs and Excise, supra, note 53, per Arden L.J. at
para. 100.
113
Glaces Rachelli Inc. v. The Queen, supra, note 69 at para. 12; The Pre-School Learning Alliance v. The
Commissioners of Customs and Excise, supra, note 92 at paras. 20, 21.
114
Canada Revenue Agency TIB-067, supra, note 69; see also Christian Amand, “When is a Link Direct?”,
International VAL Monitor, Vol. 7, No. 1 (January/February 1996, pp.3-11 [Respondent’s Authorities, Tab 53]; Jim
Day, “Something for Nothing: GST/HST and QST on Grants and Subsidies” 2008 Commodity Tax Symposium
(Canadian Institute of Chartered Accountants) at pp 10-16 [Respondent’s Authorities, Tab 55]; Bill Winters,
“Grants and Subsidies to NPO’s: A GST Mine Field”, 2003 Commodity Tax Symposium (CICA) [Respondent’s
Authorities, Tab 52]; Rene N.G. van der Paardt, “Subsidies in the EU and Switzerland”, International VAT Monitor
Vol 10, No. 2 (March/April 1999), pp. 38-59 at 54-56 [Respondent’s Authorities, Tab 56].
110
Argument
European VAT cases and in language used in EU Council Directives.115 As noted in the Apple
and Pear case: “It must therefore be stated that the concept of the supply of services effected for
consideration within the meaning of art 2(1) of the Sixth Directive presupposes the existence of a
direct link between the service provided and the consideration received.”116 The “direct link” test
is not only relevant whenever the supply-consideration connection is reviewed but is also an
explicit element of Article 11(A)(1)(a) of the Directive, concerning the inclusion of subsidies as
amounts paid “for” supplies.
120.
As featured in the GST and VAT case law, and as reflected in TIB-067, the “direct link”
test applies only after the existence of a supply is determined. Without a supply, the question of
“consideration for the supply” does not arise. In the present case, the absence of a supply to the
Province dispenses with the need for any “direct link” analysis.
121.
The City faults the Court of Appeal for not relying on its decision in Des Chênes and, for
its part, relies heavily on that case.117 However, in the present case, the threshold requirement of
“supply” was unsatisfied and there was no need to go to the next step of establishing whether the
financial assistance was consideration for a supply. Accordingly, the Court of Appeal had no
reason to consider Des Chênes, which involved an identifiable supply of bus services by a school
board.
122.
In the present case, having found no supply to the Province, the Court of Appeal did not
need to refer to the direct link test. Instead, it determined that where a grantor provides funding to
a grantee and no property or service is provided to the grantor or a specified third party, the
funding is simply financial assistance to enable the grantee to pursue its own purposes.
123.
Even if the City’s compliance with the accountability terms of the agreement were a
supply to the Province, that was not the supply for which the grants were made. In this situation
the City faces another obstacle; supplies made by public sector bodies where all or substantially
115
See, for example, Apple and Pear Development Council v. Customs [1988] 2 C.M.L.R. 394, Court of Justice of
the European Communities (Sixth Chamber) [Respondent’s Authorities, Tab 2]; see also Edinburgh Leisure, South
Lanarkshire Leisure and Renfreshire Leisure v. Commissioners of Customs and Excise, supra, note 92, at pp. 6-7.
116
Apple and Pear Development Council v. Customs, supra, note 115 at p. 6, p. 9 paras 10-13; EU Sixth Council
Directive, Articles 2, 11(A) [Respondent’s Authorities, Tab 39]; EU Council Directive 2006/112/EC, Article 73
117
Des Chênes (commission scolaire) v. The Queen, supra, note 73; Appellant’s factum paras. 80-93.
Argument
all of the supplies are made for no consideration are themselves exempt supplies for which no
ITCs can be claimed.118
F. CONCLUSION
124.
The City made only one supply – the exempt supply of municipal transit services to the
public. Historically, and properly, the City applied for and received rebates in respect of tax paid
on inputs used to make those exempt supplies. The Funding Agreements contain terms and
conditions governing the manner in which the funds for approved projects are to be disbursed, but
no more. Fulfilling accountability obligations does not result in a supply by the grantee to the
grantor, nor do those activities convert grant moneys into consideration for a supply. The City
was not entitled to claim ITCs in respect of its activities of acquiring and constructing transit
infrastructure as inputs for the Calgary Transit System.
118
ETA, Schedule V, Part VI, s. 10,
Order Sought
PART IV - COSTS
125.
The respondent seeks an order for costs.
PART V – ORDER SOUGHT
126.
The respondent asks that the appeal be dismissed, and that the judgment of the Federal
Court of Appeal be allowed to stand, with costs to the respondent.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
Dated at Ottawa, Ontario, this 25th day of May, 2011.
____________________________
Gordon Bourgard
Michael Lema
Marta Burns
Bank of Canada Building
East Tower, 8th Floor
234 Wellington Street
Ottawa, Ontario K1A 0H8
Tel:
613-952-9810
780-495-4548
780-495-7803
Fax: 613-946-7449
780-495-3319
780-495-2854
[email protected]
[email protected]
Table of Authorities
PART VI – TABLE OF AUTHORITIES
Case Law
CITED AT
PARAGRAPH
1.
251798 Ontario Inc. v. The Queen [1980] 1 F.C. 706 (C.A.)
Para. 75, fn. 72
2.
Apple and Pear Development Council v. Customs [1988] 2
C.M.L.R. 394, Court of Justice of the European Communities
(Sixth Chamber)
Para. 119, fn. 115
Para. 119, fn. 116
3.
B. C. Transit v. The Queen 2006 TCC 437, [2006] G.S.T.C. 103
(TCC)
Para. 77, fn. 73
4.
Canada (Auditor General) v. Canada (Minister of Energy, Mines &
Resources) [1989] 2 S.C.R. 49
Para. 90, fn. 80
5.
Canadian Copper & Brass Development Assn. v. The Queen [1997]
G.S.T.C. 11 (T.C.C.)
Para. 77, fn. 73
6.
Church Schools Foundation Limited v. Commissioners of Customs
and Excise [2001] EWCA Civ 1745
Para. 51, fn. 53
Para. 79, fn. 74
Para. 118, fn. 112
7.
Club 63 North v. The Queen [1995] G.S.T.C. 75 (T.C.C.)
Para. 77, fn. 73
8.
Commissioners of Customs and Excise v. British
Telecommunications Plc [1999] 1 W.L.R. 1376 (H.L.)
Para. 51, fn. 53
9.
Decouvreurs (Commission scolaire) v. The Queen 2003 TCC 295,
[2004] G.S.T.C. 49 (T.C.C.)
Para. 77, fn. 73
10.
Des Chênes (Commission scolaire) [2001] G.S.T.C. 120 (FCA)
Para. 77, fn. 73
Para. 118, fn. 111
Para. 121, fn. 117
11.
Dupont Canada Inc. v. The Queen 2001 FCA 114, [2001] 2 C.T.C.
315
Para. 58, fn. 62
12.
Edinburgh Leisure, South Lanarkshire Leisure and Renfrewshire
Leisure v. Commissioners of Customs and Excise [2005] LLR 41
(VATD Tribunal (Edinburgh Tribunal Centre))
Para. 97, fn. 92
Para. 119, fn. 115
13.
Glaces Rachelli Inc. v. Canada (1989) 29 F.T.R. 169 (F.C.T.D.)
Para. 72, fn. 69
Para. 75, fn. 72
Case Law
CITED AT
PARAGRAPH
14.
Hillingdon Legal Resources Centre Ltd. v. The Commissioners of
Customs & Excise [1991] VATTR 39
Para. 80, fn. 75
15.
Hidden Valley Golf Resort Assn. v. The Queen [2000] G.S.T.C. 42
(F.C.A.).
Para. 51, fn. 53
Para. 58, fn. 63
16.
Ladore v. Bennett [1939] 3 D.L.R. 1 (P.C.)
Para. 94, fn. 86
17.
Laval (Societé de Transport) v. The Queen 2008 TCC 14, [2008]
GSTC 212 (T.C.C.)
Para. 77, fn. 73
18.
Lethbridge (County) v. The Queen 2009 TCC 42, [2009] G.S.T.C. 5
(T.C.C.)
Para. 51, fn. 53
19.
Lethbridge (County) v. The Queen 2005 TCC 809, [2006] G.S.T.C.
16 (T.C.C.)
Para. 77, fn. 73
20.
Loisirs de Neufchatel 2006 TCC 339, [2006] G.S.T.C. 74
Para. 77, fn. 73
Para. 118, fn. 111
21.
London Life Insurance Co. v. Canada [2000] G.S.T.C. 111 (F.C.A.)
Para. 60, fn. 64
Para. 60, fn. 65
22.
Maritime Life Assurance Co. v. The Queen [2000] G.S.T.C. 89
(F.C.A.)
Para. 54, fn. 58
23.
Meadow Lake Swimming Pool Committee Inc. v. The Queen [1999]
G.S.T.C. 96 (T.C.C.)
Para. 77, fn. 73
Para. 118, fn. 111
24.
MBNA Europe Bank Ltd. v. Revenue and Customs Commissioners
[2006] EWHC 2326 (Ch)
Para. 52, fn. 56
Para. 54, fn. 59
Para. 80, fn. 75
25.
Nanaimo (City) v. Rascal Trucking Ltd. [2000] 1 S.C.R. 342
Para. 95, fn. 88
Para. 95, fn. 90
26.
New Brunswick (Board of Management) v. Dunsmuir [2008] SCC
9, [2008] 1 S.C.R. 190
Para. 36, fn. 39
27.
O.A. Brown Ltd. v. The Queen [1995] G.S.T.C. 40 (T.C.C.)
Para. 56, fn. 60
Para. 57, fn. 61
Para. 58, fn. 63
Case Law
CITED AT
PARAGRAPH
28.
Ottawa Hospital Corp. v. The Queen [2010] G.S.T.C. 15 (TCC)
Para. 95, fn. 91
29.
Peel (Regional Municipality) v Canada; Peel (Regional
Municipality) v. Ontario [1992] 3 S.C.R. 762
Para. 92, fn. 81
30.
Peel (Regional Municipality) v. Canada [1989] 2 F.C. 562 (F.C.A.)
Para. 93, fn. 82
31.
Peel (Regional Municipality) v. Ontario (1990) 1 O.R. (3d) 97
(O.C.A.)
Para. 93, fn. 85
32.
R. v. Greenbaum [1993] 1 S.C.R. 674
Para. 95, fn. 89
33.
R. v. Henry 2005 SCC 76 ; [2005] 3 S.C.R. 609
Para. 94, fn. 87
34.
Re Manitoba Language Rights, [1985] 1 S.C.R. 721
Para. 89, fn. 79
35.
Reference Re Canada Assistance Plan [1991] 2 S.C.R. 525
Para. 90, fn. 80
36.
Reference Re Goods and Services Tax [1992] 2 S.C.R. 445
Para. 46, fn. 50
Para. 52, fn. 56
37.
Regina (City) v. The Queen [2001] G.S.T.C. 68
Para. 77, fn. 73
Para. 118, fn. 111
38.
Sail Labrador Ltd. v. Challenge One (The) [1999] 1 S.C.R. 265
Para. 74, fn. 71
39.
The Pre-School Learning Alliance v. The Commissioners of
Customs and Excise 2000 VATD 16928 (interim) and 2002 VATD
17737 (VATD Tribunal)
Para. 97, fn. 92
Para 118, fn. 112
40.
Thompson Trailbreakers Snowmobile Club Inc. v. The Queen, 2005
TCC 269, [2005] G.S.T.C. 124 (TCC)
Para. 73, fn. 70
Para. 77, fn. 73
Para. 117, fn. 109
Para. 118, fn. 111
41.
Toronto District School Board v. The Queen [2009] G.S.T.C. 160
(FCA)
Para. 95, fn. 91
42.
United Dominions Trust (Commercial) Ltd. v. Eagle Aircraft
Services Ltd. [1968] 1 W.L.R. 74 (CA)
Para. 74, fn. 71
43.
Westcan Malting Ltd. v. The Queen [1998] G.S.T.C. (T.C.C.)
Para. 77, fn. 73
Para. 118, fn. 111
Legislative References
CITED AT
PARAGRAPH
44.
Public Service Body (GST/HST) Regulations, SOR/91-37 as
amended, s. 5 (v); ETA s. 259(1) “specified provincial percentage”
Para. 114, fn. 106
45.
S.C. 1997 c. 10 ss. 5(2) adding ETA s. 141.01(1.2)
Para. 112, fn. 104
46.
European Union, Sixth Council Directive 77/388/EEC of 17 May
Para. 119, fn. 115
1977 on the harmonization of the laws of the Member States
relating to turnover taxes – Common system of value added tax:
uniform basis of assessment, Title VIII, Taxable Amount, Articles 2,
11(A)
47.
European Union, Council Directive 2006/112/EC on the common
system of value added tax, Title VII, Taxable Amount, ch. 2, Supply
of Goods or services, Article 73
Government Papers, Bulletins, Policy Statements and Explanatory
Notes References
Para. 119, fn. 115
CITED AT
PARAGRAPH
48.
Canada Revenue Agency, GST/HST Policy Statement P-077R2 Single and Multiple Supplies
Para. 56, fn. 60
Para. 58, fn. 63
49.
Canada Revenue Agency, GST/HST Policy Statement P-167R
Para. 58, fn. 62
‘Meaning of First Part of Definition of Business” at p. 2 “Activities”
50.
Canada Revenue Agency, GST/HST Technical Information Bulletin
B-067, Goods and Services Tax Treatment of Grants and Subsidies
Para. 72, fn. 69
Para. 81, fn. 76
Para. 118, fn. 111
Para. 118, fn. 114
51.
Department of Finance, Sales Tax Reform, June 18, 1987, p. 93
Para. 107, fn. 99
52.
Department of Finance, Explanatory Notes to Bill C-62 (May,
1990), Schedule V, Part VI, s. 6 and 10 at pp. 218-219
Para. 106, fn. 97
53.
Department of Finance, Goods and Services Tax Technical Paper,
August 1989, 9.1 (h) “Grants and Subsidies”, pp. 134-135
Para. 101, fn. 93
Para. 113, fn. 106
Government Papers, Bulletins, Policy Statements and Explanatory
Notes References
CITED AT
PARAGRAPH
54.
Department of Finance, Goods and Services Tax, A Summary,
October 1989
Para. 109, fn. 101
55.
Department of Finance, Goods and Services Tax, Hon. Michael
Wilson, Minister of Finance, Dec. 19, 1989, Section 7, “Charities,
Non-Profit Organizations and Selected Public Sector Bodies, A.
Introduction, p. 71
Para. 103, fn. 95
Para. 113, fn. 106
56.
Department of Finance, Technical Notes, ETA s. 141.01, February
1994 and July 1997
Para. 112, fn. 105
57.
Department of Finance, News Release and Backgrounder, February
3, 2004, Finance Minister Proposes 100% GST Rebate for
Municipalities
Para. 110, fn. 102
58.
Treasury Board of Canada Secretariat, Policy on Transfer Payments, Para. 72, fn. 69
online at http://www.tbs-sct.gc.ca/pol/doc-eng.
Secondary Sources
CITED AT
PARAGRAPH
59.
Bill Winters, “Grants and Subsidies to NPO’s: A GST Mine Field”,
2003 Commodity Tax Symposium (CICA)
Para. 118, fn. 114
60.
Christian Amand, “When is a Link Direct?”, International VAT
Monitor, Vol. 7, No. 1 (January/February 1996, pp. 3-11)
Para. 118, fn. 114
61.
Geoff R. Hall, Canadian Contractual Interpretation Law,
(LexisNexis Canada Inc., 2007) at pp. 106-110.
Para. 36, fn. 39
62.
Jim Day, “Something for Nothing: GST/HST and QST on Grants
and Subsidies” 2008 Commodity Tax Symposium (Canadian
Institute of Chartered Accountants) at pp 10-16
Para. 118, fn. 114
63.
Rene N.G. van der Paardt, “Subsidies in the EU and Switzerland”,
International VAT Monitor Vol. 10, No. 2 (March/April 1999), pp.
38-59 at 54-56
Para. 118, fn. 114
64.
Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed.
(LexisNexis Canada Inc., 2008), “Associated Words” at pp. 227231.
Para. 52, fn. 55
Secondary Sources
CITED AT
PARAGRAPH
65.
Sir Guenter Treitel, The Law of Contract, 11th ed. (London, Sweet
and Maxwell, 2003) at pp. 37-41
Para. 74, fn. 71
66.
S.M. Waddams, The Law of Contracts, 6th ed. (Toronto, Canada
Law Book, 2010) at pp. 121-127
Para. 74, fn. 71
Statutes Relied On
PART VII - STATUTES RELIED ON
Excise Tax Act, R.S.C., 1985, c. E-15, as amended, as of December 31, 2002 (except ss. 259(1)
“specified percentage” amended by S.C. 2004, c. 22 ss. 34(1))
Loi sur la taxe d’accise (L.R.C., 1985, ch. E-15), telle que modifiée et en vigueur au 31
décembre 2002 (sauf par. 259(1) « pourcentage établi » tel que modifié par L.C. 2004, ch. 22,
par. 34(1))
DIVISION I
SECTION I
Interpretation
Définitions et interprétation
123. (1) Definitions – In section 121, this
Part, and Schedules V to X,
123. (1) Définitions Les définitions qui
suivent s’appliquent à l’article 121, à la
présente partie et aux annexes V à X,
“business”
« entreprise »
“business” includes a profession, calling,
trade, manufacture or undertaking of any kind
whatever, whether the activity or undertaking
is engaged in for profit, and any activity
engaged in on a regular or continuous basis
that involves the supply of property by way of
lease, licence or similar arrangement, but does
not include an office or employment;
“commercial activity”
« activité commerciale »
“commercial activity” of a person means
« entreprise »
“business”
« entreprise » Sont compris parmi les
entreprises les commerces, les industries, les
professions et toutes affaires quelconques avec
ou sans but lucratif, ainsi que les activités
exercées de façon régulière ou continue qui
comportent la fourniture de biens par bail,
licence ou accord semblable. En sont exclus
les charges et les emplois.
« activité commerciale »
“commercial activity”
« activité commerciale » Constituent des
activités commerciales exercées par une
(a) a business carried on by the person personne :
(other than a business carried on without a
reasonable expectation of profit by an
a) l’exploitation d’une entreprise (à
individual, a personal trust or a
l’exception d’une entreprise exploitée sans
partnership, all of the members of which
attente raisonnable de profit par un
are individuals), except to the extent to
particulier, une fiducie personnelle ou une
which the business involves the making of
société de personnes dont l’ensemble des
exempt supplies by the person,
associés sont des particuliers), sauf dans la
mesure où l’entreprise comporte la
(b) an adventure or concern of the person
réalisation par la personne de fournitures
in the nature of trade (other than an
adventure or concern engaged in without a
reasonable expectation of profit by an
individual, a personal trust or a
partnership, all of the members of which
are individuals), except to the extent to
which the adventure or concern involves
the making of exempt supplies by the
person, and
(c) the making of a supply (other than an
exempt supply) by the person of real
property of the person, including anything
done by the person in the course of or in
connection with the making of the supply;
“consideration”
« contrepartie »
Statutes Relied On
exonérées;
b) les projets à risque et les affaires de
caractère commercial (à l’exception de
quelque projet ou affaire qu’entreprend,
sans attente raisonnable de profit, un
particulier, une fiducie personnelle ou une
société de personnes dont l’ensemble des
associés sont des particuliers), sauf dans la
mesure où le projet ou l’affaire comporte
la réalisation par la personne de
fournitures exonérées;
c) la réalisation de fournitures, sauf des
fournitures
exonérées,
d’immeubles
appartenant à la personne, y compris les
actes qu’elle accomplit dans le cadre ou à
l’occasion des fournitures.
« contrepartie »
“consideration”
“consideration” includes any amount that is « contrepartie » Est assimilé à une contrepartie
payable for a supply by operation of law;
tout montant qui, par effet de la loi, est
payable pour une fourniture.
“exempt supply”
« fourniture exonérée »
« fourniture exonérée »
“exempt supply”
“exempt supply” means a supply included in « fourniture exonérée » Fourniture figurant à
Schedule V;
l'annexe V.
“public sector body”
« organisme du secteur public»
« organisme du secteur public»
“public sector body”
“public sector body” means a government or a « organisme
du
secteur
public »
public service body;
Gouvernement ou organisme de services
publics.
“recipient”
« acquéreur »
« acquéreur »
“recipient”
“recipient” of a supply of property or a service « acquéreur »
means
(a) where consideration for the supply is
payable under an agreement for the
a) Personne qui est tenue, aux termes
d’une convention portant sur une
supply, the person who is liable under the
agreement to pay that consideration,
(b) where paragraph (a) does not apply
and consideration is payable for the
supply, the person who is liable to pay that
consideration, and
(c) where no consideration is payable for
the supply,
(i) in the case of a supply of property
by way of sale, the person to whom the
property is delivered or made
available,
(ii) in the case of a supply of property
otherwise than by way of sale, the
person to whom possession or use of
the property is given or made
available, and
(iii) in the case of a supply of a service,
the person to whom the service is
rendered,
Statutes Relied On
fourniture, de payer la contrepartie de la
fourniture;
b) personne qui est tenue, autrement
qu’aux termes d’une convention portant
sur une fourniture, de payer la contrepartie
de la fourniture;
c) si nulle contrepartie n’est payable pour
une fourniture :
(i) personne à qui un bien, fourni par
vente, est livré ou à la disposition de
qui le bien est mis,
(ii) personne à qui la possession ou
l’utilisation
d’un
bien,
fourni
autrement que par vente, est transférée
ou à la disposition de qui le bien est
mis,
(iii) personne à qui un service est
rendu.
Par ailleurs, la mention d’une personne au
and any reference to a person to whom a profit de laquelle une fourniture est effectuée
supply is made shall be read as a reference to vaut mention de l’acquéreur de la fourniture.
the recipient of the supply;
“service”
« service »
« service »
“service”
“service” means anything other than
« service » Tout ce qui n’est ni un bien, ni de
l’argent, ni fourni à un employeur par une
(a) property,
personne qui est un salarié de l’employeur, ou
(b) money, and
a accepté de l’être, relativement à sa charge ou
(c) anything that is supplied to an à son emploi.
employer by a person who is or agrees to
become an employee of the employer in
the course of or in relation to the office or
employment of that person;
“supply”
« fourniture »
« fourniture »
“supply”
“supply” means, subject to sections 133 and « fourniture » Sous réserve des articles 133 et
134, the provision of property or a service in 134, livraison de biens ou prestation de
any manner, including sale, transfer, barter, services, notamment par vente, transfert, troc,
Statutes Relied On
exchange, licence, rental, lease, gift or échange, louage,
disposition;
aliénation.
“taxable supply”
« fourniture taxable »
licence,
donation
ou
« fourniture taxable »
“taxable supply”
“taxable supply” means a supply that is made « fourniture taxable » Fourniture effectuée
in the course of a commercial activity;
dans le cadre d’une activité commerciale.
141.01
141.01
Grants and subsidies
Primes et subventions
(1.2) Where a registrant receives an
(1.2) Pour l’application du présent article,
amount that is not consideration for a supply
le montant d’aide — prime, subvention, prêt à
and is a grant, subsidy, forgivable loan or other remboursement conditionnel ou autre montant
form of assistance provided by a person who is semblable — qu’un inscrit reçoit d’une des
personnes suivantes et qui n’est pas la
(a) a government, a municipality or a band contrepartie d’une fourniture, mais qu’il est
(within the meaning assigned by section 2 raisonnable de considérer comme étant
of the Indian Act),
accordé en vue de financer une activité de
(b) a corporation that is controlled by a
l’inscrit comportant la réalisation de
person referred to in paragraph (a) and one fournitures taxables à titre gratuit, est réputé
of the main purposes of which is to provide être la contrepartie de ces fournitures :
such assistance, or
(c) a trust, board, commission or other
a) un gouvernement, une municipalité ou
body that is established by a person
une bande, au sens de l’article 2 de la Loi
referred to in paragraph (a) or (b) and one
sur les Indiens;
of the main purposes of which is to provide
b) une personne morale contrôlée par une
such assistance,
personne visée à l’alinéa a) et dont l’un des
principaux objets est d’accorder de tels
and the assistance can reasonably be
montants d’aide;
considered to be provided for the purpose of
c) une fiducie, une commission ou un autre
funding an activity of the registrant that
organisme qui est établi par une personne
involves the making of taxable supplies for no
visée aux alinéas a) ou b) et dont l’un des
consideration, the amount is, for the purposes
principaux objets est d’accorder de tels
of this section, deemed to be consideration for
montants d’aide.
those supplies.
Statutes Relied On
DIVISION II
SECTION II
Goods and Services Tax
Taxe sur les produits et services
Subdivision b
Sous-section b
Input tax credits
Crédit de taxe sur les intrants
General rule for credits
Règle générale
169. (1) Subject to this Part, where a
person acquires or imports property or a
service or brings it into a participating
province and, during a reporting period of the
person during which the person is a registrant,
tax in respect of the supply, importation or
bringing in becomes payable by the person or
is paid by the person without having become
payable, the amount determined by the
following formula is an input tax credit of the
person in respect of the property or service for
the period:
169. (1) Sous réserve des autres
dispositions de la présente partie, un crédit de
taxe sur les intrants d’une personne, pour sa
période de déclaration au cours de laquelle elle
est un inscrit, relativement à un bien ou à un
service qu’elle acquiert, importe ou transfère
dans une province participante, correspond au
résultat du calcul suivant si, au cours de cette
période, la taxe relative à la fourniture, à
l’importation ou au transfert devient payable
par la personne ou est payée par elle sans
qu’elle soit devenue payable :
A×B
where
A
is the tax in respect of the supply,
importation or bringing in, as the case may be,
that becomes payable by the person during the
reporting period or that is paid by the person
during the period without having become
payable; and
A×B
où :
A
représente la taxe relative à la fourniture, à
l’importation ou au transfert, selon le cas, qui,
au cours de la période de déclaration, devient
payable par la personne ou est payée par elle
sans qu’elle soit devenue payable;
B
:
B
is
(a) where the tax is deemed under
subsection 202(4) to have been paid in
respect of the property on the last day
of a taxation year of the person, the
extent (expressed as a percentage of the
total use of the property in the course
of commercial activities and businesses
of the person during that taxation year)
to which the person used the property
a) dans le cas où la taxe est réputée,
par le paragraphe 202(4), avoir été
payée relativement au bien le dernier
jour d’une année d’imposition de la
personne, le pourcentage que
représente l’utilisation que la personne
faisait du bien dans le cadre de ses
activités commerciales au cours de
cette année par rapport à l’utilisation
Statutes Relied On
in the course of commercial activities
of the person during that taxation year,
totale qu’elle en faisait alors dans le
cadre de ses activités commerciales et
de ses entreprises;
(b) where the property or service is
acquired, imported or brought into the
province, as the case may be, by the
person for use in improving capital
property of the person, the extent
(expressed as a percentage) to which
the person was using the capital
property in the course of commercial
activities of the person immediately
after the capital property or a portion
thereof was last acquired or imported
by the person, and
b) dans le cas où le bien ou le
service est acquis, importé ou transféré
dans la province, selon le cas, par la
personne pour utilisation dans le cadre
d’améliorations apportées à une de ses
immobilisations, le pourcentage qui
représente la mesure dans laquelle la
personne utilisait l’immobilisation dans
le cadre de ses activités commerciales
immédiatement après sa dernière
acquisition ou importation de tout ou
partie de l’immobilisation;
(c) in any other case, the extent
(expressed as a percentage) to which
the person acquired or imported the
property or service or brought it into
the participating province, as the case
may be, for consumption, use or supply
in the course of commercial activities
of the person.
c) dans les autres cas, le
pourcentage qui représente la mesure
dans laquelle la personne a acquis ou
importé le bien ou le service, ou l’a
transféré dans la province, selon le cas,
pour consommation, utilisation ou
fourniture dans le cadre de ses activités
commerciales
Statutes Relied On
Subdivision C
Sous-section c
Special Cases
Cas spéciaux
Self-supply of single unit residential
complex or residential condominium unit
Fourniture à soi-même d’un immeuble
d’habitation à logement unique ou d’un
logement en copropriété
191. (1) For the purposes of this Part,
where
191. (1) Pour l’application de la présente
partie, lorsque les conditions suivantes sont
réunies :
(a) the construction or substantial
renovation of a residential complex that is
a single unit residential complex or a
residential condominium unit is
substantially completed,
a) la construction ou les rénovations
majeures d’un immeuble d’habitation —
immeuble d’habitation à logement unique
ou logement en copropriété — sont
achevées en grande partie,
(b) the builder of the complex
b) le constructeur de l’immeuble :
(i) gives possession of the complex to a
particular person under a lease, licence
or similar arrangement (other than an
arrangement, under or arising as a
consequence of an agreement of
purchase and sale of the complex, for
the possession or occupancy of the
complex until ownership of the
complex is transferred to the purchaser
under the agreement) entered into for
the purpose of its occupancy by an
individual as a place of residence,
(i) soit en transfère la possession à une
personne aux termes d’un bail, d’une
licence ou d’un accord semblable (sauf
un accord qui est connexe à un contrat
de vente visant l’immeuble et qui porte
sur la possession ou l’occupation de
l’immeuble jusqu’au transfert de sa
propriété à l’acheteur aux termes du
contrat) conclu en vue de l’occupation
de l’immeuble à titre résidentiel,
(ii) gives possession of the complex to
a particular person under an agreement
for
(ii) soit en transfère la possession à une
personne aux termes d’une convention,
sauf une convention portant sur la
fourniture d’une maison mobile et d’un
emplacement pour celle-ci dans un parc
à roulottes résidentiel, portant sur l’une
des fournitures suivantes :
(A) the supply by way of sale of the
building or part thereof in which
the residential unit forming part of
the complex is located, and
(B) the supply by way of lease of
(A) la fourniture par vente de tout
ou partie du bâtiment dans lequel
est située l’habitation faisant partie
de l’immeuble,
(B) la fourniture par bail du fonds
the land forming part of the
complex or the supply of such a
lease by way of assignment,
Statutes Relied On
faisant partie de l’immeuble ou la
fourniture d’un tel bail par cession,
other than an agreement for the supply
of a mobile home and a site for the
home in a residential trailer park, or
(iii) where the builder is an individual,
occupies the complex as a place of
residence, and
(iii) soit, s’il est un particulier, occupe
lui-même l’immeuble à titre résidentiel,
(c) the builder, the particular person or an
individual who is a tenant or licensee of
the particular person is the first individual
to occupy the complex as a place of
residence after substantial completion of
the construction or renovation,
c) le constructeur, la personne ou le
particulier locataire de celle-ci ou titulaire
d’un permis de celle-ci est le premier à
occuper l’immeuble à titre résidentiel après
que les travaux sont achevés en grande
partie,
the builder shall be deemed
le constructeur est réputé :
(d) to have made and received, at the later
of the time the construction or substantial
renovation is substantially completed and
the time possession of the complex is so
given to the particular person or the
complex is so occupied by the builder, a
taxable supply by way of sale of the
complex, and
d) avoir effectué et reçu, par vente, la
fourniture taxable de l’immeuble au
dernier en date du jour où les travaux sont
achevés en grande partie et du jour où la
possession de l’immeuble est transférée à
la personne ou l’immeuble est occupé par
lui;
(e) to have paid as a recipient and to have
collected as a supplier, at the later of those
times, tax in respect of the supply
calculated on the fair market value of the
complex at the later of those times.
e) avoir payé à titre d’acquéreur et perçu à
titre de fournisseur, au dernier en date de
ces jours, la taxe relative à la fourniture,
calculée sur la juste valeur marchande de
l’immeuble ce jour-là.
Statutes Relied On
Subdivision D
Sous-section d
Capital Property
Immobilisations
Capital Personal Property
Immobilisations (biens meubles)
Application
Champ d’application
199. (1) This section does not apply in
respect of
199. (1) Le présent article ne s’applique
pas :
(a) property of a registrant that is a
financial institution or a prescribed
registrant; or
(b) a passenger vehicle or an aircraft of a
registrant who is an individual or a
partnership.
a) aux biens de l’inscrit qui est une
institution financière ou d’un inscrit visé
par règlement;
b) aux voitures de tourisme et aéronefs de
l’inscrit qui est un particulier ou une
société de personnes.
Acquisition of capital personal property
Acquisition d’immobilisations
(2) Where a registrant acquires or imports
personal property or brings it into a
participating province for use as capital
property,
(2) Les règles suivantes s’appliquent à
l’inscrit qui acquiert, importe ou transfère dans
une province participante un bien meuble à
utiliser comme immobilisation :
(a) the tax payable by the registrant in
respect of the acquisition, importation or
bringing in of the property shall not be
included in determining an input tax credit
of the registrant for any reporting period
unless the property was acquired, imported
or brought in, as the case may be, for use
primarily in commercial activities of the
registrant; and
a) la taxe payable par lui relativement à
l’acquisition, à l’importation ou au
transfert du bien n’est incluse dans le
calcul de son crédit de taxe sur les intrants
pour une période de déclaration que si le
bien est acquis, importé ou transféré, selon
le cas, en vue d’être utilisé principalement
dans le cadre de ses activités
commerciales;
(b) where the registrant acquires, imports
or brings in the property for use primarily
in commercial activities of the registrant,
the registrant is deemed, for the purposes
of this Part, to have acquired, imported or
brought in the property, as the case may
be, for use exclusively in commercial
activities of the registrant.
b) pour l’application de la présente partie,
il est réputé avoir acquis, importé ou
transféré le bien pour l’utiliser
exclusivement dans le cadre de ses
activités commerciales s’il l’a acquis,
importé ou transféré, selon le cas, pour
l’utiliser principalement dans ce cadre.
Statutes Relied On
Beginning use of personal property
Principale utilisation d’immobilisations
(3) For the purposes of this Part, where a
registrant last acquired or imported personal
property for use as capital property of the
registrant but not for use primarily in
commercial activities of the registrant and the
registrant begins, at a particular time, to use
the property as capital property primarily in
commercial activities of the registrant, except
where the registrant becomes a registrant at the
particular time, the registrant shall be deemed
(3) Pour l’application de la présente partie,
l’inscrit qui a acquis ou importé un bien
meuble la dernière fois en vue de l’utiliser
comme immobilisation mais non
principalement dans le cadre de ses activités
commerciales et qui commence, à un moment
donné, à l’utiliser comme immobilisation
principalement dans le cadre de ses activités
commerciales est réputé, sauf s’il devient un
inscrit à ce moment :
(a) to have received, at the particular time,
a supply of the property by way of sale;
and
a) avoir reçu, au moment donné, une
fourniture du bien par vente;
(b) except where the supply is an exempt
supply, to have paid, at the particular time,
tax in respect of the supply equal to the
basic tax content of the property at the
particular time.
b) avoir payé, au moment donné et
relativement à la fourniture, sauf s’il s’agit
d’une fourniture exonérée, une taxe égale à
la teneur en taxe du bien à ce moment.
Improvement to capital personal property
Améliorations — utilisation principale
d’une immobilisation
(4) Where a registrant acquires, imports or
brings into a participating province an
improvement to personal property that is
capital property of the registrant, tax payable
by the registrant in respect of the acquisition,
importation or bringing in shall not be
included in determining an input tax credit of
the registrant unless, at the time that tax
becomes payable or is paid without having
become payable, the capital property is used
registrant.
(4) La taxe payable par un inscrit
relativement à l’acquisition, à l’importation ou
au transfert dans une province participante des
améliorations à un bien meuble qui est son
immobilisation est incluse dans le calcul de
son crédit de taxe sur les intrants si
l’immobilisation, au moment où cette taxe
devient payable ou est payée sans qu’elle soit
devenue payable, est utilisée principalement
dans le cadre de ses activités commerciales.
Ceasing use of personal property
Utilisation non principale d’immobilisations
200. (2) For the purposes of this Part,
where a registrant last acquired or imported
personal property for use as capital property
registrant and the registrant begins, at a
particular time, to use the property primarily
for other purposes, the registrant shall be
200. (2) Pour l’application de la présente
partie, l’inscrit qui a acquis ou importé un bien
meuble la dernière fois en vue de l’utiliser
comme immobilisation principalement dans le
cadre de ses activités commerciales et qui
commence, à un moment donné, à l’utiliser
principalement à d’autres fins est réputé :
Statutes Relied On
deemed
(a) to have made, immediately before the
particular time, a supply of the property by
way of sale and to have collected, at the
particular time, tax in respect of the supply
equal to the basic tax content of the
property at the particular time; and
a) avoir fourni le bien par vente
immédiatement avant ce moment et avoir
perçu, à ce moment et relativement à la
fourniture, une taxe égale à la teneur en
taxe du bien à ce moment;
(b) to have received, at the particular time,
a supply of the property by way of sale and
to have paid, at the particular time, tax in
respect of the supply equal to the basic tax
content of the property at the particular
time.
b) avoir reçu, à ce moment, une fourniture
du bien par vente et avoir payé, à ce
moment et relativement à la fourniture, une
taxe égale à la teneur en taxe du bien à ce
moment
Real property of certain public service
bodies
Immeubles de certains organismes du
secteur public
209. (1) If a registrant (other than a
financial institution or a government) is a
public service body, subsections 199(2) to (4)
and 200(2) and (3) apply, with any
modifications that the circumstances require,
to real property acquired by the registrant for
use as capital property of the registrant or, in
the case of subsection 199(4), to improvements
to real property that is capital property of the
registrant, as if the real property were personal
property.
209. (1) Lorsqu’un inscrit (sauf une
institution financière ou un gouvernement) est
un organisme de services publics, les
paragraphes 199(2) à (4) et 200(2) et (3)
s’appliquent, avec les adaptations nécessaires,
aux immeubles qu’il acquiert pour les utiliser à
titre d’immobilisations et, dans le cas du
paragraphe 199(4), aux améliorations
apportées aux immeubles qui font partie de ses
immobilisations, comme s’il s’agissait de
biens meubles.
DIVISION V
Statutes Relied On
SECTION V
Collection and Remittance of Division II Perception et versement de la taxe prévue à
Tax
la section II
Subdivision b
Sous-section b
Remittance of tax
Versement de la taxe
Net tax
Taxe nette
225. (1) Subject to this Subdivision, the net
225. (1) Sous réserve des autres
tax for a particular reporting period of a person dispositions de la présente sous-section, la taxe
is the positive or negative amount determined
nette pour une période de déclaration donnée
by the formula
d’une personne correspond au montant, positif
ou négatif, obtenu par la formule suivante :
A-B
A-B
where
A
is the total of
où :
A
représente le total des montants suivants :
(a) all amounts that became collectible
and all other amounts collected by the
person in the particular reporting period as
or on account of tax under Division II, and
a) les montants devenus percevables et
les autres montants perçus par la personne
au cours de la période donnée au titre de la
taxe prévue à la section II;
(b) all amounts that are required under
this Part to be added in determining the
net tax of the person for the particular
reporting period; and
b) les montants à ajouter aux termes de
la présente partie dans le calcul de la taxe
nette de la personne pour la période
donnée;
B
is the total of
B
le total des montants suivants :
(a) all amounts each of which is an
input tax credit for the particular reporting
period or a preceding reporting period of
the person claimed by the person in the
return under this Division filed by the
person for the particular reporting period,
and
a) l’ensemble des montants dont
chacun représente un crédit de taxe sur les
intrants pour la période donnée ou une
période de déclaration antérieure de la
personne, que celle-ci a demandé dans la
déclaration produite en application de la
présente section pour la période donnée;
(b) all amounts each of which is an
amount that may be deducted by the
b) l’ensemble des montants dont
chacun représente un montant que la
person under this Part in determining the
net tax of the person for the particular
reporting period and that is claimed by the
person in the return under this Division
filed by the person for the particular
reporting period.
Statutes Relied On
personne peut déduire en application de la
présente partie dans le calcul de sa taxe
nette pour la période donnée et qu’elle a
indiqué dans la déclaration produite en
application de la présente section pour
cette période.
Statutes Relied On
DIVISION VI
SECTION VI
Rebates
Remboursements
Definitions
Définitions
259. (1) In this section,
“selected public service body”
« organisme déterminé de services publics »
259. (1) Les définitions qui suivent
s’appliquent au présent article.
“selected public service body”
“selected public service body” means
(a) a hospital authority,
a) Administration hospitalière;
(b) a school authority that is established
b) administration scolaire constituée et
and operated otherwise than for profit,
administrée autrement qu’à des fins
(c) a university that is established and
lucratives;
c) université constituée et administrée
operated otherwise than for profit,
(d) a public college that is established and
autrement qu’à des fins lucratives;
operated otherwise than for profit, or
d) collège public constitué et administré
(e) a municipality.
autrement qu’à des fins lucratives;
e) municipalité.
259. (1) In this section,
259. (1) Les définitions qui suivent
s’appliquent au présent article.
“specified percentage”
« pourcentage établi »
« pourcentage établi »
“specified percentage”
“specified percentage” means
(e) in the case of a municipality, 100%;
« pourcentage établi » Le pourcentage
applicable suivant :
e) dans le cas d'une municipalité,
100 %.
S.C. 2004, c.22 ss. 34(1)
Statutes Relied On
SCHEDULE V
ANNEXE V
(Subsection 123(1))
(paragraphe 123(1))
PART VI
PUBLIC SECTOR BODIES
PARTIE VI
ORGANISMES DU SECTEUR PUBLIC
6. A supply by way of sale made by a
public service body to a recipient of tangible
personal property (other than capital property
of the body), or of a service purchased by the
body for the purpose of making a supply by
way of sale of the service, where the total
charge for the supply is the usual charge by the
body for such supplies to such recipients and
6. La fourniture par vente, effectuée par un
organisme de services publics au profit d’un
acquéreur, d’un bien meuble corporel (sauf
une immobilisation de l’organisme), ou d’un
service que l’organisme a acheté en vue de le
fournir par vente, dans le cas où le prix total de
la fourniture est le prix habituel que
l’organisme demande à ce type d’acquéreur
pour ce type de fourniture et où :
(a) if the body does not charge the
recipient any amount as tax under Part IX
of the Act in respect of the supply, the total
charge for the supply does not, and could
not reasonably be expected to, exceed the
direct cost of the supply; and
a) si l’organisme ne demande pas à
l’acquéreur un montant au titre de la taxe
prévue à la partie IX de la loi relativement
à la fourniture, le prix total de la fourniture
ne dépasse pas son coût direct et il n’est
pas raisonnable de s’attendre à ce qu’il le
dépasse;
(b) if the body charges the recipient an
amount as tax under that Part in respect of
the supply, the consideration for the supply
does not, and could not reasonably be
expected to, equal or exceed the direct cost
of the supply determined without reference
to tax imposed under that Part and without
reference to any tax that became payable
under the first paragraph of section 16 of
An Act respecting the Québec sales tax,
R.S.Q., c. T-0.1, at a time when the body
was a registrant as defined in section 1 of
that Act.
b) si l’organisme demande à l’acquéreur un
montant au titre de la taxe prévue à la
partie IX de la loi relativement à la
fourniture, la contrepartie de la fourniture
n’est ni égale ni supérieure à son coût
direct et il n’est pas raisonnable de
s’attendre à ce qu’elle le soit, ce coût direct
étant déterminé compte non tenu de la taxe
imposée par cette partie ni de la taxe qui
est devenue payable aux termes du premier
alinéa de l’article 16 de la Loi sur la taxe
de vente du Québec, L.R.Q., ch. T-0.1, à
un moment où l’organisme était un inscrit
au sens de l’article 1 de cette loi.
10. A supply made by a public sector body
of any property or service where all or
substantially all of the supplies of the property
or service by the body are made for no
consideration, but not including a supply of
blood or blood derivatives.
10. La fourniture par un organisme du
secteur public de biens ou services, sauf la
fourniture de sang ou de dérivés du sang, si la
totalité, ou presque, des fournitures des biens
ou services sont effectuées par l’organisme à
titre gratuit.
24. A supply made to a member of the
public of a municipal transit service or of a
public passenger transportation service
designated by the Minister to be a municipal
transit service.
Statutes Relied On
24. La fourniture, effectuée au profit d’un
membre du public, de services municipaux de
transport ou de services publics de transport de
passagers désignés par le ministre comme
services municipaux de transport.
Statutes Relied On
Public Service Body Rebate (GST/HST) Regulations (SOR/91-37), as amended, as of 2002
Règlement sur les remboursements aux organismes de services publics (TPS/TVH)
(DORS/91-37), tel que modifié et en vigueur en 2002
5. For the purposes of determining a rebate 5. Pour le calcul du remboursement payable à
payable to a person under section 259 of the une personne en vertu de l'article 259 de la
Act, the prescribed percentage is
Loi, le pourcentage applicable est le suivant :
(a) where the person is a charity or
qualifying non-profit organizations and
is not a selected public service body,
50%;
a) les organismes de bienfaisance ou
organismes à but non lucratif admissibles
(sauf les organismes déterminés de
services publics), 50 %
(b) where the person is a hospital
authority, 83%;
b) les administrations hospitalières, 83 %
c) les administrations scolaires, 68 %
(c) where the person is a school
authority, 68%;
(d) where the person is a university or
public college, 67%; and
(e) where the person is a municipality,
57.14%
d) les universités ou collèges publics, 67
%
e) les municipalités, 57,14 %
Statutes Relied On
Public Service Body Rebate (GST/HST) Regulations (SOR/91-37), as amended, as of 2011
Règlement sur les remboursements aux organismes de services publics (TPS/TVH)
(DORS/91-37), tel que modifié et en vigueur en 2011
Specified Provincial Percentages
Pourcentages provinciaux établis
Prescribed provinces, classes and
percentages
Provinces, catégories et pourcentages visés
5. For the purposes of paragraph (f) of the
definition “specified provincial percentage” in
subsection 259(1) of the Act,
5. Pour l’application de l’alinéa f) de la
définition de « pourcentage provincial établi »
au paragraphe 259(1) de la Loi :
(a) the following participating provinces
are prescribed:
(i) Ontario,
(ii) Nova Scotia,
(iii) New Brunswick,
(iv) British Columbia, and
(v) Newfoundland and Labrador;
a) les provinces participantes suivantes
sont visées :
(i) l’Ontario,
(ii) la Nouvelle-Écosse,
(iii) le Nouveau-Brunswick,
(iv) la Colombie-Britannique,
(v) Terre-Neuve-et-Labrador;
(b) the following classes of persons are
prescribed:
(i) charities, or qualifying non-profit
organizations, that are not selected
public service bodies,
(ii) hospital authorities,
(iii) school authorities,
(iv) universities or public colleges,
(v) municipalities, and
(vi) facility operators or external
suppliers; and
b) les catégories de personnes suivantes
sont visées :
(i) les organismes de bienfaisance et
organismes à but non lucratif
admissibles qui ne sont pas des
organismes déterminés de services
publics,
(ii) les administrations hospitalières,
(iii) les administrations scolaires,
(iv) les universités et les collèges
publics,
(v) les municipalités,
(vi) les exploitants d’établissement et
les fournisseurs externes;
(c) the following percentages are
prescribed:
(i) in the case of a person referred to in
subparagraph (b)(i) that is resident in
(A) Ontario, 82%,
(B) Nova Scotia, 50%,
(C) New Brunswick, 50%,
(D) British Columbia, 57%, and
(E) Newfoundland and Labrador,
50%,
c) les pourcentages suivants sont visés :
(i) dans le cas d’une personne visée au
sous-alinéa b)(i) qui réside :
(A) en Ontario, 82 %,
(B) en Nouvelle-Écosse, 50 %,
(C) au Nouveau-Brunswick, 50 %,
(D) en Colombie-Britannique,
57 %,
(E) à Terre-Neuve-et-Labrador,
50 %,
Statutes Relied On
(ii) in the case of a person referred to in
subparagraph (b)(ii) that is resident in
(A) Ontario, 87%,
(B) Nova Scotia, 83%, and
(C) British Columbia, 58%,
(ii) dans le cas d’une personne visée au
sous-alinéa b)(ii) qui réside :
(C) en Colombie-Britannique,
58 %,
(iii) in the case of a person referred to
in subparagraph (b)(iii) that is resident
in
(A) Ontario, 93%,
(iii) dans le cas d’une personne visée
au sous-alinéa b)(iii) qui réside :
87 %,
(iv) in the case of a person referred to
in subparagraph (b)(iv) that is resident
in
(A) Ontario, 78%,
(iv) dans le cas d’une personne visée au
sous-alinéa b)(iv) qui réside :
75 %,
(v) in the case of a person referred to in
subparagraph (b)(v) that is resident in
(A) Ontario, 78%,
(B) Nova Scotia, 57.14%,
(C) New Brunswick, 57.14%, and
(D) British Columbia, 75%, and
(v) dans le cas d’une personne visée au
sous-alinéa b)(v) qui réside :
(B) en Nouvelle-Écosse, 57,14 %,
(C) au Nouveau-Brunswick,
57,14 %,
(D) en Colombie-Britannique,
75 %,
(vi) in the case of a person referred to
in subparagraph (b)(vi) that is resident
in
(A) Ontario, 87%, and
(B) British Columbia, 58%.
(vi) dans le cas d’une personne visée au
sous-alinéa b)(vi) qui réside :
(B) en Colombie-Britannique, 58 %
Statutes Relied On
British North America Act, 1867, 30-31 Vict., c. 3 (U.K.)
Loi constitutionnelle de 1867 (R.-U.), 30 & 31 Vict., c. 3
Exclusive Powers of Provincial Legislatures. Pouvoirs exclusifs des législatures
provinciales
92. In each Province the Legislature may
exclusively make Laws in relation to Matters
coming within the Classes of Subjects next
hereinafter enumerated, that is to say,
1.
The Amendment from Time to Time,
notwithstanding anything in this Act, of the
Constitution of the Province, except as regards
the Office of Lieutenant Governor.
92. La législature de chaque province a
compétence exclusive pour légiférer en toute
matière comprise dans les domaines suivants :
1.
la modification de la Constitution de la
province, nonobstant toute autre disposition de
la présente loi, sauf en ce qui concerne la
charge de lieutenant-gouverneur;
2.
Direct Taxation within the Province in 2.
les impôts directs, dans les limites de la
order to the raising of a Revenue for Provincial province, pour la perception de recettes à des
Purposes.
fins provinciales;
3.
The borrowing of Money on the sole
Credit of the Province.
3.
les emprunts sur le crédit propre de la
province;
4.
The Establishment and Tenure of
Provincial Offices and the Appointment and
Payment of Provincial Officers.
4.
la création de postes dans la fonction
publique provinciale, les conditions
d'occupation de ces postes, la nomination et la
rémunération des titulaires;
5.
The Management and Sale of the
Public Lands belonging to the Province and of
the Timber and Wood thereon.
5.
la gestion et la vente des terres du
domaine public provincial ainsi que de leurs
bois et forêts;
6.
The Establishment, Maintenance, and
Management of Public and Reformatory
Prisons in and for the Province.
6.
la création, l'entretien et la gestion de
prisons et de maisons de correction dans les
limites et pour les besoins de la province;
7.
The Establishment, Maintenance, and
Management of Hospitals, Asylums, Charities,
and Eleemosynary Institutions in and for the
Province, other than Marine Hospitals.
7.
la création, l'entretien et la gestion
d'hôpitaux, d'asiles et d'institutions ou
établissements de bienfaisance dans les limites
et pour les besoins de la province, à l'exclusion
des hôpitaux maritimes;
8.
8.
les institutions municipales de la
province;
Municipal Institutions in the Province.
9.
Shop, Saloon, Tavern, Auctioneer, and
other Licences in order to the raising of a
Revenue for Provincial, Local, or Muni-cipal
Purposes.
Statutes Relied On
9.
les licences en vue de la perception de
recettes à des fins provinciales, locales ou
municipales, notamment les licences de
magasin, de débit de boissons et d'encanteur;
10.
Local Works and Undertakings other
10.
les ouvrages ou entreprises locaux, sauf
than such as are of the following Classes,-:
a. Lines of Steam or other Ships,
a. les lignes de transport par bateaux à
Railways, Canals, Telegraphs, and other
vapeur ou autres navires, les chemins de fer,
Works and Undertakings connecting the
les canaux, les télégraphes et les autres
Province with any other or others of the
ouvrages et entreprises reliant la province et
Provinces, or extending beyond the Limits
une ou plusieurs autres provinces ou
of the Province:
débordant les limites de la province,
b. Lines of Steam Ships between the
b. les lignes de transport par bateaux à
Province and any British or Foreign
vapeur entre la province et un territoire
Country:
britannique ou étranger,
c. Such Works as, although wholly situate
c. les ouvrages qui, bien qu'entièrement
within the Province, are before or after their
situés dans la province, sont, avant ou après
Execution declared by the Parliament of
leur réalisation, déclarés par le Parlement du
Canada to be for the general Advantage of
Canada d'intérêt général pour le pays ou
Canada or for the Advantage of Two or
d'intérêt multiprovincial;
more of the Provinces.
11.
The Incorporation of Companies with
Provincial Objects.
11.
la constitution en personnes morales de
sociétés à objet provincial;
12.
The Solemnization of Marriage in the
Province.
12.
la célébration du mariage dans la
province;
13.
Property and Civil Rights in the
Province.
13.
la propriété et les droits civils dans la
province;
14.
The Administration of Justice in the
Province, including the Constitution,
Maintenance, and Organization of Provincial
Courts, both of Civil and of Criminal
Jurisdiction, and including Procedure in Civil
Matters in those Courts.
14.
l'administration de la justice dans la
province, y compris la constitution, la prise en
charge financière et matérielle et l'organisation
des tribunaux provinciaux de compétence tant
civile que criminelle, ainsi que la procédure
civile devant ces tribunaux;
15.
The Imposition of Punishment by Fine,
Penalty, or Imprisonment for enforcing any
Law of the Province made in relation to any
Matter coming within any of the Classes of
Subjects enumerated in this Section.
15.
l'infliction de peines d'amende ou
d'emprisonnement ou d'autres peines pour
infraction aux lois de la province relatives à
toute matière comprise dans les domaines
énumérés au présent article;
16.
Generally all Matters of a merely local
or private Nature in the Province.
Statutes Relied On
16.
d'une façon générale, toutes les
matières à caractère purement local ou privé
dans la province.
Statutes Relied On
City Transportation Act, R.S.A. 2000
Chapter C 14
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta,
enacts as follows:
Definitions
1 In this Act,
(a) “highway” means land used or surveyed for use as a public highway and includes a bridge
forming part of the highway and any structure incidental to the public highway or bridge;
(b) “Minister” means the Minister determined under section 16 of the Government Organization
Act as the Minister responsible for this Act;
(c) “owner” means
(i) a person registered in a land titles office as the owner of an estate in fee simple or a
life estate in land,
(ii) a purchaser of land whose interest as purchaser is recorded in the certificate of title
for that land, or
(iii) a tenant or any person who is in possession or occupation of land, and whose
interest as tenant is recorded on the certificate of title for that land;
(d) “permit” means a permit issued under this Act;
(e) “rapid transit” means a public transportation system running on rails or other tracked systems
and operating on an exclusive right of way, but does not include privately owned railways or
railways directly responsible to federal, provincial or territorial governments;
(f) “street” means a highway subject to the direction, control and management of a city;
(g) “transportation facility” means everything necessary for the efficient transportation of
persons and goods in a particular manner;
(h) “transportation protection area” means land designated by the council of a city as a
transportation protection area;
(i) “transportation system” means a system of transportation facilities including streets,
highways, rapid transit and all types of transportation facilities to which this Act applies on,
above and below the ground.
RSA 1980 cC-10 s1
Statutes Relied On
RSA 1980 cC-10 s1
Part 1
Establishment of Transportation Systems
Responsibility for costs
2 Each city is responsible for the costs of establishing and maintaining all
transportation facilities subject to its direction, control and management but may
qualify for financial assistance from the Government by complying with this Act.
RSA 1980 cC-10 s2
Transportation study report
3 The city shall prepare a comprehensive transportation study report for the
development of an integrated transportation system designed to service the needs of
the entire city.
RSA 1980 cC-10 s3
Transportation system bylaws
4(1) The city council shall by bylaw establish a transportation system in accordance
with the transportation study report and the bylaw shall designate the transportation
system.
(2) The bylaw shall include a map showing the approximate location of the
transportation facilities and any other items required by the regulations.
(3) The council shall hold a public hearing on every proposed bylaw that establishes
a transportation system or amends an existing transportation system bylaw.
(4) The public hearing must be advertised in accordance with the requirements for
advertising in the Municipal Government Act.
(5) The council, after considering the representations made to it at the public
hearing concerning the proposed bylaw, may
(a) pass the proposed bylaw,
(b) make the amendments that it considers necessary to the proposed bylaw and
pass the proposed bylaw as amended, or
(c) defeat the proposed bylaw.
(6) The city council shall submit the bylaw to the Minister for approval by the
Lieutenant Governor in Council and the Lieutenant Governor in Council may vary
or approve the bylaw in whole or in part and if the bylaw is varied or approved in
part only, it shall be enforced and take effect as approved.
(7) It is not necessary for the council to pass a further bylaw amending the bylaw
submitted pursuant to subsection (6) to conform with the bylaw as approved by the
Lieutenant Governor in Council but it is deemed to be amended as approved.
Statutes Relied On
(8) Subject to the approval of the Lieutenant Governor in Council, the city may
amend the bylaw from time to time by the addition or deletion of transportation
facilities or in any other manner.
RSA 1980 cC-10 s4;1986 c25 s1;1994 cM-26.1 s642(7)
Representations
5 In considering the proposed bylaw, the city council shall hear and consider the
representations, presented either personally or through an agent, of any interested
party.
RSA 1980 cC-10 s5
Approval of transportation facility
6(1) When a city considers that a transportation facility included in the
transportation system should be constructed it shall submit the proposal to the
Minister.
(2) If the proposal is approved by the Minister, the Minister may enter into an
agreement with the city with respect to the sharing of costs of establishing the
(3) Any contribution toward the cost of establishing a transportation facility under
this section received by the city from any source other than the city’s sources shall
be deducted from the cost for the purpose of the agreement.
RSA 1980 cC-10 s6
Title to transportation facilities
7 The title to all transportation facilities forming the transportation system is,
subject to any Act or agreement to the contrary, vested in the city.
RSA 1980 cC-10 s7
Extra-territorial development
8 If a part of the transportation system lies outside the boundaries of a city, the city
may acquire the land pursuant to the Municipal Government Act, and the Minister
shall deal exclusively with the city with respect to development of the system within
that area.
Statutes Relied On
Part 2
Protection and Acquisition of Land
Development defined
9 In this Part, “development” means
(a) the carrying out of any construction or excavation or other operations in, on,
over or under land, or
(b) the making of a change in the use or the intensity of use of land, buildings or
premises.
RSA 1980 cC-10 s9
Transportation protection area
10(1) If a city intends to acquire any area of land for a transportation system, either
immediately or over a period of time as it becomes available or is needed, the city
may by bylaw declare that area of land to be a transportation protection area.
(2) The city council may by bylaw declare any street or land subject to its direction,
management and control to be a transportation protection area.
(3) The council shall publish notice of the proposed bylaw establishing a
transportation protection area or an amendment to it at least once a week for 2
consecutive weeks in one or more newspapers having general circulation within the
city, the last of the publications to be at least 14 days before the date fixed for the
passing of the bylaw.
(4) In considering the passage of the proposed bylaw, the council shall hear and
consider the representations, presented either personally or through an agent, of any
person who claims that the land in which the person is interested as owner, occupier
or otherwise will be affected by the bylaw.
RSA 1980 cC-10 s10
Filing of plans
11(1) When a transportation protection area is designated pursuant to section 10,
the city council shall file a copy of the bylaw and a plan of the transportation
protection area with the Registrar of Land Titles.
(2) The Registrar of Land Titles shall endorse on every certificate of title to land
within a transportation protection area, a notice that the land is within a
transportation protection area and that this Part applies in respect of that land.
(3) The council shall give notice of the designation of a transportation protection
area and of the provisions of this Part to all owners of land within the transportation
protection area by registered mail to the last address shown on the certificate of title
in the land titles office or on the tax rolls of the city, whichever appears more recent.
Statutes Relied On
(4) A copy of the bylaw and plan designating the transportation protection area
shall be maintained at the city hall and made available at reasonable times for the
inspection of all persons.
RSA 1980 cC-10 s11
Preparation of plans
12 The plan of the transportation protection area shall be prepared by an Alberta
land surveyor and if the land included in a transportation protection area
(a) consists of a lot or parcel shown on a plan that is filed or registered under the
Land Titles Act,
(b) is the subject-matter of one certificate of title, or
(c) can be described sufficiently without the necessity of a plan of survey or any
additional plan of survey,
the land need not be resurveyed.
RSA 1980 cC-10 s12
Abandonment
13(1) When a transportation protection area is by bylaw abandoned in whole or in
part, the city council shall file a notice of abandonment with the Registrar of Land
Titles.
(2) The Registrar of Land Titles shall endorse on every certificate of title to land
affected by the notice of abandonment, a memorandum that the notice under section
11 is withdrawn.
(3) The council shall give notice of the abandonment to all owners of land affected
by it by registered mail to the last address shown on the certificate of title in the land
titles office or on the tax rolls of the city, whichever appears more recent.
RSA 1980 cC-10 s13
Development control bylaws
14 The city may make bylaws
(a) prohibiting any type of development within a transportation protection area;
(b) allowing within a transportation protection area, under the authority of a
permit, any type of development not inconsistent with the establishment of
the transportation system and specifying any conditions or restrictions on the
development;
(c) providing for the appointment of a protection area officer, who must be an
official of the city;
(d) authorizing the protection area officer to receive, consider and decide on
applications for permits;
Statutes Relied On
(e) providing for the establishment of a Protection Area Appeal Board, the
majority of the members of which shall not be members of the city council
or employees of the city.
RSA 1980 cC-10 s14
Permits
15(1) Notwithstanding any other Act, no person shall without a permit engage in
any development within a transportation protection area.
(2) The granting of a permit is a condition precedent to approval of an application
under Part 17 of the Municipal Government Act and the approval is subject to the
conditions and restrictions of the permit.
RSA 1980 cC-10 s15;1995 c24 s100
Application for permit
16(1) The protection area officer shall on consideration of an application for a
permit and within 40 days
(a) grant a permit for the development applied for,
(b) grant a permit for the development subject to certain conditions and
restrictions, or
(c) refuse to grant a permit.
(2) An application for a permit is deemed to be refused when a decision on it is not
made within the 40-day period.
RSA 1980 cC-10 s16
Protection Area Appeal Board
17(1) A person affected by a decision of a protection area officer may appeal to the
Protection Area Appeal Board by serving notice by registered mail on the protection
area officer and the chair of the Protection Area Appeal Board
(a) within 14 days after notice of the decision is mailed to the person, or
(b) within 14 days after the date the application is deemed refused.
(2) The Protection Area Appeal Board
(a) shall hold a hearing within 30 days from the receipt by it of the letter of
appeal,
(b) shall ensure that reasonable notice of the hearing is given to the appellant
and all persons who in its opinion may be affected,
(c) shall consider each appeal having due regard to the circumstances and merits
of the case and to the purpose of the establishment of transportation
protection areas, and
(d) is bound in its deliberations by all relevant bylaws.
Statutes Relied On
(3) In the conduct of hearings a Protection Area Appeal Board is not bound by the
technical rules of evidence, but
(a) shall conduct the hearing in accordance with any rules that may be
prescribed by the Board,
(b) shall afford to every person concerned the opportunity to be heard, to submit
evidence and to hear the evidence of others, and
(c) shall make and keep a written record of its proceedings, which may be in the
form of a summary of the evidence presented to it at hearings.
(4) In determining an appeal, the Protection Area Appeal Board
(a) may confirm, reverse or vary the decision appealed from as it considers
proper and desirable in the circumstances, and
(b) shall render its decision in writing to the appellant within 30 days from the
date on which the hearing is held.
RSA 1980 cC-10 s17
Appeal
18(1) Subject to subsection (2), an appeal lies from a decision of the Protection
Area Appeal Board to the Court of Appeal.
(2) Leave to appeal shall be obtained from a judge of the Court of Appeal
(a) on application made within 30 days after the making of the decision of the
Protection Area Appeal Board, and
(b) on notice to the proposed respondent and to the Protection Area Appeal
Board.
(3) On leave being obtained the party appealing shall, within 10 days after the
appeal has been set down, give notice of the date to the respondent.
RSA 1980 cC-10 s18
Notice of sale
19(1) The owner of property within a transportation protection area shall, at least 60
days before completing a sale of the property, serve notice of the proposed sale on
the city clerk and the owner may complete the sale after the 60-day period if the city
has not
(a) matched the offer to purchase, in which case the owner shall sell to the city,
or
(b) commenced expropriation proceedings.
(2) If the owner of property within a transportation protection area completes the
sale of the property without giving the city 60 days’ notice of the proposed sale, the
sale is valid but the consideration paid for the property is not admissible as evidence
Statutes Relied On
of its value on behalf of the owner in proceedings by the city to obtain the property
or in a claim for compensation for injurious affection.
(3) When the city is negotiating the purchase of land in a transportation protection
area and the owner indicates that in the event of a sale the owner wishes to retain
possession of the land for the time being, the city shall negotiate with that owner in
good faith and in preference to any other person for the leasing of the land to that
owner when it is sold to the city.
(4) If in the process of acquiring land in a transportation protection area it appears
the city can acquire a larger area of land, a portion of which is in the transportation
protection area, from any particular owner, or the whole of a lot or parcel of land, a
portion of which is in the transportation protection area, at a more reasonable price
or on more advantageous terms than those on which it could obtain the part
immediately required for its purposes, the city may acquire the larger area.
RSA 1980 cC-10 s19
Acquisition of land
20(1) The city may acquire land within a transportation protection area as it is
required or in advance of its being required.
(2) Land within a transportation protection area may be acquired by the city
(a) by purchase, when the owner of the land and the city agree as to the price,
(b) by expropriation, when the owner of the land and the city cannot agree as to
the price or when the owner of the land requests that the land be
expropriated or consents to expropriation, or
(c) by gift.
(3) Land that has been within a transportation protection area for 3 years or longer
must, on the request of the owner of the land, be acquired by the city either
(a) by purchase, when the owner of the land and the city agree as to the price, or
(b) by expropriation, when the owner of the land and the city cannot agree as to
the price or when the owner of the land requests that the land be
expropriated or consents to expropriation, in which case expropriation
proceedings shall be commenced within 60 days after the request for
expropriation or the consent to expropriation.
RSA 1980 cC-10 s20
Determining compensation
21 In determining the compensation payable for acquisition of land, no account
shall be taken of
(a) any development carried out subsequent to the establishment of a
transportation protection area that is not covered by a permit pursuant to
section 16, or
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(b) any enhancement or depreciation in the value of the property that is
attributable to its inclusion in a transportation protection area.
RSA 1980 cC-10 s21
Temporary use of acquired land
22 Land acquired by the city may, subject to section 19(3), in the period before it is
required for development
(a) be rented, or
(b) be used in any other way
by the city, but any use of the land must be in accordance with the ultimate
requirement of the land for the most economical and efficient construction of the
transportation system.
RSA 1980 cC-10 s22
Statutes Relied On
Part 3
Control of Access, Parking and Adjacent Development
Controlled streets
23 All highways included in the transportation system pursuant to section 4 are
controlled streets.
RSA 1980 cC-10 s23
Rights limited
24(1) No person has
(a) a right of direct access between a controlled street and any land adjacent to
it, or
(b) a right of easement, light, air or view to, from or over a controlled street.
(2) Notwithstanding any other Act, no person is entitled as of right to compensation
solely by reason of the designation of a street as a controlled street, or of land as a
transportation protection area.
RSA 1980 cC-10 s24
Bylaws
25 A city council may make bylaws
(a) prescribing terms and conditions applicable to the granting of permits under
this Part;
(b) exempting any means of access to or from a controlled street from the
requirements of a permit under this Part;
(c) permitting parking on any controlled street or portion of any controlled
street;
(d) prohibiting, except under the authority of a permit,
(i) the placing, constructing, enlarging, extending, or erecting or re-erecting
of a building, structure, fixture, road, excavation or other development,
whether on, above or below ground, including power,
telecommunication and utility lines and gas and oil transmission lines if
the lines are not city owned, and
(ii) the display of machinery, motor vehicles or other articles, whether
placed for storage or wreckage or for the purpose of advertising for sale
within the distance from a controlled street prescribed by the bylaw.
RSA 1980 cC-10 s25
Access
26(1) Notwithstanding any other Act, a city may by bylaw at any time close
Statutes Relied On
(a) any street providing access to or from a controlled street, or
(b) any means of access between a controlled street and land adjacent to a
controlled street.
(2) No person shall construct or maintain a means of access to or from a controlled
street unless
(a) a permit authorizes the construction or maintenance,
(b) the bylaws exempt the construction and maintenance from the requirements
of a permit, or
(c) the means of access was in existence prior to the designation of a controlled
street pursuant to the Public Highways Development Act or pursuant to this
Act, and has not been subsequently closed by the city pursuant to the Public
Highways Development Act or subsection (1).
(3) No person shall enter on or leave a controlled street except by way of
(a) a street connecting with a controlled street,
(b) a means of access existing pursuant to a permit,
(c) a means of access exempted under the bylaws from the requirements for a
permit, or
(d) a means of access in existence prior to the designation of a controlled street
pursuant to the Public Highways Development Act or pursuant to this Act,
and that has not been subsequently closed by the city pursuant to the Public
Highways Development Act or subsection (1).
RSA 1980 cC-10 s26
Compensation for closing access
27(1) Subject to subsections (2) to (5), if a means of access was maintained in
accordance with this Part and the bylaws and is subsequently closed pursuant to
section 26, the city shall compensate each owner of the adjacent land for the loss
resulting to that owner from the closing of the means of access.
(2) The aggregate amount of compensation payable in an individual case shall not
exceed the difference between
(a) the appraised value of the adjacent land prior to the closing of the means of
access, and
(b) the appraised value of that land after the closing of the means of access
together with an amount of not more than 10% of the difference so determined.
(3) When, prior to its closing, the means of access was maintained pursuant to a
permit, the payment of compensation is subject to the terms of the permit.
Statutes Relied On
(4) When a direct means of access is closed and a service or frontage road or other
reasonable means of access is provided, no compensation shall be paid under this
section.
(5) When a direct means of access is closed and a reasonable means of access is
provided as under subsection (4), no compensation shall be paid for any resulting
circuity of travel.
(6) A claim for compensation under this section shall be made by filing the claim
and particulars of it with the city clerk not later than one year from the date of
closing of the means of access by the city and, if the city is not able to agree with the
owner on the amount of compensation, the compensation shall be determined by the
Alberta Utilities Commission as of the date of closing of the means of access.
RSA 2000 cC-14 s27;2007 cA-37.2 s82(2)
Notices re access and things
28 A city may by notice served by registered mail addressed to the address shown
on the certificate of title in the land titles office or on the tax rolls of the city,
whichever is more recent, require an owner of land to move, remove or alter
(a) any means of access constructed or maintained on the land providing direct
access to a controlled street, or
(b) any thing placed, erected, enlarged, extended, re-erected, constructed or
displayed on the land within the distance from a controlled street prohibited
in the bylaws made under section 25,
as specified in the notice and within the time prescribed in the notice.
RSA 1980 cC-10 s28
Compensation
29(1) An owner who complies with a notice given under section 28 is entitled to
compensation from the city for the owner’s reasonable expense in moving,
removing or altering any thing as required by the notice unless it is or was
(a) constructed or maintained in contravention of section 26, or
(b) placed, erected, enlarged, extended, re-erected, constructed or displayed in
contravention of the bylaw under section 25.
(2) A claim for compensation under this section shall be made by filing the claim
and particulars of it with the city clerk not later than one year from the date of
service of the notice and, if the city is not able to agree with the owner on the
amount of compensation, the compensation shall then be determined by the Alberta
Utilities Commission.
RSA 2000 cC-14 s29;2007 cA-37.2 s82(2)
Failure to comply with notice
30(1) When notice has been served pursuant to section 28 and the owner fails to
comply with the notice within the time specified in the notice, or an extension of
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that time, the city may direct any person to enter on the land and do or cause to be
done any acts that were required to be done by the notice.
(2) The city may charge the costs of the work done pursuant to subsection (1)
against the owner of the land and recover the costs as a debt due to the city or charge
the costs against the land concerned as taxes due and owing in respect of that land
and recover the costs as taxes.
RSA 1980 cC-10 s30
Offence and penalty
31(1) A person who fails to comply with the notice given to the person under
section 28 is guilty of an offence.
(2) On conviction for an offence, the convicting judge shall, in addition to the
penalty imposed, order the person convicted to move, remove, or alter within a
period specified in the order, the thing in respect of which the person is convicted.
(3) A person who fails to comply with an order made against the person under
subsection (2) is guilty of a further offence and liable to a fine of not more than $25
for each day during which the breach of the order continues.
RSA 1980 cC-10 s31
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Part 4
General
Agreements
32(1) Subject to the approval of the Lieutenant Governor in Council, the Minister
and a city may enter into an agreement
(a) providing for any matter in respect of which the council may make bylaws
pursuant to sections 14, 25 and 26, and
(b) providing that any bylaws made under sections 14, 25 and 26 shall as of a
specified effective date be in accordance with the agreement.
(2) When an agreement provides for any matter referred to in subsection (1)(b), a
bylaw that is on or after the specified effective date not in accordance with the
agreement is inoperative with respect to the terms of the section or sections
concerned.
(3) If the city does or omits to do anything in breach of an agreement providing for
any of the matters referred to in subsection (1) or purports to do any act under a
bylaw that is inoperative by virtue of subsection (2), the Court of Queen’s Bench on
the application by the Crown may grant an order to restrain the city from doing any
act in breach of the agreement or to compel the doing of any act that will remedy its
breach of the agreement or its unlawful act, as the case may be.
RSA 1980 cC-10 s32
Regulations
33(1) The Minister may make regulations to carry out the provisions of this Act
according to their intent to meet cases that arise and for which no provision is made
by this Act.
(2) Without restricting the generality of subsection (1), the Minister may make
regulations
(a) prescribing the terms of reference for preparation of transportation study
reports pursuant to section 3;
(b) prescribing the form of the bylaw establishing the transportation system
pursuant to section 4;
(c) prescribing the approvals by the Minister required for the various stages of
development of designs, plans and specifications as they are developed for
the transportation system;
(d) prescribing the procedure for awarding contracts for the construction of
transportation facilities;
(e) prescribing the formula for determining the portion of the costs of
construction of transportation facilities to be borne by the Government;
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(f) prescribing the expenditures chargeable to the establishment of a
RSA 1980 cC-10 s33;1984 c55 s10
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MUNICIPAL GOVERNMENT ACT, R.S.A. 2000, C. M-26, SS. 3-6 & 7(D)
Chapter M-26
1994 cM-26.1 s2;1995 c24 s3
Part 1
Purposes, Powers and Capacity
of Municipalities
Municipal purposes
3 The purposes of a municipality are
(a) to provide good government,
(b) to provide services, facilities or other things that, in the opinion of council, are
necessary or desirable for all or a part of the municipality, and
(c) to develop and maintain safe and viable communities.
1994 cM-26.1 s3
Corporation
4 A municipality is a corporation.
1994 cM-26.1 s4
Powers, duties and functions
5 A municipality
(a) has the powers given to it by this and other enactments,
(b) has the duties that are imposed on it by this and other enactments and those that the
municipality imposes on itself as a matter of policy, and
(c) has the functions that are described in this and other enactments.
1994 cM-26.1 s5
Natural person powers
6 A municipality has natural person powers, except to the extent that they are limited by this or
any other enactment.
1994 cM-26.1 s6
Part 2
Bylaws
Division 1
General Jurisdiction
General jurisdiction to pass bylaws
7 A council may pass bylaws for municipal purposes respecting the following matters:
(a) the safety, health and welfare of people and the protection of people and property;
(b) people, activities and things in, on or near a public place or place that is open to the
public;
(c) nuisances, including unsightly property;
(d) transport and transportation systems;

Respondent Her-Majesty-the-Queen

Transcription

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