http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/182395/index.do
Diktakis v. The Queen (November 17, 2016 – 2016 TCC 262, Smith J.).
Précis: Ms. Diktakis and her father signed an agreement to purchase a condominium in 2013. The deposit was paid by her father. The deed was taken in Ms. Diktakis’ name on September 13, 2013. Her evidence was that she intended to reside there at some undefined point in the future. At closing her evidence was that her father’s girlfriend and the girlfriend’s daughter, NR (then 2 years old), moved into the condo. Ms. Diktakis applied for the New Housing Rebate. She claimed she was entitled to the Rebate because “related persons”, i.e., her stepmother (her father’s girlfriend), half-sister (NR) and, later, a half-brother resided in the condo. The Court found that the father’s girlfriend was not “related” since she did not fall within the definition of “common law spouse”. The Court accepted that NR was related but rejected the argument that such relationship could form the basis for a Rebate claim. Ms. Diktakis had not met the evidentiary onus of establishing that the first tenants of the condo were her father’s girlfriend and NR. As a result the appeal was dismissed. There was no order as to costs since this was an informal procedure appeal.
Decision: Although the relationships between the parties were somewhat complex, this case eventually turned on issues of evidence and onus:
[44] First, I note that the appellant’s testimony was not corroborated and that the only people who could have testified in her favour, Constantin Diktakis [the taxpayer’s father], Érika Lachance [Constantin’s girlfriend] or Marc-André Lachance [Érika’s father], were absent. The Court must draw a negative inference from their absence.
[45] Second, Section 2819 of the C.C.Q. provides that to be authentic, a notarial act makes proof against all persons of the juridical act which it sets forth.
[46] However, in the deed of sale in question, the appellant’s address is indicated as the property in question. In addition, there is a declaration that she was to acquire the building “to use it as her usual residence, when taking possession on the delivery date.”
[47] The builder relied on this representation. When the transaction was completed, the appellant received a credit for her part of the GST that was refundable and ceded the right to the rebate to the builder.
[48] The appellant now claims that she was not one who was to occupy the premises but a relation. However, the deed of sale does not provide for this option. At the very least, the statement should have been amended to indicate a relation.
As a result the appeal was dismissed. There was no order as to costs since this was an informal procedure appeal.