http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/70790/index.do
Solanko v. The Queen (March 28, 2014 – 2014 TCC 100) was a case where the taxpayer built his retirement home but did not live there on a permanent basis until he retired, some 8 years after the construction of the house:
[8] The facts are not in dispute. In 2002, Mr. Solanko constructed a home that was intended to be his primary residence upon retirement. At the time, Mr. Solanko was living in Toronto and worked for the Toronto Transit Commission. He expected to retire in 2010. The newly-constructed home was located in Ayton, Ontario, which is approximately 170 kilometers from Toronto.
[9] From the time that the Ayton residence was built until Mr. Solanko’s retirement, he stayed at the family home in Toronto during weekdays and went to the Ayton property on weekends.
[10] After his retirement in 2010, Mr. Solanko began to live in Ayton on a full-time basis. His spouse, however, continued to reside in the family home in Toronto to be close to her elderly mother. She still lives in Toronto.
While the statute does not require that a taxpayer take immediate possession of the residence in question:
256.(2) Rebate for owner-built homes – Where
(a) a particular individual constructs or substantially renovates, or engages another person to construct or substantially renovate for the particular individual, a residential complex that is a single unit residential complex or a residential condominium unit for use as the primary place of residence of the particular individual or a relation of the particular individual,
[…]
the Minister shall, subject to subsection (3), pay a rebate to the particular individual equal to the amount determined by the formula
[…]
the court concluded that a delay of 8 years was outside the contemplation of legislation:
[12] In my view, it would strain the rebate provision beyond what Parliament intended to allow the rebate in this case. I accept that when Mr. Solanko constructed the Ayton residence, he had in mind that he would reside there as his primary residence when he planned to retire in eight years time. However, at the time of the construction, retirement was far off. Essentially, it was speculation on Mr. Solanko’s part as to what his circumstances would be in 2010.
[13] In addition, it is unlikely that Parliament had in mind that individuals could claim the rebate based on self-interested statements as to their intentions far into the future. The requirement in the legislation that the residence is constructed for use as a primary residence contemplates that the taxpayer has an intention to use the property as a primary residence closer in time to the construction than is in the case in this appeal.
As a result the appeal was dismissed.