Bowman,
T.CJ.:
—This
is
an
application
made
on
behalf
of
the
respondent,
Her
Majesty
the
Queen,
for
an
order
dismissing
the
appellant's
appeal
for
lack
of
jurisdiction.
The
basis
for
the
motion
is
that
the
notice
of
appeal
was
not
filed
within
the
90-day
period
set
out
in
section
169
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act")
and
the
one-year
period
set
out
in
paragraph
167(5)(a)
of
the
Act
has
expired.
As
a
preliminary
matter,
I
should
observe
that
where
the
respondent
seeks
to
strike
out
a
notice
of
appeal
on
the
grounds
that
the
taxpayer
has
failed
to
observe
the
time
limits
prescribed
by
the
Act
for
filing
his
or
her
appeal,
it
is
inappropriate
to
attempt
to
do
so
on
the
basis
that
this
Court
lacks
jurisdiction.
It
is
obvious
that
this
Court
has
jurisdiction
over
the
subject
matter
and
it
does
not
lose
that
jurisdiction
simply
because
the
taxpayer
has
failed
to
observe
some
formal
requirement
of
the
Act.
The
procedure
of
moving
to
dismiss
an
appeal
in
the
circumstances
"for
lack
of
jurisdiction”
appears
however
to
be
one
of
long
standing
and
I
indicated
to
counsel
for
the
applicant
that
I
was
content
to
let
the
matter
proceed
as
if
the
motion
had
been
properly
framed.
It
appears
that
the
assessment
to
which
exception
is
taken
by
the
appellant
was
issued
on
April
18,
1989.
Although
Ms.
Graham's
notice
of
objection
to
the
assessment
for
1986
was
not
put
before
the
Court,
there
appears
to
be
no
suggestion
that
she
did
not
properly
file
a
notice
of
objection.
There
was
transmitted
to
the
Court
and
also
referred
to
by
counsel
for
the
applicant
a
document
described
as
form
TLA7
which
stated
in
part
as
follows:
Re:
Notice
of
Objection
Taxation
Year
1986
The
above
Notice
of
Objection
has
been
carefully
considered
and
the
Minister's
decision
is
included
in
the
following
document:
|
Notification
of
Confirmation
for
1986
|
enclosed.
|
|
Notification
of
Re-assessment
for
1986
|
enclosed
or
being
forwarded
|
|
under
separate
cover.
|
|
The
document
is
dated
December,
7,
1989.
The
document
also
contains
certain
instructions
to
the
taxpayer
as
to
the
manner
of
appealing
to
the
Tax
Court
of
Canada
or
the
Federal
Court
of
Canada.
On
the
bottom
of
the
document
are
certain
handwritten
notes
which
counsel
for
the
applicant
invited
me
to
find
were
in
the
appellant's
handwriting.
The
evidence
does
not
permit
me
to
make
such
a
finding
of
fact.
By
letter
dated
January
19,
1991,
the
appellant
wrote
to
the
Tax
Court
of
Canada
stating
that
she
appealed
against
the
reassessment
of
her
1986
taxation
year.
Her
objection
was
based
on
the
contention
that
she
had
not
received
as
much
in
support
payments
from
her
estranged
husband
as
the
Minister
of
National
Revenue
appears
to
have
assumed.
The
only
evidence
before
me
on
the
motion
was
an
affidavit
by
Norm
Levesque,
an
officer
of
the
Department
of
National
Revenue
in
the
Appeals
Division
of
the
Ottawa
District
Office.
As
such
he
had
charge
of
the
appropriate
records
and
knowledge
of
the
practice
of
the
Department
of
National
Revenue.
He
stated
further
that
he
had
examined
the
records
relating
to
the
appeal
of
Helen
Barbara
Graham
and
that
the
Minister
of
National
Revenue
reassessed
the
appellant
for
the
1986
taxation
year
on
April
18,
1989.
Paragraphs
4,
5
and
6
read
as
follows:
4.
The
Minister
of
National
Revenue
confirmed
the
reassessment
referred
to
in
paragraph
3
on
December
7,
1989
and,
to
the
best
of
my
knowledge
and
belief,
sent
a
Notice
of
Confirmation
to
the
appellant
by
registered
mail
at
415
Pie
XII,
Apt
12,
Vanier,
Ontario
KIL
6K4.
5.
After
a
careful
examination
and
search
of
the
Records,
I
have
been
unable
to
find
that
a
notice
of
appeal
from
the
confirmation
referred
to
in
paragraph
4
was
received
within
the
time
allowed
therefore,
[sic]
6.
After
a
careful
examination
and
search
of
the
Records,
I
have
been
unable
to
find
that
a
reassessment
of
the
appellant's
1986
taxation
year
was
made
after
April
18,
1989.
In
order
to
succeed
in
this
motion,
the
Minister
had
the
onus
of
establishing
that
upon
receiving
the
taxpayer's
notice
of
objection
for
1986
he
either
confirmed
the
assessment,
and
sent
a
notification
thereof
to
the
taxpayer,
or
reassessed
and
sent
a
notice
of
reassessment
to
the
taxpayer
by
registered
mail
and
that
the
taxpayer
failed
to
file
an
appeal
within
90
days
thereof.
If
the
Minister
has
not
notified
that
taxpayer
that
he
has
vacated
or
confirmed
the
assessment
or
reassessed
the
taxpayer
is
entitled,
after
90
days
have
elapsed
after
service
of
the
notice
of
objection,
to
appeal
to
the
Tax
Court
of
Canada.
I
am
not
satisfied
that
the
Minister
has
established
on
the
basis
of
admissible
evidence
that
a
notification
was
sent
out
on
December
7,
1989,
or
at
all.
The
affidavit
of
Mr.
Norm
Levesque
states
that
on
December
7,
1989,
the
Minister
of
National
Revenue
confirmed
the
reassessment
and
that"to
the
best
of
my
knowledge
and
belief,
sent
a
Notice
of
Confirmation
to
the
appellant
by
registered
mail
.
.
.”.
The
alleged
notice
of
confirmation
was
not
attached
to
the
affidavit
of
Mr.
Levesque,
and
the
documents
transmitted
to
the
Court
under
subsection
170(2)
of
the
Act
did
not
include
a
copy
of
any
notification.
Rather,
what
was
transmitted
was
the
somewhat
ambiguous
form
TLA7
referred
to
earlier.
Counsel
for
the
Minister,
when
asked,
was
unable
to
produce
a
copy
of
any
notification
from
his
files.
Moreover,
the
affidavit
of
Mr.
Levesque
significantly
omits
any
reference
to
the
date
of
mailing
of
the
alleged
notification
of
confirmation.
Subsection
244(10)
of
the
Act
permits
certain
types
of
evidence
to
be
adduced
by
way
of
affidavit.
It
does
not
permit
evidence
that
an
assessment
was
confirmed
or
that
a
notification
of
confirmation
was
sent
to
be
so
adduced
nor
does
it
permit
it
to
be
based
on
the
affiant's
“best
knowledge
and
belief”.
Such
testimony
is
plainly
hearsay.
In
the
absence
of
a
specific
statutory
provision
permitting
such
evidence
to
be
adduced
in
this
manner
it
is
inadmissible.
Subsection
244(10)
permits
an
officer
of
the
Department
of
National
Revenue
to
testify
by
affidavit
that
"after
careful
examination
of
the
records
he
has
been
unable
to
find
that
a
notice
of
objection
or
of
appeal
from
the
assessment
.
.
.
was
received
within
the
time
allowed
therefor"
and
that
such
an
affidavit
“shall
be
received
as
evidence
of
the
statements
contained
therein".
Such
evidence
is
obviously
not
irrebuttable
and
in
any
event
the
evidence
of
a
departmental
official
that
he
has
been
unable
to
find
something
is
evidence
of
just
that
and
nothing
more
—
that
he
has
been
unable
to
find
it.
It
forms
no
basis
by
itself
for
striking
out
a
notice
of
appeal.
The
affidavit
used
on
this
motion
seeks
however
to
go
even
further.
It
contains
the
inadmissible
statement
that
the
Minister
.
.
.
“to
the
best
of
my
knowledge
and
belief
sent
a
notice
of
confirmation
to
the
appellant
by
registered
mail”.
The
applicant
evidently
recognized
that
the
evidence
that
can
be
adduced
under
subsection
244(10)
of
the
Act
is
insufficient
in
itself
to
establish
that
a
notification
of
confirmation
was
sent
by
registered
mail
on
a
particular
date.
I
cannot
accept
that
the
bald
statement
that
a
departmental
office,
after
searching
the
records,
"has
been
unable
to
find
that
a
notice
of
appeal
from
an
assessment
was
received
within
the
time
allowed,
therefor"
implies
that
all
of
the
conditions
precedent
for
striking
out
the
appeal—such
as
the
sending
out
of
the
notification
on
a
particular
date—have
been
met.
Therefore
the
appellant
has
sought
to
bolster
the
evidence
by
a
further
statement
that,
even
if
it
were
admissible,
casts
doubt
whether
the
notification
was
in
fact
sent
at
all.
If
the
departmental
records
clearly
demonstrated
that
the
notification
of
confirmation
had
been
sent
by
registered
mail
on
a
particular
day,
the
statement
would
not
have
contained
the
words
“to
the
best
of
my
knowledge
and
belief".
This
consideration,
coupled
with
the
fact
that
no
copy
of
the
notification
of
confirmation
was
either
transmitted
to
the
Court
under
subsection
170(2)
or
produced
in
evidence
as
well
as
the
significant
and
unexplained
omission
of
any
reference
to
a
date
of
mailing
of
the
alleged
notification,
leads
me
to
the
conclusion
that,
on
the
basis
of
the
evidence
before
me
on
this
motion,
no
notification
was
sent
on
December
7,
1989
or
at
any
other
time.
Indeed,
it
is
sufficient
for
me
to
dispose
of
this
motion
simply
to
say
that
the
Minister
has
not
proved
that
one
was
sent.
Accordingly,
Ms.
Graham,
who
was
unrepresented,
had
no
case
to
meet
and
no
obligation,
as
counsel
suggested,
to
cross-examine
Mr.
Lévesque.
If
the
Attorney
General
seeks
to
strike
out
an
appeal
from
an
assessment
on
the
ground
that
the
taxpayer
has
failed
to
meet
the
required
time
limit,
she
must
establish
on
the
basis
of
clear
and
admissible
evidence
that,
following
a
notice
of
objection,
the
Minister
either
confirmed
the
assessment
or
reassessed
and
that
the
notification
of
confirmation
or
notice
of
reassessment
was
sent
to
the
taxpayer
by
registered
mail
on
a
particular
date
and
that
no
appeal
was
filed
within
90
days
thereof.
On
such
a
motion
the
copy
of
the
notification
of
confirmation
or
notice
or
reassessment
and
the
proof
of
registration
and
date
of
mailing
should
be
properly
put
in
evidence.
To
deprive
a
taxpayer
of
the
right
of
appeal
is
a
serious
matter
and
the
fact
on
which
such
a
motion
is
based
should
not
be
left
to
inference
or
conjecture.
The
motion
is
dismissed.
Motion
dismissed.
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