The appellant, in addition to providing nurses directly to individuals, placed nurses in the long-term care facilities and nursing homes of its Ontario clients and did not charge GST/HST on the related fees in reliance on the exemption for nursing services in Sched. V, Pt. II, s. 6. In confirming such exemption, MacPhee J distinguished Hôpital Santa Cabrini (“HSC”) on the basis that here the nurses (and, in particular, the “charge” nurse) had significant operational control over the manner of their provision of the nursing services to the residents (for example “the Appellant’s nurses required no supervision in conducting their work” and “if nurses had issues related to their work, they would report them to the Appellant not the Clients” (para. 40)), the nurses provided one-on-one treatments of the residents and such delegation of day-to-day control by the facility operators to agency nurses was permitted by the Regulations under the Long-Term Care Homes Act, 2007.
Furthermore, although such Act “clearly puts the general responsibility of health care services on the operators of care homes” (para. 44), he considered (at para. 46) that:
[T]he FCA’s decision [in HSC] should not be read to suggest that having general responsibility over the provision of health care services is a necessary condition to providing an exempt nursing services supply. … Finding otherwise would lead one to conclude that any service provided by a contractor is a supply of personnel rather than the service actually provided for.
Although “the Appellant’s supply had characteristics of both a supply of nursing services and a supply of personnel” (para. 54), “the predominant element, which the Client sought to acquire, [was] nursing services” (para. 61), and MacPhee J concluded that there was a single compound supply of nursing services.