A-541-90
The Attorney General of Canada (Applicant)
v.
John F. Bowen (Respondent)
INDEXED AS: CANADA (ATTORNEY GENERAL) V. BO WEN
(CA.)
Court of Appeal, Heald, Stone and Linden JJ.A.—
Calgary, October 25, 1991.
Income tax— Practice — Application to set aside Tax Court
of Canada (TCC) decision order extending time to institute
appeal not required — Revenue Canada sending notification of
confirmation to respondent by registered mail three times in
August, September /988 — Returned marked "refused" —
Confirmation notice not received prior to expiry of time fixed
by Income Tax Act for filing notice of appeal or for seeking
extension of time to do so — Tax Court Judge concluding
extension of time unnecessary, based on Antoniou v. M.N.R.,
wherein TCC holding Revenue Canada required to demon
strate clear notification of commencement and duration of time
period for appeal received by taxpayer when rights of taxpayer
to be before Court directly affected — Application allowed —
Conclusion disregards plain meaning of Income Tax Act, ss.
/65(3), 169 — Parliament imposing duty to notify respondent
by registered mail — Requiring neither personal service nor
receipt of notification — Minister not obliged to look further
than addresses furnished by taxpayer.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Income Tax Act, S.C. 1970-7I-72, c. 63, ss. 165(3) (as am.
by S.C. 1980-81-82-83, c. 158, s. 58), 169 (as am.
idem; S.C. 1984, c. 45, s. 70).
CASES JUDICIALLY CONSIDERED
REVERSED:
Bowen, J.F. v. M.N.R. (1990), 90 DTC 1625 (T.C.C.).
OVERRULED:
Antoniou (C.) v. M.N.R., [1988] 2 C.T.C. 2055; (1988), 88
DTC 1415 (T.C.C.).
COUNSEL:
Helen C. Turner for applicant.
APPEARANCE:
John F. Bowen on his own behalf.
SOLICITOR:
Deputy Attorney General of Canada for appli
cant.
RESPONDENT ON HIS OWN BEHALF:
John F. Bowen, Sherwood Park, Alberta.
The following are the reasons for judgment of the
Court delivered orally in English by
STONE J.A.: The applicant seeks to set aside an
order of the Tax Court of Canada made on June 13,
1990 [(1990), 90 DTC 1625] whereby it was deter
mined 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 Septem-
ber 14, 1987 in respect of the taxation years in ques
tion, the Appeals Branch of Revenue Canada Taxa
tion 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 communi
cate the notification were similarly unsuccessful.
The Tax Court Judge dealt with the evidence sur
rounding these attempts at page 1627. He said:
There were three separate and complete efforts to serve Mr.
Bowen with this confirmation document—the last on Septem-
ber 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 for 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 [S.C. 1970-71-
72, c. 63] for filing notice of appeal or for seeking an
extension of time to do so, had expired. At page
1628, 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 consis
tent "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 enqui
ries to Revenue Canada in December 1989, asking for infor
mation 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 applica
tion for extension of time at issue were filed with the Court
concurrently—dated February 2, 1990.
In concluding that no extension of time was neces
sary, the Judge had regard for an earlier decision of
the Tax Court of Canada in Antoniou (C.) v. M.N.R.,
[1988] 2 C.T.C. 2055 upon the construction of para
graph 167(5)(a), and then stated, at pages 1628-1629:
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 rea
sonable 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 criti-
cal—perhaps fateful—time period has been received by the
taxpayer.
With respect, we are unable to agree with that con
clusion. In our view, it disregards the plain meaning
of subsection 165(3) [as am. by S.C. 1980-81-82-83,
c. 158, s. 58] and section 169 [as am. idem; S.C.
1984, c. 45, s. 70] 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 recon
sideration 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 reg
istered 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 objec
tion 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 sec
tion 169 required the notification to be "served" per
sonally or to be received by the taxpayer. In dispatch
ing 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 stand
point. Parliament has not required it; it has required
merely that the notification he dispatched by regis
tered 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 man
ner required by the Act.
This section 28 [Federal Court Act, R.S.C., 1985,
c. F-7] 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 juris
diction to grant the relief sought.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.