http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/126402/index.do
Cartier House Care Centre Ltd. v. The Queen (November 5, 2015 – 2015 TCC 278, Paris J.).
Précis: This decision involved claims for GST paid in error by operators of two seniors homes: Cartier House Care Centre Ltd. (“CH”) and Courtyard Terrace Assisted Living Residence Ltd. (“CT”). There were in turn wholly owned subsidiaries of Park Place Senior Living Inc. The GST at issue was paid in respect of “homemaker services” provided by third-party contractors. “Homemaker services” are exempt from GST under the provisions of the Excise Tax Act (the “ETA”). Fraser Health Authority (“FHA”) paid CH and CT for providing the services. CH and CT in turn contracted the provision of the services out to third-party contractors. FHA was a regional health authority mandated by the province of British Columbia. At CT the services provided included personal support services and health services. At CH the services provided were described as residential care services. Essentially the services provided amounted to all day to day needs appropriate to seniors at their applicable state of functioning.
CRA argued that the services were not “homemaker services” because they went too far afield from cleaning, laundering, meal preparation and child care mentioned in the statute. The Tax Court disagreed favouring a broader interpretation. The appeals were allowed with one set of costs.
Decision: The Court found that the disputed services were indeed homemaker services:
[50] Here, the use of the word “or” between “household” and “personal” in the term “household or personal service” supports the view that Parliament intended to distinguish between household services and personal services and intended to include services beyond those ordinarily considered household services.
[51] The fact that the exemption for homemaker services falls within Part II of Schedule V, which deals with health care services, is further contextual support for the conclusion that assistance provided to elderly or infirm persons with the activities of daily living would be included in the concept of “personal service.” It would also support the conclusion that the examples used in the definition of “homemaker service” –cleaning, laundering, meal preparation and child care – are included because they might not be otherwise thought of as health care services.
[52] In so far as the exemption falls within Part II of Schedule V, it would also appear that the purpose of section 13 is to exempt personal services in the nature of health services such as assistance with the activities of daily living as well as household services.
The Court rejected the CRA’s argument that the payments were for the provision of personnel. It also rejected the argument that the services were not provided to the individuals in the place of residence:
[57] The opening wording of section 13 of Part II require that the homemaker services be rendered to an individual in the individual’s place of residence. The respondent admits that Courtyard Terrace and Cartier House were the sole place of residence of their residents, but argues that the services in issue were rendered in each of those facilities “as a whole”, while the place of residence of the residents was restricted to their individual suites in the case of Courtyard Terrace or to their rooms in the case of Cartier House.
[58] Once again, there is little basis in the evidence on which to limit the spatial bounds of the residents’ residence as suggested by the respondent. The area beyond the units or rooms were either common areas for all residents and used exclusively by them as living space in the ordinary course of residing in Courtyard Terrace or Cartier House, or were areas such as kitchens, laundries or offices that were used entirely and directly to support and maintain the everyday needs and activities of the residents in using Courtyard Terrace or Cartier House as their place of residence. As I understood the evidence, both Courtyard Terrace and Cartier House were used solely as places of residence for the residents. Therefore, it seems artificial to distinguish between the residents’ units or rooms and the remainder of the premises when determining their place of residence.
In the result the appeals were allowed with one set of costs.