Court of Appeal for Ontario
Judges: Simmons, Rouleau and Brown JJ.A.
Between
Aubrey Dan Family Trust Appellant
and
Minister of Finance Respondent
Counsel
Mark Tonkovich and Jacques Bernier, for the appellant
Andrea Jackett, for the respondent
Heard
October 16, 2017
On Appeal
On appeal from the order of Justice Sidney N. Lederman of the Superior Court of Justice, dated June 10, 2016, with reasons reported at 2016 ONSC 3801.
Reasons for Decision
1The appellant appeals from an order dismissing its summary judgment motion.
2The appellant moved for summary judgment allowing its appeal from a reassessment of provincial income tax issued under the Ontario Income Tax Act, R.S.O. 1990, c. I.2 (the "Ontario Act"), for the 2007 taxation year.[1]
3On its motion, the appellant asserted that the reassessment occurred after the limitation period for reassessing Ontario income tax had passed. The appellant argued that limitation waiver form T2029, which it had submitted for the 2007 taxation year, is a prescribed form under the federal Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (the "Federal Act"), but the form did not operate to waive the limitation period for reassessing income tax under the Ontario Act. That is because waiver form T2029 had never been "prescribed" for the purposes of the Ontario Act by means of an order of the Provincial Minister: s. 1(1) of the Ontario Act.[2] In any event, advice from government agencies that no order or other document exists that prescribed waiver form T2029 for the purposes of the Ontario Act "called in question" whether it had been prescribed for purposes of the Ontario Act: s. 48(15) of the Ontario Act.
4The motion judge found that the relevant limitation period had expired but rejected the appellant's argument that no valid waiver was submitted. Among other things, the motion judge concluded that waiver form T2029 was deemed, by s. 48(15) of the Ontario Act, "to be a form prescribed by order of the Provincial Minister" under the Ontario Act. He also concluded that the waiver form had "not been called into question by the Provincial Minister or anyone acting on his behalf" within the meaning of s. 48(15). The motion judge therefore held that the waiver form signed by the appellant was valid for the purposes of waiving the limitation period for reassessment of Ontario income tax.
5The appellant does not dispute that waiver form T2029 is a prescribed form for the purposes of the Federal Act. However, it submits that s. 48(15) is a procedural and evidentiary provision that only operates to dispense with formal proof; it does not operate to deem that waiver form T2029 has been "prescribed by order of the Provincial Minister" for the purposes of the Ontario Act when that has never occurred: s. 1(1) of the Ontario Act; and Murphy v. Minister of National Revenue, 2009 FC 1226, [2010] 3 C.T.C. 1. In any event, the advice that no such order exists "called in question" the form and prevented the operation of s. 48(15).
6We do not accept the appellant's submissions.
7The combined operation of s. 10 of the Ontario Act, which adopts certain provisions of the Federal Act, and s. 152(4) of the Federal Act permit reassessment of Ontario tax after a taxpayer's normal reassessment period in respect of a taxation year where the taxpayer "has filed with the Minister a waiver in prescribed form within the normal reassessment period for the taxpayer in respect of the year": s. 152(4)(a)(ii) of the Federal Act.
8Section 48(15) of the Ontario Act states that "[e]very form purporting to be a form prescribed … by the Provincial Minister shall be deemed to be a form prescribed by order of the Provincial Minister under … [the Ontario] Act unless called in question by the Provincial Minister or by some person acting for the Provincial Minister or Her Majesty."
9As noted by the motion judge, given the existence of a long-standing collection agreement between the Ontario government and the Federal government, by operation of s. 1(1) of the Ontario Act, "Provincial Minister" in s. 48(15) of the Ontario Act means the Minister of National Revenue for Canada.
10Further, waiver form T2029 "bears the insignia of the … [Canada Revenue Agency ("CRA")] and the Government of Canada and … is regularly used by the CRA." In the motion judge's words, "[i]n this way, it implies or purports to be a prescribed form." Moreover, "[e]xplicit wording on the form that it purports to be a form prescribed under the Ontario Act is not required for subsection 48(15) to apply."
11We agree with the motion judge that Murphy does not assist the appellant. In that case, it was held that a deeming provision in the Federal Act (s. 244(13)) could not assist where a document was signed and issued by a CRA official who lacked the statutory authority to do so. Here, no delegated statutory authority is required to authorize any signatures on waiver form T2029.
12As the motion judge observed, this case is more akin to the decisions of the British Columbia Court of Appeal in R. v. Point, 1957 CanLII 967 (BC CA), 119 C.C.C. 117; R. v. Watson, 2006 BCCA 233, [2006] 4 C.T.C. 61; and R. v. Smith, 2007 BCCA 499, [2007] 1 C.T.C. 147, in which that court relied on deeming provisions in the Federal Act (s. 244(16) or a predecessor thereof), which is akin to s. 48(15) of the Ontario Act, to find that forms were prescribed forms under the Federal Act.
13The scope of s. 48(15) is to be determined based on a proper interpretation of the Ontario Act. While "all statutes … must be interpreted in a textual, contextual and purposive way", the context of an income tax statute may lead to "an emphasis on textual interpretation": Canada Trustco Mortgage Co. v. R., 2005 SCC 54, [2005] 2 S.C.R. 601, at para. 11. Section 48(15) deems waiver form T2029 to be a prescribed form.
14We agree with the motion judge that s. 48(15) avoids the necessity of formal proof of an order of the Minister of National Revenue and that "[t]he prescription imposed by the Minister [of National Revenue] is sufficiently evidenced by the aforesaid indicia on the form." Further, as we have said, the appellant does not dispute that waiver form T2029 is a prescribed form for the purposes of the Federal Act.
15Accordingly, under the first part of s. 48(15) of the Ontario Act, waiver form T2029 clearly purports "to be a form prescribed or authorized by the [Minister of National Revenue]". Further, on a proper reading of the second part of s. 48(15), waiver form T2029 "shall be deemed to be a form prescribed by order of the [Minister of National Revenue] under this Act". The meaning is clear. This form purporting to be "prescribed or authorized by the [Minister of National Revenue] shall be deemed to be … prescribed by order of the [Minister of National Revenue]" under the Ontario Act.
16Finally, we agree with the motion judge that advice to appellant's counsel from government agencies under freedom of information type legislation and a statement in the respondent's motion factum did not amount to calling into question form T2029 as a prescribed form. The statements upon which the appellant relies were to the effect that no order or other document exists prescribing waiver form T2029 for the purposes of waiving the normal reassessment period under the Ontario Act.
17However, as stated by the motion judge, "[w]aiver form T2029 is a form utilized for federal purposes and purports to be the form prescribed or authorized by the Minister of National Revenue" – a fact the appellant does not dispute.
18Moreover, there is no evidence that it has been "called in question by the Provincial Minister or by some person acting for the Provincial Minister or Her Majesty."
19The appeal is therefore dismissed with costs to the respondent on a partial indemnity scale fixed in the amount of $10,000 inclusive of disbursements and applicable taxes.
Signatures
"Janet Simmons J.A."
"Paul Rouleau J.A."
"David Brown J.A."
Appendix 'A'[3]
Income Tax Act, R.S.O. 1990, c. I.2
Interpretation
1. (1) In this Act,
"Federal Act" means the Income Tax Act (Canada);
"Minister" means the Minister of National Revenue for Canada, but in any provision of the Federal Act that is incorporated by reference in this Act, unless a collection agreement has been entered into, a reference to the Minister shall be read and construed for the purposes of this Act as a reference to the Provincial Minister;
"prescribed", in the case of a form or the information to be given on a form, means prescribed by order of the Provincial Minister, and, in any other case, means prescribed by regulation;
"Provincial Minister" means the Minister of Finance or, where a collection agreement is entered into, means,
(a) the Receiver General for Canada, in relation to the remittance of an amount as or on account of tax payable under this Act, and
(b) the Minister, in relation to the administration and enforcement of this Act other than,
(i) sections 8.5 and 8.6, subsections 10 (3) and (4) and sections 22.1, 28, 45, 49 and 53,
(i.1) section 8.4.1,
(i.2) Divisions C.1 and C.2 of Part II and provisions of this Act and the Federal Act that apply in respect of provisions in those Divisions,
(ii) in relation to the assessment of a penalty under subsection 19 (3.1),
(iii) in relation to an objection to an assessment of a penalty under subsection 19 (3.1) or an appeal from such an assessment, and
(iv) Part III as it applies in relation to the Ontario child care supplement for working families;
Assessments and Withholdings
10. (1) The following provisions of the Federal Act apply for the purposes of this Act and, in their application, any reference in them to section 150 or subsection 150 (1) of the Federal Act shall be read to include a reference to subsection 9 (1) of this Act:
Section 151.
Subsections 152 (1), (1.11), (1.12), (2), (3), (3.1), (4), (4.01), (4.1), (4.2), (4.3), (4.4), (5), (6), (7), (8) and (9).
Subsections 153 (1), (1.1), (1.2) and (3) and 156.1 (4).
Subsections 227 (5), (5.1), (8.3) and (8.4). 1997, c. 10, s. 4 (3); 1999, c. 9, s. 123 (1-3);
Forms Prescribed or Authorized
48. (15) Every form purporting to be a form prescribed or authorized by the Provincial Minister shall be deemed to be a form prescribed by order of the Provincial Minister under this Act unless called in question by the Provincial Minister or by some person acting for the Provincial Minister or Her Majesty.
Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.)
Assessment and Reassessment
152 (4) The Minister may at any time make an assessment, reassessment or additional assessment of tax for a taxation year, interest or penalties, if any, payable under this Part by a taxpayer or notify in writing any person by whom a return of income for a taxation year has been filed that no tax is payable for the year, except that an assessment, reassessment or additional assessment may be made after the taxpayer's normal reassessment period in respect of the year only if
(a) the taxpayer or person filing the return
(i) has made any misrepresentation that is attributable to neglect, carelessness or wilful default or has committed any fraud in filing the return or in supplying any information under this Act, or
(ii) has filed with the Minister a waiver in prescribed form within the normal reassessment period for the taxpayer in respect of the year;
Proof of Documents
244 (13) Every document purporting to have been executed under, or in the course of the administration or enforcement of, this Act over the name in writing of the Minister, the Deputy Minister of National Revenue, the Commissioner of Customs and Revenue, the Commissioner of Revenue or an officer authorized to exercise a power or perform a duty of the Minister under this Act is deemed to have been signed, made and issued by the Minister, the Deputy Minister, the Commissioner of Customs and Revenue, the Commissioner of Revenue or the officer unless it has been called in question by the Minister or by a person acting for the Minister or Her Majesty.
Forms Prescribed or Authorized
244 (16) Every form purporting to be a form prescribed or authorized by the Minister shall be deemed to be a form authorized under this Act by the Minister unless called in question by the Minister or by a person acting for the Minister or Her Majesty.
Definitions
248 (1) In this Act,
Minister means the Minister of National Revenue;
prescribed means
(a) in the case of a form, the information to be given on a form or the manner of filing a form, authorized by the Minister,
(a.1) in the case of the manner of making or filing an election, authorized by the Minister, and
(b) in any other case, prescribed by regulation or determined in accordance with rules prescribed by regulation;
Footnotes
1The statutes cited in these reasons have undergone amendments that are not reflected herein. Quotations of statutory provisions reflect the versions in force at the relevant time.
2The full text of all relevant provisions of the Ontario Act and the Federal Act is included in Appendix 'A' to these reasons.
3As previously noted, these provisions reflect the relevant sections in force at the relevant times.