2 total
GST/HST appeals allowed as siblings' prior residential occupancy made the property sale an exempt supply.
The appellants, siblings Patrizia and Joseph Nicosia, appealed GST/HST assessments related to the sale of a residential property they co-owned.
The Minister assessed them on the basis that they were builders and required to collect and remit HST on the sale.
The appellants argued the sale was an exempt supply because they had occupied the property as a residence prior to the sale.
The Tax Court found that the siblings did occupy the property as a residence before the assessed reporting periods.
Consequently, the sale was an exempt supply regardless of whether they were considered builders.
The appeals were allowed and the assessments referred back to the Minister.
Summary judgment Motion granted
The defendants brought a motion seeking leave to bring a summary judgment motion and to amend their statement of defence to add a limitations defence.
The court granted leave to amend the statement of defence, conditional on the defendants paying $1500 to the plaintiff for associated costs.
However, the court denied leave to bring a summary judgment motion, emphasizing the plaintiff's right to a jury trial and the principles of proportionality and access to justice, particularly given the plaintiff's unique circumstances and the imminent trial date.
The court found that allowing a summary judgment motion would be unjust and unfair, potentially jeopardizing the scheduled jury trial.
