Canada Post Strike Makes Filing Ontario Retail Sales Tax Objections/Appeals Difficult
Subsection 24(3) of the Retail Sales Tax Act (Ontario) (ORSTA) requires that a notice of objection be served on the Minister by sending the notice of objection by registered mail. Subsection 25(3) of the ORSTA requires that a notice of appeal be served on the Minister by sending the notice of appeal by registered mail. However, Canada Post is on strike and is locked out. An assessed person cannot serve the Minister by registered mail even if they tried.
What should an assessed person do seeing that it is impossible to comply with the ORSTA provisions? If there is a statutory deadline that must be met during the strike/lockout, the assessed person should send a fax to the auditor or appeals officer informing that Ontario Ministry of Revenue official that they intend to file a notice of objection or appeal. This step will take away the argument that the Minister did not know the assessed person's intention.
In that fax, the assessed person should ask for an extension time to serve the Minister by registered mail until after the Canada Post labour disruption has ended. The assessed person should inform the auditor or appeals officer that he/she will be sending the notice of objection or notice of appeal by courier. The assessed person should serve the Minister by courier even though that method of service is not technically correct. The assessed person should ask whether additional service by registered mail will be required when the Canada Post labour disruption has ended. If the auditor or appeals officer says nothing, then the assessed person should send the notice of objection or notice of appeal by registered mail after the Canada Post labour disruption has ended. If the auditor/appeals officer indicates that the Ministry of Revenue considers the actions taken to be in compliance with the statutory provisions even though the notice was not sent by registered mail, then further action may not be required.
The most important thing is to comply as best you can and document everything. Have paper evidence that you can provide at a later point in time to a Court if necessary. Take reasonable steps to communicate and comply. Do not miss the deadline because it will be difficult to distinguish between those assessed persons who forgot about their deadline and those who were impacted by the strike.
I would expect that the Ministry of Revenue will act reasonably - stop laughing!
Cyndee Todgham Cherniak is counsel to and in affiliation with the International Trade Law and the Tax Law (Commodity Tax
