Subsection 244(4) - Limitation period
Cases
PS&E Contractors Ltd. v. The Queen, 89 DTC 5067 (Sask. C.A.)
"The knowledge must be the knowledge of the Minister personally and the knowledge of someone else cannot be substituted for it."
The Queen v. Print Three, 88 DTC 6315 (Ont. Prov. Ct.)
Marcotte was followed.
R. v. Les Habitations Perigord Inc., 88 DTC 6267, [1988] 2 CTC 64 (Que. C.A.)
A certificate was held to be defective because it only certified that the requisite evidence came to the knowledge of an authorized official, rather than to the knowledge of the Minister. Reference was made to the Marcotte decision, which was founded "sur la distinction entre le fait et le pouvoir, la connaisance étant un fait et non une fonction ou un pouvoir délégable."
Re Pica and The Queen, 85 DTC 5041, [1985] 1 CTC 73 (S.C.O.)
"Minister" in s. 244(4) includes his designee.
James v. The Queen, 84 DTC 6570, [1984] CTC 672 (S.C.O.), rev'd by 86 DTC 6432, [1986] 2 CTC 288 (Ont CA), briefly aff'd by 88 DTC 6273, [1988] 2 CTC 1, [1988] 1 S.C.R. 669
S.244(4) "leaves it entirely in the hands of the Minister to state when in his 'opinion' sufficient information was brought to his knowledge to justify prosecution. His opinion is in no way limited or fettered by the words of this section. There is no specific requirement that he have 'reasonable and probable cause' for the prosecution ... . There is ... no good reason to hold in this case in the absence of fraud, that the certificate of the Minister should not be admitted in evidence on the issue of the limitation period."
R. v. Simmons, 84 DTC 6171 (Nfld. Prov. Ct.)
A Minister's certificate was not invalid by reason of the fact that it was signed by the District Office Director of Taxation who certified as to his own knowledge rather than that of the Minister.
Fee v. Bradshaw, 82 DTC 6264, [1982] CTC 201, [1982] 1 S.C.R. 607
S.18 of the Federal Court Act does not give the Federal Court the jurisdiction to prohibit the filing of an allegedly false certificate, because neither (1) the statement in a certificate of the day on which the evidence came to the Minister's knowledge nor (2) the filing of a certificate, entails a decision of an administrative nature or the exercise of a discretionary power. Those actions instead are to be regarded respectively, as (1) a simple statement of fact and (2) the use of a mode of proof. "Only to the extent that he makes an administrative decision or exercises a discretionary power could it be argued that the Minister of National Revenue ... may be subject to the superintending and reforming power of the Trial Division".
Usarco Ltd. v. A.G. Canada, 80 DTC 6308, [1980] CTC 484 (FCTD)
A certificate is not conclusive evidence of the assertions contained therein if it was made fraudulently. (Obiter)
Medicine Hat Greenhouse Ltd. and German v. R., 79 DTC 5091, [1980] CTC 114 (Alta. C.A.)
Assuming the absence of fraudulent intent or improper motive involved in specifying the date contained in the certificate, the certificate is conclusive evidence as to the date upon which the evidence justifying a prosecution came to the attention of the Minister. In addition, delay in initiating a prosecution which is not barred by a limitation period does not constitute an abuse of process.
Subsection 244(5) - Proof of service by mail
See Also
Hamer v. The Queen, 2014 DTC 1168 [at 3602], 2014 TCC 218
Woods J found that CRA's affidavit was insufficient to prove that the taxpayer's notice of assessment had been mailed. She stated (at paras. 13-14):
First, the key facts ... are not within the knowledge of Mr. Momoh [the officer who swore the affidavit]. ...
Second, the affidavit provides only a bare-bones description of [the mailing]. Mr. Momoh states ... that the notice of reassessment was released in DAS 75 but there is no detail as to how that conclusion was reached. ... In addition, the conclusion reached by Mr. Momoh in paragraph 10 provides no detail at all except that it is "upon review of the agency's records."
Woods J therefore granted the taxpayer's application to extend the time to file a notice of objection.
Skalbania v. The Queen, 2009 DTC 2066, 2009 TCC 576
The Minister was found to have reassessed the taxpayer within the normal reassessment period when on the last day of that period CRA mailed the notice of reassessment by registered mail to the proper address of the taxpayer, notwithstanding that the envelope was not delivered to the taxpayer.
In commenting on the rebuttable nature of the presumption in s. 244(5), Hershfield, J. stated (at para. 36):
"What is rebuttable here is not the delivery and registration of the notice to Canada Post. Evidence that the envelope was empty or contained something other than the notice would, for example, defeat the evidence of sending the notice."
Subsection 244(7) - Proof of failure to comply
Cases
Cholodniuk v. R., 92 DTC 6168 (Sask. C.A.)
Because a common law trial judge has not only the right but also the duty to control the evidence so as to ensure a fair trial, a judge has the discretion to require the Crown to produce the affiant for cross-examination. Here, however, the trial judge rightly declined to do so because the accused had not made out any grounds for doing so.
Furthermore, s. 244(7) is not contrary to s. 11(d) of the Charter.
A.G. (Canada) v. Romeo's Trucking Ltd., 80 DTC 6238, [1980] CTC 278 (Sask. D.C.)
The S.244(7) presumption was rebutted by testimony of the taxpayer's accountant that he had mailed the taxpayer's return on a timely basis.
Subsection 244(9) - Proof of documents
Cases
Aztec Industries Inc. v. The Queen, 95 DTC 5235 (FCA)
Given that the only documentary evidence the Minister was able to provide by way of affidavit were three "final requests for payment" reciting that Revenue Canada had not yet received payment for the amounts for which "you were recently assessed", and given that there is no burden of proof resting on the taxpayer until the Minister establishes the sending of the notices of assessment, an application by the taxpayer for an extension of time to respond to the alleged notices of assessment was dismissed on the ground that their existence had not been established.
Subsection 244(10) - Proof of no appeal
See Also
Sicoli v. The Queen, 2013 DTC 1167 [at 917], 2013 TCC 207
Hershfield J found that the Minister was unable to rely on s. 244(10) in respect of 17 assessments that had purportedly all been mailed in 2009, as the circumstances around the mailing were clearly not part of CRA's usual mailing practices. Hershfield J stated that "the evidence in this case is haunted by a degree of hurried carelessness on the part of the CRA that strongly suggests the unreliability of evidence that relies on routine or ordinary practices" (para. 14).
Poulin v. The Queen, 2013 DTC 1102 [at 545], 2013 TCC 104
Hershfield J found that the Minister's affidavit was inadequate to establish under s. 244(10) that the taxpayer's Notice of Objection had been filed after the applicable deadline, chiefly because the affidavit dealt with the wrong tax centre. The Minister's affidavit was based on the timestamp for the Notice's arrival at the Burnaby-Fraser Tax Services Office, rather than the tax centre in Surrey, BC where the taxpayer had sent the Notice. The taxpayer's own testimony as to the mailing date was credible. Hershfield J therefore granted the taxpayer's application to extend the time to file a Notice of Objection.
In reaching this conclusion, Hershfield J noted that the situation was analogous to Carcone, which dealt with a Notice of Assessment. Hershfield J stated (at para. 27):
The onus is not different in regard to the date of receipt of a notice of objection. Only the CRA would be possessed of such information.
Carcone v. The Queen, 2012 DTC 1032 [at 2651], 2011 TCC 550
The taxpayer's application to extend the period to file notices of objection was denied because the period had not yet commenced. The Minister was unable to prove that a notice of assessment had been communicated to the taxpayer. Apart from the taxpayer's own evidence indicating that no such communication had been received, the Minister had not met the requirements to rely on s. 244(10) - the CRA officer testifying was not the officer in charge of the taxpayers' records. The officer's testimony regarding whether the notices of assessment had been mailed was therefore disregarded as hearsay.
Graham v. The Queen, 92 DTC 1012 (TCC)
After paraphrasing s. 244(10), Bowman J. stated (p. 1014):
"Such evidence is obviously not irrebuttable and in any event the evidence of a departmental official that he has been unable to find something is evidence of just that and nothing more - that he has been unable to find it. It forms no basis by itself for striking out a notice of appeal."
Subsection 244(13) - Proof of documents
Cases
The Queen v. Ehli, 99 DTC 6505 (Alta CA)
A demand made pursuant to s. 231.2(1)(a) that contained a signature stamp affixed by an employee of the CCRA who had been authorized by the director-taxation to prepare an issue the document was validated by s. 244(13).
Swyryda v. The Queen, 81 DTC 5109 (Sask QB)
The signing of a demand for information by an official other than the Director-Taxation (the Director-Taxation being the officer authorized by regulation 900 to exercise that duty) was cured by S.244(13). "Nothing in that section says that the document must be personally executed by someone specifically designated by the Minister pursuant to the regulations".
Israel v. The Queen, 79 DTC 5418, [1979] CTC 468 (FCTD)
A document described as a "notice of assessment" on which the printed name "E.B. ARMSTRONG" appeared over the title of "DEPUTY MINISTER OF NATIONAL REVENUE FOR TAXATION", was authenticated by s. 244(13). [C.R.: Department of Natural Revenue Act - 2(1)]
Subsection 244(14) - Mailing or sending date
See Also
236130 British Columbia Ltd. v. The Queen, 2006 DTC 2053, 2005 TCC 770
In finding that a notice of reassessment that the Minister mailed to the wrong address within the six-month period referred to in s. 152(4.1) should not be treated as being made within that period, Bell J found that a notice of assessment mailed to the wrong address could not be considered to have been mailed for the purposes of s. 244(14). With respect to a subsequent notice of reassessment that allegedly was mailed within the six-month period, Bell J. noted that although the Minister produced evidence of mailing procedures, no evidence of the date of mailing of the notice of reassessment was produced, with the result that the Minister had failed to meet the onus of persuading the Court that the taxpayer had been validly reassessed.
VIH Logging Ltd. v. The Queen, 2004 DTC 2090, 2003 TCC 732
After finding that an assessment of the taxpayer had been made when the assessment was picked up by a courier for delivery, Woods J. went on to indicate that he did not wish to decide on a submission that the assessment, in any event, would have been deemed to be made at the time of pick-up on the basis that delivery by courier constituted mailing as he was reluctant to make a finding on whether "mail" included courier delivery.
McIntyre v. MNR, 93 DTC 999 (TCC)
Notices of reassessment that were sent by registered mail by the Minister were returned by the post office, with the envelopes marked "unclaimed". After the period for reassessment expired, Revenue Canada sent out the notices of reassessment by ordinary mail with an explanation that the notices, when originally mailed, had been undeliverable "due to an address change". In fact, the taxpayer at all relevant times had been at the same address.
In these circumstances, Teskey J. found that "the onus is on the Minister to prove that the Notices were sent to the proper address", which he had failed to do. Accordingly, the taxpayer had not been reassessed within the period for doing so.
Everett's Truck Stop Ltd. v. The Queen, 93 DTC 965 (TCC)
The assumption by another corporation ("Polar Oils") of the obligation of the taxpayer to pay $119,658 in consideration for the taxpayer's agreement to pay four cents per litre more for diesel fuel purchased by it from Polar Oils until the total overpayments amounted to $119,658, constituted an inducement under s. 12(1)(x). The amount of the inclusion under s. 12(1)(x) was the full amount rather than the amount of additional payments made by the taxpayer to Polar Oils in the taxation year.
No relief was available under s. 13(7.4) given the absence of a timely election.
Subsection 244(15) - Date when assessment made
Cases
Skalbania v. The Queen, 2009 DTC 2066, 2009 TCC 576
The Minister was found to have reassessed the taxpayer within the normal reassessment period when on the last day of that period CRA mailed the notice of reassessment by registered mail to the proper address of the taxpayer, notwithstanding that the envelope was not delivered to the taxpayer.
McGowan v. The Queen, 95 D.T.C 5337 (FCA)
The taxpayer had failed to rebut the presumption of due issuance created by s. 244(15) by any evidence to the contrary.