https://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/461756/index.do
Al-Rubaiy v. The Queen (February 20, 2020 – 2020 TCC 34, Wong J.).
Précis: The taxpayer filed a GST/HST rebate application late. He claimed that he was entitled to rely upon the common law principle of discoverability to extend the time to file his rebate claim. The Tax Court held that the common law rule did not apply to the rebate provisions of the Excise Tax Act. Thus the appeal was dismissed. There was no order as to costs.
Decision: The Court found that the taxpayer could not rely upon the common law discoverability rule for GST/HST rebate claims under the Excise Tax Act:
[17] I am unable to see a way in which the common-law discoverability rule can be appropriately applied to the present situation.
[18] In Twentieth Century Fox Home Entertainment Canada Limited v. Canada (Attorney General), 2013 FCA 25, [2013] GSTC 16 at paragraph 10, the Federal Court of Appeal stated that:
Parliament has provided that the only right to recover an over-payment of GST is that contained in section 261. A taxpayer who has no right to a statutory rebate because it is claimed too late has no right to recover a mistaken over-payment, but may apply for a favourable exercise of discretion under subsection 23(2) [of the Financial Administration Act].
[19] With respect to the discoverability rule, the Federal Court of Appeal stated as follows in Carlson v. Canada, 2002 FCA 145, 2002 DTC 2556 at paragraph 17:
We are therefore of the view that the Deputy Judge erred, in the circumstances of this case, in relying on the discoverability rule. As to whether the rule can find application in cases arising under the Act, in regard to which question we have serious doubts, we need not answer today.
[20] In Nagle v. The Queen, 2005 TCC 462, 59 DTC 1093 at paragraph 12, this Court held that the discoverability rule does not override legislation.
[21] Both Carlson and Nagle dealt with an extension of time to file a notice of objection under the Income Tax Act. In my view, these conclusions apply equally to the limitation periods in the Excise Tax Act.
Thus, the appeal was dismissed. There was no order as to costs.