Minister has no discretion in deciding whether or not to grant rebates

Applicant and his brother agreed to purchase yet-to-be-constructed residential condominium from builder. By time that transaction closed, two years later, applicant and brother had plans to move away for job and schooling. Condominium unit was rented from completion of construction until it was finally sold three years later. Minister assessed applicant under Excise Tax Act, denying new housing rebate (NHR) on basis that neither he nor any qualifying relation was first to occupy property following completion of construction. In correspondence and notice of assessment, CRA suggested possibility of eligibility for new residential rental property rebate (NRRPR). Applicant’s application for NRRPR, filed more than two years after such suggestion, was denied. Applicant appealed, after objecting to denial of NHR but not to denial of NRRPR. Appeal allowed in part. While applicant had bona fide intention of residing in property upon construction completion when agreement was signed, it was clear that neither he nor relation was first to occupy new premises as residence upon such completion so Minister correctly denied NHR application. Applicant could not proceed to appeal from assessment denying NRRPR without having filed notice of objection. Legislated conditions precedent for rebates left Minister with no discretion in deciding whether or not to grant rebates. Applicant pleaded that s. 296(2.1) of Act allowed granting of NRRPR despite his late filing of application. Minister did not determine that NRRPR that had not yet been applied for would have been payable to applicant, but made suggestion that he could well qualify for it that did not lead to prompt filing of such application. Question of whether applicant would qualify for NRRPR was matter for Minister to determine as part of assessment properly under appeal. Having Minister now make such determination as to “allowable rebate” under s. 296(2.1) of Act would be in nature of redressing that assessment. Appeal would be allowed for purpose of referring assessment back to Minister for reconsideration and reassessment, to determine whether NRRPR was “allowable rebate” for applicant such that it was payable to him under s. 296(2.1) of Act.
Ahmad v. The Queen (2017), 2017 CarswellNat 5432, 2017 CarswellNat 5846, 2017 TCC 195, 2017 CCI 195, B. Russell J. (T.C.C. [Informal Procedure]).