771225 Ontario Inc. et al. v. Bramco Holdings Co. et al., (1995) 77 O.A.C. 75 (CA)

• Judge: Grange, Galligan and Osborne, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 01, 1995
• Jurisdiction: Ontario
• Citations: (1995), 77 O.A.C. 75 (CA)

771225 Ont. Inc. v. Bramco Holdings (1995), 77 O.A.C. 75 (CA)

MLB headnote and full text

771225 Ontario Inc. and 648002 Ontario Limited (appellants) v. Bramco Holdings Co. Ltd. and Her Majesty The Queen in Right of Ontario (respondents)

(C18305)

Indexed As: 771225 Ontario Inc. et al. v. Bramco Holdings Co. et al.

Ontario Court of Appeal

Grange, Galligan and Osborne, JJ.A.

February 1, 1995.

Summary:

An owner became liable for a $1.7 million land transfer tax when she registered land in the name of one of her two corporations. If she had completed the transaction in the name of her other corporation she would have been liable for only a $84,745 land transfer tax. The corporations applied to rectify the register of title for the land in question.

The trial judge denied relief. The corpo­rations appealed.

The Ontario Court of Appeal, Grange, J.A., dissenting, dismissed the appeal.

Deeds and Documents - Topic 5058

Rectification - When available - Mistake - Unilateral - A corporation owed a land transfer tax of $1.7 million - If the corpo­ration's owner had registered the land in her other corporation's name, the tax would have been $84,745 - The Minister of Revenue refused to exercise a discretionary power to relieve against inequitable demands for payment pursuant to the Land Transfer Tax Act - The corporations sought to rectify the land's register of title - The Ontario Court of Appeal, concluded that, assuming it had a general equitable jurisdiction to relieve against mistake, it would deny rectification, where rectifica­tion would enable the owner to (1) obtain relief which she was unable to obtain by the remedy afforded to her by law, and (2) reorder her affairs to avoid a tax disadvan­tage which resulted from her deliberate decision to obtain an income tax advan­tage.

Sales and Service Taxes - Topic 4623

Land transfer tax - Persons liable - Tax payable - [See Deeds and Documents - Topic 5058 ].

Cases Noticed:

Assaly v. Ontario (Minister of Revenue) (1986), 56 O.R.(2d) 30 (H.C.), consd. [para. 10].

Perrault v. Minister of National Revenue (1978), 21 N.R. 530 (F.C.A.), consd. [para. 11].

Mattabi Mines Ltd. v. Ontario (Minister of Revenue), [1988] 2 S.C.R. 175; 87 N.R. 300; 29 O.A.C. 268; 53 D.L.R.(4th) 656, refd to. [para. 12].

472601 Ontario Ltd. v. Ontario (Minister of Revenue) (1987), 59 O.R.(2d) 24 (H.C.), refd to. [para. 12].

Morley-Clarke v. Jones (Inspector of Taxes), [1985] 3 All E.R. 193 (C.A.), refd to. [para. 12].

Commissioner of Inland Revenue v. Proc­tor (1944), 142 F.2d 824 (4th Cir.), refd to. [para. 12].

Blanco v. United States (1979), 602 F.2d 324 (Ct. Cl.), refd to. [para. 12].

Mendel v. Minister of National Revenue (1965), 65 D.T.C. 114 (Tax App. Bd.), consd. [para. 12].

Gibbon v. Mitchell, [1990] 1 W.L.R. 1304 (Ch. D.), consd. [para. 20].

Statutes Noticed:

Land Transfer Tax Act, R.S.O. 1980, c. 231, sect. 17a [paras. 5, 22, 23].

Land Transfer Tax Act, R.S.O. 1990, c. L-6, sect. 20 [para. 5].

Authors and Works Noticed:

Snell, Principles of Equity (27th Ed. 1973), pp. 569, 570 [para. 4].

Counsel:

John H. Francis, Q.C., and Graeme Mew, for the appellants;

D. Thomas H. Bell and Walter Myrka, for the respondents.

This appeal was heard on October 26, 1994, before Grange, Galligan and Osborne, JJ.A., of the Ontario Court of Appeal.

The judgment was released on February 1, 1995, and the following opinions were filed:

Galligan, J.A. (Osborne, J.A., concur­ring) - see paragraphs 1 to 15;

Grange, J.A., dissenting - see paragraphs 16 to 27.