After President's Choice Bank (the “2009 Decision”) determined that services supplied by a subsidiary of Loblaw (“PC Bank”) to CIBC were exempt arranging-for “financial services,” the ETA definition was then retroactively amended (through the addition of paras. (r.4) and (r.5)) to narrow its scope. CIBC nonetheless applied for a refund of GST that PC Bank had commenced charging to it (for subsequent periods) on the basis that the supplies made continued to be exempt. In connection with its appeal of the CRA denial of these rebate claims, CIBC brought a motion for its appeal to be allowed on the basis that the substance of the supply was already determined in the 2009 Decision.
In dismissing the motion on the basis that res judicata (and, in particular, issue estoppel) and abuse of process by the Crown did not apply, Hogan J found that the CIBC appeal did not raise the same issue as in the 2009 Decision since the scope of the financial services exemption had “been narrowed by virtue of these new exclusions” in paras. (r.4) and (r.5) of the definition. Before dismissing CIBC’s appeal from this decision, Webb JA:
- noted (at para. 27) that Hogan J had “found that the predominant element of the single compound supply [by PC Bank to CIBC] was a
“Bundle of Rights”
[i.e., property] that allowed CIBC to solicit Loblaw’s existing and future customers for the purchase of President’s Choice Financial products” - noted (at para. 50) that “it would be logical for CIBC to pay fees to PC Bank to gain access to PC Bank’s and Loblaw’s customers whereas, in contrast, the 2009 Decision made “no reference to allowing CIBC access to Loblaw’s premises for the purposes of soliciting customers” (para. 53)
- found that such provision of property (the Bundle of Rights) by PC Bank to CIBC raised the issue as to whether the exclusion, under the retroactively added para. (r.5) of an exclusion from a financial service for the delivery of property “in conjunction” with one of the listed services, was applicable
- agreed (at para. 56) with the view of Hogan J that “the addition of new paragraphs (r.4) and (r.5) to the definition of financial service … raises a new issue of whether, in light of these new provisions, PC Bank was providing a financial service to CIBC” i.e., the 2009 Decision and this appeal did not deal with an identical issue