From John Sorenson’s comment on Remtilla (2015 TCC 200) in Canadian Tax Highlights 23:9 (Sep 2015):
The TCC confirmed that waivers of the normal reassessment period are typically filed in prescribed form, but that a waiver can be in another form as long as prescribed information is provided and the document is intended to be a waiver. For example, the TCC noted that the FCA had held that a letter to the CRA was a waiver and that the CRA must treat any document as a waiver if it includes the necessary information. The TCC said that whether a waiver was filed requires an objective determination of the parties’ intentions and any relevant circumstances.
Justice Miller makes the following additional comments about waivers (at ¶¶33–36):
- The onus is on the Minister to prove that a taxpayer has filed a waiver for a year (Fietz v R, 2011 TCC 493).
- Per Fietz, a waiver can be valid although it does not specify the scope of the waiver if the scope can be gleaned from other relevant documents (such as a proposal letter).
- A court interpreting a waiver will ascertain the intention of the parties as expressed in the waiver together with other relevant circumstances for which evidence is available (Solberg (SJ) v Canada, [1992] 2 CTC 208 (FCTD)).
- The standard for determining a taxpayer’s intention in a waiver “is from the perspective of the objective reasonable bystander”, which is a concept from contract law (Noran West Developments Ltd v R, 2012 TCC 434).
