Sarchuk,
T.C.J.:—This
is
an
application
by
Nicholas
A.
Enns
(Enns)
for
an
order
extending
the
time
within
which
a
notice
of
objection
may
be
served
with
respect
to
his
1979
taxation
year.
The
applicant
was
a
resident
of
the
City
of
Vancouver
until
approximately
October
1978
when
he
left
Canada.
At
all
relevant
times
he
utilized
the
services
of
McNicol
&
Pothecary,
a
firm
of
chartered
accountants,
whose
offices
were
at
500
-
4940
Canada
Way,
Burnaby,
British
Columbia.
McNicol
&
Pothecary
were
responsible
for
the
preparation
of
the
applicant’s
income
tax
returns
including
the
return
for
the
1979
taxation
year.
Although
residing
outside
of
Canada
the
applicant
did
file
a
return
of
income
for
the
year
in
question.
The
return
was
prepared
by
McNicol
&
Pothecary
and
was
filed
by
one
William
Wright,
a
solicitor
acting
under
the
authority
of
a
power
of
attorney
granted
to
him
by
the
applicant.
This
return
did
not
give
the
applicant’s
address
but
rather
included
the
address
of
his
accountants.
In
due
course
Enns'
1979
taxation
year
was
reassessed
by
a
notice
of
reassessment
and
date
of
mailing
was
November
2,
1983.
This
notice
was
forwarded
to
and
was
received
by
McNicol
&
Pothecary.
It
was
alleged
that
the
accountants
“did
not
know
the
whereabouts
of
the
taxpayer”
and
that
as
a
result
he
did
not
become
aware
of
the
notice
of
reassessment
until
December
1984
when
he
had
occasion
to
make
a
trip
to
Vancouver
and
saw
Mr.
McNicol.
He
reviewed
his
tax
situation
with
McNicol
and
following
that
discussion
retained
the
firm
of
Doane
Raymond,
Chartered
Accountants.
On
March
8,
1985
Doane
Raymond
forwarded
on
his
behalf
an
application
for
an
order
extending
the
time
within
which
the
notice
of
objection
may
be
served.
Mr.
Enns
testified
that
he
made
arrangements
to
have
his
mail
forwarded
but
only
with
respect
to
certain
people.
He
did
not
provide
any
forwarding
address
to
the
Department
of
National
Revenue
stating
that
the
Minister
would
have
known
or
knew
that
he
was
not
in
Canada.
The
Court
notes
that
the
applicant's
1978
return
of
income,
which
would
have
been
filed
following
his
departure
from
Canada
also
did
not
include
a
forwarding
address
for
the
applicant.
Mr.
Enns'
evidence
suggests
that
the
address
on
that
return
was
that
of
his
accountants
and
that
in
due
course
they
received
a
notice
of
assessment
with
respect
to
his
1978
taxation
year.
There
is
no
evidence
that
they
failed
to
communicate
to
him
certain
reassessments
with
respect
to
that
taxation
year.
Counsel
for
the
applicant
relied
on
Urbano
Ramos
v.
M.N.R.,
[1983]
C.T.C.
2744;
83
D.T.C.
643.
This
was
a
case
where
the
Court
granted
an
order
extending
time
to
serve
a
notice
on
the
basis
that
the
explanations
advanced
by
the
taxpayer
were
adequate
because
of
the
fact
that
he
was
out
of
the
country
and
accordingly
did
not
have
specific
knowledge
of
the
reassessments.
In
my
view
the
facts
before
the
Court
in
Ramos
are
substantially
different
than
in
the
case
at
bar.
The
principal
difference
lies
in
the
fact
that
when
Ramos
left
Canada
he
did
not
leave
behind
him
an
agent
charged
with
the
responsibility
of
attending
to
his
affairs.
On
the
evidence
before
me,
after
Enns
left
in
October
1978
the
firm
of
McNicol
&
Pothecary
continued
to
act
as
agent
for
the
purpose
of
attending
to
Enns'
income
tax
returns
and
related
matters.
Furthermore
it
is
reasonable
to
infer
from
the
evidence
that
during
all
relevant
periods
of
time
the
applicant
was
represented
in
Canada
by
a
solicitor
holding
a
power
of
attorney.
Neither
the
former
accountants
nor
Mr.
Wright
were
called.
It
would
have
been
of
considerable
assistance
to
the
Court
to
have
heard
their
testimony
particularly
as
to
any
instructions
given
to
them
by
the
applicant
with
respect
to
the
notices
of
assessment
which
the
applicant
must
have
known
would
follow
the
filing
of
his
1978
and
1979
returns.
If
such
evidence
was
available
to
the
applicant
then
it
was
in
my
view
incumbent
upon
him
to
present
it
to
the
Court.
In
The
Law
of
Evidence
in
Civil
Cases,
by
Sopinka
and
Lederman,
the
authors
comment
on
the
effect
of
failure
to
call
a
witness
and
I
quote:
In
Blatch
v.
Archer,
(1774)
1
Cowp.
63,
at
p.
65)
Lord
Mansfield
stated:
It
is
certainly
a
maxim
that
all
evidence
is
to
be
weighed
according
to
the
proof
which
it
was
in
the
power
of
one
side
to
have
produced,
and
in
the
power
of
the
other
to
have
contradicted.
The
application
of
this
maxim
has
led
to
a
well-recognized
rule
that
the
failure
of
a
party
or
a
witness
to
give
evidence,
which
it
was
in
the
power
of
the
party
or
witness
to
give
and
by
which
the
facts
might
have
been
elucidated,
justifies
the
court
in
drawing
the
inference
that
the
evidence
of
the
party
or
witness
would
have
been
unfavourable
to
the
party
to
whom
the
failure
was
attributed.
In
the
case
of
a
plaintiff
who
has
the
evidentiary
burden
of
establishing
an
issue,
the
effect
of
such
an
inference
may
be
that
the
evidence
led
will
be
insufficient
to
discharge
the
burden.
(Levesque
et
al.
v.
Comeau
et
al.
[1970]
S.C.R.
1010;
(1971),
16
D.L.R.
(3d)
425.)
[Emphasis
added.]
These
comments
apply
to
the
case
at
bar.
I
draw
one
further
distinction
between
the
Ramos
case
and
the
present
application.
When
Ramos
left
Canada
he
expected
reassessments.
When
he
returned
in
a
few
months
he
still
had
not
received
them
and
of
his
own
volition
made
inquiries
and
discovered
that
they
had
been
mailed.
At
this
point
he
asked
the
Department
to
provide
him
with
copies
and
they
were
delivered
to
him.
There
is
no
evidence
that
Enns,
a
knowledgeable
businessman
who
unquestionably
knew
that
in
due
course
his
returns
would
be
assessed,
took
any
steps
whatsoever
to
inquire
of
his
accountants
or
of
his
solicitor
as
to
the
status
of
his
tax
affairs.
The
principle
that
the
granting
of
an
extension
under
section
167
of
the
Income
Tax
Act
is
the
exception
rather
than
the
rule
remains.
The
applicant
in
this
case
failed
to
advise
the
respondent
of
his
new
address.
I
do
not
accept
his
evidence
that
in
some
fashion
the
respondent
knew
or
should
have
known
of
his
absence
from
Canada.
Furthermore
it
was
his
responsibility,
knowing
that
notices
of
assessment
would
be
forwarded
to
his
accountants
to
have
at
the
very
least
followed
up
on
these
matters
and
to
have
provided
some
instructions
to
ensure
that
his
affairs
were
properly
attended
to.
I
can
only
conclude
that
the
failure
to
file
the
notice
of
objection
within
the
time
prescribed
by
the
statute
resulted
as
much
from
the
applicant’s
carelessness
and
negligence
in
attending
to
his
affairs
as
it
may
have
from
any
failure
on
the
part
of
his
accountants
to
advise
him
of
the
notices
of
reassessment.
The
application
is
therefore
dismissed.
Application
dismissed.
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