Michael C. James v. Her Majesty the Queen, [1995] 1 CTC 2626, 95 DTC 540

Brulé J.T.C.C.:-This is an application for an order extending the time within which an appeal may be instituted from the reassessments by the Minister of National Revenue of his income tax returns for the years 1986, 1988 and 1989.

Facts

These are not in dispute but for understanding the issue in this application the facts are summarized. The Court allowed notices of objection to the above reassessments to extend time and such were filed in August and September 1991.

In May 1992 the applicant moved from Canada to Belgium. In December 1992 Revenue Canada sent to the applicant notices of confirmation to the reassessments by the Minister but were returned without having been forwarded to the applicant.

In early 1994 the applicant was advised that collection proceedings were being taken against him.

Issue

Simply put do the circumstances involving the applicant not receiving notices of the confirmations merit an order extending the time to file an appeal?

Applicant’s position

Counsel for the applicant maintains that the change of address and ab- sence from the country prevented the applicant from being properly notified of the date of the notices of confirmation. He submits that the time for filing the applicant’s notices of appeal ought not to run in circumstances where it is clear that the Minister’s notification has not been made known to the applicant.

The position of counsel for the applicant is simply that no notification was given of the Minister’s action of confirmation and therefore the applicant should not be penalized.

In support of this argument both Carswell’s Words and Phrases Legally Defined and the following cases were relied upon:

Brière v. Canada (Employment and Immigration Commission), 57 D.L.R. (4th) 402, 93 N.R. 115 (F.C.T.D.);

Urbano Ramos v. M.N.R., [1983] C.T.C. 2744, 83 D.T.C. 643;

Charlotte Hebert-Gravel v. M.N.R., [1982] C.T.C. 2662, 82 D.T.C. 1690.

Respondent's position

Counsel submitted that the application should be dismissed because the application was not made within one year after the expiration of the time limited by section 169 of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (the "Act") as required by paragraph 167(5)(a) of the Act.

Analysis

The consideration here is whether or not the applicant should be excluded from the time limitations otherwise imposed on him because he did not receive actual notices of the confirmation.

It is helpful to look at the relevant sections of the Income Tax Act as were in existence at the time of the confirmations. Section 169 read as follows:

169(1) Appeal-Where a taxpayer has served notice of objection to an assessment under section 165, the taxpayer may appeal to the Tax Court of Canada to have the assessment vacated or varied after either

(a) the Minister has confirmed the assessment or reassessed, or

(b) 90 days have elapsed after service of the notice of objection and the Minister has not notified the taxpayer that the Minister has vacated or confirmed the assessment or reassessed,

but no appeal under this section may be instituted after the expiration of 90 days from the day notice has been mailed to the taxpayer under section 165 that the Minister has confirmed the assessment or reassessed.

Paragraph 167(5)(a) indicates:

167(5) When order to be made.—No order shall be made under this section unless

(a) the application is made within one year after the expiration of the time limited by section 169 for appealing; and

Subsection 165(3) sets out the Minister’s duties:

165(3) Duties of the Minister-On receipt of a notice of objection under this section, the Minister shall, with all due dispatch, reconsider the assessment and vacate, confirm or vary the assessment or reassess, and shall thereupon notify the taxpayer in writing of the Minister’s action.

Counsel for the applicant stressed the importance of notice being given by the Minister of any confirmation. He also referred to three cases. In Briére, supra, the Court was dealing with a different statute. In Ramos, supra, there were mitigating circumstances, while in Hebert-Gravel, supra, Revenue Canada did not use the applicant’s address but chose to send the notification of confirmation to the applicant’s accountant.

As for the respondent reliance was placed on the case of Bowen v. M.N.R., [1991] 2 C.T.C. 266, 91 D.T.C. 5594 (F.C.A.), wherein the Court said at page 268 (D.T.C. 5596):

In our opinion, the duty resting upon the Minister under subsection 165(3) was to do precisely what he did, viz, notify the respondent of the confirmation by registered mail. Nothing in that subsection or in section 169 required the notification to be "served" personally or to be received by the taxpayer. In dispatching the notification by registered mail the Minister was entitled to avail himself of the address or addresses which the respondent himself had already furnished. There was no obligation on him to look beyond that information. Moreover, a requirement for the receipt of the notification would be difficult if not totally unworkable from an administrative standpoint. Parliament has not required it; it has required merely that the notification be dispatched by registered mail.

It is apparent that the reason why the respondent did not receive the notification was not because the Minister failed to do all that was required of him but because the respondent did not keep his mailing address current. Such arrangements as he did make for the receipt of mail during his absence from Canada between March 1988 and December 1989 broke down-but that, surely, cannot be laid at the feet of the Minister who acted throughout in the manner required by the Act.

This reasoning was followed in McDonald v. The Queen, [1992] 1 C.T.C. 2167, 92 D.T.C. 1097. Bowen, supra, was quoted therein.

Here the respondent mailed the notifications of confirmation to the address for service of the applicant. No change of address was given to Revenue Canada, nor was a forwarding address probably left when the applicant moved to Belgium. The respondent did what he was required to do by subsection 165(3) which states from notice is to be given. This is all that is required. Accordingly the Court has no jurisdiction to grant to the applicant the relief he seeks and this application is therefore dismissed.

Application dismissed.