Docket: 98-1781-IT-G, 98-1784-IT-G, 98-1793-IT-G, 98-1795-IT-G, 98-1796-IT-G, 98-1821-IT-G
WINDSOR MANAGEMENT LTD., 203380 ALBERTA LTD., 285863 ALBERTA LTD., FANTASY CONSTRUCTION LTD. FANTASY HOMES LTD. and WINDSOR MORTGAGE CORPORATION LTD.,
HER MAJESTY THE QUEEN,
Reasons for Judgment
 These reasons deal with two motions filed by the Respondent that raise two issues: are the appeals statute-barred? and does this Court have jurisdiction to order the relief sought by the Appellants? A positive answer to either question would have the effect of quashing six appeals. The motions arise from appeals by six related companies and those companies, taxation years and amounts in dispute are as follows:
1. Windsor Management Ltd. - 1993 and 1994 taxation years - amount of $9,236.05.
2. 203380 Alberta Ltd. - 1991, 1992, 1993, 1994 and 1995 taxation years - amount of $5,528.30.
3. 285863 Alberta Ltd. - 1991, 1992, 1993, 1994 and 1995 taxation years - amount of $65,166.60.
4. Fantasy Construction Ltd. - 1991, 1992 and 1993 taxation years - amount of $2,422.25.
5. Fantasy Homes Ltd. - 1991, 1992, 1993 and 1994 taxation years -amount of $2,732.32.
6. Windsor Mortgage Corporation Ltd. - 1993 taxation year - amount of $7,814.89.
 The Respondent first filed a motion to dismiss the appeals on the ground that the appeals were instituted outside of the time prescribed in section 169 of the Income Tax Act and that the Minister of National Revenue was statute-barred from processing the requested adjustments. This motion was adjourned and rescheduled several times. The Respondent then filed a further motion to dismiss the appeals on the grounds that the relief sought in the Notices of Appeal is relief for which this Court does not have jurisdiction to grant.
 The appeals are similar but for taxation years and amounts. A review of the Notice of Appeal in Fantasy Homes Ltd. v. The Queen (98-1796(IT)G) is sufficient. The five remaining appeals are similar. The Appellants claim to have filed a Notice of Objection on May 6, 1996 and to have received a Final Notification of Reassessment on April 6, 1998. The Appellants blamed their accountant for errors made in the original tax filings and requested the Minister to take these errors into consideration and reduce the assessments according to amended returns prepared by new accountants some years after the incorrect returns.
 The Minister states that the amended tax returns were submitted beyond the limitation periods and are statute-barred. The Appellants state that a letter dated May 6, 1996 from Mr. John Van Leenen to Revenue Canada should be taken as a Notice of Objection for all six Appellants. The entirety of this letter is as follows:
May 6, 1996
Attention: Mr. Pierre Gravelle, Q.C.
Thank you for your kindness in responding to our letter of February 14, 1996. While we agree that progress has been made as a result of our new accountant Mr. Ace Cetinski, who is a Chartered Accountant with your Mr. Arnold Lorenz, there are still many issues that have not been resolved.
You state that your auditor, Mr. Joel Klein performed within the guidelines established by the Department. We will provide proof with this letter that that is not the case. He jumped to conclusions based on the accountant's errors in reporting without auditing the relevant documents involved. For instance, a shareholder's loan was shown by Fantasy Homes to the undersigned in the amount of $18,000.00. Mr. Klein failed to confirm the accuracy of that account and to our knowledge was never provided with a breakdown by our accountant. For more than a year we tried to get a copy of this account and it took several letters from our lawyer to our old accountant and many phone calls from our new accountant to finally get a copy of this schedule.
Upon review of this schedule, we found many errors. A loan made by Fantasy Homes and consequently repaid by my ex-wife was charged as income to the undersigned. That is a serious error. Other expenses like automotive expenses and administrative expenses were also charged to me in error. Please find herewith copies of the relevant documents with a typed copy showing the amounts charged to my account erroneously.
There is another large item, namely a $19,000.00 shareholder's loan shown owing by me to Windsor Mortgage Corporation Ltd. We have never been provided a breakdown of this account although we have asked for it numerous times. Your Department could be of great assistance to us if they demanded this schedule from our previous accountant and any co-operation you can give us in this regard would be greatly appreciated.
Over many years it has been a standard policy of Revenue Canada to accept adjustments when accountant's errors have been made. There must be thousands of examples across Canada of adjustments of accounting errors. For some reason that we cannot understand, we were not permitted this privilege and therefore, we have now turned this file over to our solicitor to proceed with a formal legal appeal. We would be most eager to avoid the legal cost to us and the cost it would involve to Revenue Canada and consequently to Canadians as taxpayers if we could avoid a legal appeal. For that reason, we were wondering if it would be possible for you to arrange a meeting with your Edmonton Director, our new Chartered Accountant and our Lawyer, Mr. Gary Bigg to discuss the issues involved and see if we could come to a final settlement. Your kind co-operation in this matter would be greatly appreciated.
We have been reporting to Revenue Canada through various companies from 1963. During most of that time we have used Chartered Accounting firms and as a result of that we have had very few difficulties. Due to the disasterous (sic) real estate market in the Edmonton area in the past twelve years, we had to resort to cheaper accounting services, which resulted in poor service and improper accounting reporting. We regret such errors on the part of our old accountant and any inconvenience it has caused Revenue Canada. We are anxious to have these matters settled and have now again retained a Chartered Accounting firm to make sure that the accounting is done in accordance with the standard accounting procedures recognized by Revenue Canada to avoid future errors and extra work by your staff.
We would be most grateful for any further assistance that you may be able to provide. Thank you for your consideration.
FANTASY HOMES LTD.
"John Van Leenen"
MR. JOHN VAN LEENEN
 The Notices of Appeal refer to a meeting between the Appellants' representative and the Appeal Division of Revenue Canada on June 20, 1996 when the Appellants were invited to submit additional information. After the Appellants presented this information on February 13, 1997 and March 6, 1997, the Minister took the irretractable position that the appeals were statute-barred. The appeals were commenced because of the Minister's refusal to consider the revised tax returns and background accounting. Eight witnesses gave evidence at the hearing of the motions, four in support of the Respondent and four on behalf of the Appellants.
 The Appellants' accountant, A.H. Cetinski, was obviously aware of the problem with time limits stating in the last paragraph of his letter dated March 6, 1997 addressed to Revenue Canada:
Due to the extraordinary circumstances related to this group of accounts we request that Revenue Canada waive any provisions relating to the time limits for the adjustment of accounts and related carry back/forward of losses and other items. It is hoped that this matter could be dealt with at the district level and avoid time delays in making presentations to the Tax Fairness Committee. We feel that these major adjustments were the result of poor professional services provided by the previous accountants. As there are no qualification criteria for corporate tax prepares by Revenue Canada, we feel our clients should not be penalized by restricting movements of losses and other items as outlined in the Tax Act.
 The first motion asks the question: were the appeals instituted within the time limits prescribed in the Act? Subsections 165(1) and 169(1) of the Act provide:
165(1) A taxpayer who objects to an assessment under this Part may serve on the Minister a notice of objection, in writing, setting out the reasons for the objection and all relevant facts,
(a) where the assessment is in respect of the taxpayer for a taxation year and the taxpayer is an individual (other than a trust) or a testamentary trust, on or before the later of
(i) the day that is one year after the taxpayer's filing-due date for the year, and
(ii) the day that is 90 days after the day of mailing of the notice of assessment;
(b) in any other case, on or before the day that is 90 days after the day of mailing of the notice of assessment.
169(1) Where a taxpayer has served notice of objection to an assessment under section 165, the taxpayer may appeal to the Tax Court of Canada to have the assessment vacated or varied after either
(a) the Minister has confirmed the assessment or reassessed, or
(b) 90 days have elapsed after service of the notice of objection and the Minister has not notified the taxpayer that the Minister has vacated or confirmed the assessment or reassessed,
but no appeal under this section may be instituted after the expiration of 90 days from the day notice has been mailed to the taxpayer under section 165 that the Minister has confirmed the assessment or reassessed.
Under certain circumstances, an extension of time to object or to appeal may be granted pursuant to sections 166 and 167, respectively, up to one year after the expiration of the 90-day period.
 I accept the following facts, most of which were not contested:
(a) The Minister issued nil assessments (which cannot be objected to or appealed from) for the following corporations:
Fantasy Homes Ltd. for the 1991 taxation year, reassessment dated May 13, 1996; and
Windsor Management Ltd. for the 1992 taxation year, reassessment dated April 12, 1996.
(b) The following corporations were assessed after the purported objection dated May 6, 1996:
Fantasy Homes Ltd. for the 1991 taxation year, reassessment dated May 13, 1996; and
285863 Alberta Ltd. for the 1991 and 1992 taxation years, reassessment dated May 21, 1996.
(c) Notices of Confirmation were issued for Fantasy Construction Ltd. for the 1991, 1992 and 1993 taxation years, dated March 21, 1996.
The Notice of Appeal was filed on June 26, 1998. The Appellant did not apply for an extension of time.
(d) There is nothing in dispute and no reassessment from which to file an objection for Windsor Mortgage Corporation Ltd. The Appellant had already been allowed the maximum deduction for a charitable donation and no other issue remained in dispute.
There were no reassessments or confirmations subsequent to June 20, 1996 but for the loss carry-back for the 1993 and 1994 taxation years for Fantasy Homes Ltd. which is dated December 23, 1996.
Respondent's position: statute-barred
 Counsel for the Respondent submits that Mr. Van Leenen and his representatives confused the objection procedure and appeal procedure with procedures aimed at settlement. He stated that pursuant to subsection 152(4) of the Act, no adjustment can be made when the Minister is not alleging misrepresentation or fraud, where no waiver was filed and more than three years have elapsed since the mailing of the original notice of assessment. The letter dated May 6, 1996 is not a Notice of Objection.
 The Respondent relies on Mr. Cetinski's letter of March 6, 1997 to support his position that the Appellants knew the appeals were statute-barred. The Minister states that he has no discretion to reassess the Appellants outside the normal reassessment period and refers to Miller v. The Queen.
 Fantasy Homes Ltd. and 285863 Alberta Ltd. were reassessed after the purported letter of objection of May 6, 1996. Notices of Assessments for Fantasy Construction Ltd. for the 1991, 1992 and 1993 taxation years were dated March 21, 1996. The Notices of Appeal were filed on June 26, 1998, well beyond the time limits. For Windsor Management Ltd., there is nothing in dispute. The letter of May 6, 1996 makes reference only to Fantasy Homes Ltd. and Windsor Management Ltd.
 The Respondent contends that the purported objection served two purposes. First, he states that Mr. Van Leenen was disputing his personal assessments for the 1991 and 1992 taxation years and should not be treated as a blanket objection for the corporations and the Minister did not treat it as such. Second, the Minister is of the view that the letter was a request for adjustments or settlement to correct alleged accounting errors.
 The Respondent also contends that not only was the purported objection not in the usual form but it also was not made in the same form as the objections that the Appellant had made in the past. Past objections dated May 26, 1995 refer to the account number and clearly stated "we hereby object to the re-assessment of our account". As a result, the Minister contends that the May 6, 1996 letter cannot be viewed as a valid notice of objection and that it follows that the Notices of Appeal were invalidly filed as they do not meet the requirements of subsection 169(1) of the Act. Counsel relies on Jones v. R. and Proulx v. R.
 The Respondent states further that no reassessments or confirmations were issued subsequent to the meeting on June 20, 1996 in relation to the corporate Appellants except for the loss carry-back applied to the 1993 and 1994 taxation years for Fantasy Homes Ltd. dated December 23, 1996.
 The Respondent also notes that there seemed to be confusion between Mr. Van Leenen and his representatives as to who was responsible for filing the Notices of Objection and the Notices of Appeal. There also was confusion between an objection and an appeal but the Minister states that Mr. Van Leenen must have had some understanding being that he instructed his lawyer, Mr. Gary J. Bigg to file an appeal for his personal assessments.
 Paragraph (b) of the Notices of Appeal refers to a "Final Notification of Reassessment" having been received on April 6, 1998. This document was a letter dated April 2, 1998 from Mr. G. Graschuk of the Appeals Division of Revenue Canada to Mr. Van Leenen. The Minister states that this letter merely restated the Minister's consistent position and should not be viewed as a reassessment or a confirmation pursuant to subsection 165(3) of the Act. If the Court accedes to this view then it flows that the Notices of Appeal filed on June 26, 1998 were not filed within the time limit prescribed by subsection 169(1).
 Counsel for the Respondent referred to Pennington v. M.N.R. which was relied on by counsel for the Appellants. This case had subsequently been reversed by the Federal Court of Appeal in 1987.
Respondent's position: jurisdiction
 Briefly, the Appellants were not appealing the assessments of tax but were asking for a review of the Minister's refusal to make certain adjustments which is declaratory relief and the time limits had expired to file notices of objection or notices of appeal.
Appellant's position: statute-barred
 Counsel for the Appellants relies on the May 6, 1996 letter as a valid notice of objection. He relies strongly on his submission that the Appellants were misled by Revenue Canada into believing that reconsideration requests were being considered and there was no need to file Notices of Appeal.
Appellants' position: jurisdiction
 The ambiguity with respect to the relief sought in the Notices of Appeal should not prevent the Court from making a determination accepting the accountant's amended statement. His March 6, 1997 letter wherein he requests that time limits be waived was a precaution only. Counsel adds that he is not seeking a declaration but is appealing the Minister's refusal to review the objections to the reassessments.
 I will deal first with the statute-barred issue. If the Notices of Objection and/or Notices of Appeal were not filed within the statutory time limits set out in subsections 165(1) and 169(1) of the Act, the appeals must be quashed. See Hughes v. M.N.R.
Notices of Objection
 Is the letter of May 6, 1996 a valid notice of objection for all Appellants? It is a request completed on letterhead of Fantasy Homes Ltd. to the Deputy Minister of Finance that he intervene to have the matters settled without a "formal legal appeal". Nowhere does Mr. Van Leenen express an intention to object to any assessment or reassessment as contemplated in subsection 165(1). The letter does not refer to any of the Appellants other than being on letterhead of Fantasy Homes Ltd. It does refer to Windsor Mortgage Corporation Ltd. but only in relation to a shareholder loan assessed to Mr. Van Leenen personally. It would be stretching the facts too far to accept the letter as a Notice of Objection. There are other mountains the Appellants are unable to scale.
 Clearly, the nil assessments for Fantasy Homes Ltd. for the 1991 taxation year and for Windsor Management Ltd. for the 1992 taxation year cannot be appealed. There was nothing to dispute. There was a nil assessment from which there can be no appeal. See The Queen v. Consumers Gas Company Ltd. Fantasy Homes Ltd. for 1991 and 285863 Alberta Ltd. for 1991 and 1992 were assessed after May 6, 1996. A taxpayer cannot object to a non-existent assessment. Fantasy Construction Ltd. did not file a timely appeal pursuant to subsection 169(1) to the notices of confirmation issued for its 1991, 1992 and 1993 taxation years. There is no reassessment for Windsor Mortgage Corporation Ltd. to object to, The Appellants had filed clear and distinct notices of objections in May 1995 to previous assessments and in most instances, reassessments ensued but no Notices of Appeal were filed within the prescribed time limits. In no instances were requests for extension of time to file Notices of Objection made pursuant to sections 166.1 and 166.2. The Appellants presented no evidence to refute the relevant dates for filing Notices of Appeal.
Notices of Appeal
 Having found that no timely Notices of Objection were filed, it is not necessary to consider the Notices of Appeal requirements but some of the difficulties are worthy of mention. To conclude that the Notices of Appeal filed June 26, 1998 were filed within the section 169 prescribed time, the Appellants' counsel admits that I would have to conclude that the letter from Mr. Graschuk dated April 6, 1998 was a "Final Notification of Reassessment". It reiterates the problems previously discussed with the Appellants' agents. It cannot be construed as a Notice of Confirmation of reassessments or a reassessment. The said letter provides as follows:
Mr. Gary J Bigg
C/o Lirenman Peterson
Suite 300, Notre Dame Place
255 17 Avenue SW
Calgary AB T2S 2T8
April 02, 1998
Re: John J. van Leenen and his group of companies
We have reviewed the status of the alleged objections for your client's group of companies. As discussed at our meeting of March 13, 1998, these matters were settled largely, if not completely, at a meeting on March 06, 1996, between Ace Cetinski, Lou Marta, Rowena Sabbaghzadeh, and Arnold Lorenz; the latter two individuals being from the Appeals Division of Revenue Canada. The result was that confirmation and reassessment notices were issued for various companies and their returns, most of those with agreement from your client. In addition, the files were closed at that time and no further objections were filed for the corporations, nor were Notices of Appeal to the Tax Court of Canada.
By letter dated February 13, 1997, Ace and Lou presented amended T2 returns for several of the companies and their returns. These were forwarded to Stan Sewlal of the Audit Division for consideration as a taxpayer request. As there were no valid objections for the companies, these amended returns could not be considered by an Appeals officer such as myself. We acknowledge the effort that was expended on the creation of the amended financial statements and returns but stress that no waivers were signed in advance to keep the subject returns from becoming statute barred. Similarly, this department was not earlier notified that amended returns would be filed with the expectation of adjustments, thus requiring waivers.
At our meeting of March 13, 1998 you directed my attention to your client's letter of May 06, 1996. That letter was written on the letterhead of Fantasy Homes Limited and was sent directly to the then Deputy Minister, Pierre Gravelle QC. Your client apparently believes that the references therein to possible 'legal appeals' are tantamount to the filing of valid objections or appeals on behalf of all of his companies. The following address that concern:
· The letter was directed to the Deputy Minister, rather than to the Chief of Appeals of a District Office or Taxation Center, as stated in subsection 165(2) of the Income Tax Act and on the T400A Notice of Objection form, assuming that objections were being filed by way of this letter.
· The letter was not directed to the Tax Court of Canada, which would have been required if the letter were intended as a Notice of Appeal,.
· The letter does not indicate that there was an intention to file either an objection or appeal.
· If the letter was intended to indicate an intention to object or appeal, it neither stated the relevant taxpayer(s) nor the relevant taxation years.
· If the letter was intended to indicate an intention to object or appeal, it failed to give any reasons for opposition to the reassessment nor state any relevant facts.
· The letter was sent to Deputy Minister Pierre Gravelle, not to Minister Jane Stewart, in case your client is suggesting that the letter was sent to the Minister as one might be lead to think from reading subsections 165(1) or (3) of the Act.
· Repeated readings of that letter still do not lead us to believe that letter should be construed as a notice of objection nor appeal; it continues to read as a request for explanations of certain audit adjustments; a complaint letter as it were.
Your client is also concerned about a comment on the statement of account for one or more of his companies. The computer generated document indicated that the particular return was under objection. While this comment was generated, it was not a handwritten comment nor was it manually typed. That comment was automatically created by a pre-existing stall code; the only reason it continued to show on the statement was because of clerical oversight. We place no reliance on that document, especially since it stands in contrast to correspondence that was sent by this department about the same time but which was created by hand rather than generated by code.
I also take this opportunity to reiterate our position that an authorized representative is able to make decisions on behalf of an objector or Appellant, including settling a file, notwithstanding that the representative may not have discussed the settlement specifically with his client. This department is not bound to discuss or correspond with a taxpayer where a representative has been authorized to act on the taxpayer's behalf.
I trust this is sufficient and I pray that there is no need for further discussion on the corporate returns matters. To reiterate, I have never been involved with the corporate returns and, for all intents and purposes, am unable to discuss them beyond the information I relate here.
My involvement with the personal returns of your client ceased some 16 months ago. No copy of this letter will be sent by this department to your client. I regret our decision could not be more favorable.
As a side note, you may be aware that your client has continued to write to persons at this Tax Services Office on his own, even subsequent to our meeting of March 13. As we are not prepared to revisit the matter of the alleged objections or appeals of the corporate returns ad infinitum, we would appreciate if you could speak to your client in this regard. As you and Ace are the authorized representatives of Mr. van Leenen and his companies, we would appreciate and prefer that communications between this department and your client's interests were limited to you, Ace, and the department only. We believe this would reduce the duplication of efforts for all involved and result in more efficient correspondence and better client service.
 The evidence reveals a serious confusion between Mr. Van Leenen and his several representatives. There were too many parties involved. Mr. Van Leenen obviously did not relinquish control of the process and seemed determined to negotiate or force a settlement without litigation. Unfortunately, he neglected the requirements in sections 165 and 169 of the Act. While his lawyers and accountants were in communication with Revenue Canada, Mr. Van Leenen was proceeding with his own agenda. No one was sure who was in charge of the required appeal procedures. I believe Mr. Van Leenen was convinced that the appeal procedures under sections 165 and 169 were not necessary. He anticipated a less formal resolution.
 The evidence is not sufficient to conclude that Mr. Van Leenen was misled by Revenue Canada. He asked for a meeting and they met. I believe Revenue Canada officers did not consider or recognize a statute-barred situation until Mr. Stan Sewlal, Tax Avoidance Officer of Revenue Canada, received Mr. Cetinski's accounting information in March 1997. I cannot change the clear wording of subsections 165(1) or 169(1) nor remedy the Appellants' failure to meet statutory deadlines. I conclude the appeals are statute-barred. There is no need to deal with the jurisdiction issue. The motion dated October 21, 1998 is allowed and all purported appeals are quashed. The motions having been heard together, the Respondent is entitled to only one set of costs.
Signed at Ottawa, Canada, this 18th day of July, 2001.
COURT FILE NO.: 98-1781(IT)G, 98-1784(IT)G, 98-1793(IT)G, 98-1795(IT)G, 98-1796(IT)G, 98-1821(IT)G
STYLE OF CAUSE: Windsor Management Ltd., 203380 Alberta Ltd., 285863 Alberta Ltd., Fantasy Construction Ltd., Fantasy Homes Ltd., and Windsor Mortgage Corporation Ltd. and Her Majesty the Queen
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: January 22, 23 and 24, 2001
REASONS FOR JUDGMENT BY: The Honourable Judge C.H. McArthur
DATE OF JUDGMENT: July 18, 2001
Counsel for the Appellant: Brock Ian Dagenais
Counsel for the Respondent: John O'Callaghan
COUNSEL OF RECORD:
For the Appellant:
Name: Brock Ian Dagenais
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
WINDSOR MANAGEMENT LTD.,
HER MAJESTY THE QUEEN,
Motions heard on common evidence with the motions in 203380 Alberta Ltd. (98-1784(IT)G), 285863 Alberta Ltd. (98-1793(IT)G), Fantasy Construction Ltd., (98-1795(IT)G), Fantasy Homes Ltd. (98-1796(IT)G) and
Windsor Mortgage Corporation Ltd. (98-1821(IT)G), on
January 22, 23 and 24, 2001, at Edmonton, Alberta, by
the Honourable Judge C.H. McArthur
Counsel for the Appellant: Brock Ian Dagenais
Counsel for the Respondent: John O'Callaghan
UPON motions by counsel for the Respondent for Orders dismissing the appeals from assessments of tax made under the Income Tax Act for the taxation years ending March 31, 1993 and 1994;
AND UPON reading the pleadings, affidavits and written submissions, filed;
AND UPON hearing counsel for the parties;
It is ordered that the motions are granted, with costs, and the purported appeals from assessments of tax made under the Act for the taxation years ending March 31, 1993 and 1994 are quashed.
Signed at Ottawa, Canada, this 18th day of July, 2001.