Robins v. W. A. Forbes, [1917-27] CTC 100, [1920-1940] DTC 8

McKay, J.:—The information charged that the said W. A. Forbes, at Grand Coulee, in the Province of Saskatchewan, on November 15, 1920, failed to make a return of his income for the year 1918, required of him to be given pursuant to sec. 8 of the Income War Tax Act, 7-8 Geo. V, 1917, ch. 28, and amendments thereto relating, such return having been theretofore demanded by registered letter mailed on March 2, 1920.

The questions submitted are as follows:

(a) That it having been proved that the Commissioner of Taxation did, on the 2nd day of March, 1920, by registered letter addressed to W. A. Forbes at Grand Coulee, in the Province of Saskatchewan, and being the Post-office at which the said W. A. Forbes does receive his mail, demand from the said W. A. Forbes a return of his income for the year 1918, and that the said W. A. Forbes had not, on the loth day of November, 1920, complied with the said demand or furnished any return of income for the year 1918, should I have convicted the said accused for his said offence, as provided by sec. 8 of the Income War Tax Act, 7-8 Geo. V, 1917, ch. 28, and amendments thereto?

"(b) If it should be held that it is necessary that the demand under sec. 8 of the Income War Tax Act, 1917, and amendments thereto must, in order to constitute an offence under the said Act, be received by the person to whom it is addressed, then, inasmuch as it appeared that the said demand was addressed to the said W. A. Forbes on the 2nd day of March, 1920, at Grand Cohlee aforesaid, and was actually received by the Postmaster at Grand Coulee aforesaid, and was by the Postmaster delivered to a person who had on other occasions received mail matter addressed to the said W. A. Forbes, whether such delivery of such demand was a sufficient compliance with the Act, and should I have convisted the said

W. A. Forbes for the offence set out in the said information and complaint?’’

The stated case then proceeds as follows:

"‘The grounds upon which I based by judgment in dismissing the said information and complaint were as follows :—(a) That I was of the opinion that under the provisions of sec. 8 of the Income War Tax Act, 1917, and amendments thereto, in order to find the accused guilty of an offence it was necessary it should appear that the notice of the demand for a return under such section should actually come to the notice of the person to whom such notice was addressed, and inasmuch as it appeared that the letter in question had not been actually delivered to the defendant, as the defendant, who was apparently a respectable citizen, stated that he had never seen the notice, I was of the opinion that he could not be convicted for failure to make a return under the provisions of the said Act. ‘ ‘

The stated case has also this paragraph :

" (/) The said W. A. Forbes denied that the said registered letter had ever been delivered to him by the said Olles.’’

The said Olles is the person to whom the Postmaster at Grand Coulee delivered said registered letter, as referred to in question

(b) submitted.

As to question (a) : sec. 8, subsec. (1) of the Income War Tax Act, 7-8 Geo. V, 1917, ch. 28, as amended by sec. 11 of 10-11 Geo. V, 1920 (Can.), ch. 49, under which the information was laid reads as follows:

"8. (1) If the Minister, in order to enable him to make an assessment or for any other purpose, desires any information or additional information or a return from any person who has not made a return, or a complete return, he may by registered letter demand from such person such information, additional information or return, and such person shall deliver to the Minister such information, additional information or return within 30 days from the date of mailing of such registered letter. For the purpose of any proceedinvs taken under this Act, the facts necessary to establish complaince on the part of the Minister with the provisions of this section as well as default hereunder shall be sufficiently proved in any Court of law by the affidavit of the Commissioner of Taxation or any other responsible officer of the Department of Finance. Such affidavit shall have attached thereto as an exhibit a copy or duplicate of the said letter.”

Under this section, in my opinion, the mailing of the registered letter is not the demand until it is received by the person to whom it is addressed, or there is presumptive evidence that he received it, and this presumption arises when the letter is mailed addressed to the address of the person, and there is no evidence that it has not been received by the addressee. Consequently, even after it is proved that the letter of demand has been duly registered addressed to the person from whom the information is required, and that such person has not delivered to the Minister such information within the 30 days, it is still open to such person to shew that he did not receive the said letter. In other words, proof of mailing of the registered letter to such person is only prima facie evidence that he received such letter.

Taking this question by itself, in my opinion, the proper answer is "‘Yes’’, as the presumption is the respondent would receive the registered letter addressed to him as his proper post office. But I think this question must be taken in connection with the above quoted fact: " (f) the said W. A. Forbes denied that the said registered letter had ever been delivered to him by the said Olles’’, and what Heffernan, J.P. says were the grounds upon which he based his judgment.

I gather from what Heffernan, J.P. says that he believed the respondent Forbes when he denied that the letter was ever delivered to him, and as such denial rebuts the presumption that he received the letter, the Justice of the Peace was right in dis missing the information, and the answer to the question, bearing in mind that the respondent did not receive the letter, is "No’’.

As to the question (b) : Delivery of the registered letter to the person who had on other occasions received mail matter addressed to the respondent would be presumptive evidence that the received it, but this presumption is rebutted by the evidence of the respondent who denies receipt of the letter and was believed by Heffernan, J.P. Such delivery was not a sufficient compliance with the Act, when the respondent denied receipt of the letter and was believed by the Justice of the Peace, and the Justice of the Peace was right in not convicting him. The answer, therefore, to both questions submitted in this question (b) is "‘No’’ to each.

Judgment accordingly.