In Luxury Home Landscape Construction Inc. v R, 2021 TCC 4, a GST informal procedure “mail room” case, the Minister brought a motion to quash the appeal because it was supposedly late-filed. The Court dismissed the motion and ordered the appeal set down for a hearing because the Minister failed to prove that it had sent a notice of confirmation in a timely manner.
The Minister claimed to have sent a notice of confirmation that started a limitation period that the appellant had missed. Subsection 335(1) of the Excise Tax Act is similar to subsection 244(5) of the Income Tax Act (Canada), which reads as follows:
Where, by this Act or a regulation , provision is made for sending by mail a request for information, notice or demand, an affidavit of an officer of the Canada Revenue Agency, sworn before a commissioner or other person authorized to take affidavits, setting out that the officer has knowledge of the facts in the particular case, that such a request, notice or demand was sent by registered letter on a named day to the person to whom it was addressed (indicating the address) and that the officer identifies as exhibits attached to the affidavit the post office certificate of registration of the letter or a true copy of the relevant portion thereof and a true copy of the request, notice or demand, shall, in the absence of proof to the contrary, be received as evidence of the sending and of the request, notice or demand.
The Minister’s affidavit in support of the motion to quash had attached to it only a copy of a CRA form with the Canada Post tracking number on it. The Court held that the form and tracking number did not satisfy the requirements of subsection 335(1). The Court wrote:
[23] The only document that conceivably could be a candidate for being so described is the Exhibit “B” “special mail services request form”, being an internal CRA document as described above. It is not a Canada Post document, nor does it use the name Canada Post or the phrase “registered mail” (the latter apart from indicating that this internal CRA form is to be used for requesting “registered mail” up to 500 grams, or “Xpresspost”, but not “courier requests”). In particular the provided “tracking number” includes no reference to Canada Post or registered mail.
[24] … Perfection is not the standard in measuring [the] affidavit against subsection 335(1) specified requirements. Regardless I cannot find that CRA’s “special mail services request form”, albeit presumably with a Canada Post “tracking number” stamped or affixed thereon, can reasonably be considered, “the post office certificate of registration of the letter or a true copy of the relevant portion thereof” per subsection 335(1). Thus subsection 335(1) has not been complied with. It specifies what Parliament intends is required, in order to prove by affidavit that a notice including a notice of confirmation has been “sent by registered mail”. That is an important piece of evidence as it commences, effective the “sent” date, the counting of a 90 day period available for the filing a notice of appeal.
