use

The Petitioner (“Hootsuite”), which provided its customers with an online social media management system, did not itself have the servers and storage facilities to host its platform, and instead accessed those of Amazon Web Services (“AWS”).

In order to be Class 43 depreciable property, oil processing equipment of the taxpayer had to qualify as property acquired by the taxpayer to be used directly or indirectly by it in Canada primarily in processing goods for sale - and a similar test applied in determining whether the equipment was “qualified property” for investment tax credit purposes. In the case of some of the equipment, its initially contemplated use (which in fact occurred) was to purify oil for 10 months at the Bruce nuclear power station.

The appellant (“137ON”), which was a corporation owned by members or affiliates of the Foley family that owned 10 residential rental properties, including a house on a 10 acre parcel (the “Subject Property”) which it was seeking to develop as a commercial storage site, received services from individuals or companies associated with the Foley family in connection with such property development. Sommerfeldt J stated (at para. 49):

S. 2(1) of the Retail Sales Tax Act (Ont.) imposed tax on “every purchaser of tangible personal property … in respect of the consumption and use thereof… .” “Consumption” was defined to include the use of tangible personal property.

S. 87(d) of the Special War Revenue Act, imposed tax on goods which were “for use by the manufacturer or producer and not for sale,” was found to apply to the distribution by a pharmaceutical manufacturer of drug samples to doctors, but for the fact that the samples had already been subject to tax in the hands of the manufacturer. Anglin, CJ stated (at pp. 496-497):

The respondent was a manufacturer of lumber for sale, but consumed a portion of its manufactured lumber in its construction and building operations. In addition to imposing a sales tax on goods manufactured for sale, s. 87(d) of the Special War Revenue Act imposed tax on goods which were “for use by the manufacturer or producer and not for sale”.

A canola farmer (“Schmeiser”), who did not purchase Roundup-tolerant canola (“Roundup-Ready Canola”) or obtain a licence to plant it, was found to have grown most of his crop in the form of Roundup-Ready Canola. S. 42 of the Patent Act conferred on the respondent (“Monsanto”), which held the patent on the Roundup resistant gene and related modified cells in Roundup-Ready Canola, “the exclusive right … of … using the invention and selling it to others to be used”.

A corporation (“Kinderock”) owned by the taxpayer and his wife applied, commencing on October 4, 2007, to the Saskatchewan government for various potash permits. During the application period, the taxpayer agreed with a semi-retired tax accountant (Carsen) and a former securities broker (Devine) to jointly pursue a potash venture using the permits. In early November 2007, the three of them agreed on the outline of plan for avoiding the two-year hold period under the qualified small business corporation share definition.

As a result: