In rejecting CIBC’s submission that the Tax Court had erred by determining the substance of the supply made to CIBC by a contractual counterparty (PC Bank) on the basis of “a theory that was not raised by either party,” Webb JA stated (at para. 62):
It was the Tax Court Judge’s role to determine, as a question of fact or mixed fact and law, the substance of the supply made by PC Bank to CIBC and whether, based on the amended definition of financial service, the supply was a financial service. Factual findings (including findings of mixed fact and law) are made by evaluating the evidence presented at the hearing. While each party may have its own theory of what factual findings should be made, the determination of the facts is made by the Tax Court Judge. There is no merit to CIBC’s argument that the Tax Court Judge erred in determining the substance of the supply on a basis not argued by the parties.