Hugessen,
J.:—The
appellant
(plaintiff)
was
assessed
for
income
tax
for
the
1976
taxation
year
by
a
notice
of
assessment
dated
July
15,
1977.
On
July
14,
1981,
within
the
four-year
period
prescribed
by
subsection
152(4)
of
the
Income
Tax
Act*
as
it
then
read,
the
Minister
issued
a
notice
of
reassessment.
He
could
not
send
the
notice
by
mail
on
that
date
as
there
was
a
postal
strike
between
June
30
and
August
10,
1981.
Employees
of
the
Minister
attempted
to
serve
the
notice
of
reassessment
on
the
appellant
personally
on
July
14,
1981,
both
at
his
home
and
at
his
office.
He
was
out
of
town
on
a
fishing
trip
and
the
attempts
failed.
The
employees,
to
quote
the
affidavit
of
Douglas
Luxford,
"returned
the
Notice
of
Reassessment
to
our
Calgary
office”
(Case,
page
30).
They
finally
succeeded
in
effecting
personal
service
on
July
22,
1981.
It
is
common
ground
that
subsection
152(2)+
required
the
Minister
to
"send"
the
notice
of
reassessment
to
the
appellant
within
the
prescribed
period.
The
only
question
on
the
present
appeal
is
whether,
as
the
learned
trial
judge
found,
the
Minister's
attempts
of
service
on
July
14
met
that
requirement.
We
are
all
in
agreement
with
the
trial
judge's
view
that
the
sending
contemplated
by
subsection
152(2)
is
to
be
understood
as
a
dispatching
which
does
not
necessarily
include
receipt;
it
is
certainly
not
obligatory
that
the
sending
be
by
mail,
as
is
made
quite
clear
by
subsection
244(10).+
On
the
particular
facts
of
the
present
case,
however,
we
cannot
escape
the
conclusion
that
the
notice
of
reassessment
was
not
sent
or
dispatched
by
the
Minister
on
July
14,
1981
since
it
was
retained
by
the
Minister’s
employees
and
was
not
left
with
or
for
the
appellant.
In
law
the
notice
never
left
the
Minister’s
possession.
The
Minister
cannot
at
one
and
the
same
time
both
send
and
retain
a
notice
of
reassessment.
The
appeal
will
therefore
be
allowed
with
costs
both
here
and
in
the
Trial
Division,
the
decision
of
the
trial
judge
will
be
set
aside
and
judgment
will
go
allowing
the
plaintiff's
motion
under
Rule
474
and
declaring
that
the
notice
of
reassessment
dated
July
14,
1981
for
the
plaintiff's
taxation
year
1976
was
not
sent
by
the
Minister
to
the
taxpayer
within
the
period
prescribed
by
section
152
of
the
Act
and
is
of
no
force
and
effect.
Appeal
allowed.
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