https://decisia.lexum.com/tcc-cci/decisions/en/item/309165/index.do
DaSilva v. The Queen (March 19, 2018 – 2018 TCC 74, Graham J.).
Précis: The taxpayer appealed to the Tax Court in respect of a denial of a claim for a GST/HST new housing rebate. The Minister moved to quash the appeal on the basis that the taxpayer’s notice of objection was not filed on a timely basis. The Minister alleged that the notice of assessment was mailed on January 11, 2013. The taxpayer alleged that she did not receive the notice of assessment until it was provided to her on August 22, 2016. The Court accepted the taxpayer’s evidence and allowed the appeal (the Minister conceded that the appeal should be allowed if the appeal was not quashed for late filing).
Decision: The Tax Court accepted the taxpayer’s evidence:
[3] While these seem like drastically different positions, the parties’ disagreement essentially comes down to one issue: When was the notice of assessment sent? The Respondent says that the notice of assessment in question was mailed on January 11, 2013. Ms. DaSilva admits that, if the notice of assessment was mailed on that date, the appeal should be quashed. Ms. DaSilva says that the notice of assessment was not mailed on January 11, 2013, but rather that it was first sent on August 22, 2016 when a CRA Collections officer provided her with a copy of it. The Respondent admits that, if the notice of assessment was first sent on that date, Ms. DaSilva objected within time and the appeal should not be quashed. Thus, the only issue on this preliminary motion is when the notice of assessment was sent.
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[5] Ms. DaSilva has asserted that the notice of assessment in question was not mailed. I heard the testimony and cross-examination of Ms. DaSilva and her mother, Margaret DaSilva. I found both of them to be credible witnesses. Ms. DaSilva was assessed in three different ways in respect of the same condo purchase and sale. She and her mother testified that Ms. DaSilva received an income tax notice of reassessment and a HST notice of assessment and objected to both of them but did not receive the GST/HST rebate notice of assessment in issue. I find it very unlikely that Ms. DaSilva would have received three notices of assessment related to the purchase and sale of a condo and objected to only two of them. Accordingly, I find that Ms. DaSilva has raised a credible assertion that the Minister did not mail the notice of assessment in issue.
Since the taxpayer had raised a credible explanation that the notice of assessment was not mailed in January of 2013, the Court had to evaluate the Minister’s evidence which the Court found wanting:
[7] The Respondent relies on the affidavit of Trevor Neill to prove that the notice of assessment was mailed to Ms. DaSilva. Mr. Neill is a manager in the Print to Mail Division at the CRA. Mr. Neill was cross-examined at the hearing. I found him to be a credible and knowledgeable witness.
[8] Subsection 335(6) sets out specific requirements that must be met in order for the Minister to rely on an affidavit to prove mailing. Mr. Neill’s affidavit does not satisfy these requirements. Mr. Neill sets out in detail how the mailing system works at the CRA. Mr. Neill has personal knowledge of that system. I accept his evidence in this regard. However, Mr. Neill relied on a senior programs officer named Stacey Dougay to provide him with a key piece of information. That key piece of information is the number of the business client communications system cycle (the “BCCS cycle”) in which Ms. DaSilva’s notice of assessment was to be printed. Mr. Neill personally confirmed that the BCCS cycle whose number was provided by Ms. Dougay ran without errors. It was on that basis that he concluded that Ms. DaSilva’s notice of assessment had been mailed. The problem is that Mr. Neill did not have personal knowledge of which BCCS cycle contained Ms. DaSilva’s notice of reassessment. Subsection 335(6) requires that, if the Minister wants to rely on an affidavit to prove mailing, the affiant must have charge of the appropriate records and must have reviewed them. Mr. Neill cannot be said to have reviewed the records that were, in fact, reviewed by Ms. Dougay.
As a result the Court dismissed the Minister’s motion to quash and allowed the appeal since the Minister conceded it should be allowed if the motion to quash was dismissed. There was no order as to costs since this was an informal procedure appeal.