



COURT OF APPEAL FOR ONTARIO

CITATION: Aubrey Dan Family Trust v. Ontario (Finance), 2017
    ONCA 875

DATE: 20171116

DOCKET: C62438

Simmons, Rouleau and Brown JJ.A.

BETWEEN

Aubrey Dan Family Trust

Appellant

and

Minister of Finance

Respondent

Mark Tonkovich and Jacques Bernier, for the appellant

Andrea Jackett, for the respondent

Heard: October 16, 2017

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

[1]

The appellant appeals from an order dismissing its summary judgment
    motion.

[2]

The appellant moved for summary judgment allowing its appeal from a
    reassessment of provincial income tax issued under t
he Ontario
Income Tax Act
, R.S.O. 1990, c. I.2 (the
    Ontario Act), for the 2007 taxation year.
[1]


[3]

On 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.

[4]

The 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.

[5]

The 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).

[6]

We do not accept the appellants submissions.

[7]

The 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 taxpayers 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.

[8]

Section 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.

[9]

As 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.

[10]

Further, 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 judges 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.

[11]

We 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.

[12]

As the motion judge observed, this case is more
    akin to the decisions of the British Columbia Court of Appeal in
R.
    v. Point
, 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.

[13]

The 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.

[14]

We 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.

[15]

Accordingly, 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.

[16]

Finally, we agree with the motion judge that
    advice to appellants counsel from government agencies under freedom of
    information type legislation and a statement in the respondents 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.

[17]

However, 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.

[18]

Moreover, 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.

[19]

The 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.

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:

1. Section
    151.

2.
    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).

3.
    Subsections 153 (1), (1.1), (1.2) and (3) and 156.1 (4).

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 taxpayers 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;





[1]

The 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.



[2]

The full text of all relevant provisions of the Ontario Act
    and the Federal Act is included in Appendix A to these reasons.



[3]

As previously noted, these provisions reflect the relevant
    sections in force at the relevant times.


