The Attorney General of Canada v. John F. Bowen, [1991] 2 CTC 266

Stone, J.A. [Orally]:—The applicant seeks to set aside an order of the Tax Court of Canada made on June 13, 1990 whereby it was determined that the applicant did not require an order extending time wherein to institute an appeal with respect to the taxation years 1981, 1982, 1983 and 1984.

The circumstances which led to that order being made may be briefly summarized. In August 1988, after reviewing a notice of objection filed on September 14, 1987 in respect of the taxation years in question, the Appeals Branch of Revenue Canada, Taxation through its Edmonton District Office dispatched a notification of confirmation to the respondent by registered mail. The notification was returned by the post office. Two additional attempts to so communicate the notification were similarly unsuccessful.

The Tax Court judge dealt with the evidence surrounding these attempts at page 4 of his reasons. He said:

There were three separate and complete efforts to serve Mr. Bowen with this confirmation document—the last on September 2, 1988. All were returned marked "refused". The first mailing had been made to the address on Mr. Bowen's income tax returns. Between the first and second mailings, a more detailed computer search had been made of the Revenue Canada records and it was determined a “change of address" letter had been received from Mr. Bowen on March 15, 1988, and that was used the second and third mailings.

It was common ground that the respondent did not receive the confirmation notice until some time after the time fixed by the Income Tax Act for filing notice of appeal or for seeking an extension of time to do so, had expired. At page 5 of tne learned judge's reasons, he stated:

It would not be difficult to reach a conclusion that Revenue Canada had done all it possibly could do to properly notify Mr. Bowen. Nor would it be difficult to reach a conclusion that Mr. Bowen had been less than circumspect and cautious in keeping Revenue Canada at all times aware of a current mailing address, or a clear and certain arrangement for an agent to look after his income tax affairs. It is difficult to imagine the consistent "refusals" of the mailed notifications—someone must have "refused" them. This taxpayer filed the application involved and it came before the Court only as a result of his own enquiries to Revenue Canada in December 1989, asking for information regarding the results of the Notice of Objection already filed. He was informed—according to him—that he was out of time to file (ninety days) but that he could file for an extension of time. It is for that reason the Notice of Appeal (as I have already determined it to be for these purposes) and the application for extension of time at issue were filed with the Court concurrently—dated February 2, 1990.

In concluding that no extension of time was necessary, the judge had regard for an earlier decision of the Tax Court of Canada in Antoniou v. M.N.R., [1988] 2 C.T.C. 2055; 88 D.T.C. 1415 upon the construction of paragraph 167(5)(a), and then stated, at page 7:

Since the decision in Antoniou, supra remains undisturbed, the conclusion I reach is that when the issue before the Court touches directly on the rights of a taxpayer to be before this Court, what may be regarded by Revenue Canada as every reasonable effort to notify the taxpayer may not be sufficient. It must be incumbent on the respondent to demonstrate that clear notification of the commencement and duration of the critical—perhaps fateful—time period has been received by the taxpayer.

With respect, we are unable to agree with that conclusion. In our view, it disregards the plain meaning of subsection 165(3) and section 169 of the Act, which read:

165.(3) Upon receipt of a notice of objection under this section, the Minister shall,

(a) with all due dispatch reconsider the assessment and vacate, confirm or vary the assessment or reassess, or

(b) where the taxpayer indicates in the notice of objection that he wishes to appeal immediately either to the Tax Court of Canada or to the Federal Court and that he waives reconsideration of the assessment and the Minister consents, file a copy of the notice of objection with the Registrar of the Tax Court or in the Registry of the Federal Court, as the case may be,

and he shall thereupon notify the taxpayer of his action by registered mail.

169. Where a taxpayer has served notice of objection to an assessment under section 165, he 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 he 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.

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 section 18 application will be allowed, the order of the Tax Court of Canada dated June 13,1990 will be set aside and the matter will be referred back to that Court for redetermination on the basis that the respondent's application to extend the time for filing a notice of appeal shall be dismissed for lack of jurisdiction to grant the relief sought.

Application granted.