REASONS
FOR JUDGMENT
Boyle J.
[1]
The Appellant’s 2008 taxation year was
reassessed in August, 2010 to deny the carry-forward of a deduction from his
2007 participation in a Global Learning Gifts Initiative (“GLGI”) program
(the “First 2008 Reassessment”).
[2]
The Appellant filed an objection to his First
2008 Reassessment in timely fashion in September 2010.
[3]
The Appellant’s 2008 taxation year was
reassessed again in January 2011 to deny a deduction from his 2008
participation in a GLGI program (the “Second 2008 Reassessment”).
The Appellant’s 2007 participation in GLGI was a different program and series
of transactions from his 2008 participation in a GLGI program.
[4]
The Appellant filed an appeal to this Court in
January 2015. More than 90 days had passed since the Appellant’s
objection had been filed and the Minister of National Revenue (the “Minister”)
had not yet confirmed the Appellant’s First 2008 Reassessment.
[5]
The Notice of Appeal refers to both the 2007
carry-forward into 2008 from the Appellant’s participation in the 2007 GLGI
Program, and to his 2008 participation in the 2008 GLGI Program.
[6]
The Respondent brought a motion to quash the
appeal in Court on the basis that:
1) the Second 2008 Reassessment was never objected to, and had not been
the subject of an application to extend nor could it be any longer, and
2) the Second 2008 Reassessment nullified the first 2008 reassessment.
[7]
The Appellant’s representative, Donald Garrison,
argued that the Appellant never received the Second 2008 Reassessment. Mr. Garrison
acknowledged in Court that the mailing address used by Canada Revenue Agency (“CRA”) on the
Second 2008 Reassessment was the Appellant’s correct address (there had been
some confusion at the hearing caused by the fact that Mr. Garrison used
the wrong street address for the Appellant in his Notice of Appeal). The
Respondent’s affidavit satisfies me that the Second 2008 Reassessment was
mailed by CRA to the Appellant. The Income Tax Act (the “Act”) provides
in subsection 248(7) that the Second 2008 Reassessment is deemed to have been
received by the Appellant nonetheless. This is not a response to the
Respondent’s motion to quash.
[8]
Subsection 165(7) of the Act provides as
follows:
165. (7) Notice of objection
not required - Where a taxpayer has served in
accordance with this section a notice of objection to an assessment and
thereafter the Minister reassesses the tax, interest, penalties or other amount
in respect of which the notice of objection was served or makes an additional
assessment in respect thereof and sends to the taxpayer a notice of the
reassessment or of the additional assessment, as the case may be, the taxpayer
may, without serving a notice of objection to the reassessment or additional
assessment,
(a) appeal
therefrom to the Tax Court of Canada in accordance with section 169; or
(b) amend any appeal to the Tax Court of
Canada that has been instituted with respect to the assessment by joining
thereto an appeal in respect of the reassessment or the additional assessment
in such manner and on such terms, if any, as the Tax Court of Canada directs.
[9]
The result of this subsection is that an
objection to the Second 2008 Reassessment is not a precondition to filing an
appeal with the Court, since the Appellant had validly objected to the First 2008
Reassessment. Paragraph 165(7)(a) permits the Appellant to appeal
from the Second 2008 Reassessment to this Court in accordance with section 169.
[10]
Subsection 169(1) of the Act provides 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 sent to the taxpayer under section 165 that the Minister
has confirmed the assessment or reassessed.
[11]
In order to give effect to paragraph 165(7)(a)
with respect to the Second 2008 Reassessment, it is necessary to read the
references in subsection 169(1) to an assessment that has been objected to as a
reference to the Appellant’s First 2008 Reassessment.
[12]
The closing phrase of subsection 169(1) provides
that the right to appeal the Second 2008 Reassessment to the Court only
continued for 90 days after the date of the Second 2008 Reassessment. The
appeal was clearly filed several years after that. For that reason, the
Respondent’s motion is allowed and the appeal is quashed.
[13]
Given the nature of the Appellant’s response to
the motion, and the performance of his representative at the hearing, I am
fixing costs payable by the Appellant to the Respondent in the amount of $625
within 60 days. The prompt and effective resolution of the appeal was delayed
by Mr. Garrison’s cavalier approach to the motion materials and its
merits, as well as to the hearing itself.
[14]
Given Mr. Garrison’s performance at the
hearing, including arriving almost an hour and a half late for the Monday
hearing, knowing that he had not obtained the adjournment he first requested
after business hours the previous Friday, that he chose to attend an
examination for a Worship and Lifestyle course at World Impact Bible Institute
notwithstanding he had not obtained an adjournment of the hearing, that he did
not inform his client that the hearing would be proceeding notwithstanding his
adjournment request so that his client could attend, and that I described his
explanations at the hearing as “less than fully truthful”, “misleading”, and “fundamentally
dishonest”. At the hearing, I told Mr. Garrison
twice that I would be considering ordering him to personally reimburse his
client, Mr. Blackwell, for all or a portion of any costs award against his
client. Mr. Garrison has 30 days from the date hereof to file his written
submissions with the Court as to why the Court should not be making such a
reimbursement order against him in respect of all or a part of the $625 costs
award against his client.
Signed at Ottawa,
Canada, this 20th day of June 2016.
“Patrick Boyle”
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