Teskey,
T.C.C.J.:—
The
appellant
appeals
his
reassessments
for
the
years
1981
and
1982.
Issue
The
only
issue
before
me
is
whether
the
reassessments
were
made
within
the
time
limit
for
doing
so.
What
is
in
dispute
is
whether
the
notices
of
assessments
(the
"notices"),
were
"sent"
in
accordance
with
subsection
152(2)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the"Act").
Facts
Both
parties
are
in
agreement
as
to
the
following
facts:
—
last
date
available
to
the
Minister
of
National
Revenue
(the"Minister")
to
issue
the
reassessments
and
send
notice
thereof
was
May
17,
1988;
—
the
notices
are
dated
May
9,
1988
and
contain
the
appellant's
residential
address
namely,
6369
McCleary
Street,
Vancouver,
British
Columbia,
V6N
1G5;
—
the
notices
were
mailed
by
registered
mail
on
May
9,
1988
(the
address
to
which
is
unknown);
—
the
notices
that
were
mailed
by
registered
mail
on
May
9,
1988,
were
not
delivered
to
the
appellant
and
returned
to
the
respondent;
—
the
notices
were
then
mailed
out
by
ordinary
mail
in
June
of
1988
and
received
by
the
appellant
on
June
27,
1988;
—
the
appellant,
his
wife,
and
three
infant
children
have
resided
at
6369
McCleary
Street,
Vancouver,
British
Columbia,
VEN
1G5,
continuously
from
before
1980
up
to
the
present
time,
all
T1
tax
returns
since
1980
have
shown
this
address
and
the
appellant
has
never
instructed
the
respondent
to
use
a
different
address.
There
is
no
agreement
between
the
parties
as
to
the
address
on
the
envelope
containing
the
notices
that
were
mailed
by
registered
mail
on
May
9,
1988.
Paragraphs
4
and
5
of
the
respondent's
reply
to
the
notice
of
appeal
(the
"reply")
reads
as
follows:
4.
With
respect
to
Paragraph
12
he
says
that
the
notices
of
Reassessment,
dated
May
9,
1988,
were
mailed
to
the
taxpayer's
address
by
registered
mail,
on
May
9,
1988,
but
were
returned
by
the
Post
Office,
marked
"Unclaimed".
The
said
notices
were
subsequently
remailed
to
the
taxpayer’s
address
by
regular
mail,
June
23,
1988.
5.
In
reassessing
the
appellant
with
respect
to
the
dividends,
the
respondent
relied
upon
the
following
assumptions
of
fact,
inter
alia:
(a)
the
facts
admitted
and
set
out
above.
.
.
The
Minister
has
not
produced
any
evidence
to
substantiate
the
portion
of
paragraph
4
that
alleges
that
the
registered
mail
was
"mailed
to
the
taxpayer's
address".
The
affidavit
of
the
appellant,
filed
on
this
appeal,
which
he
was
cross-
examined
on
by
counsel
for
the
Minister,
in
paragraph
6
thereof
states:
At
no
time
prior
to
June
27,
1988,
did
I
receive
notice
of
or
have
any
knowledge
of
the
fact
that
any
attempts
had
been
made
to
deliver
the
said
notices
to
me
at
any
earlier
date.
Attached
to
the
notices
of
reassessment,
received
by
the
appellant
on
June
27,
1988,
is
the
following
notation:
The
attached
assessment
notice
and/or
correspondence
was
originally
mailed
on
May
9,
1988,
but
was
subsequently
returned
to
this
office
as
undeliverable
by
the
post
office,
due
to
an
address
change
and
is
now
being
redirected
to
your
new
address.
Revenue
Canada,
Taxation
June
23,
1988
per
[signature
illegible]
From
this
notation,
I
can
conclude,
and
do
conclude,
that
the
notices
received
by
the
appellant
on
June
27,
1988,
were
mailed
to
him
by
ordinary
mail
on
June
23,
1988
or
immediately
thereafter.
Neither
the
original
envelope
that
contained
the
notices,
nor
the
Canada
Post
registered
receipts
were
produced
before
the
Court.
The
Minister
did
file
an
affidavit
with
the
Court,
by
an
officer
of
the
Department
of
National
Revenue,
who
had
charge
of
the
appropriate
records.
The
only
pertinent
paragraph
in
the
affidavit
reads
as
follows:
Attached
hereto,
and
marked
as
Exhibit
A,
is
a
true
copy
of
a
notice
of
reassessment
of
the
appellant's
1981
taxation
year,
made
on
behalf
of
the
Minister
of
National
Revenue,
on
May
9,
1988.
Attached
hereto,
and
marked
as
Exhibit
B,
is
a
true
copy
of
a
notice
of
reassessment
for
the
appellant's
1982
taxation
year,
made
on
behalf
of
the
Minister
of
National
Revenue,
on
May
9,
1988.
The
relevant
provisions
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act")
are
subsections
152(2),
244(14)
and
244(15),
which
read
as
follows:
152(2)
After
examination
of
a
return,
the
Minister
shall
send
a
notice
of
assessment
to
the
person
by
whom
the
return
was
filed.
244(14)
For
the
purposes
of
this
Act,
the
day
of
mailing
of
any
notice
or
notification
described
in
subsection
.
.
.
or
of
any
notice
of
assessment
shall
be
presumed
to
be
the
date
of
such
notice
or
notification.
(15)
Where
any
notice
of
an
assessment
has
been
sent
by
the
Minister
as
required
by
this
Act,
the
assessment
shall
be
deemed
to
have
been
made
on
the
day
of
mailing
of
the
notice
of
the
assessment.
It
is
quite
obvious
from
the
evidence
of
the
appellant
and
the
notation
attached
to
the
notices
that
they
were
mailed
on
or
after
June
23,
1988.
I
find
that
the
appellant
did
not
know
of
or
receive
the
notices
until
after
that
date,
and
that
the
notices
were
not
forwarded
by
ordinary
mail
to
the
appellant
until
on
or
after
June
23,
1988.
The
onus
is
on
the
Minister
to
prove
that
the
notices
were
sent
to
the
proper
address.
There
is
no
way
that
the
appellant
can
prove
this.
All
evidence
is
in
the
hands
of
the
Minister.
The
onus
is
on
the
Minister
to
prove
that
the
envelope
containing
the
notices
were
in
fact
properly
addressed.
Herein,
the
Minister's
own
documents
acknowledge
(and
we
know
there
was
no
address
change)
that
they
were
returned
due
to
an
address
change,
this
together
with
the
appellant's
sworn
testimony
that
he
did
not
receive
the
notices
places
the
onus
on
the
Minister
to
prove
that
the
"sending"
was
addressed
to
the
right
address.
My
colleague
Judge
Kempo's
decision
of
Mid-Plains
Contractors
Ltd.
v.
The
Queen,
a
decision
released
March
15,
1993,
is
authority
for
the
proposition
that
the
onus
is
on
the
Minister
to
prove,
by
satisfactory
evidence,
the
address
on
the
envelope.
The
Exchequer
Court
of
Canada
case
of
Scott
v.
M.N.R.,
[1960]
C.T.C.
402,
60
D.T.C.
1273
is
authority
for
the
law
that
an
assessment
is
not
made
until
the
Minister
has
completed
his
statutory
duties
as
an
assessor
by
giving
the
prescribed
notice.
Thurlow,
J.
said
at
page
416
(D.T.C.
1280):
I
am
accordingly
of
the
opinion
that
the
giving
of
notice
of
assessment
is
part
of
the
fixation
operation
referred
to
as
an
assessment
in
the
statute
and
that
an
assessment
is
not
made
until
the
Minister
has
completed
his
statutory
duties
as
an
assessor
by
giving
the
prescribed
notice.
This
case
also
stands
for
the
principle
that
a
notice
of
assessment
sent
to
a
wrong
address
or
a
fictitious
address,
that
the
assessment
has
not
been
completed.
Thurlow,
J.
went
on
to
say
at
page
417
(D.T.C.
1281):
.
.
.
it
is
in
my
opinion
also
to
be
inferred
that
Parliament
never
intended
that
such
a
notice
could
be
given
effectively
by
the
“
mailing”
of
it
to
the
taxpayer
at
some
wrong
or
fictitious
address
and
I
find
nothing
in
the
statute
to
suggest
that
Parliament
intended
that
a
taxpayer
should
be
bound
by
an
assessment
or
fixed
with
notice
of
an
assessment
upon
the
posting
of
a
notice
thereof
addressed
to
him
elsewhere
than
at
his
actual
address
or
at
an
address
which
he
has
in
some
manner
authorized
or
adopted
as
his
address
for
that
purpose.
In
the
Scott
case,
supra,
the
Minister
sent
the
notice
of
reassessment
to
the
appellant
in
care
of
a
solicitor,
who
was
not
at
that
time
acting
for
the
appellant
or
authorized
to
receive
the
notice.
Thurlow,
J.
went
on
to
say
at
page
418
(D.T.C.
1281):
Nor
does
it
appear
that
the
notice
so
sent
in
fact
reached
him
as
a
result
of
the
mailing
of
it
on
May
28,
1957,
either
in
the
ordinary
course
of
post,
or
later.
In
my
opinion,
such
a
mailing
or
sending
was
not
a
valid
mailing
or
sending
of
the
notice
within
the
meaning
of
section
46(2)
of
the
Act,
and
it
follows
that
the
reassessment
was
not
made
within
the
four
year
period.
.
.
.
The
Minister,
not
having
proved
that
the
notices
were
sent
to
the
proper
address
on
or
before
May
17,
1988,
the
appellant
is
entitled
to
have
the
assessments
vacated.
Based
on
the
evidence
before
me
and
for
these
reasons,
the
appeal
is
allowed,
with
costs,
and
the
assessments
are
vacated.
Appeal
allowed.
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