[1] This is an appeal from a decision of McArthur J. of the Tax Court, 2004 TCC 379, in which he dismissed an application by Carla Grunwald for an extension of time within which to serve notices of objection to assessments under the Income Tax Act, R.S.C. 1985, c. 1 (5^th Supp.), as amen. and the Excise Tax Act, R.S.C. c. E-13 as amen.

FACTS

[2] Ms. Grunwald was assessed as a corporate director of City Link Office Systems Inc. (City Link). Under subsection 22.1(1) of Income Tax Act, section 40.1 of the Income Tax Act of British Columbia, section 54 of the Unemployment Insurance Act, subsection 83(1) of the Employment Insurance Act and section 21.1 of the Canada Pension Plan, she was assessed in the amount of $25,343.55 for City Link's failure to remit source deductions in respect of income tax, employment insurance and Canada Pension Plan. Under subsection 323(1) of the Excise Tax Act, she was assessed for City Link's failure to remit GST, interest and penalties in the amount of $38,644.99.

[3] Notices of assessment were sent by registered mail to Ms. Grunwald at her residential address on November 17, 2000. The notices of assessment were returned by the Post Office marked "unclaimed". Consequently, on January 5, 2001, an employee of the Canada Customs and Revenue Agency (CCRA) drove to Abbotsford and handed the notices of assessment to Ms. Grunwald personally.

[4] Ms. Grunwald took the notices of assessments to a lawyer (not counsel acting on this appeal) with instructions to serve notices of objection. The notices of objection were never served.

[5] On June 26, 2003, Ms. Grunwald applied to the Minister of National Revenue under subsection 166.1(1) of the Income Tax Act and subsection 303(1) of the Excise Tax Act for extensions of time within which to serve notices of objection. On August 19, 2003, the Minister dismissed the extension applications.

DECISION OF THE TAX COURT JUDGE

[6] On November 14, 2003, Ms. Grunwald applied to the Tax Court, pursuant to subsection 166.2(1) of the Income Tax Act and subsection 304(1) of the Excise Tax Act, for extensions of time within which to serve the notices of objection. By his decision of May 25, 2004, McArthur J. dismissed the extension applications by reason of paragraph 166.2(5)(a) of the Income Tax Act and paragraph 304(5)(a) of the Excise Tax Act. Both provisions preclude the Tax Court from granting extension applications unless the taxpayer had made application to the Minister for an extension of time within one year after expiration of the time otherwise permitted by the Acts for serving a notice of objection.

[7] Ms. Grunwald's extension applications to the Minister were filed on June 26, 2003. McArthur J. determined that extensions could only be granted if both the November 17, 2000 mailing and the January 5, 2001 personal service of the notices of assessment were deemed invalid. If the November 17, 2000 mailing was valid, application to the Minister for an extension of time had to be filed on or before February 15, 2002. If the January 5, 2001 personal service was valid, the extension applications had to be filed on or before April 5, 2002. He found that the January 5, 2001 personal delivery was valid. As a result, he dismissed the extension applications.

ISSUE

[8] On appeal to this Court, Ms. Grunwald asks that the judgment of McArthur J. be overturned, that her extension applications be allowed and that her notices of objection be regularized or that the extension applications be dismissed as being unnecessary because the notices of objection are not late.

[9] I understand Ms. Grunwald's position to be that the notices of assessment had to be mailed to her, and because she alleges they were not, the 90-day time period for serving notices of objection never commenced to run. She would be satisfied either with a judgment extending time or a judgment that she must still be mailed the notices of assessment before the 90-day period for serving notices of objection begins to run.

ANALYSIS - INCOME TAX ACT

Was the Notice of Assessment Mailed?

[10] Ms. Grunwald bases her argument primarily on the wording of subsection 165(1) of the Income Tax Act. Subsection 165(1) requires a taxpayer to serve a notice of objection on the Minister within 90 days after the day of mailing of the notice of assessment. Subsection 165(1) provides in relevant part:

165. (1) A taxpayer who objects to an assessment under this Part may serve on the Minister a notice of objection, in writing

...

(b) in any other case, on or before the day that is 90 days after the day of mailing of the notice of assessment.

165. (1) Le contribuable qui s'oppose à une cotisation prévue par la présente partie peut signifier au ministre, par écrit, un avis d'opposition exposant les motifs de son opposition et tous les faits pertinents, dans les délais suivants:

...b) dans les autres cas, au plus tard le 90e jour suivant la date de mise à la poste de l'avis de cotisation

[11] Ms. Grunwald says the November 17, 2000 mailing was not to the correct address and therefore did not comply with subsection 165(1). She further says that the personal service on January 5, 2001 was not a mailing and therefore did not comply with subsection 165(1).

[12] Arguably, the November 17, 2000 mailing did comply with subsection 165(1). However, the evidence before McArthur J. was that Ms. Grunwald only received mail when it was sent to a postal station and box number because Canada Post did not deliver to her residence in the mountains. She said that the CCRA was aware of her correct mailing address and this was acknowledged in notes of an employee of CCRA.

[13] Although counsel for the Minister argued orally that the November 17, 2000 mailing complied with subsection 165(1), no such argument appeared in his memorandum of fact and law. I prefer not to decide the matter on this point, as Ms. Grunwald did not have a full opportunity to deal with the argument. Nor do I wish to be taken as saying that where mailed notices of assessment are returned unclaimed, the Minister is bound to resort to personal service.

The Rule Against Absurdity

[14] I turn to the question of whether personal service of the notices of assessment on January 5, 2001 caused the 90-day period for serving notices of objection to commence to run. If it did, the Minister and the Tax Court correctly refused Ms. Grunwald's extension applications. If it did not, she may still serve her notices of objection and no extension orders are necessary. My analysis is predicated on effective personal service because personal service was effective in this case. I leave for another day the question of whether an attempted personal service that fails could cause the 90-day objection period to commence to run.

[15] Subsection 165(1) provides that a notice of objection is to be served on the Minister on or before the day that is 90 days after the day of mailing of the notice of assessment. At first blush, no other means of communication, including personal service, would appear to start the 90-day time period running.

[16] I am guided in this appeal by the approach of the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27. In Rizzo, the plain meaning of the relevant Ontario legislation appeared to restrict the obligation to pay termination and severance pay to employees who were actively terminated and not to employees whose employment ended as a result of an employer's bankruptcy. However, Iacobucci J. found the plain meaning was incompatible with the object of the legislation. He found it absurd that employees dismissed the day before a bankruptcy would be entitled to termination and severance pay but those who had lost their jobs the day after were not.

[17] At paragraphs 20 and 21, Iacobucci J. rejected the plain meaning approach as incomplete. In concluding that employees were entitled to make claims for termination and severance payment as unsecured creditors in a bankruptcy, he relied on the now universally accepted Driedger approach to statutory interpretation:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.[at paragraph 21of Rizzo quotingDriedger on The Construction of Statutes (2^nd ed. 1983) at page 87]

[18] At paragraph 27, Iacobucci J. also noted the "well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences". Absurd consequences are described in the following passage of the same paragraph:

According to Côté, supra, [Pierre-André Côté, The Interpretation of Legislation in Canada, 2^nd ed. Cowansville, Que.: Yvon Blais, 1991] an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra, [Ruth Sullivan, ed., Driedger on the Construction of Statutes, 3d ed. (Toronto: Butterworths, 1994)] at p. 88).

[19] In this case, it is necessary to consider the object and intention of Parliament and the context of the words in issue and to adopt an interpretation that does not produce absurd consequences.

The Object of Parliament in Enacting Subsection 165(1)

[20] Subsection 165(1) is premised on the fundamental rule of procedural fairness that adverse consequences should not befall a person unless that person has notice and an opportunity to make submissions. Under the Income Tax Act, the Minister may assess a taxpayer. However, he must give notice of the assessment to the taxpayer so that the taxpayer has the opportunity to object and try to convince the Minister that the assessment is wrong. Even if the objection fails to convince the Minister, the taxpayer's opportunity to appeal to the Tax Court, this Court and if leave is granted, the Supreme Court of Canada, is predicated on the taxpayer first serving a notice of objection on the Minister.

[21] It is also fundamental to the scheme of the Income Tax Act that time limits apply to actions by the Minister and the taxpayer. Thus, under subsection 152(3.1), a limitation period applies to assessments by the Minister and under subsection 165(1), time limits are placed on taxpayers within which they must serve a notice of objection on the Minister.

[22] Under subsection 165(1), it is assumed that notice is given to a taxpayer simply by the mailing of the assessment to the taxpayer. Presumably, for administrative efficiency, Parliament did not want to burden the Minister, who is dealing with millions of assessments each year, with having to personally serve notices of assessment or with having to prove that each taxpayer received a mailed notice of assessment. Therefore, subsection 165(1) is premised on the fiction that a taxpayer receives the assessment by the act of the Minister mailing it, when, in fact, the taxpayer will not have received it until it has been processed and delivered by the post office and picked up by the taxpayer. It is, of course, open to Parliament to legislate in that way. However, to interpret subsection 165(1) as depriving the Minister of the ability to start the clock on the 90-day objection period by providing actual notice to a taxpayer by means of personal service would be contrary to the object and intent of Parliament and would produce an illogical result.

[23] Ms. Grunwald argues that when the Income Tax Act prescribes or authorizes service personally as opposed to by mail, the legislation specifically so provides. She cites as examples subsections 83(3.1), 131(1.2), 150(2) and 212(18). The method of service prescribed in these provisions is personal service or registered mail. It is apparent that in these circumstances, the Act requires a higher standard of service than ordinary mail and specifies the method of service in precise terms. On the other hand, subsection 165(1) does not purport to limit the method of service.

[24] Other than resting on what she says is the plain meaning of subsection 165(1), Ms. Grunwald offers no logical reason why personal service of a notice of assessment should not commence the 90-day objection period running. With respect, it seems to me that such a position would, to use the words of Iacobucci J. in Rizzo, lead to a ridiculous or frivolous consequence.

Ms. Grunwald's Interpretation of Subsection 165(1) is Incompatible with Subsections 152(2) and 152(3.1)

[25] Ms Grunwald's interpretation of subsection 165(1) renders it incompatible with other provisions of the Act. Subsection 152(2) provides:

152(2) After examination of a return, the Minister shall send a notice of assessment to the person by whom the return was filed. [Emphasis added.]

152(2) Après examen d'une déclaration, le ministre envoie un avis de cotisation à la personne qui a produit la déclaration. [Je souligne.]

[26] Subsection 152(2) does not refer to mailing. It uses the term "send". "Send" is clearly broader than "mailing" and while it would include mailing, it would also appear to include personal service on a taxpayer by an employee of CCRA, as occurred in this case.

[27] In Flanagan v. Her Majesty the Queen and the Minister of National Revenue (1987), 87 D.T.C. 5390, due to a postal strike, service of a notice of reassessment was attempted by personal service. The attempt failed. Hugessen J.A. (as he then was) addressed the question of what was contemplated by the term "send" in subsection 152(2). He concluded that it was not obligatory that the sending be by mail. At page 5391 he stated:

We are all in agreement with the Trial Judge's view that the sending contemplated by subsection 152(2) is to be understood as a dispatching which does not necessarily include receipt; it is certainly not obligatory that the sending be by mail, as is made quite clear by subsection 244(10). [Emphasis added.]

[28] In the present case, the personal service on Ms. Grunwald was successful. Therefore, according to Flanagan, the Minister complied with subsection 152(2) even though the notice was not mailed.

[29] If the Minister's obligation to send a notice of assessment under subsection 152(2) is met by personal service, can it be said that the time for serving a notice of objection under subsection 165(1) never starts to run because the notice of assessment was not mailed? Such a result would be incongruous. It would mean that the Minister had carried out his obligation under subsection 152(2) but the time for the taxpayer to serve a notice of objection never started to run.

[30] That interpretation would have other consequences. For example, subsection 152(3.1) defines the normal period for reassessing a taxpayer in relation to the "day of mailing of a notice of an original assessment". Paragraph 152(3.1) provides:

(3.1) For the purposes of subsections (4), (4.01), (4.2), (4.3), (5) and (9), the normal reassessment period for a taxpayer in respect of a taxation year is

(a) where at the end of the year the taxpayer is a mutual fund trust or a corporation other than a Canadian-controlled private corporation, the period that ends 4 years after the earlier of the day of mailing of a notice of an original assessment under this Part in respect of the taxpayer for the year and the day of mailing of an original notification that no tax is payable by the taxpayer for the year; and

(b) in any other case, the period that ends 3 years after the earlier of the day of mailing of a notice of an original assessment under this Part in respect of the taxpayer for the year and the day of mailing of an original notification that no tax is payable by the taxpayer for the year.

[Emphasis added.]

(3.1) Pour l'application des paragraphes (4), (4.01), (4.2), (4.3), (5) et (9), la période normale de nouvelle cotisation applicable à un contribuable pour une année d'imposition s'étend sur les périodes suivantes:

a) quatre ans suivant soit le jour de mise à la poste d'un avis de première cotisation en vertu de la présente partie le concernant pour l'année, soit, s'il est antérieur, le jour de mise à la poste d'une première notification portant qu'aucun impôt n'est payable par lui pour l'année, si, à la fin de l'année, le contribuable est une fiducie de fonds commun de placement ou une société autre qu'une société privée sous contrôle canadien;

b) trois ans suivant le premier en date de ces jours, dans les autres cas.

[Je souligne.]

[31] If the Minister arranges for personal service of the notice of assessment, under Ms. Grunwald's approach, the normal reassessment period would not commence to run and the Minister's time for reassessing would not be statute barred after three years of the date of personal service. Such a result demonstrates that Ms. Grunwald's approach adversely affects taxpayers as well as the Minister and is not an intended object of the Act. As a result, the term "day of mailing" in the Act should not be construed as precluding a more effective means of communicating a notice of assessment to a taxpayer from causing the 90-day objection period to commence running.

Ms. Grunwald's Interpretation of Subsection 165(1) is Contradictory to Subsection 244(10)

[32] In Flanagan, Hugessen J.A. referred to subsection 244(10). Subsection 244(10) provides:

244(10) An affidavit of an officer of the Canada Customs and Revenue Agency, sworn before a commissioner or other person authorized to take affidavits, setting out that the officer has charge of the appropriate records and has knowledge of the practice of the Agency and that an examination of those records shows that a notice of assessment for a particular taxation year or a notice of determination was mailed or otherwise communicated to a taxpayer on a particular day under this Act and that, after careful examination and search of those records, the officer has been unable to find that a notice of objection or of appeal from the assessment or determination or a request under subsection 245(6), as the case may be, was received within the time allowed, shall, in the absence of proof to the contrary, be received as evidence of the statements contained in it. [Emphasis added.]

244(10) Un affidavit d'un fonctionnaire de l'Agence des douanes et du revenu du Canada, souscrit en présence d'un commissaire ou d'une autre personne autorisée à recevoir les affidavits, indiquant qu'il a la charge des registres appropriés, qu'il a connaissance de la pratique de l'Agence et qu'un examen des registres démontre qu'un avis de cotisation pour une année d'imposition donnée ou qu'un avis de détermination a été expédié par la poste ou autrement communiqué à un contribuable, un jour particulier, en conformité avec la présente loi, et qu'après avoir fait un examen attentif des registres et y avoir pratiqué des recherches il lui a été impossible de constater qu'un avis d'opposition ou d'appel concernant la cotisation ou la détermination ou qu'une demande visée au paragraphe 245(6), selon le cas, a été reçu dans le délai imparti à cette fin, doit être reçu comme preuve, sauf preuve contraire, des énonciations qui y sont renfermées.

[Je souligne.]

[33] Subsection 244(10) deals with the situation in which a taxpayer claims that a notice of objection was served "within the time allowed" but no notice of objection was found in the records of the CCRA. The application of subsection 244(10) is predicated on a notice of assessment being "mailed or otherwise communicated to a taxpayer on a particular day under this Act". The term "otherwise communicated to the taxpayer" would obviously include personal service by an employee of the CCRA. If the words of subsection 244(10) are to be given effect, a notice of assessment communicated on a particular day otherwise than by mail, i.e. by personal service, will cause the period for serving a notice of objection to commence running.

[34] The reference in subsection 244(10) to "mailed or otherwise communicated" is incompatible with Ms. Grunwald's interpretation of paragraph 165(1) that a notice of assessment must be communicated to a taxpayer only by mail for the time for serving a notice of objection to start to run. If Ms. Grunwald were correct, the words "otherwise communicated to the taxpayer" in subsection 244(10) would be rendered "pointless or futile", a consequence that is referred to as absurd in Rizzo and one that is to be avoided.

[35] Parliament is presumed not to make contradictory enactments (see Friends of Old Man River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 at 38 per La Forest J.). Ms. Grunwald's reading of subsection 165(1) would result in contradictory provisions. Ms. Grunwald did not provide and I can think of no reason why Parliament would wish to preclude the Minister from other options for communicating notices of assessment to taxpayers provided they were fair and effective. There is nothing unfair or ineffective about personal service of a notice of assessment.

Scott and Aztec

[36] Ms. Grunwald brought to our attention two cases which she says support her argument that the time for serving a notice of objection does not start to run unless and until a notice of assessment is mailed. The first is Scott v. Minister of National Revenue (1960), 60 D.T.C. 1273. In that case, Thurlow J. (as he then was) inferred that notices of assessment should be given by post. At page 1281 he stated:

Now, nowhere in the statute is there any express definition of what Parliament intended by the word "send" in s. 46(2), but inferentially from the references in ss. 51(1), 52(1), 57(1) and 58(1) to the "mailing of notice of assessment" and the prescription of times by reference thereto, it would seem apparent that Parliament intended that such notices should be given by post.

The issue with which Thurlow J. was dealing was mailing to a wrong or fictitious address and whether this constituted valid mailing within the time limitation for reassessment by the Minister. The issue of whether personal service of a notice of assessment would cause the period for serving a notice of objection to commence running was not before him. In any event, Scott has been overtaken by Flanagan.

[37] The other case is Aztec Industries Inc. v. Her Majesty the Queen (1995), 95 D.T.C. 5235. In that case the issue was whether there was evidence that the Minister had issued and mailed the relevant notices of assessment. There was no suggestion that the notices of assessment had been sent to the taxpayer by any other means. In the context of the issue before him in that case, Hugessen J.A. observed that:

Subsection 165(1) supra, makes it plain that it is the mailing of the notice of assessment which starts the clock ticking against the taxpayer.

[38] I do not read Aztec to say more than that when the issue is whether a notice of assessment has been mailed, the 90-day period for serving a notice of objection will commence on the date of mailing. In Aztec, Hugessen J.A. did not refer to his prior decision in Flanagan and I do not interpret Aztec as overruling Flanagan.

Antosko

[39] Ms. Grunwald cited Antosko v. Her Majesty the Queen, [1994] 2 S.C.R. 312 for the proposition that when words of the statute are clear and plain, resort to other provisions of the Income Tax Act cannot alter the result. I do not think Antosko applies in this case. Antosko does not derogate from the Driedger approach to statutory interpretation and in particular from the requirement to read provisions of statutes in context. Ms. Grunwald's interpretation of subsection 165(1) in isolation renders it incompatible with subsection 244(10). The two must be reconciled. The logical reconciliation is to recognize that subsection 165(1) cannot be read to preclude other reasonable and effective means of communicating notices of assessment to taxpayers causing the 90-day period for objection to commence running.

Subsection 244(15)

[40] Alternatively, Ms. Grunwald relies on subsection 244(15):

244(15) Where any notice of assessment or determination has been sent by the Minister as required by this Act, the assessment or determination is deemed to have been made on the day of mailing of the notice of the assessment or determination.

244(15) Lorsqu'un avis de cotisation ou de détermination a été envoyé par le ministre comme le prévoit la présente loi, la cotisation est réputée avoir été établie et le montant, déterminé à la date de mise à la poste de l'avis de cotisation ou de détermination.

She says subsection 244(15) is a conclusive deeming provision, the effect of which is that if the notice of assessment has not been mailed, the assessment has not been made. I accept that subsection 244(15) is a conclusive deeming provision. However that conclusion still leaves open the question of the scope of the deeming provision. In Sullivan and Driedger on the Construction of Statutes, Fourth Edition, at page 69, Professor Sullivan explains:

When "deems" is used to create a legal fiction, the fiction cannot be rebutted. The facts as declared by the legislature govern even in the face of irrefutable evidence to the contrary. The difficulty which arises in interpreting legal fictions is determining the scope of the fiction. Is a person who is deemed single to be regarded as single for all legal purposes or for the purpose of a particular act only or even more narrowly for a specific legal rule?

[41] Subsection 244(15) is predicated on the notice of assessment being mailed. That defines its scope. Where a notice of assessment is sent by mail, the assessment is deemed to have been made on the date of mailing. However, when the notice of assessment is sent by a means other than mailing I do not read subsection 244(15) to preclude the conclusion that the assessment was made on the date of actual service of the notice of assessment on the taxpayer. Just five subsections before in subsection 244(10) Parliament has provided that the time allowed for service of a notice of objection by the Minister is related to when the notice of assessment was "mailed or otherwise communicated to a taxpayer". To interpret subsection 244(15) to mean that an assessment is not made unless it is mailed would ignore the wording of subsection 244(10). I do not think the scope of the deeming aspect of subsection 244(15) is to be interpreted in that way.

Stability, Consistency and Predictability of the Law

[42] There is another reason for rejecting Ms. Grunwald's interpretation of subsection 165(1). In this case, I think the Court must follow Flanagan. It is longstanding authority, having been decided in 1987. I do not read Scott or Aztec as impairing its authority. I am not convinced it was wrongly decided. The Court is responsible for the stability, consistency and predictability of the law. Nowhere is this more important than in the field of taxation. Since 1987 this Court has adopted the view that service of a notice of assessment need not be by mail and it follows that the period for the serving of a notice of objection may commence either from the date of mailing or the date of actual service of the notice of assessment if served other than by mail (see Miller v. Canada (Attorney General), (2002) 220 D.L.R. (4th) 149 and (2002) 293 N.R. 391 at paragraphs 8 to 10).

ANALYSIS - EXCISE TAX ACT

[43] The forgoing analysis deals with provisions of the Income Tax Act. Ms. Grunwald was also assessed under the Excise Tax Act. Subsection 301(1.1) of the Excise Tax Act provides:

301(1.1) Any person who has been assessed and who objects to the assessment may, within ninety days after the day notice of the assessment is sent to the person, file with the Minister a notice of objection in the prescribed form and manner setting out the reasons for the objection and all the relevant facts.

301(1.1) La personne qui fait opposition à la cotisation établie à son égard peut, dans les 90 jours suivant le jour où l'avis de cotisation lui est envoyé, présenter au ministre un avis d'opposition, en la forme et selon les modalités déterminées par celui-ci, exposant les motifs de son opposition et tous les faits pertinents.

[44] While subsection 301(1.1) is a parallel provision to subsection 165(1) of the Income Tax Act, it does not use the term "mailing". It uses the term "sent". Flanagan is authority for the proposition that the word "send" is not limited to sending by mail. "Sent" is the past tense of the verb "send". The interpretative difficulties that arise in respect of subsection 165(1) of the Income Tax Act do not arise in respect of subsection 301(1.1) of the Excise Tax Act.

[45] The appellant points to subsection 335(11) of the Excise Tax Act which is parallel to subsection 244(15) of the Income Tax Act.

335(11) Where a notice of assessment has been sent by the Minister as required under this Part, the assessment shall be deemed to have been made on the day of mailing of the notice of assessment.

335(11) Lorsqu'un avis de cotisation a été envoyé par le ministre de la manière prévue à la présente partie, la cotisation est réputée établie à la date de mise à la poste de l'avis.

My reasoning in respect of subsection 244(15) of the Income Tax Act applies to subsection 335(11) of the Excise Tax Act. Subsection 335(11) does not preclude the time for serving a notice of objection commencing upon a notice of assessment under the Excise Tax Act being personally served on a taxpayer.

CONCLUSION

[46] The notices of assessment in this appeal were personally served on Ms. Grunwald on January 5, 2001. That commenced the running of the 90-day period for serving her notices of objection on the Minister. Here, notices of objection should have been served on the Minister on or before April 5, 2001. Her applications to extend time to serve the notices of objection had to be filed with the Minister within one year of April 5, 2001, namely, on or before April 5, 2002. They were not filed until June 26, 2003. The Minister and therefore McArthur J. were without jurisdiction to grant Ms. Grunwald's extension applications and McArthur J. correctly dismissed her appeals.

[47] There is no doubt that in respect of the procedure according to which a notice of assessment is to be communicated to a taxpayer, the Income Tax Act, read literally, is not internally consistent. Subsection 152(2) uses the term "send". Subsection 165(1) uses the term "mailing". Subsection 244(10) uses the phrase "mailed or otherwise communicated". The use of different terms in the Income Tax Act dealing with the same procedure creates uncertainty. The Minister and taxpayers should be entitled to know their fundamental obligations in respect of notices of assessment and notices of objection from reading the Act and not from judicial interpretation. It would be salutory for Parliament to address these internal inconsistencies and, except where a specific method of service is intended, adopt a consistent flexible terminology in all provisions dealing with the communication of notices of assessment to taxpayers.

[48] The appeal should be dismissed with costs.

"Marshall Rothstein"

J.A.

"I agree

M. Nadon J.A."

"I agree

J.D. Denis Pelletier J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKETS: A-342-04, A-343-04

STYLE OF CAUSE: CARLA GRUNWALD v. HER MAJESTY THE QUEEN

PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA

DATE OF HEARING: NOVEMBER 28, 2005

REASONS FOR JUDGMENT BY: ROTHSTEIN J.A.

CONCURRED IN BY: NADON J.A.

PELLETIER J.A.

DATED: DECEMBER 12, 2005

APPEARANCES:

Mr. Timothy Clarke

FOR THE APPELLANT

Mr. Raj Grewal

Mr. Tom Torrie

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Bull Housser

Vancouver, British Columbia

FOR THE APPELLANT

John H. Sims, Q.C.

Deputy Attorney General of Canada

Ottawa, Ontario

FOR THE RESPONDENT

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