Rossiter CJ found that, although the appellant satisfied the requirement under ETA s. 254(2)(b) of the GST/HST new housing rebate rules that, at the time of agreeing to purchase, he had intended to occupy the residence as his primary residence, he had not satisfied the requirement under s. 254(2)(g) that he had in fact occupied the residence as a place of residence. Before so finding, Rossiter CJ, rejected the Crown’s argument that s. 254(2)(g) required the appellant to have occupied the property as his “primary place of residence” given the telling contrast between the wording of s. 254(b) (referring to a “primary place of residence”) and s. 254(g) (referring only to a “place of residence.” He stated (at paras. 21-22):
… In statutory interpretation, there is a presumption of consistent expression, one part of which states different words have different meanings. …In Jabel Image Concepts Inc v Canada, [2000] GSTC 45, the Federal Court of Appeal wrote at paragraph 12:
When an Act uses different words in relation to the same subject such a choice by Parliament must be considered intentional and indicative of a change in meaning or a different meaning.
... In the case of paragraphs 254(2)(b) and (g), it must be presumed Parliament intentionally chose to make a distinction when it used the words “primary place of residence” in paragraph (b) and “place of residence” in paragraph (g). I must therefore reject the Respondent’s argument that paragraph 254(2)(g) requires the Appellant to have occupied the property as his primary place of residence.