Csak – FCA confirms a s. 160 challenge on the basis that a TCC judgment of the transferor was incorrect, and confirms that a waiver time limit falling on a Sunday was extended

The taxpayer challenged assessments of her under s. 160(2) respecting unpaid tax of her late husband for his 1988 and 1989 taxation year by arguing that the CRA assessments of him for those years were statute-barred given that CRA had not received a waiver on a timely basis (which had been found by Owen J to be the case for his 1988 taxation year and, in the case of his 1989 taxation year, turned on the proposition that the receipt by CRA of a waiver on a Monday was one day following the expiry of the normal reassessment period on the Sunday).

Biringer JA confirmed (based on Gaucher) that the taxpayer was not precluded from disputing the validity of the assessments of her under s. 160(2) on the grounds that the waivers proffered by CRA were invalid, even though this issue might have been raised, but was not, in the Makuz (2006 TCC 263) group appeals in which the CRA assessments of her husband’s 1988 and 1989 taxation years had been confirmed. Similarly, there was no abuse of process in collaterally attacking the judgments in Markuz (with her waiver arguments) given that the taxpayer had not been a party to that litigation (otherwise than, latterly, as an executor of her husband’s estate) and that Owen J had determined that it was “untenable” to expect her to have raised the waiver-timing issue in those appeals.

In the case of her husband’s 1989 taxation year, this then left the issue as to whether s. 26 of the Interpretation Act had extended the time for the receipt by CRA of the waiver to the Monday. In finding that this had occurred (and in reversing Owen J on this point), Biringer JA stated:

Section 26 is a remedial provision. It provides relief when the time limit for doing a thing expires on a holiday, allowing the thing to be done on the next day that is not a holiday. …

I am satisfied that the filing of a waiver is the “doing of a thing” for the purposes of section 26 … .

… I do not view the time limited for filing a waiver as conceptually different for this purpose from the deadlines for filing a notice of objection or notice of appeal … .

Neal Armstrong. Summaries of Canada v. Csak, 2025 FCA 60 under s. 160(2), s. 152(4)(a)(ii) and General Concepts – Abuse of Process.