The taxpayer claimed that it did not learn about a reassessment allegedly mailed on November 7, 2008 until April 14, 2010. When its Notice of Objection dated June 7, 2010 was rejected on grounds of untimeliness, it obtained a decision of the Federal Court (2013 FC 1192) setting aside the decision of the Minister not to consider the objection.
In reversing this judgment, Dawson J.A. noted that s. 18.5 of the Federal Courts Act insulates a decision from judicial review if there is an express right of appeal to the Tax Court, and stated (at para. 8):
[C]onocoPhillips' proper recourse was to commence an appeal to the Tax Court under paragraph 169(1)(b) of the Act and to demonstrate in that appeal that its notice of objection was filed on a timely basis. It is within the jurisdiction of the Tax Court to determine whether the notice of reassessment was in fact mailed as the Minister alleges. This it will do on a full evidentiary record with regard to the statutory presumption found in subsection 244(14) of the Act (which presumes a notice of reassessment to have been mailed on its date). See: Walker v. Canada, 2005 FCA 393, 344 N.R. 169, at paragraphs 11 to 13. It is open to ConocoPhillips to request that the question of the timeliness of its notice of objection be determined before the trial pursuant to Rule 58(1)…