Applicant’s sister and ex-brother-in-law asked her, as only relative in area, to find house for niece heading to Toronto for university. Applicant found property and initiated purchase, signing purchase/sale agreement and paying deposit from funds provided by them. Applicant was purchaser on title because of unavailability of identification confirming ex-brother-in-law’s full name while he was in China and developer’s policy did not allow removal of her name when his name was added by amendment. Ex-brother-in-law entered into mortgage and took title solely in his name. Applicant signed rebate application prepared by developer in her name, leading to developer receiving HST rebate. At closing, ex-brother-in-law was credited by developer with rebate. Ex-brother-in-law appointed applicant as his attorney to act for him in all matters relating to sale or management of property. When niece moved back home, applicant on ex-brother-in-law’s instructions caused property to be put up to sale with proceeds were paid to him. Minister reassessed applicant under Excise Tax Act, denying rebate that she applied for. Applicant appealed. Appeal allowed. Fact that applicant signed purchase/sale agreement did not make her purchaser as she signed as agent for ex-brother-in-law. Applicant had no pecuniary interest in property and was only acting on directions of and for benefit of relatives to arrange accommodation for niece. There was implied agency relationship. Applicant was agent for principal brother-in-law who obtained benefit of rebate and he was “particular individual” per s. 254(2)(b) of Act with qualifying relation of niece who had intention to and did use property as primary place of residence. Rebate, applied for by applicant in capacity as agent for ex-brother-in-law, should be allowed to him.
Zheng v. The Queen (2017), 2017 CarswellNat 3443, 2017 TCC 132, B. Russell J. (T.C.C. [Informal Procedure]).