Christie
A.C.J.T.C.C.:-This
is
an
application
under
subsection
166.2
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
’’Act")
to
extend
the
time
for
serving
a
notice
of
objection
to
an
assessment
by
the
Minister
of
National
Revenue
("the
Minister")
of
the
applicant’s
liability
to
income
tax
for
1992.
The
application
follows
upon
a
refusal
by
the
Minister
to
extend
time.
The
history
related
to
this
application
is
as
follows.
In
calculating
her
total
income
for
1992
in
her
return
of
income
for
that
year
the
applicant
included:
"Alimony
or
separation
allowance
income...$3,000".
That
was
confirmed
by
the
Minister’s
assessment
of
that
return
which
was
mailed
to
the
applicant
on
May
27,
1993.
If
the
applicant
wished
to
object
to
the
assessment
she
was
required,
under
subparagraph
165(
1
)(a)(i)
of
the
Act,
to
serve
a
notice
of
objection,
in
writing,
on
the
Minister
on
or
before
the
day
that
is
one
year
after
the
balance-due
day
of
the
taxpayer
for
the
year.
Paragraph
248(1
)(c)
defines
the
balance-due
day
applicable
to
the
applicant
for
a
taxation
year
as
April
30
in
the
immediately
following
taxation
year.
In
respect
of
the
applicant’s
1992
taxation
year
that
day
is,
therefore,
April
30,
1993.
A
notice
of
objection
was
not
filed
by
April
30,
1994.
On
May
3,
1994
the
Federal
Court
of
Appeal
delivered
judgment
in
Thibaudeau
v.
Canada
[1994]
2
C.T.C.
4,
94
D.T.C.
6230
(F.C.A.)
[since
reversed
by
the
Supreme
Court
of
Canada,
[1995]
1
C.T.C.
382].
Paragraph
56(1
)(b)
of
the
Act
as
it
applied
in
1989,
which
is
the
taxation
year
relevant
to
Thibaudeau,
and
as
it
applies
to
the
application
at
hand
reads:
56(1)
Without
restricting
the
generality
of
section
3,
there
shall
be
included
in
computing
the
income
of
a
taxpayer
for
a
taxation
year,
(b)
any
amount
received
by
the
taxpayer
in
the
year,
pursuant
to
a
decree,
order
or
judgment
of
a
competent
tribunal
or
pursuant
to
a
written
agreement,
as
alimony
or
other
allowance
payable
on
a
periodic
basis
for
the
maintenance
of
the
recipient
thereof,
children
of
the
marriage,
or
both
the
recipient
and
children
of
the
marriage,
if
the
recipient
was
living
apart
from,
and
was
separated
pursuant
to
a
divorce,
judicial
separation
or
written
separation
agreement
from,
the
spouse
or
former
spouse
required
to
make
the
payment
at
the
time
the
payment
was
received
and
throughout
the
remainder
of
the
year.
Under
the
terms
of
a
judgment
divorcing
Thibaudeau
and
her
former
husband
she
was
awarded
the
sum
of
$1,150
per
month
for
the
maintenance
of
two
minor
children
of
the
dissolved
marriage.
They
were
in
her
custody.
She
was
not
awarded
an
allowance
for
herself.
For
the
purpose
of
these
reasons
it
is
sufficient
to
simply
reiterate
the
conclusion
arrived
at
by
Mr.
Justice
Hugessen
(page
6243)
in
delivering
the
reasons
for
judgment
on
behalf
of
the
majority
of
the
Court:
I
would
allow
the
application,
I
would
set
aside
the
decision
of
the
Tax
Court
and
I
would
remit
the
matter
to
the
Tax
Court
for
redetermination
on
the
basis
that
paragraph
56(1
)(b)
of
the
Income
Tax
Act
violates
the
applicant’s
rights
under
section
15
of
the
Charter.
On
becoming
aware
of
the
decision
of
the
Federal
Court
of
Appeal
around
the
end
of
May
1994,
the
applicant
resolved
to
challenge
the
Minister’s
assessment
regarding
the
inclusion
of
the
$3,000
in
computing
her
total
income
for
1992.
It
is
her
position
that
Thibaudeau
also
applies
to
the
words
"...alimony
or
other
allowance
payable
on
a
periodic
basis
for
the
maintenance
of
the
recipient
thereof..."
in
paragraph
56(1)(b).
By
letter
dated
July
19,
1994,
the
applicant
sought
an
extension
of
time
from
the
Minister
for
serving
a
notice
of
objection.
The
application
was
made
under
subsection
166.1
(
1
)
of
the
Act.
It
and
subsection
166.1
(7)
read:
166.1(1)
Where
no
notice
of
objection
to
an
assessment
has
been
served
under
section
165,
nor
any
request
under
subsection
245(6)
made,
within
the
time
limited
by
those
provisions
for
doing
so,
the
taxpayer
may
apply
to
the
Minister
to
extend
the
time
for
serving
the
notice
of
objection
or
making
the
request.
166.1(7)
No
application
shall
be
granted
under
this
section
unless
(a)
the
application
is
made
within
one
year
after
the
expiration
of
the
time
otherwise
limited
by
this
Act
for
serving
a
notice
of
objection
or
making
a
request,
as
the
case
may
be;
and
(b)
the
taxpayer
demonstrates
that
(i)
within
the
time
otherwise
limited
by
this
Act
for
serving
such
a
notice
or
making
such
a
request,
as
the
case
may
be,
the
taxpayer
(A)
was
unable
to
act
or
to
instruct
another
to
act
in
the
taxpayer’s
name,
or
(B)
had
a
bona
fide
intention
to
object
to
the
assessment
or
make
the
request,
(ii)
given
the
reasons
set
out
in
the
application
and
the
circumstances
of
the
case,
it
would
be
just
and
equitable
to
grant
the
application,
and
(iii)
the
application
was
made
as
soon
as
circumstances
permitted.
By
letter,
dated
July
29,
1994,
from
Revenue
Canada
the
applicant
was
informed
that
the
application
to
extend
time
was
refused.
That
letter
reads
in
part
as
follows:
We
are
writing
to
inform
you
that
we
cannot
grant
your
application
for
the
following
reasons:
You
did
not
demonstrate
that
within
the
period
allowed
for
serving
an
objection:
-you
were
unable
to
act
or
to
instruct
another
to
act
on
your
behalf,
—you
had
a
bona
fide
intention
to
object
to
the
assessment.
As
indicated
at
the
commencement
of
these
reasons,
the
application
to
this
Court
under
subsection
166.2(1)
followed
the
Minister’s
refusal
to
extend
time.
Subsections
166.2(1)
and
(5)
of
the
Act
provide:
166.2(1)
A
taxpayer
who
has
made
an
application
under
subsection
166.1
may
apply
to
the
Tax
Court
of
Canada
to
have
the
application
granted
after
either
(a)
the
Minister
has
refused
the
application,
or
(b)
90
days
have
elapsed
after
service
of
the
application
under
subsection
166.1(1)
and
the
Minister
has
not
notified
the
taxpayer
of
the
Minister’s
decision,
but
no
application
under
this
section
may
be
made
after
the
expiration
of
90
days
after
the
day
on
which
notification
of
the
decision
was
mailed
to
the
taxpayer.
166.2(5)
No
application
shall
be
granted
under
this
section
unless
(a)
the
application
was
made
under
subsection
166.1
within
one
year
after
the
expiration
of
the
time
otherwise
limited
by
this
Act
for
serving
a
notice
of
objection
or
making
a
request,
as
the
case
may
be;
and
(b)
the
taxpayer
demonstrates
that
(i)
within
the
time
otherwise
limited
by
this
Act
for
serving
such
a
notice
or
making
such
a
request,
as
the
case
may
be,
the
taxpayer
(A)
was
unable
to
act
or
to
instruct
another
to
act
in
the
taxpayer’s
name,
or
(B)
had
a
bona
fide
intention
to
object
to
the
assessment
or
make
the
request,
(ii)
given
the
reasons
set
out
in
the
application
and
the
circumstances
of
the
case,
it
would
be
just
and
equitable
to
grant
the
application,
and
(iii)
the
application
was
made
under
subsection
166.1(1)
as
soon
as
circumstances
permitted.
In
opposing
this
application
counsel
for
the
respondent
focused
on
the
applicant’s
alleged
failure
to
comply
with
either
clause
(A)
or
(B)
of
sub-
paragraph
166.2(5)(b)(i)
of
the
Act.
It
is
perfectly
clear
that
what
precipitated
the
applicant’s
desire
to
object
to
the
Minister’s
assessment
was
the
fact
of
the
decision
of
the
Federal
Court
of
Appeal
in
Thibaudeau.
That
decision
was
made
public
on
May
3,
1994.
Prior
to
that
date
it
would
have
been
treated
in
strict
confidence
by
members
of
the
Court
and
its
employees.
Whatever
may
be
the
scope
of
clause
(A)
I
do
not
think
that
a
taxpayer
can
demonstrate
an
inability
to
serve
a
notice
of
objection
or
to
instruct
another
to
do
so
by
a
prescribed
date
if
prior
to
that
time
there
is
to
her
knowledge
nothing
in
existence
that
would
motivate
her
to
adopt
that
course
of
action.
The
existence
of
inability
to
act
or
to
instruct
another
to
act
with
reference
to
serving
a
notice
of
objection
presupposes
the
presence,
prior
to
the
time
limit
imposed
by
the
Act,
of
a
desire
on
the
part
of
a
taxpayer
to
effect
such
service.
Further
I
cannot
appreciate
how,
in
the
circumstances
just
described,
a
taxpayer
could
go
through
the
mental
process
of
forming
a
bona
fide
intention
to
object
to
an
assessment.
At
the
time
the
applicant
was
required
to
have
that
intention
she
was
oblivious
to
the
existence
of
the
fact
that
subsequently
impelled
her
desire
to
object.
The
application
is
dismissed.
Application
dismissed.
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