The appellant acquired a new home in Toronto pursuant to an agreement of purchase and sale which provided that if the sale was subject to HST, such tax was to be included in the purchase price. The vendors (two individuals) through their solicitor claimed that the sale was exempt from HST, so that it was evident that they were not treating the sales price as including HST and that they would not complete the builder-required portion (“Section D”) of the form for the new housing rebate.
In fact, it was apparent to the appellant that the home had never been occupied (e.g., various appliances had not been used). Furthermore, the evidence presented (including by one of the vendors called by the Crown), including the high degree of leverage used to construct the building and the short time of ownership after major construction problems had been finally resolved, indicated that the construction and sale of the home had occurred as an adventure in the nature of trade – so that they were builders, and the sale was subject to HST. Accordingly, the appellant had established that the purchase was subject to HST.
Regarding Section D, Sommerfeldt J found that the required particulars in Section D could be waived as it was not possible for the appellant to obtain them.