Words and Phrases - "complex"

The question for determination in the context of a Rule 58 motion was whether the appellant (“Metrogate”) could take the cost to it of land into account in determining whether a condominium complex (which was a specified residential complex as defined in s. 55(1) of the New Harmonized Value-added Tax System Regulations, No. 2 (the “Regulations”)) qualified under s. 57(4)(c)(iv) of the Regulation as a condominium complex for which “the construction … of the condominium complex … is, immediately after June 2010, 25% or more …completed”. The Crown appeared to acknowledge that this test was to be applied based on the proportion of the total project costs that had been incurred to that date, and that the issue was whether the cost of the land could be taken into account (along with the building costs) for this purpose.

In finding that the land costs should be so included, Favreau J first discussed 1096288 Ontario, and then stated (at para. 22):

Based on the foregoing, the applicant’s position appears to be the correct one on the textual analysis. The Regulations specifically use the term “condominium complex” and “residential complex” which are defined to include the land. The applicant’s position is the only one which is supported by case law. The land is a necessary element in any construction.

After noting that the context was ambiguous, Favreau J turned to purpose and stated (at paras 31, 34, 36, 40, 41 and 56):

…The … rebate has no correlation with actual RST incurred, which the Minister acknowledges by allowing labour costs to be factored in to the calculation.

The purpose of the Regulations is to rebate estimated embedded RST in the complex based on the percentage completion of the construction.

The only indication of what is meant by embedded comes in the Regulatory Impact Analysis Statement … which specifically refers to provincial sales tax charged on building materials as an example of a building with embedded RST…

This …implies that a home has RST embedded in it because of provincial sales tax charged directly on supplies used in the construction of the home. This passage does not consider indirect RST embedded in a supply (though it doesn’t rule it out either). As a result, I conclude that the purpose of the rebate is to reimburse for RST directly incurred but not indirect RST.

… [Thus] the contextual and purposive analysis is more ambiguous but I am convinced that the wording of the legislative provisions is not ambiguous enough to have any of the respondent’s arguments succeed.