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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