Citation:
2014 TCC 218
Date: 20140708
Docket: 2013-4579(IT)APP
BETWEEN:
CHARLES
HAMER,
Applicant,
and
HER
MAJESTY THE QUEEN,
Respondent.
REASONS
FOR ORDER
Woods J.
[1]
Charles Hamer has applied to this Court for an
extension of time to serve a notice of objection to a reassessment made under
the Income Tax Act for the 2008 taxation year. In the reassessment, the
Canada Revenue Agency (CRA) disallowed a claim for charitable donations in the
amount of $18,750.
[2]
Mr. Hamer submits that an extension should be
allowed because he never received the notice of reassessment. He testified on
cross-examination that he lives in a rural area and has had many problems with
the delivery of mail.
[3]
This is the second time that this application has
come before me. At the first hearing, I informed Mr. Hamer that the application
could not be granted on the basis that he did not receive the notice of
reassessment. However, I indicated that it was proper for him to require that
the Crown prove that the notice of reassessment was mailed. If the Crown failed
in this proof, his application could be granted. The application was adjourned
to give the Crown the opportunity to prepare on this issue.
[4]
At the second hearing, the Crown introduced
evidence of mailing in the form of an affidavit of Hamza Momoh, who is the
litigation officer on this file. Mr. Momoh was not able to attend because he
works in a different city.
Analysis
[5]
The question to be decided is whether the notice
of reassessment was mailed to Mr. Hamer by the date stated in the notice.
[6]
If Mr. Hamer did not receive the notice due to a
problem with Canada Post, this does not enable an extension to be granted
beyond the deadline set out in the legislation. The time starts to run once the
notice of reassessment is put in the mail by the CRA.
[7]
The legislation certainly can be harsh in that
the time for objecting runs even if the notice of reassessment is not received
due to the fault of a third party such as Canada Post. However, the legislation
is clear and the Court is confined to the scheme that Parliament has put in place.
[8]
The Crown states the issue as to whether it is
more likely than not that the notice was mailed. The Crown suggests that it has
established this based on the affidavit of Mr. Momoh and the testimony of Mr.
Hamer that he has had difficulty with the delivery of his mail. It is more
likely that the problem is with Canada Post, the Crown suggests.
[9]
I agree with the Crown that the question is
whether it is more likely than not that the notice of reassessment was mailed.
I also agree that it is relevant to consider that Mr. Hamer had other problems
with mail delivery.
[10]
The problem that I have with the Crown’s
position is that I am not satisfied of the reliability of the affidavit by Mr.
Momoh. Unless there is reliable evidence that the notice of reassessment has been
mailed, Mr. Hamer is entitled to succeed. The evidence does not need to be
perfect, but the Court should have a reasonable basis to consider that the
evidence is reliable.
[11]
The relevant parts of Mr. Momoh’s affidavit are
reproduced below.
8. I am
informed by Debra Desmarais, Programs Officer of the Initial Returns Processing
Section, Processing Division, Individual Returns Directorate of the Agency, and
do verily believe that in processing a request to prepare and mail a Notice of
Reassessment:
a. income tax reassessments are processed electronically in
the Agency’s computer system and the information is released electronically to
the Media Services Print Shop of the Electronic and Print Media Directorate in
a Daily Assessing Schedule (“DAS”) for printing of the Notices of Reassessment
and that the date of the notice is post-dated to the date of mailing, and
b. the applicant’s Notice of Reassessment for the 2008
taxation year was released in DAS 75 of the 2009 Program with the notice
post-dated to March 12, 2012.
9. I am
informed by Christopher Hummel, Acting Team Leader of Print to Mail at the
Winnipeg Taxation Centre of the Agency, and do verily believe that:
a. the information released by the Initial Returns
Processing Section in DAS is downloaded for printing and the Notices of
Reassessment are printed with the date of the notice, post-dated to the date of
mailing;
b. the printed Notices of Reassessment are inserted by the
inserters into individual envelopes one to four days prior to the date of
mailing;
c. inserters are the mechanical equipment that insert the
notices into the envelopes;
d. the inserters maintain a tally sheet of the total number
of printed notices for mailing;
e. all envelopes are placed in bins for pickup by Canada
Post for mailing on the date of the notice;
f. before the Notices of Reassessment are placed in the bin
for pickup by Canada Post, the computerized count from the inserters is matched
with the expected count from the tally sheets produced by the DAS cycle and if
both counts are not the same the print job is cancelled, the printed Notices
destroyed, and the print job is redone; and
g. the counts were accurate for the two aforementioned DAS
(as referred to in subparagraph 8(b) above) and the notices were mailed
on-time.
10. Based on
the information provided to me, as contained in paragraphs 9 and 10 above, and
upon review of the Agency’s records, I do verily believe that the Notice of
Reassessment dated March 15, 2012 for the 2008 taxation year, was mailed on
March 12, 2012 to the applicant’s address of record with the Agency, namely,
RR1, 9142 STATION STREET ONTARIO, NOB 1Z0, Canada.
[12]
I make the following observations about the
affidavit.
[13]
First, the key facts in the affidavit are not
within the knowledge of Mr. Momoh. He relies instead on information
provided to him by Debra Desmarais and Christopher Hummel. What is the
point of having a sworn affidavit if the people with the information are not
required to swear the accuracy of their statements?
[14]
Second, the affidavit provides only a bare-bones
description of the mailing of this particular notice of reassessment. The
affidavit is lacking in detail in important respects. For example, Mr. Momoh
states the conclusion of Ms. Desmarais that the notice of reassessment was
released in DAS 75 but there is no detail as to how this conclusion was
reached. There is a similar problem with the conclusion of Mr. Hummel that the
counts were accurate. In addition, the conclusion reached by Mr. Momoh in
paragraph 10 provides no detail at all except that it is “upon
review of the Agency’s records.” These brief conclusions do not provide
me with confidence that the statements are accurate.
[15]
This lack of detail may be contrasted with the
thorough evidence provided in Abraham v The Queen, 2004 TCC 380. I am
not suggesting that the level of detail provided in Abraham is necessary
in each case. However, the evidence must be better than is provided in Mr.
Momoh’s affidavit.
[16]
Third, Mr. Momoh’s affidavit may be based on a
standard form. I note in particular that it is very similar to an affidavit
filed in this Court in Nicholls v The Queen, 2011 TCC 39.
[17]
Simply put, I do not have adequate reasons to
have confidence as to the diligence that Mr. Momoh, Ms. Desmarais or Mr. Hummel
took to this matter.
[18]
Fourth, I note that none of the CRA officials
were available for cross‑examination. I would not find this to be fatal
if I were otherwise satisfied as to the reliability of the affidavit, but I do
have concerns in this case.
[19]
For these reasons, I conclude that the Crown has
not provided sufficient reliable evidence that the 2008 notice of reassessment
was mailed to Mr. Hamer. Without this evidence, it is not sufficient for the
Crown to point to problems that Mr. Hamer was having with Canada Post.
[20]
The application will be granted.
Signed at Toronto, Ontario this 8th day of July 2014.
“J.M. Woods”
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