Herbert Flanagan v. Her Majesty the Queen and the Minister of National Revenue, [1982] CTC 423, 82 DTC 6341

Mahoney J:—This is an application under Rule 474 for a preliminary determination of a question of law: whether, in the circumstances, the reassessment of the plaintiff’s 1976 income tax return was made within the time prescribed by subsection 152(4) of the Income Tax Act.

By definition, “assessment” includes reassessment and subsection 152(2) requires that the Minister “send a notice of assessment to the person by whom the return was filed”. It is well established that “an assessment is not made until the Minister has completed his statutory duties as an assessor by giving the prescribed notice”.* [1] There is no question here of any waiver, misrepresentation or fraud on the plaintiff’s part. The reassessment was required, by subsection 152(4), to be made within four years of July 15, 1977.

There was a postal strike in Canada between June 30 and August 10, 1981. A notice of reassessment, dated July 14, 1977, [sic] was prepared in the Calgary District Taxation Office.

Navroz Allibhai deposes as follows:

1. That I am employed by the Department of National Revenue, Calgary District Office and as such have personal knowledge of the matter herein deposed to except where stated to be on information and belief in which case I verily believe them to be true.

2. That in July 1981 I was employed in the Business Audit Section of the Calgary District Office of the Department of National Revenue and was instructed to effect personal service of a Notice of Reassessment on the Plaintiff, Herbert Flanagan. A copy of that Notice of Reassessment is attached to this Affidavit and marked as Exhibit “A”.

3. That I was instructed to effect personal service because the postal strike was on and it was not possible to mail the Notice of Reassessment in the ordinary manner. It was also recognized that the four year time limit set out in Section 152(4) of the Income Tax Act would expire on July 15, 1981, and it was my instructions to effect service on or before that date.

4. On Monday, July 13, 1981 at 3:30 pm I called Mr Flannigan’s office, telephone number 265-9592. When the answering service answered, I was informed that neither Mr Flannigan nor his secretary were in the office and there was no information as to when they would return.

5. That on July 14, 1981 at 8:10 am I telephoned 265-9592. Again the answering service responded and I was informed that neither Mr Flannigan nor his secretary were in the office.

6. On July 14, 1981 at 8:30 am I telephoned 265-0502 and let the telephone ring five times but there was no answer. I redialed the number at 8:45 am, 9:00 am and 9:30 am on that date and the number was busy.

7. At 9:40 am on July 14, 1981 I telephone 265-9592 and spoke to a woman who identified herself as Mr Flanagan’s secretary. She informed me that Mr Flanagan was not in the office and would not be in the office until Thursday, July 14, 1981. I made arrangements to deliver the Notice of Reassessment, Exhibit “A”, to her by 9:55 am, at Mr Flannigan’s office at 425, 1550 - 5th Street SW, Calgary, Alberta.

8. That I arrived at Mr Flanagan’s office by 9:55 am on July 14, 1981 as agreed, and no one was present in the office at that time.

9. That on July 14, 1981 at 10:15 am I was instructed to effect personal service of Exhibit “A” at Mr Flanagan’s home. I then began making enquiries as to the exact location of Mr Flanagan’s home, the address of which is Rural Route 8, Calgary, Alberta.

10. On July 14, 1981, at 1:40 pm I again attended at Mr Flanagan’s office at 425, 1550 - 5th Street SW in an attempt to deliver the Notice of Reassessment, but there was no one present in the office.

11. At 3:02 pm on July 14, 1981 I arrived at Mr Flanagan’s residence with Mr Doug Luxford, another employee of the Department of National Revenue, Calgary District Office. I rang the doorbell of the residence twice and heard the ring, but there was no answer.

12. Mr Luxford and I stayed at the residence for approximately 15 minutes and walked around the property. There were windows open, and a dog outside. It was my impression that there were people in the house.

13. That there were two vehicles in the driveway, a black Lincoln with license number VXP759 and a white half-ton truck with license number 820-195. I was satisfied that the residence was that of Mr Flanagan because on the back ledge of the Lincoln there was an ivoice addressed to Mr Flanagan.

14. At 3:20 pm on July 14, 1981 Mr Luxford and I left the residence and returned the Notice of Reassessment, Exhibit “A”, to our offices in Calgary, Alberta.

Douglas Luxford, by affidavit, corroborates the evidence of paragraphs 11 to 14 of the Allibhai affidavit, adding circumstances that led him to believe the house was occupied. Nels Mollerson deposes that a subsequent search of the motor vehicle registry disclosed that the Plaintiff was registered owner of the Lincoln and that he finally effected personal service of the notice of reassessment on the plaintiff July 22, 1981. None of the deponents were cross-examined on their affidavits.

The plaintiff testified viva voce on the application. He was fishing off the BC coast from July 13 to 19. He was not avoiding service and had not instructed anyone else to avoid it. Whether the plaintiff was avoiding service or not is irrelevant. The law requires that the notice of reassessment be sent, not that it be delivered or received, within the prescribed time.

“Send” is an ordinary English word. Among its meanings, according to The Shorter Oxford English Dictionary, are:

4. To cause (a thing) to be conveyed or transmitted by an intermediary to another person or place.

6. To dispatch (a message, letter, telegram, etc) by a messenger, post etc.

If it was not sent before, the notice was clearly sent, in the sense of causing it to be conveyed or dispatching it, to the plaintiff when, on July 14, Ms. Allibhai, having been instructed to do so, proceeded to the plaintiff’s office and residence to deliver it. The reassessment was made in time.

ORDER

IT IS ORDERED AND DECLARED THAT the reassessment of the plaintiff’s 1976 income tax return, evidenced by notice of reassessment no 3326514, was made within the time prescribed therefor by subsection 152(4) of the Income Tax Act. Costs in the cause.