In this case, Justice Miller considers whether Telus subscriber calls from the US to Canada are subject to HST. Reviewing section 142.1, he concludes that they are.
[25] I am prepared to review the facts before me addressing each of these factors, but it is important to distinguish at the outset the difference between viewing two alleged separate supplies in context versus viewing them unattached to one another. For example, it is of no assistance to point to the pizza parlour and say that because a customer can buy pizza directly from that place, it must be a separate supply. The analysis should not be centered on a different circumstance: the circumstance in that case was the purchase of home delivered pizza. Likewise, with respect to the telecommunication service it is faulty analysis to look just at the RAT and say that because a customer can simply buy that, it must be a separate supply. No, it must be viewed in context of the end result to the recipient of the overall supply. In effect, you cannot have one without the other to achieve the result. So you cannot have pizza without delivery nor delivery without pizza for home delivered pizza. You can, however, have a ferry service without the stateroom though, as you can have health advice without the vaccination. [The underlining was J. Miller’s.]
Can you have a stateroom ferry service without the ferry service? Can you have a nurse-counselled vaccination without the nursing advice? In all three cases, you’re buying a luxury, a convenience: Home-delivered pizza (instead of having to change and go get the food); one-stop health care, where a specialist decides if you need the vaccination and then gives it; a more comfortable ride on the ferry.
I agree with Justice Miller’s decision, based on his “common sense” interpretation of what a customer buys when making a call from the US to Canada. But his explanation here someone highlights the precariousness of these distinctions between single and multiple supplies.
Tele-Mobile Company v. The Queen, 2015 TCC 197 (Miller J.)