Docket: 2025-2986(GST)I

BETWEEN:

BALWINDER BRAICH,

Appellant,

and

HIS MAJESTY THE KING,

Respondent,

Appeal heard on May 11, 2026, at Vancouver, British Columbia

Before: The Honourable Mr. Justice Randall S. Bocock

Appearances:

For the Appellant:

The Appellant himself

Counsel for the Respondent:

Crystal Choi

JUDGMENT

WHEREAS the Court has published its reasons for judgment on this date;

NOW THEREFORE THIS COURT ORDERS THAT:

1. The appeal of the assessment dated August 8, 2024, made under the Excise Tax Act, for the reporting period July 1, 2017 to September 30, 2017, is dismissed; and,

1. There shall be no costs.

Signed at Edmonton, Alberta this 25th day of June, 2026.

“R.S. Bocock”

Bocock J.

Docket: 2025-2985(GST)I

BETWEEN:

HARPREET BRAICH,

Appellant,

and

HIS MAJESTY THE KING,

Respondent,

Appeal heard on May 11, 2026, at Vancouver, British Columbia.

Before: The Honourable Mr. Justice Randall S. Bocock

Appearances:

For the Appellant:

The Appellant herself

Counsel for the Respondent:

Crystal Choi

JUDGMENT

WHEREAS the Court has published its reasons for judgment on this date;

NOW THEREFORE THIS COURT ORDERS THAT:

1. The appeal of the assessment dated August 8, 2024, made under the Excise Tax Act, for the reporting period July 1, 2017 to September 30, 2017, is dismissed; and,
2. There shall be no costs.

Signed at Edmonton, Alberta this 25th day of June, 2026.

“R.S. Bocock”

Bocock J.

Citation: 2026 TCC 117

Date: 20260624

Docket: 2025-2986(GST)I

BETWEEN:

BALWINDER BRAICH,

Appellant,

and

HIS MAJESTY THE KING,

Respondent,

and

Docket: 2025-2985(GST)I

BETWEEN:

HARPREET BRAICH

Appellant,

and

HIS MAJESTY THE KING

Respondent,

Appeal heard on May 11, 2026, at Vancouver, British Columbia.

Before: The Honourable Mr. Justice Randall S. Bocock

Appearances:

For the Appellant:

The Appellant themselves

Counsel for the Respondent:

Crystal Choi

COMMON REASONS FOR JUDGMENT

Bocock J.

I. INTRODUCTION

1Mr. and Mrs. Braich are each other’s spouse. They each owned one-half of a house they built at 17036 57th Ave., Surrey, British Columbia (“57th Ave.”) The Minister reassessed each for one-half of Goods and Service Tax (“GST”) collectible by notice dated August 8, 2024, (the “GST assessment”) exigible on a purchase price of $1,668,800. Accordingly, these appeals were heard at the same time on common evidence.

2The Minister asserts that Mr. and Mrs. Braich were:

3“builders” within the meaning of 123(1) of the Excise Tax Act (“ETA”);

• a)the first to occupy 57th Ave;
• b)were deemed to make a taxable supply in September 2017 of $1,666,666.67 under subsection 191(1); and,
• c)were not exempt from GST under subsection 191(5) on the self-supply because the Appellant (or family members) did not use 57th Ave. as a primary residence but instead held it primarily on account of inventory and intended to sell it at a profit.

II. THE LEGAL TEST

4The critical issue is whether Mr. and Mrs. Braich “carried on a business or engaged in an adventure in the nature of trade” when acquiring and constructing 57th Ave. If they were, then each would be a “builder” within the meaning of subsection 123 of the ETA. That section, when excerpted to this situation, provides that a person during ownership who constructs (or has someone on the person’s behalf construct) a residential unit (“house”)is a builder except where the person constructs the house for a purpose which is not “in the course of a business or an adventure in the nature of trade”: Wall v. HMQ, 2021 FCA 132 at paragraph 23.

“builder” of a residential complex […] means a person who

(a) at a time when the person has an interest in the real property on which the complex is situated, […] engages another person to carry on for the person

(iii) […] the construction […] of the complex,

but does not include

(f) an individual described by paragraph (a) […] who

(ii) engages another person to carry on the construction […] for the individual

otherwise than in the course of a business or an adventure or concern in the nature of trade,

5By precise reference to the relevant statute, if Mr. and Mrs. Braich are engaged in the business of construction 57th Street, then they are builders as defined in section 123 of the ETA:

6The controlling tests measuring the “business” versus a purely “capital disposition” purpose are utilized by applying the facts to the following factors (Wall, supra, at paragraph 24 referencing Happy Valley Farms Ltd. v. MNR [1986] CTC 259 (FCTD)):

[24] Therefore, the critical issue in this appeal is whether Mr. Wall was engaged in a business or an adventure or concern in the nature of trade when he had the three houses constructed. Neither party disputed that the tests to be considered in determining whether a gain realized on a disposition of property is an income gain or a capital gain are as set out in Happy Valley Farms Limited v. Minister of National Revenue, 1986 CanLII 7434 (FCTTD), [1986] 2 C.T.C. 259, 86 D.T.C. 6421 (F.C.T.D.):

• the nature of the property sold;
• the length of the period of ownership;
• the frequency or number of similar transactions;
• work expended on or in connection with the property;
• the circumstances that were responsible for the sale of the property;
• motive.

7The facts themselves will reveal the ultimate intention of the taxpayers throughout: Friesen v. Canada 3 SCR 103 at paragraphs 16 and 17.

III. THE SEQUENTIAL FACTS

8Since the facts are determinative in this appeal the Court must determine, analyze and weigh such facts for acceptance or rejection of their intention regarding 57th Ave.

9The critical facts gleaned from the evidence of Mr. and Mrs. Braich and their daughter, and the evidence before the Court may be summarized in the paragraphs which follow.

10Mr. and Mrs. Braich purchased 57th Ave., a severed, vacant lot on March 15, 2016, for $522,500.00. At the time, Mr. Braich was a long-distance truck driver, away from home frequently for days at a time. The 2 Braich children lived at home and pursued post-secondary education. The 57th Ave. was purchased to be built as a permanent family home. At the hearing Mrs. And Mr. Braich testified through an interpreter. Their daughter also testified in English.

The details of 57th Ave.

11The dwelling at 57th Ave. was grand. Not just two stories with a finished basement, it also included nine bedrooms and nine bathrooms, including a separate stand-alone unit containing its own household appliances. The basement had a high ceiling living room, media room, study and a wet bar.

12To construct this large 5,650 square foot house at 57th Ave. the Braiches followed the usual process. They obtained an original building permit in August 2016. A revised building permit was issued on November 10 of the same year to address a 200-year flood plain issue. Between November 2016 and September 2017 construction commenced and was completed, when the final building approval was issued on September 28, 2017.

Possibly best house in a bad neighbourhood

13Mrs. Braich testified that 57th street was a beautiful house in a suspect neighbourhood. Two problems occurred involving other properties in the neighbourhood. First, across the street a person was murdered on March 16, 2017: of note, this date falls within the construction phrase of 57th Ave. Screen shots of live news coverage were tendered. Second, according to testimony of Mrs. Braich and her daughter the neighbours living across the street in what appeared to be the same house were drug dealers. As importantly, they harassed the Braich family, littered 57th St. and threatened the son of Mrs. Braich.

Attempts to overcome difficulties

14Mrs. Braich and her daughter described their collective efforts to address the neighbourhood disturbances. These include:

• a)complaining to the Police and municipal by-law officers;
• b)handwritten notices written by Mrs. Braich were delivered to the unruly neighbours; and,
• c)the Braiches reduced the presence of their children at 57th Ave. to the point where Mrs. Braich was to only inhabitant, and some nights not even her;

It is noted that none of the Police, by-law reports nor the handwritten notes were produced in Court.

Part time dwellers in order to cope

15As seen, the Barich family addressed the undesirable location by rarely living at 57th Ave. The daughter, who also testified, could not study; frequently, she needed to stay with relatives to do so. She felt the entire family was unhappy because of the noise, disruption, litter and threats. The stress heightened because of Mr. Braich’s work absences. This singularly led to discarding of the notion of 57th Ave. as a family house, and its ultimate sale.

Sale and relocation

16On June 8, 2018, 9 months after completion of 57th Ave., Mr. and Mrs. Braich purchased their present residence at 184th Street, Surrey (“184th St”). On May 5, 2019, they listed 57th Ave. for sale on sold it in 60 days or so later. On June 28, 2019, Mr. and Mrs. Braich moved out of 57th Ave. and it was sold on July 2, 2019, for $1,650,00.00. Mathematically, they yielded a $310,375.00 profit from the sale of 57th Ave.

Mrs. and Mr. Braich’s real estate history covers a lot of geography

17Of interest is Mr. and Mrs. Braich’s history of purchased and sold properties in the Vancouver area during the past 20 years. In testimony they also provided an explanation of the purpose and justification for each purchase and sale. A summary of the details of those transactions and asserted purposes is illustrated in the chart below:

Property

Property Address

Buy Date

Buy Price (Rounded)

Sale Date

Sale Price (Rounded)

Summarized Explanation

1

143rd Street, Surrey

Mar. 19, 2002

190 K

Aug. 28, 2003

223 K

Very tiny house, children born there; also lived with parents and brother, more required.

2

Clevedon Drive, Surrey

Feb. 26,2004

290 K

Sept. 14, 2006

756 K

Moved in with parents to assist with children; effectively demolished and rebuilt dwelling.

3

143B Street, Surrey

Jan. 30, 2006

210 K

Aug. 28, 2013

672 K

Vacant lot, constructed house; obtained owner/builder licence.

4

98 Avenue, Surrey

Jul. 8, 2011

340 K

May 15, 2013

450 K

Solely investment property; rented; tenants destroyed it.

5

76th Avenue, Surry

Jul. 17,

2013

510 K

Jul. 23, 2017

1.955 K

Constructed house, obtained owner / builder licence.

6

57th Avenue, Surrey

Mar. 15, 2016

522 K

July 2, 2019

1.650K

Subject property; no owner/builder license

7

28B Avenue, Surrey

Jul. 29, 2016

590 K

Jan 30, 2018

706 K

Purchased 4 months after 57th St. Investment Property

8

184th Street, Surrey

Jun. 8, 2018

980 K

N/A Kept

N/A Kept

Primary residence

9

48 Avenue, Langley

Oct. 30, 2019

1.375 K

N/A Kept

N/A Kept

Investment property

10

Roper Ave., White Rock

April 15, 2021

1.225 K

N/A Kept

N/A Kept

As an investment for children’s future

57th Ave. Custom made and then some

18Mr. and Mrs. Braich have, without exception, resided at 184th Ave. since their move there in 2018. They argue 57th St. and 184th Ave. are synonymous, if not identical. Neither involved an intention to carry on the acquisition of the land and construction of the dwelling at 57th in the course of carrying on a business or an adventure or concern (“undertaking”) in the nature of trade.

IV. APPLICATION AND ANLAYSIS OF FACTS TO THE FACTORS

On which side of the “Happy Valley” test does 57th Ave. fall on?

19The Court applies below the facts before it to the Happy Valley factors to determine whether Mr. and Mrs. Braich engaged in a business, or perhaps more appropriate in the circumstances, an undertaking in the nature of trade concerning 57th Ave.

Nature of the 57th Ave. when sold

20In the sale listing, 57th Ave. was described as “LOOKS LIKE, BRAND NEW, AND NEVER LIVED IN”. This factor suggests a readily marketable property suitable for multi-generational families or rented short-term accommodation rather than a “new forever home” of a family of four.

21At that time, the house was a stellar, 5,600 square foot, massive 9 bedroom, 9 bathroom dwelling with multi-purpose social rooms, a separate 2-bedroom living unit with laundry all of which comprised the floor plan of this “permanent home” for four people, two of whom were possibly to leave home in the subsequent decade and start their own family, much as their own parents testified they ultimately did. This evidence collectively gravitates towards the “trade intention”.

Length of period of ownership

22The length of ownership was just over 3 years. The length of habitable occupancy was one-year because of the 24 months of construction. This factor is neutral.

Frequency or number of similar transactions

23The chart in paragraph 16 above describes a purchase of 8 properties in 16 years, one every two years. Even discounting the asserted investment purpose of 2 of these properties, the balance of the history yields a noticeable pattern of residence rotation. This factor supports a “trading” habit and purpose.

Work expended on 57th Ave.

24The magnificent house was constructed from scratch on a vacant lot. The scope, type and quality of improvements tell the story. Consequently, all told, the improvements, assigned their best interpretation for Mr. and Mrs. Braich, suggest one foot in both camps: and intention “to trade” versus to “occupy themselves” long term as an august showpiece. Given the nature of the residence viewed objectively through likely occupants, the trading option versus long term self-occupation seems more supportable by the facts.

Circumstances causing sale

25There are two possible reasons. One, an overbuilt house in a bad neighbourhood: 76th Ave. Two, the purchase of a lot for a more appropriately sized and purposed “forever home”: 184th St. No detailed evidence of 184th St., the present home, was furnished for the Court for any comparison to be made. So as not to discount rashly the heartfelt, but self-serving, largely uncorroborated, evidence of the character of the 76th Ave. neighbourhood, the Court concludes this factor is neutral; such a neighbourhood, to the extent accurately described, is neither helpful for “trading” nor long term occupation of the property.

Motive

26Mr. and Mrs. Braich were either extremely timely in sequencing their property purchases and sale or more savvy than divulged. Their purchase of vacant lots, construction, occupation and/or sale and yielded “surplus” after sale, glides together nicely upon an intention to profit from outset to conclusion.

27With 76th Ave. there was also heightened hallmarks of a motive to profit rather than reside: no owner/builder license was obtained unlike properties 3, 5 and 8; the taxable, multi-purpose, oversized to a personal use purpose, layout and facilities; and the staged, pristine and neutrally decorated interior of the asserted “forever home”. Clear evidence is the selling listing agreement Mr. and Mrs. Braich signed which in upper case introductory-script touts and brandishes, as described above, the never lived in state of the pristine multi-family home.

V. CONCLUSION, SUMMARY AND COSTS

Mrs. And Mr. Braich are “deemed” builders under the ETA

28The evidence when applied to the Happy Vally factors leads unwaveringly to a finding, on balance, that Mr. and Mrs. Braich carried on the construction of 57th Ave. in the course of “an adventure or concern in the nature of trade”. The evidence and testimony offered to prove “otherwise” as embodied in the text of the section is simply not as convincing as that of the “trade” purpose when the Happy Vally factors are weighed. Hence, Mr. and Mrs. Braich were builders within the definition of s. 123 of the ETA. Mr. and Mrs. Braich, because of their everyday understanding of a commercial house builder balked at possibly being so defined. The Court explained that such “everyday” understanding was not incorrect but needed to be broadened in this instance because of the very specific ambit of the s. 123 ETA definition and the possible inclusion within it, because of the purpose of the section, of taxpayers such as Mr. and Mrs. Braich.

Builder occupation exemption for self-supply also not available

29Further, the builder “exception by occupation as a primary residence” under sub-paragraph 191(1)(b)(iii) and subsection 191(5) is not available to Mr. and Mrs. Braich. Embedded in the analysis above is the same sinew upon which the Court now also concludes there is little or no objective evidence of primary residence occupation, builder or not. Also, absent was the usual tendered evidence: moving receipts, driver’s licences and health cards, furniture delivery receipts and the like. In contrast, the staged “celebration cake lighting” pictures do not help; the absence from the property of most family members for the bulk of the habitable occupancy period does not help; and, the pristine, showcase photographs proffered by Mrs. Braich of the residence do not help; immaculate orderliness belies permanent occupation. These countervailing facts to the already refenced facts in the “nature of trade” analysis above lead to similar conclusions. 76th Ave. was purchased, developed and sold in a venture of trade for profit without having been occupied by Mr. and Mrs. Braich or any related individual as a primary residence. Even a deemed “builder” must have an intention to occupy as a primary residence: Lacina v. HMQ [1997] FCJ no. 998 (FCA) at paragraphs 17 and 18. As such, when sold, 76th Ave. was not an occupied used residential property.

30For these reasons, the appeals are dismissed. There shall be no costs.

Signed at Edmonton, Alberta, this 25th day of June, 2026.

“R.S. Bocock”

Bocock J.

2026 TCC 117

COURT FILE NOs.:

2025-2985(IT)I

2025-2986(IT)I

STYLE OF CAUSE:

HARPREET BRAICH, BALWINDER BRAICH AND HIS MAJESTY THE KING

PLACE OF HEARING:

Vancouver, British Colombia

DATE OF HEARING:

May 11th, 2026

REASONS FOR ORDER BY:

The Honourable Justice Randall Bocock

DATE OF ORDER:

June 25, 2026

APPEARANCES:

For the Appellants:

The Appellants Themselves

Counsel for the Respondent:

Crystal Choi

COUNSEL OF RECORD:

For the Appellants:

Name:

The Appellant Themselves

Firm:

N/A

For the Respondent:

Marie-Josée Hogue Deputy Attorney General of Canada Ottawa, Canada