ConocoPhillips had commenced an application for judicial
review as a result of a dispute between the CRA about whether a
Notice of Reassessment had been validly sent to the taxpayer.
The CRA alleged that it mailed a Notice of Reassessment on November
7, 2008. ConocoPhillips alleged that it never received the Notice
of Reassessment and that it first learned of the reassessment on
April 14, 2010.
Accordingly, when ConocoPhillips filed a Notice of Objection on
June 7, 2010, the CRA advised that it would not consider the
objection on the grounds that it was not filed within 90 days of
the alleged mailing date (i.e., November 7, 2008) and that
no request for an extension of time was made within the year
following the alleged mailing date of the reassessment.
The Federal Court considered the question of jurisdiction and
found that it had jurisdiction because the Court was not being
asked to consider the validity of the reassessment (which can only
be determined by the Tax Court of Canada) but rather, was only
being asked to review the CRA's decision not to consider the
Based on the standard of reasonableness, the Federal Court found
in favour of ConocoPhillips on the basis that the CRA had not
sufficiently engaged the evidence to appropriately render an
opinion whether or not the reassessment was mailed on the alleged
date. The Court set aside that decision.
The Crown appealed to the Federal Court of Appeal on the basis
that the Federal Court lacked jurisdiction on this issue. The
Federal Court of Appeal allowed the appeal.
Section 18.5 of the Federal Courts Act provides that
judicial review in the Federal Court is not available where,
inter alia, an appeal is permitted on the issue before the
Tax Court of Canada. In the present case, the Federal Court
of Appeal stated that, pursuant to subsection 169(1)(b) of the
Income Tax Act (Canada), ConocoPhillips could have
appealed to the Tax Court after 90 days had elapsed following the
date its objection was initially filed and the Tax Court would have
been the correct forum to determine if, or when, the Notice of
Reassessment was mailed and when the time for filing a Notice of
The Federal Court of Appeal clarified that the Minister's
obligation to consider a Notice of Objection is triggered
regardless of whether a Notice of Objection may have been filed
within the required time-frame. Further, the Minister's
decision on this issue is not an impediment to filing an appeal to
the Tax Court pursuant to paragraph 169(1)(b) of
the Income Tax Act (Canada). Accordingly, judicial
review of this issue was not available in the Federal Court.
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