Canada: ConocoPhillips Canada Resources Corp v MNR – s. 220(2.1) & Notice of Objection – Case Comment

Last Updated: April 4 2016

Summary - ConocoPhillips Canada Resources Corp v MNR

In ConocoPhillips Canada Resources Corp. v MNR 2016 FC 98 the Federal Court of Canada found that the CRA does have the jurisdiction to waive the service requirements for a notice of objection under subsection 220(2.1) of the Canadian Income Tax Act (“Tax Act”). However, whether the waiver should be granted is to be determined by the CRA. If the CRA unreasonably refuses to exercise their discretion, a taxpayer can challenge the refusal in the Federal Court. For more information on the exercising of discretion by the CRA, please visit this page.

We have not yet heard the last word on this case since the CRA filed a notice of appeal to the Federal Court of Appeal against this decision on February 26, 2016.

Timely Notice of Objection and Extension of Time for Service of Notice of Objection

Under subsection 165(1) of the Tax Act, a taxpayer who objects to a CRA Income Tax Assessment may serve a notice of objection on the CRA. Paragraph 165(1)(a) states that the objection must be served within 90 days after the notice of assessment is sent to the Canadian taxpayer. If an objection is not sent during this 90 day period, subsection 166.1(1) of the Tax Act allows the taxpayer to apply to the CRA to extend the time to serve the notice of objection. However, the application will not be granted if the taxpayer does not comply with subsection 166.1(7) of the Tax Act. Subsection 166.1(7) states that an application for an extension of time must be made within one year after the expiration of the 90 day objection period. If the taxpayer attempts to serve the notice of objection outside of this time period it will not be accepted by the CRA. In other words, there is normally a 15 month window for a Toronto tax attorney to object to a CRA tax assessment.

Section 220 of the Tax Act

The “Administration and Enforcement” part of the Tax Act begins in section 220. Under the heading “Minister’s Duty” is subsection 220(2.1) which covers “waiver of filing of documents.” In this subsection, if there is a requirement under the Tax Act to file a prescribed form, document, receipt, or prescribed information, the CRA has the power to waive the requirement. However, even if a waiver of a requirement is granted, the CRA can still request the documents or information at a later date.

Facts of ConocoPhillips Canada Resources Corp v The Minister of National Revenue

ConocoPhillips was part of a collective group of litigants that challenged the correctness of the Syncrude Remission Order for the 2000 tax year. All members had participated in the Syncrude Oil Sands project. The CRA requested that ConocoPhillips provide a waiver for adjustments that would occur if the litigation was decided in favour of the collective litigants. ConocoPhillips refused to provide this document. As a result, the CRA reassessed ConocoPhillips’ taxable income for the 2000 year to include potential, additional remission amounts. ConocoPhillips served a timely notice of objection to this initial reassessment in 2006.

A second (unrelated) reassessment was issued on November 7, 2008. However, ConocoPhillips was not aware that this notice had been issued until April 14, 2010, which was after the period to object and apply for an extension had expired. ConocoPhillips did not receive a copy of this reassessment until May 2010. ConocoPhillips attempted to serve a second notice of objection. The objection was rejected by the CRA on the grounds that it had not been served in a timely manner and that the period to request an extension to serve a notice of objection had expired. ConocoPhillips alleged that it did not file a timely notice of objection because it received a copy of the reassessment after the time limit and extension periods for a notice of objection had passed.

ConocoPhillips relied on subsection 220(2.1) of the Tax Act to request that the CRA waive the obligation to serve a notice of objection. The CRA decided that the scope of authority under subsection 220(2.1) did not extend to objections to assessments and denied the request. ConocoPhillips made a successful application to the Federal Court to review the CRA’s refusal to waive the obligation to serve a notice of objection.

Toronto Tax Lawyer Legal Analysis ConocoPhillips Canada Resources Corp v The Minister of National Revenue

Our experienced Toronto tax litigation attorneys have analyzed this case. At issue in this case is whether the CRA erred in determining that it did not have the authority under subsection 220(2.1) of the Tax Act to waive the obligation to serve a notice of objection. However, before the court could decide on the issue, the court had to determine if it had the ability, or jurisdiction, to make a decision on the issue.

There are different types of courts in the Canadian legal system including courts of inherent jurisdiction and statutory courts. Statutory courts have their decision making powers granted to them by way of a statute. Courts of inherent jurisdiction can hear any matter unless a statue or rule grants jurisdiction to another court. If the matter is outside of a court’s jurisdiction, it cannot make a legally binding decision on the matter.

In this case the court decided that the matter was properly pursued in the Federal Court for the following reasons. First, the issue was not under the jurisdiction of the Tax Court of Canada (“Tax Court”). The Tax Court of Canada Act sets out the areas of law that only the Tax Court can decide on. Therefore, the issue raised did not need to be heard in the Tax Court. Second, the ability to try the issue was granted to the Federal Court through statute. Judicial review of the matter was available under sections 18 and 18.1 of the Federal Courts Act. Lastly, the ground of review, substantive unacceptability, is known or could be recognized in administrative law. To conclude, the Federal Court said that it had the jurisdiction to decide on this case.

At issue is the CRA’s interpretation of a provision within a statute that grants it the authority to apply and administer the Tax Act. The Federal Court held that this is akin to a tribunal interpreting its home statute. Therefore, the precedent in the Supreme Court case of ATA v Alberta 2011 SCC 61 was followed and a deferential reasonableness standard of review was adopted. Based on this standard of review, the CRA’s interpretation of the provision would only be accepted if the court found that the interpretation was “reasonable.”

The CRA advanced an unsuccessful argument that subsection 220(2.1) would only apply when a provision or regulation of the Income Tax Act “requires a person to file a prescribed form, receipt, or other document.” The terms “require” and “file” in subsection 220(2.1) were not consistent with the terms “may” and “serve” used in subsection 165(1). Due to the inconsistencies in language, the CRA argued that the scope of subsection 220(2.1) did not extend to notices of objection under subsection 165(1).

In rejecting the CRA’s position , the Federal Court relied on the Tax Court cases of Petratos 2013 TCC 240 and Melanson 2011 TCC 569 to demonstrate that subsection 220(2.1) does apply to notices of objection despite differences in wording between the two provisions. In addition, the Tax Court case of Poulin 2013 TCC 104 held that the CRA’s authority under subsection 220(2.1) was a broader, discretionary power which enabled the CRA, in effect, to waive statutory requirements.

The Federal Court held that the CRA’s interpretation of subsection 220(2.1) was not reasonable. The provision should not be interpreted strictly. Therefore, the CRA’s discretionary power under this subsection extends to objections to assessments. In other words, taxpayers may be able to object to matters beyond the typical 15 month objection window if the CRA chooses to use their power under subsection 220(2.1) to waive the obligation to serve a notice of objection.

Toronto Tax Lawyer Help for Missed Notice of Objection Time Period

Here are two potential scenarios where this waiving of the Objection requirement may occur. First, the Tax Act states that CRA must reassess a taxpayer once served with a notice of objection. However, the CRA possesses the power to reassess a taxpayer even if not served with a notice of objection. Therefore a tax reassessment could still occur even if a notice of objection is not received by the CRA at all. Alternatively the CRA could waive the obligation to serve the notice of objection and then later request the document. Upon receiving the notice of objection, the CRA must then reassess the taxpayer in accordance with the normal Objection rules. If you have missed the 15 month time period to file a Notice of Objection contact one of our top Toronto tax attorneys for tax help.

The information is thought to be current to date of posting. Income tax law changes frequently and content may no longer reflect the current state of the law. This document is not intended to create an attorney-client relationship. You should not act or rely on any information in this document without first seeking legal advice. This material is intended for general information purposes only and does not constitute legal advice. If you have any specific questions on any legal matter, you should consult a professional legal services provider.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Contact the Author?
Click here to email the Author
In Association with
In Partnership with
Other Canada Advice Centres
Competition and Antitrust
Mergers and Acquisitions
Labour and Employment
More Advice Centers
Useful Resources
Forms available to download for income tax filing in Canada.
Hear David J. Rotfleisch discuss timely and highly topical tax matters during appearances and interviews with specialist publications.
Useful explanatory videos of income tax matters.
The following questions and answers are based on the proposed measures that were announced on December 7, 2015.
The official Government website of the CRA.
This guide is for any person who deals with the Canada Revenue Agency (CRA). The guide gives you information on the 16 rights set out in the Taxpayer Bill of Rights and explains what you can do if you believe that the CRA has not respected your rights.
The Office of the Taxpayers' Ombudsman (OTO) works to enhance the Canada Revenue Agency's (CRA) accountability in its service to, and treatment of, taxpayers and benefit recipients through independent and impartial reviews of service-related complaints and systemic issues.
Ontario personal income tax is an annual tax collected from individuals who are Ontario residents on the last day of the tax year or have income earned in Ontario for the tax year.
The following documents provide instructions for filing your 2015 income tax return.
If you earned income in B.C. or operated a Corporation with a permanent establishment in B.C. last year you need to file an income tax return. Find out when you need to file your income tax return, and if any tax credits or rebates apply to you.
Generally, a corporation must file an Alberta corporate income tax return (AT1) for each taxation year during which it has a permanent establishment in Alberta.
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.