Words and Phrases - "waiver"

a
88
b
44
c
79
d
53
e
38
f
31
g
19
h
14
i
74
j
2
k
2
l
32
m
56
n
25
o
38
p
81
q
3
r
76
s
90
t
47
u
16
v
9
w
23
y
2

Abdalla v. The Queen, 2017 TCC 222 (Informal Procedure), aff'd 2019 FCA 5

Summary Under
Tax Topics - Income Tax Act - Section 169 - Subsection 169(2.2)
a “poorly worded” CRA-drafted waiver nonetheless was good enough to effect a valid waiver of appeal rights when signed

Each of the taxpayers, whose credits for participating in a gifting tax shelter had been denied, had signed an Agreement to be Bound and Waiver of Objection and Appeal Rights (the “Waivers”) agreeing to be bound by the final decision in Mariano. The lead taxpayer in this case took the position that the Waivers were not enforceable because a) there was no valid consideration exchanged for the taxpayer’s promise; b) the CRA created conditions whereby the taxpayer’s consent was not fully informed; and c) the Waivers were obtained by way of undue pressure brought to bear on the taxpayer by the CRA.

Respecting the first issue, Rossiter CJ stated (at paras 15 and 16):

W.J. Alan & Company Limited v El Nasr Export & Import Company, [1972] 2 QB 189, [1972] 2 All ER 127 … held that no consideration needed to be moving from the party which benefits from the waiver. …

…If I am in error … that [no] consideration is required, I am of the view that there is good and valid consideration flowing to the Appellant. The Appellant received the benefit of not having to spend any time or effort or cost because her appeal did not proceed … [and] the Respondent held the Appellant’s objections in abeyance, and ensured the Appellant’s assessments would be confirmed in accordance with the lead case.

After referring to the statement in Saskatchewan River Bungalows, [1994] 2 S.C.R. 490 at para. 20 that “Waiver will be found only where the evidence demonstrates that the party waiving had (1) a full knowledge of rights; and (2) an unequivocal and conscious intention to abandon them.” Rossiter CJ found that this test was satisfied here, stating (at para. 19) that although the letter was “poorly worded… if read in its entirety … there is a sufficient and adequate explanation in the letter [such] that a person would have full knowledge of the rights being waived” and (at para. 23) “the Appellant knew or ought to have known what she was signing.”

Respecting “undue pressure,” he stated (at para 26):

The case law … appears to point quite strongly that where CRA says to the Appellant either sign the waiver or we will close the file that is not undue pressure (McGonagle v The Queen, 2009 TCC 168... .

Accordingly, all 27 taxpayers were bound by the Waivers.

Words and Phrases
waiver