Tax Court of Canada Judgments

Docket: 2001-4181(GST)G

BETWEEN:

THE COLLEGES OF APPLIED ARTS and TECHNOLOGY PENSION PLAN,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

____________________________________________________________________

Appeal heard on December 12, 2002, at Toronto, Ontario,

By: The Honourable Justice E.A. Bowie
Appearances:
Counsel for the Appellant:	Susan L. Van Der Hout, Sean Aylward and D'Arcy Schieman
Counsel for the Respondent:	John McLaughlin and Suzanne M. Bruce

____________________________________________________________________

JUDGMENT

          The appeal from the assessment made under the Excise Tax Act, notice of which is dated May 17, 1999 and bears number 981830071129P1, is allowed and the matter is referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that of the Appellant is entitled to a refund of the goods and services tax collected and remitted by the investment managers between July 1, 1994 and May 31, 1998.

The Appellant is entitled to costs, with counsel fees for one leading counsel and one junior counsel.

Signed at Ottawa, Canada, this 4th day of September, 2003.

"E.A. Bowie"

Bowie J.

Citation: 2003TCC618

Date:20030904

Docket: 2001-4181(GST)G

BETWEEN:

THE COLLEGES OF APPLIED ARTS and TECHNOLOGY PENSION PLAN,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR JUDGMENT

BowieJ.

[1]      This appeal arises out of an application made by the Appellant to the Minister of National Revenue (the Minister) for a refund of some $885,413 in goods and services tax (GST). The Appellant paid the tax in question to certain contractors, who were referred to in the evidence as "service providers", who in turn remitted it to the Receiver General of Canada. In June 1998, having decided that the services provided to it by these individuals were not subject to GST, the Appellant applied to the Minister for a refund of tax paid for the period between July 1, 1994 and May 31, 1998. The Minister refused the refund application by a Notice of Assessment dated May 17, 1999, and it is from that assessment that the present appeal is brought. The only issue in the appeal is whether the services that were provided to the Appellant, and on which GST was paid, were "financial services" as defined in subsection 123(1) of the Excise Tax Act (the Act), Part IX, as it then stood. If they were, then they were exempt supplies, and not subject to the tax, and this appeal must succeed. If they were not, then the appeal must fail.

[2]      The relevant part of the definition in question, as it stood prior to its amendment in 2000[1] read:

123(1) In section 121, this Part and Schedules V to X,

...

"financial service" means

(a)         the exchange, payment, issue, receipt or transfer of money, whether effected by the exchange of currency, by crediting or debiting accounts or otherwise,

(b)         the operation or maintenance of a savings, chequing, deposit, loan, charge or other account,

(c)         the lending or borrowing of a financial instrument,

(d)         the issue, granting, allotment, acceptance, endorsement, renewal, processing, variation, transfer of ownership or repayment of a financial instrument,

(e)         the provision, variation, release or receipt of a guarantee, an acceptance or an indemnity in respect of a financial instrument,

(f)         the payment or receipt of money as dividends (other than patronage dividend), interest, principal, benefits or any similar payment or receipt of money in respect of a financial instrument,

(f.1)      the payment or receipt of an amount in full or partial satisfaction of a claim arising under an insurance policy,

(g)         the making of any advance, the granting of any credit or the lending of money,

(h)         the underwriting of a financial instrument,

(i)          any service provided pursuant to the terms and conditions of any agreement relating to payments of amount for which a credit card voucher or charge card voucher has been issued,

...

(l)          the agreeing to provide, or the arranging for, a service referred to in any of paragraphs (a) to (i), or

(m)        a prescribed service,

but does not include

...

(q)         the provision, to an investment plan (as defined in subsection 149(5)) or any corporation, partnership or trust whose principal activity is the investing of funds, of

(i)          a management or administrative service, or

(ii)         any other service (other than a prescribed service),

if the supplier is a person who provides management or administrative service to the investment plan, corporation, partnership or trust,

...

[3]      It is agreed between the parties that the services in question here meet the provisions of the definition other than the exclusionary paragraph (q). The Minister's position is that paragraph (q) applies in this case, as the Appellant is a trust and its principal activity is the investing of funds. The Appellant says that this is not its principal activity, and that the services are, therefore, financial services on which the tax is not exigible. The narrow issue for decision, then, is whether, during the relevant period, the Appellant's principal activity was the investing of funds or something else. The Appellant's contention is that its principal activity is the payment of pension benefits, or in the alternative the collection of contributions.

[4]      Two matters should be noted at this point. The first is that if I am persuaded that the investing of funds was not the Appellant's principal activity, then it is entitled to succeed. There is no need, in that case, to decide what was its principal activity. The second is that since the definition was amended in 2000,[2] retroactive to 1991, the decision in this case will have very limited application. The amending legislation preserved the rights of taxpayers who, like this Appellant, have claimed a refund before July 30, 1998. In view of the limited application that this decision will have, and also the fact that the parties have now agreed that the issue is as narrow as it is, I do not propose to undertake the journey through the convoluted path of the Act by which the incidence of tax arises. It is sufficient to examine the evidence as to the Appellant's activities, and decide whether the investment of funds was its principal one during the relevant period.

[5]      The Appellant is a trust (the Plan Trust), and it is governed by a multi-employer pension plan (the Plan). The Plan Trust is registered under the Pension Benefits Act[3] of Ontario and under the Income Tax Act.[4] The members of the Plan are the employees of Ontario's 25 Colleges of Applied Arts and Technology. At the relevant time, it had more than 6,600 beneficiaries who were receiving pension benefits, and more than 14,300 employees who were contributors. It is a defined benefit plan, which is to say that the benefits to which an employee becomes entitled on retirement are defined by the Plan. The Plan Trust is regulated to ensure that its funding is on a sound actuarial basis; if the assets for any reason fall short of that which is required to meet its obligations to provide for future benefits payable, then the Board of Trustees must make the necessary increase in the required contributions to remedy that.

[6]      The Plan Trust is administered by a Board of Trustees that sets policy and is responsible for the overall operations. It operates through three committees, the Administration Committee, the Audit Committee and the Investment Committee, all of which are responsible to the full Board. The day-to-day oversight of the operations are under the direction of a Chief Executive Officer and Plan Manager, whose immediate responsibility is to carry out the decisions of the Board, and, of course, the functions that are required by the Trust Agreement. These include collection of contributions from members of the Plan, and from the employers, determination of the benefits to which retirees are entitled, and payment of those benefits, preparation and filing of returns and reports to regulators, investment of the Plan Trust's funds that are not immediately required in order to pay benefits, and communication with members as to their rights and the benefits to which they are or will become entitled. Much of this is done by employees of the Plan Trust, of whom there were 23 at the relevant time. State Street Trust Company Canada and CIBC Mellon Global Securities Services Company were retained by the Plan Trust as custodians of its assets, and to act as its banker. They received the contributions directly, and issued the pension benefit cheques, all under the direction of the largest single group of the Appellant's employees.

[7]      Benefits are paid by the Plan Trust first from current contributions, and if necessary also from income generated by investments, or from cash received from the sale of invested assets. Contributions and other assets that are not currently required to pay benefits are invested. The Plan Trust has one employee whose responsibility is to supervise and review the operations of several discretionary investment managers who are retained to provide investment services to the Plan Trust. Those investment managers are retained by the Board of Directors and they are given authority to manage a specific part of the Appellant's invested assets. They are paid a fee based on a percentage of the funds that they have under their management. The Directors establish the investment policy that they are to apply, but they alone make the specific investment decisions, and they place the buy and sell orders directly to implement those decisions. It is on their services that the GST here in dispute was paid. It is not necessary to go more deeply into the evidence as to how these investment managers operate, as the parties are agreed that it is the determination of the principal activity of the Appellant that will decide whether their services are financial services, and not the way in which they carry out their functions.

[8]      In construing the phrase "principal activity", counsel differ not as to the meaning of the word "principal", but as to whether it is proper, in considering what is the Appellant's principal activity, to have regard to the objects for which the Appellant was created. The Canadian Oxford Dictionary[5] defines "principal" as:

1. first in rank or importance, chief; 2. main or leading.

This is consistent with the other dictionaries cited to me, and in the present context it admits of no ambiguity.[6] Counsel for the Appellant argued that as the purpose of the Plan Trust is to provide retirement benefits to the employees of Ontario's community colleges, its principal activity is the payment of those benefits. Counsel for the Respondent points out that in the period between 1994 and 1998 the Trust had between $2.25 and $3.50 billion invested, and that the income from those investments exceeded the Plan Trust's income from contributions by as much as 75 per cent in one year, and never less than 25 per cent. The expenses associated with those investment activities varied between 58 per cent and 65 per cent of the total expenses of the Plan Trust. The annual rate of return on the invested assets varied between 1.7 per cent and 15.8 per cent. In this context, therefore, he argued the principal activity must be the investment activity that occupies so much of the operating budget, and produces so much of the income, of the Appellant. The proof of this, according to counsel for the Respondent, can be seen in the newsletters and reports distributed by the Plan Trust to its members. They devote a great deal of space to advising the membership about the investment policy and results. He also argued that counsel for the Appellant wrongly confuses "activity" with "purpose" when she argues that the payment of pension benefits is the Appellant's principal activity.

[9]      Both parties agree that the "principal activity" cannot simply be derived from the number of employees engaged in one activity, or the number of transactions that take place in connection with one activity. I agree with that. The same may be said of the contribution of investment income to total income, however. If Parliament had intended that any such criteria should be determinative, it could certainly have found more precise wording by which to express that intention. In my view, the measure of the "principal activity" must be the importance of the activity to the achievement of the organization's goals or purposes.

[10]     Counsel for the Respondent, perhaps driven by necessity, went so far as to submit that the purpose for which the Appellant was created and continues to exist is not relevant and should not be looked at at all when considering what is its principal activity. Not only do I disagree with that submission, it seems to me contrary to both common sense and the decision of the Supreme Court of Canada in M.N.R. v. Consolidated Mogul Mines Ltd.,[7]where Spence J. placed considerable importance on the purposes and objects for which Mogul Mines was formed in ascertaining its principal business. The Appellant exists only to carry out its objects, and its principal, or most important, object is to provide pensions to the employees of the community colleges after they retire. The principal, or most important, activities of the Appellant must be those that contribute most to achieving that. The Respondent's position, as I understand it, is that the most important activity is the one that, in the four years with which the appeal is concerned, contributed most to the income of the Plan Trust, absorbed most of the expenses, and was apparently the subject of great interest to the readers of the annual reports and newsletters. However, this submission ignores the fact that the Appellant could, at least in theory, collect contributions from employers and employees and pay those contributions out to retirees without ever investing the funds. Granted, that would be wasteful and inefficient, but it would nevertheless satisfy the objects for which the Appellant was created, albeit poorly.

[11]     The two activities without which the Appellant simply could not operate, and could not accomplish its objects, are the collection of the employer and employee contributions, and the computation and payment of the pension benefits to which retirees are entitled. This is not to detract from the importance of the investment function; in most years it produces substantial income[8] which, of course, goes to reduce the contributions that are required from the employers and employees in order to pay benefits and keep the Plan Trust on a sound actuarial footing. But without contributions there would be nothing to invest, and without payments to retirees the Plan Trust could not in any degree be said to be fulfilling the objects for which it was created.

[12]     The appeal is allowed. The Appellant is entitled to a refund of the GST collected and remitted by the investment managers between July 1, 1994 and May 31, 1998. The assessment is referred back to the Minister for reconsideration and reassessment on that basis. The Appellant is entitled to costs, with counsel fees for one leading counsel and one junior counsel.

Signed at Ottawa, Canada, this 4th day of September, 2003.

"E.A. Bowie"

Bowie J.

CITATION:

2003TCC618

COURT FILE NO.:

2001-4181(GST)G

STYLE OF CAUSE:

The Colleges of Applied Arts and Technology Pension Plan and Her Majesty the Queen

PLACE OF HEARING:

Toronto, Ontario

DATE OF HEARING:

December 12, 2002

REASONS FOR JUDGMENT BY:

The Honourable Justice E.A. Bowie

DATE OF JUDGMENT:

September 4, 2003

APPEARANCES:

Counsel for the Appellant:

Susan L. Van Der Hout, Sean Aylward and D'Arcy Schieman

Counsel for the Respondent:

John McLaughlin and Suzanne M. Bruce

COUNSEL OF RECORD:

For the Appellant:

Name:

Susan L. Van Der Hout

Firm:

Osler, Hoskin & Harcourt LLP

For the Respondent:

Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada

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