The taxpayers, a married couple, bought and sold stock options through a joint account with an investment firm ("Canaccord"). They had reported their modest losses in 2005 and gains in 2006 and 2007 on capital account but then characterized their substantial loss for 2008 as on income account, and made a T1 adjustment request that their 2005-2007 years reflect the same characterization.
CRA lost the adjustment request but accepted in 2012 that it had in fact been made in 2009. In a settlement covering all outstanding objections the taxpayers had with the Minister, the Minister reached a settlement agreement with the taxpayers to treat all years on capital account and reassessed accordingly. The taxpayers appealed the reassessments for 2006 and 2007 on the basis that they were statute-barred.
VA Miller J dismissed the taxpayers' appeal, agreeing with the Minister that the adjustment request constituted a waiver. Mitchell applied. The adjustment request form together with the accompanying letter contained all the necessary information. After having stated (at para. 36) that "the standard for determining a taxpayer's intention to waive…the normal reassessment period is from the perspective of the objective reasonable bystander," she noted (at para. 48) that, notwithstanding the husband's insistence that the request was not intended to act as a waiver, "a reasonable person observing Mr. Remtilla's interactions with the CRA in 2009 and in 2012 would infer that he always intended the T1 Adjustment Requests to be acted upon, even after the 2006 and 2007 years became statute-barred."