CRA Minister Cannot Deny Late Objections: Reasonableness

resaonableInteresting recent decision making it law that the Canada Revenue Agency can no longer maintain a position of “you objected too late, so you cannot object”.

Of course this decision is ONLY because someone complained, via the correct court process, that the action taken by CRA was wrong and did request a  court to review the decision.

Not happy? There is a process to complain and correct. Find it and use it.


ConocoPhillips Canada Resources Corp. (the “Taxpayer“) filed a late notice of objection with the Minister in 2010. The Minister rejected it as invalid.

The Taxpayer requested that the Minister waive the requirement to file a notice of objection, pursuant to the Minister’s discretionary powers under subsection 220(2.1) of the Income Tax Act (the “ITA“). In 2012, the Minister denied this request, stating that the Minister does not have the jurisdiction to waive the obligation to serve a notice of objection.

The Taxpayer filed a judicial review application with the Federal Court to challenge the Minister’s decision.


The Minister has Jurisdiction to Waive the Requirement for a Notice of Objection

The French version of subsection 220(2.1) is open to two interpretations. The Court adopted the interpretation consistent with the English version: the Minister can waive a requirement to file a prescribed form.

Subsection 165(1) of the ITA calls on a taxpayer to “serve” a notice of objection, whereas subsection 220(2.1) of the ITA waives requirements to “file”. Further, subsection 165(1) notes that a taxpayer may serve a notice of objection, whereas subsection 220(2.1) refers to documents that are required to be filed. The Crown argued that these terms are distinct and have different meanings.

The Court found these distinctions meaningless in a context where jurisprudence recognizes that subsection 220(2.1) applies to notices of objection.

The Court concluded that the Minister’s position was unreasonable. The Minister unduly limited her discretion by not considering the Taxpayer’s request for a waiver of the requirement to serve a notice of objection.


Reasonableness is a more deferential standard. The Court reasoned that the ITA is the Minister’s “home statute,” so a deferential standard should apply.

On the other hand, correctness applied as a standard of review for the question of whether the Minister breached natural justice and procedural fairness in refusing the waiver.

QUOTES FROM DECISION – Conocophillips Canada Resources Corp. v. Canada (National Revenue)



PDF of Article Court Concludes that the CRA can waive the Requirement for a Notice of Objection

CASE Referenced In Decision

Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250 (CanLII), <>

[1]               In this appeal, the Minister of National Revenue renews her attempt to strike out the application for judicial review brought by JP Morgan Asset Management (Canada) Inc. in the Federal Court.

[2]               In that application for judicial review, JP Morgan alleges that the Minister departed from an administrative policy when she assessed it for tax under Part XIII of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) for 2002, 2003 and 2004. This, JP Morgan says, was an improper exercise of discretion [win]. The Minister counters that, in reality, JP Morgan is challenging the validity of the assessments, a matter that is within the exclusive jurisdiction of the Tax Court of Canada [lose].