Executive Summary: Key Legal and Evidentiary Issues

• The Respondent (the Crown) moved to quash Mr. Shaker's tax appeals on the basis that he failed to file timely notices of objection, a condition precedent under subsection 169(1) of the Income Tax Act.

• Central to the dispute was whether the CRA mailed the notices of reassessment for the 2008 and 2009 taxation years to the correct address — an incomplete "First Address" lacking a postal code and unit number.

• Application of the four-step Mpamugo test required Mr. Shaker to credibly assert the Notices were sent to the wrong address through no fault of his own, and the Minister to prove the Notices were mailed to the address the CRA "properly had on file."

• Conflicting affidavit evidence emerged regarding whether the Third Residency Letter was returned unopened or actually received by Mr. Shaker, influencing the CRA's choice of mailing address.

• Mr. Shaker's non-cooperation with the CRA audit was considered but ultimately found insufficient to constitute "fault" regarding his mailing address, as the CRA had consistently used the more complete Second Address for correspondence.

• The Court concluded both parties had effectively acted on the basis that the more complete Second Address was the address properly on file, and the motion to quash was dismissed with costs in any event of the cause.

Background and the parties involved

Charles Shaker, a business consultant who travelled in his work, was the appellant in a tax dispute before the Tax Court of Canada. The respondent was His Majesty the King, represented by the Crown. The case arose from reassessments of Mr. Shaker's 2008 and 2009 taxation years. In February 2013, the Federal Court had issued a compliance order requiring Mr. Shaker to file income-tax returns for those years. By June 25, 2013, the Canada Revenue Agency received Mr. Shaker's returns, which listed a Hertsmere Road street address in London, UK — later referred to as the "First Address" — that was incomplete, lacking both a postal code and a unit number.

The two addresses at issue

During its audit, the CRA obtained Mr. Shaker's most recent passport application from Citizenship and Immigration Canada in June 2015. That application, dated April 22, 2013, contained a more complete version of the same Hertsmere Road property address, including a unit number and postal code — referred to as the "Second Address." From July 2015 through at least August 2016, the CRA used the Second Address for all relevant correspondence with Mr. Shaker, including a proposal letter and three residency determination letters. Copies of these letters were also sent to Mr. Shaker's authorized representatives — first Thorsteinssons LLP and later Drache Aptowitzer LLP.

Mr. Shaker's non-cooperation and the CRA's response

Throughout the audit, Mr. Shaker did not cooperate with the CRA. He declined to provide the residency information requested in the three residency letters. Mr. Shaker explained that he did not respond to the residency letters because he was "not going to continue playing this game with her [the CRA auditor, Ms. Keller]." He also chose not to respond to the March 17, 2017 request for an address because the CRA was "continuing the same old process of dragging me [Mr. Shaker] through an endless audit with endless questions that went around in circles." In his view, the CRA had his correct address and was using it for correspondence with him. A lawyer from Drache Aptowitzer LLP called the CRA auditor and told her that Mr. Shaker had not replied to him recently and that "for all I know, he has fallen off the face of the Earth."

The mailing of the reassessment notices

On March 17, 2017, the CRA sent a facsimile to Drache Aptowitzer LLP stating that it had completed its final audit letter for Mr. Shaker's 2008 and 2009 taxation years. Because the audit letter discussed other entities, it would be sent to Mr. Shaker directly. The facsimile requested that it be forwarded to Mr. Shaker and that Mr. Shaker reply to the CRA with an address to which the final audit letter could be sent. Mr. Shaker was made aware of the facsimile and he decided not to respond to it. Less than two weeks later, on March 31, 2017, the CRA mailed the notices of reassessment — not to the Second Address that had been used for all prior correspondence, but to the incomplete First Address originally provided in the tax returns. Neither the Notices nor any notification about them were sent to the Second Address or to Drache Aptowitzer LLP.

Discovery and objection

Both parties agreed that the First Address was an undeliverable address and that, as a result, the Notices were not delivered to Mr. Shaker. Mr. Shaker only received copies of the Notices on July 15, 2022, when he was served them in the course of his application to the Federal Court for a judicial review. He subsequently filed notices of objection on September 14, 2022, for the reassessments of his 2008 and 2009 taxation years.

The Respondent's motion and the legal framework

The Respondent brought a motion under paragraph 53(3)(b) of the Tax Court of Canada Rules (General Procedure) to quash the appeals, arguing that Mr. Shaker had not satisfied the condition precedent under subsection 169(1) of the Income Tax Act — namely, filing valid notices of objection. The Court applied the Mpamugo v The Queen, 2016 TCC 215, aff'd 2017 FCA 136, test, which provides a four-step test for determining if the Minister has mailed a notice of assessment. Steps 1 and 2 were relevant to this motion: first, whether the taxpayer can credibly assert the Notices were mailed to the wrong address through no fault of their own; and second, whether the Minister can prove the Notices were mailed to the address the CRA "properly had on file."

The Court's analysis under Step 1

Justice Cook found that Mr. Shaker was not at fault as contemplated by Step 1 of the Mpamugo test. Although Mr. Shaker was evidently non-cooperative, his non-cooperation did not amount to fault by him with respect to his mailing address. The CRA had consistently used the Second Address, and nothing Mr. Shaker received clearly indicated that his mailing address with the CRA needed to be updated. The Court also rejected the Respondent's characterization that the three residency letters asked for updated contact information. Those letters sought information to determine Mr. Shaker's residency for tax purposes — for example, asking for a history of residences he occupied — which the Court found was "quite distinct" from requesting updated contact information. The Court further noted that the Notices were processed less than two weeks after the CRA requested an address to which to send the final audit letter, and did not consider this rising to the level of fault on Mr. Shaker's part.

The Court's analysis under Step 2

On Step 2, Justice Cook held that the Minister failed to prove the Notices were mailed to the address the CRA properly had on file. Even though the First Address was provided by Mr. Shaker, the Court found it was not the address the CRA properly had on file. While the Court acknowledged that it is a taxpayer's responsibility to ensure their correct mailing address is known by the CRA at all times, and declined to accept Mr. Shaker's argument that once the correct address became known to the CRA it could not become unknown and the CRA had an obligation to use it, the uncommon facts of this case were decisive. Both addresses were for the same property, with the notable difference that the Second Address was more clearly deliverable. The CRA had used the Second Address, instead of the First Address, for its correspondence with Mr. Shaker prior to mailing the Notices. In the Court's view, both the CRA and Mr. Shaker had effectively acted on the basis that the Second Address, not the First Address, was the address properly on file. The March 17, 2017 facsimile and the issues regarding the Third Residency Letter did not displace that conclusion.

Ruling and outcome

Justice Edward (Ted) Cook dismissed the Respondent's motion to quash the appeals, with costs in any event of the cause. The order was signed on April 9, 2026. No specific monetary amount was ordered or awarded in this ruling, as the decision addressed only the procedural motion to quash; the underlying tax appeals for the 2008 and 2009 taxation years remain to be determined on their merits.