Tax Court Denies Motion Due to Mailing Issues

OUTCOME: Dismissed

Docket: 2023-512(IT)G BETWEEN: [APPELLANT] Appellant, and HIS MAJESTY THE KING, Respondent . Motion heard virtually January 23 and February 13, 2026. Before: The Honourable Justice Edward (Ted) Cook Appearances : Counsel [APPELLANT] Appellant: [redacted] [NAME] Counsel [APPELLANT] Respondent: [redacted] [COUNSEL] In accordance with the attached reasons, the Respondent’s motion under paragraph 53(3)(b) of the Tax Court of Canada Rules (General Procedure) to quash the appeals is dismissed, with costs in any event of the cause. Signed on this 9 th day of April 2026. “[NAME]” Cook J. Citation : 2026 [NAME] 63 Date: 20260409 Docket: 2023-512(IT)G BETWEEN: [APPELLANT] Appellant, and HIS MAJESTY THE KING, Respondent.

REASONS FOR

ORDER Cook J. Introduction [ 1 ] The Respondent brings a motion under paragraph 53(3)(b) of the Tax Court of Canada Rules (General Procedure) ( “Rules” ) to quash the appeals of the reassessments of Mr. [APPELLANT]’s 2008 and 2009 taxation years on the basis that Mr. [APPELLANT] has not satisfied a condition precedent for instituting the appeals. [ 2 ] The Respondent submits Mr. [APPELLANT] did not file notices of objection – or apply to the Minister of National Revenue ( “Minister” ) for an extension of time within which to file notices of objection – on or before the deadlines in the Income Tax Act ( “Act” ). Consequently, he did not file valid notices of objection, which is a condition precedent under subsection 169(1) of Act for instituting the appeals. [ 3 ] This motion turns on whether the Minister mailed the notices of reassessment ( “Notices” ) [APPELLANT] 2008 and 2009 taxation years to the right address. The relevant events are as follows: February 26, 2013 – The Federal Court issued a compliance order requiring Mr. [APPELLANT] to file income-tax returns [APPELLANT] 2008 and 2009 taxation years. · June 25, 2013 – The Canada Revenue Agency ( “[NAME]” ) received Mr. [APPELLANT]’s 2008 and 2009 income-tax returns. The mailing address in the returns was a [ADDRESS] street address, London, UK ( “[NAME]” ). [NAME] researched the [NAME] as part of its audit of Mr. [APPELLANT] and found out that it was an apartment in a high-rise building. · June 2015 – As part of determining Mr. [APPELLANT]’s tax residency, [NAME] obtained his most recent passport application from Citizenship and Immigration Canada. The application was dated April 22, 2013 and it listed his address as the [ADDRESS] street address with a unit number, London, and included the postal code ( “[NAME]” ). · July 3, 2015 – [NAME] sent a proposal letter to the [NAME], copying Mr. [APPELLANT]’s authorized representative. Later that month, the representative requested an extension of time to respond to the proposal. August 10, 2015 – [COMPANY] advised [NAME] that it would work on the response to the proposal letter. August 28, 2015 – [NAME] computer-system records indicate that on this date the [NAME] was entered as Mr. [APPELLANT]’s mailing address, effective March 31, 2015. November 18, 2015 – [NAME] sent a letter ( “First Residency Letter” ) to the [NAME], copying [NAME] LLP, requesting information relevant to determining Mr. [APPELLANT]’s tax residency. The requested information was not provided to [NAME]. March 10, 2016 – [NAME] sent a letter ( “Second Residency Letter” ) to the [NAME], copying [COMPANY], requesting information relevant to determining Mr. [APPELLANT]’s tax residency. The requested information was not provided to [NAME]. · March 21, 2016 – [NAME] received a letter from [APPELLANT] stating that it was working on Mr. [APPELLANT]’s file and that it was preparing answers to both the proposal letter and the residency questionnaire. The letter included an authorization making the firm Mr. [APPELLANT]’s authorized representative and cancelling all prior authorizations. April 20, 2016 – [COMPANY] provided a response to [NAME]’s proposal letter. August 24, 2016 – [NAME] sent a third letter ( “Third Residency Letter” ) to the [NAME], copying [NAME] LLP, requesting information relevant to determining Mr. [APPELLANT]’s tax residency. October 7, 2016 – [APPELLANT] advised [NAME] by facsimile that Mr. [APPELLANT] had not received the Third Residency Letter until the firm forwarded it to him. As a result, [NAME] [COMPANY] requested additional time to respond to it. Ms. [NAME], a [NAME] auditor, stated in her affidavit that the Third Residency Letter was returned to [NAME] unopened. Mr. [APPELLANT]’s affidavit states he received the Third Residency. Mr. [APPELLANT] was able to produce a copy of the Third Residency Letter, which was discovered by one of his employees while cleaning out a storage area shortly before this motion was heard. November 2 and 12, 2016 – [NAME] left telephone messages with [NAME] [COMPANY] indicating that if [NAME] did not receive the requested information soon, it might seek a compliance order. November 21, 2016 – [NAME] [APPELLANT] advised [NAME] by telephone that Mr. [APPELLANT] had not provided any of the requested information to the firm. March 17, 2017 – [NAME] sent a facsimile to [NAME] [COMPANY]. It stated that [NAME] had completed its final audit letter for Mr. [APPELLANT]’s 2008 and 2009 taxation years, and that because the audit letter discussed other entities it would be sent to Mr. [APPELLANT] directly. The facsimile requested that it be forwarded to Mr. [APPELLANT] and that Mr. [APPELLANT] reply to [NAME] with an address to which [NAME] could send the final audit letter. Ms. [NAME] affidavit states a lawyer from [COMPANY] called her and told her the request was highly unusual. He said he would try to contact Mr. [APPELLANT], but Mr. [APPELLANT] had not replied to him recently and that “for all I know, he has fallen off the face of the Earth.” Mr. [APPELLANT] did not provide an updated address to [NAME] and the final audit letter was not sent. March 31, 2017 – The Notices were mailed to Mr. [APPELLANT] at the [NAME]. The Notices were not mailed to either the [NAME] or [COMPANY]. [COMPANY] was not notified that the Notices had been sent. July 15, 2022 – Mr. [APPELLANT] was served copies of the Notices in the course of his application to the Federal Court for a judicial review. September 14, 2022 – Mr. [APPELLANT] filed notices of objection [APPELLANT] reassessments of his 2008 and 2009 taxation years. [ 4 ] Mr. [APPELLANT] provided a mailing address – the [NAME] – in his 2008 and 2009 income-tax returns. The [NAME], however, was incomplete. It lacked both postal code and unit number. [NAME] obtained a complete mailing address for that property – the [NAME] – from Mr. [APPELLANT]’s passport application. [ 5 ] In 2015 and 2016, [NAME] sent several letters to Mr. [APPELLANT] at the [NAME] and copied them to Mr. [APPELLANT]’s authorized representative. Three of the letters requested residency determination information. The requested information was not provided. [NAME] had reason to believe that the Third Residency Letter was not received by Mr. [APPELLANT]. [ 6 ] On March 17, 2017, [NAME] faxed Mr. [APPELLANT]’s authorized representative asking for Mr. [APPELLANT] to provide an updated mailing address to which the final audit letter could be sent. Mr. [APPELLANT] was made aware of the facsimile and he decided not to respond to it. On March 31, 2017, the Minister mailed the Notices to Mr. [APPELLANT] at the [NAME]. Neither copies of the Notices, nor notifications with respect to the Notices, were sent to either the [NAME] or Mr. [APPELLANT]’s authorized representative. [ 7 ] The parties agree that the Notices mailed in March 2017 were mailed to the [NAME]. I am satisfied that standard [NAME] mailing procedures were followed and that the Notices were mailed using the [NAME]. [ 8 ] The parties also agree that the [NAME] was an undeliverable address and that, as a result, the Notices were not delivered to Mr. [APPELLANT]. Consequently, these reasons do not need to attempt to delve into the intricacies of the [NAME]. [ 9 ] The Minister submits that, on March 31, 2017, the Notices were mailed to Mr. [APPELLANT]’s address of record. Pursuant to subsection 165(1) of the Act, Mr. [APPELLANT] had until June 29, 2017 to file notices of objection. Pursuant to subsection 166.1(7) of the Act, Mr. [APPELLANT] also had until June 29, 2018 to apply to the Minister for an extension of time to object. He did neither. [ 10 ] Mr. [APPELLANT] argues that he did not receive the Notices because the Minister mailed them to the wrong address. He only received the Notices in July 2022 when he was served the [NAME]’s affidavit in relation to a Federal Court proceeding. Mr. [APPELLANT] then filed notices of objections before the deadline set out in subsection 165(1). Issues [ 11 ] Using the test in [NAME] v The Queen , 2016 [NAME] 215, aff’d 2017 FCA 136, the first issue in this motion is whether it was Mr. [APPELLANT]’s “fault” that the Notices were mailed to the [NAME]. The second is whether the [NAME] was the mailing address that [NAME] “properly had on file” . Analysis Overview [ 12 ] [NAME] at para 6 provides a 4-step test for determining if the Minister has mailed a notice of assessment. Steps 1 and 2 are relevant for this motion: The Tax Court of Canada and Federal Court of Appeal have had many opportunities to consider what happens when a taxpayer alleges that the Minister did not mail a Notice of Assessment. Those cases have arisen in the context of determining whether a taxpayer filed a Notice of Objection on time or determining whether a tax year is beyond the normal reassessment period. The following is a summary of the steps that have emerged from those cases: a) Step 1 : The taxpayer must assert that the Notice of Assessment was not mailed. A taxpayer normally does so in one of two ways. The taxpayer may assert that he or she did not receive the Notice of Assessment and thus believes that it was not mailed. Alternatively, the taxpayer may assert that the Notice was mailed to the wrong address through no fault of the taxpayer and was thus, in effect, not mailed. b) Step 2 : If the taxpayer asserts that the Notice of Assessment was not mailed, the Minister must introduce sufficient evidence to prove, on a balance of probabilities, that the Notice of Assessment was indeed mailed or, if the taxpayer has asserted that it was mailed to the wrong address, that it was mailed to the address that [NAME] properly had on fil e . … [footnotes omitted and emphasis added] [ 13 ] As the [NAME] test applies in this case, Step 1 requires Mr. [APPELLANT] to credibly assert that the Notices were mailed to the wrong address through no fault of his own. Step 2 requires the Minister to introduce sufficient evidence to prove the Notices were mailed to the address that [NAME] properly had on file. [ 14 ] [APPELLANT] reasons explained below, I find that the Notices were mailed to the wrong address (i.e., the [NAME]) through no fault of Mr. [APPELLANT] and that the Notices were not mailed to the address that [NAME] properly had on file. Therefore, the Respondent’s motion will be dismissed. Parties’ Submissions [ 15 ] The Respondent submits the Notices were mailed to the address [NAME] had on record and if that was the wrong address, it was Mr. [APPELLANT]’s fault. Mr. [APPELLANT] provided the [NAME] with his 2008 and 2009 income-tax returns. He never provided another mailing address. [ 16 ] The Respondent accepts the [NAME] was undeliverable, but submits taxpayers are obliged to keep their address up to date with [NAME]. Mr. [APPELLANT] did not do so. No other, or updated, address was provided by him. The only obligation on the Minister was to send the Notices to the address Mr. [APPELLANT] had provided. [ 17 ] In addition, each of the three residency letters asked Mr. [APPELLANT] for updated contact information, which Mr. [APPELLANT] declined to provide. Finally, the facsimile to Mr. [APPELLANT]’s authorized representative asked for an address to which [NAME]’s final audit letter could be sent. Again, Mr. [APPELLANT] declined to provide an updated address. [ 18 ] The Respondent argues Mr. [APPELLANT] must bear the consequences of failing to provide [NAME] with his full mailing address. Given Mr. [APPELLANT]’s refusal to provide information, [NAME] had no choice but to send the Notices to the [NAME]. [NAME] should not be punished for going beyond its statutory obligations and seeking out the [NAME] from Mr. [APPELLANT]’s passport application. [ 19 ] Mr. [APPELLANT] submits the [NAME] and the [NAME] are addresses [APPELLANT] same property. It is just that the [NAME] is the more complete civic address. It is also the address that is clearly deliverable. Once the [NAME] became known to [NAME], it could not become unknown to [NAME]. [ 20 ] Mr. [APPELLANT] also submits the [NAME] was the address [NAME] used leading up to the issuance of the Notices and has subsequently used. More broadly, Mr. [APPELLANT] submits the Minister did everything possible to ensure that he was not provided with the Notices, including: not sending the Notices, or notification of the Notices, to an authorized representative; refraining from disclosing the address issue in a subsequent ex parte collection/enforcement action; and serving Mr. [APPELLANT] with the Notices only after Mr. [APPELLANT] took action in Federal Court. [ 21 ] Several of Mr. [APPELLANT]’s submissions go beyond the question before me and relate to his overarching view that the Minister sought to ensure the Notices were not sent to him. I will deal with Mr. [APPELLANT]’s submissions only to the extent that they are relevant to this motion. [NAME] might, or might not, have taken in subsequent legal proceedings are not relevant to my determination whether the Minister mailed the Notices to the right address in March 2017. [ 22 ] Mr. [APPELLANT] argues that in Scott v [NAME] , [1960] CTC 402, 60 DTC 1273 (Ex. Ct.) at para 27, it was established that a notice mailed to a wrong address in cases where the notice does not reach the taxpayer, is not effective: “an assessment is not made until the Minister has completed his statutory duties as an assessor by giving the prescribed notice.” [ADDRESS] went on to state at para 28 that “Parliament never intended that such a notice could be given effectively by the ‘mailing’ of it to the taxpayer at some wrong or fictitious address[.]” Courts have reaffirmed these basic principles ( [NAME] v [NAME] , [1993] 2 CTC 2244, 93 DTC 999, at paras 14 and 15). [ 23 ] After the motion was heard, Mr. [APPELLANT] filed a letter with the Court to provide additional “critical” clarification. The Respondent filed a letter in response. The parties had a full opportunity to make their arguments at the hearing, and I have not used either letter in reaching my decision. Step 1 [ 24 ] Step 1 of the [NAME] test requires Mr. [APPELLANT] to credibly assert the Notices were mailed to the wrong address through no fault of his own. It is evident Mr. [APPELLANT] did not cooperate with [NAME]. Mr. [APPELLANT] said he did not respond with the information requested in the residency letters because he was “not going to continue playing this game with her [[NAME] auditor, Ms. [NAME]]” . As well, he chose not to respond to the request for an address to which to send the final audit letter because [NAME] was “continuing the same old process of dragging me [Mr. [APPELLANT]] through an endless audit with endless questions that went around in circles.” In his view, [NAME] had his correct address and was using it for correspondence with him. [ 25 ] Faced with someone whom [NAME] no doubt viewed as a non-cooperative taxpayer, [NAME] decided to issue reassessments and it did so to the address that it had received from him. Mr. [APPELLANT]’s non-cooperation does not, however, amount to fault by him with respect to his mailing address. I accept that Mr. [APPELLANT] provided the [NAME] in his 2008 and 2009 income-tax returns and that he had an obligation to keep his mailing address current with [NAME]. [ 26 ] The difficulty is that [NAME] obtained the Second Adress in June 2015 and used it, in lieu of the [NAME], [APPELLANT] relevant correspondence with Mr. [APPELLANT] until at least August 2016. [ 27 ] [NAME] computer-system entry shows the mailing address was updated to the [NAME] effective March 31, 2015. It appears the entry was made on August 28, 2015. [NAME]’s July 2015 proposal letter was mailed to the [NAME] rather than the [NAME]. As well, the [NAME] was simply a more complete version of the [NAME]. [ 28 ] In the circumstances, I do not see how Mr. [APPELLANT] could have known that his mailing address of record was the [NAME] rather than the [NAME] and that it needed to be updated. [NAME] consistently used the [NAME], which would be the updated address Mr. [APPELLANT] needed to provide to [NAME]. [ 29 ] The Respondent submits the three residency letters asked for updated contact information. This is not an accurate characterization. The letters sought information to determine Mr. [APPELLANT]’s residency for tax purposes. For example, the First Residency Letter asked [APPELLANT] following: Please provide the address of any residences that you occupied, and/or were made available for your use, in the period indicated above [i.e., November 11, 2009 to November 18, 2015] both in Canada and abroad. Please indicate whether you leased or owned each residence. Please provide purchase and/or lease documentation, including proof of payment, to verify this information. [ 30 ] The letter did not ask Mr. [APPELLANT] for updated contact information or indicate there was a deficiency in the mailing address that [NAME] had on file. Instead, it asked for a history of his residences [APPELLANT] purpose of making a residency determination. The two are quite distinct. [ 31 ] Both parties assign particular importance to the Third Residency Letter. Ms. [NAME] stated in her affidavit that the Third Residency Letter was returned to [NAME] and that it was not received by Mr. [APPELLANT]. Consequently, [NAME] chose not to send the Notices to the [NAME]. The only other address [NAME] had for Mr. [APPELLANT] was the [NAME], which was the address Mr. [APPELLANT] provided in his 2008 and 2009 income-tax returns. [ 32 ] Mr. [APPELLANT]’s affidavit states he had received the Third Residency Letter. As noted above, Mr. [APPELLANT] was able to produce a copy of the Third Residency Letter. Mr. [APPELLANT] makes a great deal out of the conflict between the two affidavits and, in particular, the fact that [NAME] apparently based its decision to use the [NAME] on the return of the Third Residency Letter as undeliverable, which as it turns out was received by Mr. [APPELLANT]. [ 33 ] [NAME] had reason to believe the Third Residency Letter was not delivered to Mr. [APPELLANT]. On October 17, 2016, a facsimile from [APPELLANT] advised [NAME] that Mr. [APPELLANT] had not received the Third Residency Letter. By the same token, however, this facsimile would not be sufficient reason to treat the [NAME] as a bad address. Mr. [APPELLANT] travelled in his work as a business consultant and it would be entirely possible that an individual letter might go astray. [ 34 ] There was no indication from Mr. [APPELLANT]’s representative that the [NAME] was not the correct address, just that the letter had not been received by Mr. [APPELLANT]. The facsimile states “[w]hile the letter is addressed to Mr. [APPELLANT] he did not receive your letter until we forwarded a copy to him in mid-September.” [ 35 ] On March 17, 2017, [NAME] faxed Mr. [APPELLANT]’s authorized representative requesting an address to which [NAME]’s final audit letter could be sent. Mr. [APPELLANT] did not respond. The 2008 and 2009 reassessments were processed less than two weeks later. The Notices were mailed on March 31, 2017. I do not consider this rising to the level of fault on the part of Mr. [APPELLANT] given the amount of correspondence sent to the [NAME] and the fact the Notices were processed less than two weeks after [NAME] requested an address to which to send the final audit letter. [ 36 ] In summary, the [NAME] was a more complete version of the [NAME]. Mr. [APPELLANT] received [NAME] correspondence addressed to the [NAME] in 2015 and 2016, and nothing Mr. [APPELLANT] received clearly indicated that his mailing address with [NAME] needed to be updated. As such, I do not find Mr. [APPELLANT] at fault as contemplated by Step 1 of the [NAME] test. Step 2 [ 37 ] Turning now to Step 2, it requires the Minister to prove that the Notices were mailed to the address that [NAME] properly had on file. Even though the [NAME] was provided by Mr. [APPELLANT], I find that it was not the address [NAME] properly had on file. [ 38 ] [NAME] generally takes the view, rightly, that it is a taxpayer’s responsibility to ensure that their correct mailing address is known by [NAME] at all times (see, for example, [NAME] v The Queen , 2007 [NAME] 709 at para 8 and [NAME] v The Queen , 2015 [NAME] 127 at para 59) and [NAME] relies on correspondence sent to that address as complying with its obligations to notify a taxpayer. [ 39 ] I accept [NAME] considered itself to be in compliance with its obligations; but it is somewhat concerning that for correspondence with consequences for a taxpayer’s appeal rights [NAME] chose to resile from mailing to an address it had consistently used in favour of an incomplete version of the same address. [ 40 ] It is evident that [NAME] thought there was an issue with the [NAME]. The fact that an address might be problematic is not a bar to it being the address properly on file (see Le sage au piano v The Queen , 2014 [NAME] 319 at para 43). Taxpayers have an obligation to keep their proper address current with [NAME], and if they fail to do so, a mailing by the Minister to an address deficient on its face may still meet the Minister’s obligations with respect to mailing. [ 41 ] As such, I disagree with Mr. [APPELLANT]’s argument that once the correct address became known to [NAME] it could not become unknown and [NAME] had an obligation to use it. If [NAME] becomes aware that a taxpayer has a different address through other means (as was the case here), it does not seem to me that it automatically imposes an obligation on [NAME] to begin using that other address. [ 42 ] The situation at hand is certainly uncommon. The [NAME] and the [NAME] were both addresses [APPELLANT] same property, with the notable difference that the [NAME] was more clearly deliverable. [NAME] used the [NAME], instead of the [NAME], for its correspondence with Mr. [APPELLANT] prior to mailing the Notices. Effectively, [NAME] and Mr. [APPELLANT] both acted on the basis that the [NAME], not the [NAME], was the address properly on file. In my view, the March 17, 2017 facsimile and the issues regarding the Third Residency Letter do not displace that conclusion. Conclusion [ 43 ] The Respondent’s motion is dismissed, with costs in any event of the cause. Signed on this 9 th day of April 2026. “[NAME]” Cook J. CITATION: 2026 [NAME] 63 COURT FILE NO.: 2023-512(IT)G STYLE OF CAUSE: [APPELLANT] AND HIS MAJESTY THE KING MOTION HEARD: January 23 and February 13, 2026

REASONS FOR

ORDER BY: The Honourable Justice Edward (Ted) Cook DATE OF

ORDER: April 09, 2026 APPEARANCES: Counsel [APPELLANT] Appellant: [redacted] [NAME] Counsel [APPELLANT] Respondent: [redacted] COUNSEL OF RECORD: [APPELLANT] Appellant: [redacted] Respondent: [redacted]