CUSTOMS AND EXCISE |
Excise Tax Act |
469527 Ontario Ltd. v. Canada
T-116-02
2004 FC 726, Lemieux J.
21/5/04
23 pp.
Consolidated judicial review of decisions by delegate of Minister of National Revenue (Minister) on how GST rebates calculated under Coin-Operated Devices Remission Order (Remission Order)--Applicants carrying on business as suppliers of services through coin-operated devices, i.e. video games and pinball game machines (devices)--Whether games supplied from (1) continuous play video game machines; and (2) pinball game machines eligible supplies for purposes of remission calculation--Continuous play video games are those games where player able to continue playing by inserting 25-cent coins until reaching summit--As delegate already deciding matter in applicant's favour, issue should not be sent back for redetermination--As to eligibility of pinball machines programmed to provide three games when two 25-cent coins inserted in slot, applicants arguing (1) Minister erred in interpreting Remission Order to exclude, as eligible supply, pinball machine where individual may obtain three games by inserting two 25-cent coins; (2) Minister's decision patently unreasonable because, in fact, four representative applicants charged only one 25-cent coin for each supply made by pinball machines, i.e. representative applicants not using any industry standard as assumed by Minister-- Delegate's finding of fact applicants' pinball games set at three games for two not violating Federal Court Act, s. 18.1(4)(d) i.e. reached in perverse or capricious manner-- Excise Tax Act, s. 165.1(2) clearly providing pinball machine set to provide three games for two on payment of 50 cents not supply of game paid by depositing single coin in mechanical coin-operated device designed to accept only single coin of 25 cents or less as total consideration of supply--Here, total consideration for supply of three games payment of 50 cents for two games--Nothing in Distribution Lévesque Vending (1986) Ltée v. Canada, [1997] 3 C.T.C. 2129 (T.C.C.), supporting applicants' interpretation--Applicants' counsel relied heavily upon Amusements Jolin Inc. v. Canada, [2002] T.C.J. No. 518 (QL)--However, that decision not authority for proposition Excise Tax Act, s. 165.1(2) sanctions zero-rating pinball games where player must insert 50 cents to play three games--Applicants' three-for-two games could not be zero-rated under s. 165.1(2) and therefore not GST rebatable under Remission Order--Applications allowed--Excise Tax Act, R.S.C., 1985, c. E-15, s. 165.1(2) (as enacted by S.C. 1997, c. 10, s. 160)--Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(4)(d) (as enacted by S.C. 1990, c. 8, s. 5)--Coin-Operated Devices Remission Order SI/99-21.