The appellant (“137ON”), which was a corporation owned by members or affiliates of the Foley family that owned 10 residential rental properties, including a house on a 10 acre parcel (the “Subject Property”) which it was seeking to develop as a commercial storage site, received services from individuals or companies associated with the Foley family in connection with such property development. Sommerfeldt J stated (at para. 49):
… [A]s 137ON was still endeavouring to obtain the requisite approvals to construct a storage container facility on the Subject Property, it had not yet begun to use the Subject Property in the course of its commercial activities. Accordingly, paragraph (b) in the description of factor B in subsection 169(1) of the ETA is not applicable, with the result that paragraph (c) of that description is the applicable provision. Paragraph (c) requires a determination of the extent (expressed as a percentage) to which 137ON acquired the services of Mark Foley, Deborah Foley, Cole Foley and Lanmark for consumption or use in the course of its commercial activities as distinct from its residential rental activities.