Date: 20010202
Docket: 2000-1175-GST-I
BETWEEN:
MAURICE DIDKOWSKI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Counsel for the Appellant: Denise L. Batters
Counsel for the Respondent: Tracey Harwood-Jones
Reasons for Judgment
(Delivered orally from the Bench at Regina Saskatchewan, on November 1, 2000)
McArthur J.
[1] In this appeal, the Minister of National Revenue submits that the Appellant is not entitled to a goods and services tax rebate pursuant to subsection 256(2) of the Excise Tax Act because he did not file his application within two years from the completion and occupancy of his home pursuant to subsection 256(3) of the Act. Unfortunately for the Appellant and his wife, a joint owner of the house in question, the Respondent is correct. The governing legislation reads in part as follows:
256(2) Where
(a) a particular individual constructs ... or engages another person to construct ... a residential complex that is a single unit residential complex ... for use as the primary place of residence of the particular individual ...
the Minister shall, subject to subsection 3, pay a rebate to the particular individual equal to
...
256(3) A rebate under this section in respect of a residential complex shall not be paid to an individual unless the individual files an application for the rebate within two years after the earliest of
(a) the day that is two years after the day the complex is first occupied ...
(a.1) ...
(b) the day construction or substantial renovation of the complex is substantially completed.
[2] The Appellant and his wife purchased a building lot in November 1995 and then engaged a builder to construct a single family home for them commencing in February 1996. The house was substantially completed and the Appellant and his wife moved in on June 14, 1996. The rebate application was received by the Minister on January 11, 1999, more than two years from the deadline set out in subsection 256(3). Pursuant to the legislation, the deadline for filing the application was June 14, 1998 and therefore, their application filing was six or seven months late. I have no way of extending the deadline nor does estoppel apply in their instance.
[3] Clearly, in this appeal, the Appellant or more specifically his wife who completed the application, was misled by an officer of the GST division of Revenue Canada who had advised that they had four years to apply for a rebate and not two years. There are many cases to cite as examples but I shall mention the case of Waldron v. Canada, [1999] G.S.T.C. 31-1. The doctrine of estoppel cannot be of assistance because as stated by Sarchuk J. in Waldron, "the issue of estoppel has been considered in a number of cases, and the principle which generally can be taken therefrom is that no representation involving an interpretation of the law by a servant or officer of the Crown can bind it". Also, this rationale was set out by Bowman J. in S. Goldstein v. Canada, [1995] 2 C.T.C. 2036. A GST representative cannot change the legislation.
[4] I have not had a more worthy instance for favorable treatment by the federal cabinet than under the Financial Administration Act for a Remission Order. I refer the Appellant and his counsel to the editorial comment of the well-respected writer, David Sherman, following his report of the Waldron case at page 31-6, where he stated:
Since Revenue Canada admitted that it advised the Appellant orally that the deadline was four years, the federal cabinet granted a remission order under the Financial Administration Act: Sharon Waldron Remission Order, SI/TR, JUS-601168, August 25, 1999.
And he refers to several other Remission Orders that were granted.
[5] It is beyond comprehension while this elderly couple were put through the turmoil of this appeal, they clearly relied on the advice of a GST officer to their detriment. Apparently, no suggestion for assistance through an application under the Financial Administration Act was given. Someone somewhere lacks fundamental fairness.
[6] In conclusion, the Appellant cannot obtain the rebate pursuant to subsection 256(2) of the Act having failed to file the rebate application within two years from the date of substantial completion or occupancy of the house as required by subsection 256(3). An incorrect statement by an officer of the Crown does not change the Act. The appeal is dismissed.
Signed at Ottawa, Canada, this 2nd day of February, 2001.
"C.H. McArthur"
J.T.C.C.