http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/108239/index.do 
Odebala-Fregene v. The Queen (February 20, 2015 – 2015 TCC 44, Lyons J.).
Précis: On September 2, 2014 the applicant brought an application to extend the time to file Notices of Objection for the 2009 and 2010 taxation years. She withdrew the 2009 application so this decision dealt with only 2010. The 2010 assessment was dated April 16, 2012. The time to file a Notice of Objection for 2010 expired on July 16, 2012 (90 days after the date of the assessment). The time to file an extension application expired on July 16, 2013 (one year after the expiration of the time for filing a Notice of Objection – paragraph 166.2(5)(a) of the
Income Tax Act (the “Act”)). The applicant argued that she did not become aware of the possibility of filing a Notice of Objection until 2014 when she spoke with a CRA collections agent. The applicant argued that the Tax Court had jurisdiction to extend the statutory one year limitation. The Court held that it did not and dismissed the application, each party to bear their own costs.
Decision: The applicant applied for an extension of the time to file a Notice of Objection to her 2009 and 2010 taxation years; she subsequently dropped the application in respect of 2009.
[4] According to the Amended Affidavit, sworn by an officer of the Canada Revenue Agency (“CRA”) and filed in support of the Reply, the Minister mailed a reassessment on February 24, 2012 and mailed the last reassessment on April 16, 2012 relating to the 2010 taxation year. One year after the last day (namely, the 90th day having expired on July 16, 2012) for serving a notice of objection to the April 16, 2012 reassessment was July 16, 2013.
The relevant statutory provision was paragraph 166.2(5)(a) of the Act:
(5) No application shall be granted under this section unless
(a) the application was made under subsection 166.1(1) within one year after the expiration of the time otherwise limited by this Act for serving a notice of objection or making a request, as the case may be;
The Court held that the one year limitation was clear and could not be waived:
[11] The language is clear. The requirements are strict. The time limit cannot be waived. An extension of time to file a notice of objection cannot be granted unless the application is made within one after the expiration of the time for serving an objection or making a request under the Act. These principles have been consistently noted at the appellate level and applied by this Court.
[12] In
Carlson v Canada, 2002 FCA 145, 2002 DTC 6893 (FCA), the Federal Court of Appeal noted at paragraphs 12 and 13 that one year and 90 days from the date of mailing the reassessment is absolute and cannot be waived.
The Court rejected the applicant’s argument that the discoverability rule applied:
[16] In the
Chu decision, Hershfield J. noted, at paragraph 26, that in his view no such distinction – a little late as opposed to very late – is warranted in adopting an approach to the subject provision. In that case, he concluded that the statutory language is clear, he has no jurisdiction and notes at paragraph 27 that:
27 There is a bright line, a bright timeline here that Parliament says must be observed. Acting diligently to rectify a problem upon learning of it, does not change that bright line. Being in the dark, at no fault of your own, that a clock is ticking, does not change that bright line.
[17] I agree with the approach in the
Chu decision that the doctrine of discoverability does not apply, as found in
Carlson.
Similarly the Court rejected the argument that the 2010 assessment had not been received by the taxpayer:
[18] Respondent counsel submitted that the applicant’s testimony that she could not recall receiving the April 16, 2012 reassessment is questionable given that all the documents up to the Objection referred to a charitable donation and it was omitted from the Objection because it had been allowed in the April reassessment.
[19] It is well established in the jurisprudence that mailing by the Minister of the reassessment, not receipt by a taxpayer, is all that is required. The Amended Affidavit indicates it was mailed on that date. The address shown on the February 24, 2012 reassessment is the same address used by the applicant on her Objection which was sent almost one month after the date of the April reassessment. I infer and find that the Minister mailed the April reassessment to the applicant at her last known address. I also accept the submission by respondent counsel which is supported by the evidence.
[Footnote omitted]
Finally the Court rejected the concept that it had jurisdiction to extend the one year period on the basis of “fairness”:
[22] Factoring in the nature of the specialized statutory scheme of the Act and that this Court is a statutory Court, considerations of fairness do not apply. In his submission, respondent counsel referred to the Federal Court of Appeal in
Chaya v Canada, 2004 FCA 327, 2004 DTC 6676 (FCA), which noted that such grounds are not within the power of this Court. In paragraph 4 of the decision, Rothstein JA, as he then was stated:
4 … It is not open to the Court to make exceptions to statutory provisions on the grounds of fairness or equity. If the applicant considers the law unfair, his remedy is with Parliament, not with the Court.
As a result the application was dismissed with each party to bear their own costs.