Canada: A Taxing Situation: B.C. Court Ruling Requires Notaries And Lawyers To Have Their House In Order

Last Updated: August 3 2017
Article by Harman Bains

In Canada, purchasers of a property pay a 25 per cent capital gains tax charged by the Canada Revenue Agency ("CRA") to a non-resident seller on any profit made on the sale based on section 116 of the Income Tax Act (Canada) ("ITA"). However, upon making a "reasonable inquiry," if the purchaser has no reason to believe that the seller was a non-resident, the purchaser is not liable to pay the tax.

In the recent and notable British Columbia Supreme Court decision, Mao v. Liu (2017 BCSC 226), Justice Affleck found the defendant, a notary public, liable to pay $695,000 to his clients, the plaintiffs and purchasers of a property, when the notary public failed to make a "reasonable inquiry" on the residency status of the seller.

The defendant's liability was founded on a breach of his contractual duty to fulfill an undertaking related to section 116 of the ITA, pursuant to the engagement letter between himself and the plaintiffs. 


In the case at hand, the plaintiffs entered into a contract to purchase real property from a creditor of the property owners, pursuant to a court-ordered conduct of sale. The plaintiffs retained the defendant to complete conveyance of title to them, and to also make inquiries as to the residency of the seller, as required under section 116 of the ITA.

In attempting to discern whether the registered owners of the property were in fact Canadian residents, the defendant endeavoured to have a statutory declaration signed by the creditor to that effect. However, the creditors refused to sign such a declaration. After the sale had completed, it was revealed that one of the registered property owners was not a Canadian resident, and CRA demanded that the plaintiff purchasers pay the $695,000 tax applicable to the sale by a non-resident seller. The plaintiffs subsequently sued the defendant, claiming that he was liable to pay such amounts for failing to make "reasonable inquiry".


Justice Affleck found that by agreeing to undertake the inquiry as to the residency status of the property owners, the liability normally imposed on the purchaser for failing to make such reasonable inquiry was transferred to the defendant. It was clear to Justice Affleck that the inquiries that the defendant did make, were not "reasonable" as required by section 116. The evidence also revealed that the defendant failed to advise the plaintiffs of their potential tax liability before completion of the sale. 

The holding in Mao v. Liu, begs the question: what constitutes "reasonable inquiry" under section 116 in order to avoid liability. Justice Affleck provides insight into the avoidance of such liability, by setting out what does not amount to a "reasonable inquiry". At paragraphs 9 and 12, the decision clearly lays out certain "indicia" that cannot be relied on when determining the residential status of the vendor, such as:

  • notes to a statement of adjustment including a certification that the vendor is or will be a Canadian resident within the meaning of the ITA at the time of the sale; or  
  • title searches revealing that:
    • the mailing address of the registered property owner(s) is a Canadian address;
    • the registered property owner has owned the property for several years; and
    • there is a history of mortgages against the property in favour of Canadian financial institutions.

Justice Affleck rejected the defendant's claim that the above information could be relied upon to indicate the registered owners were residents of Canada. Instead, Justice Affleck held that, absent a statutory declaration, further steps were required in order to make the "reasonable inquiry" required under section 116. 

Though Justice Affleck did not expand on what these further steps entail, he did provide guidance on what a purchaser could do to avoid liability where a statutory declaration is not obtainable. At paragraph 25 it is recommended that a purchaser should deduct the applicable sum of money that would be taxed on completion of the sale from the purchase price. This deduction not only protects a purchaser from being personally liable to pay any tax required by the ITA, where the seller is found to non-Canadian resident, but it also allows a purchaser to complete the sale without being in breach of the purchase and sale contract. 


The decision of Mao v. Liu depicts a cautionary tale for notaries and solicitors alike by providing insight as to the extent of liability imposed on those who undertake to make inquiries related to the residency status of a vendor, on behalf of a purchaser. This case makes clear that not only is it prudent practice, as a solicitor, to have a vendor execute a statutory declaration regarding residency, but that it should become a required precondition to closing. Where such a statutory declaration is not furnished to the purchaser, it is appropriate as noted by Justice Affleck, for the purchaser solicitor to advise that a holdback be taken in the amount to be taxed by section 116, in the sale at issue. Though this case has been appealed, as of now, this case also makes clear that where a purchaser's solicitor may have previously found comfort in certifications of residency in the notes to a statement of adjustment, such comfort is ill-founded. 

It is foreseeable that Mao v. Liu, as it stands now, will impact the practical realities of how deals involving real property are structured – not only at the later stages of a deal– but also at the initial engagement letter stage. It is imperative for those acting on behalf of purchasers to get their house in order, including understanding the obligations imposed upon them by the ITA and to ensure that the purchasers they act for are also aware of the risks involved. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
14 Sep 2017, Seminar, Birmingham, UK

Has Cloud replaced traditional outsourcing models? We will compare cloud to outsourcing, consider whether they have effectively become the same thing for many solutions and assess some of the advantages and disadvantages of each model.

18 Sep 2017, Seminar, London, UK

Our annual event as part of the London Design Festival is now in its fifth year. We would be delighted if you are able to join us again.

21 Sep 2017, Seminar, London, UK

Has Cloud replaced traditional outsourcing models? We will compare cloud to outsourcing, consider whether they have effectively become the same thing for many solutions and assess some of the advantages and disadvantages of each model.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.