The appellant ("Costco") entered into a conventional "Merchant Agreement" with the Amex Bank of Canada ("Amex") pursuant to which it agreed to pay the discount fees of Amex, and at the same time entered into a "Co-Branding Agreement" under which it agreed to accept only Amex credit cards and Amex agreed to make payments to it equal to Y% of the discount fees earned by it.
After noting (at para. 4) that "‘consideration' should be understood to include anything that would be consideration under the law of contract," Sharlow JA rejected the primary position of Costco that the amounts received by it from Amex were rebates of the merchant discount fees earned by Amex, noting that it was more consistent with the wording of the Co-Branding Agreement to consider such amounts as consideration for Costco entering into the Co-Branding Agreement or, more specifically, for the exclusivity provision. However, she affirmed the Tax Court finding that Costco provided services as an intermediary between Amex and its potential customers by supporting Amex in its business of supplying credit and that such service fell within paragraph (l) of the definition of financial service. Furthermore, in the absence of submissions by the Crown with respect to any factual basis to support the Crown's argument that paragraphs (r.3), (r.4) and (r.5) should apply retroactively, the Tax Court's finding that the supply by the taxpayer fell within para. (l) was upheld.