The taxpayers were related companies, and the general partner and a 75% limited partner of a partnership which constructed a terminal and jetty in St. John to which liquid natural gas would be delivered by tanker (at the jetty), "regasified," tested and processed to meet quality standards such as flammability and low O2 content, and then delivered to a pipeline for shipment to the U.S. resellers.
The eligibility of the related costs for investment tax credits turned on whether the assets qualified as a Class 43 property rather than (as maintained by the Minister) as Class 1(n) (i.e. for the distribution of natural gas) and 3(h) (i.e. a jetty not captured by any other class).
As a preliminary matter, C Miller J found that terminal and jetty were one asset on the basis that the Jetty could "be considered ancillary and necessary, and part of the integral totality of the operation occurring at the Terminal" (para. 88), including that the jetty operators monitored the safety of the overall operation. Furthermore, the terminal was not engaged in distribution, but rather processing before distribution. There was "processing" because there was a change to the goods (including a change in chemical composition) and there was an increase in the goods' marketability (i.e., the natural gas entering into the pipeline was worth more than the LNG arriving at the jetty). He also stated that, even in the "broadest sense," "distribution" of natural gas does not commence before the gas enters a transmission pipeline (para. 120).
(Class 47, which explicitly includes liquid natural gas plants and thus excludes those plants from Class 43, was introduced in 2007; consequently this appeal concerned the approximately one third of capital costs arising before that introduction.)