The builder appellant credited buyers the New Housing Rebate and claimed a corresponding deduction against its net tax.
The buyers did not submit the prescribed form to the builder within two years (ETA s. 254(4)(c)). Nor, evidently, did the builder submit those forms with the return for the reporting period in which it credited the rebate (ETA s. 254(5)).
It would have been helpful for a full canvassing of issues if the Court had discussed s. 296(2)(a) and why it would not help overcome the failure to meet the 2-year time limit. There is clearly a timing issue in this case. In particular, s. 296(2)(c) speaks to an “allowable credit” (here, against net tax of the builder, under ETA s. 234(1)) that “would be disallowed if it were claimed in [the assessed] return only because the period for claiming the allowable credit expired before that day”.
Under 296(2)(b), the condition is met that the credit “was [claimed in a return before the date of the notice of assessment] but was disallowed by the Minister”.
So would the credit [to the builder, we are not addressing the buyer] be disallowed only because the period for claiming the credit expired? One might say that the period for the builder’s claim to the credit expired before the 2014 date of assessment. It expired because the builder did not meet the two-year time limit in 254(4)(c). But it still expired.
(See, though, Lafleur J.’s implicit answer in the last sentence of [57]: allowing the builder to obviate the two-year rule would mean that buyers who missed the two-year deadline could submit an application to the builder, who might then rely on 296(2). That seems a remote potential for abuse, given that builders are unlikely to be willing to take on that risk and burden.)
There is also an argument in paragraph 33 that’s essentially an Interpretation Act s. 32 claim, i.e., that all the information was already in the agreements of purchase and sale and notarized documents. Although she doesn’t mention it, Justice Lafleur could have referred to the SRED decision, Easy Way Cattle Oilers Ltd. v. Canada, 2016 FCA 301.
In paragraphs 37 to 40, Lafleur J. discusses the requirements for a prescribed form. She notes that there is no defined term “prescrit” or “prescribed” in the French text. Instead s. 254(4) uses a somewhat equivalent form of words to the definition of “prescribed” in s. 123(1), “en la forme et selon les modalités déterminées par le ministre”. It’s not clear why the ETA does not have a French equivalent to “prescribed”, but it seems it has not.