The taxpayer received $3,786,474 over four years for a vaccine development project under a federal regional assistance program, administered by the Atlantic Canada Opportunities Agency ("ACOA"). Commencing four years after the first advance, the taxpayer was obligated to repay the advances, without interest, out of 2% of gross revenues, increasing to 10% if gross revenues in the prior fiscal year exceeded $5,000,000.
The taxpayer claimed scientific research and experimental development credits, which the Minister reduced pursuant to s. 127(11.1) on the basis that the ACOA payments were "government assistance" under s. 127(9).
Nadon JA affirmed the Minister's assessments. In determining whether an amount is assistance, the "key question" arising from CCLC Technologies is whether there are "the attributes of a commercial venture" and whether "the public authority in question is acting in a business rather than a governance capacity" (FCA para. 10).
At trial, Lamarre J correctly found that "ACOA was not acting in its own business interests" as it "could not receive any net profit on the money invested" (TCC para. 51), and instead ACOA "place[d] significant emphasis on the appellant's incurring the expenses and performing the work in Atlantic Canada, which is what provides the public benefit" (TCC para. 52).
The taxpayer had argued at trial that the definition of "government assistance" excluded any advance of funds in consideration of a promise to repay, and on appeal further argued that the ejusdem generis principle meant that s. 127(9) limited the scope of "assistance." However, the words "any other form of assistance" were incompatible with such a narrow interpretation (FCA para. 15).