Gratl v. Canada (January 4, 2019 – 2019 FCA 3, Webb, Rennie, Laskin (Author) JJ. A.).
Précis: The taxpayer applied to the Tax Court for an extension of time to file notices of appeal for her 2003 and 2004 taxation years. She argued that she never received the notices of reassessment, did not file notices of objection to them and did not receive notices of confirmation from CRA. Visser J. rejected her application, accepting CRA’s evidence that the notices of reassessment had been sent to her, that her accountant had filed notices of objection and that the reassessments had been confirmed. He drew a negative inference from her failure to call her accountant. The Federal Court of Appeal dismissed the appeal, with costs fixed at $1,000, on the basis that Ms. Gratl had failed to establish a palpable and overriding error on the part of the Tax Court Judge.
Decision: The Court of Appeal found that Ms. Gratl simply failed to meet the high standard required to establish a palpable and overriding error:
 I agree with Ms. Gratl that the affidavit evidence submitted by the Minister could have been more definitive. For example, it would have been helpful to include copies or, if copies were no longer available, at least reconstructed versions of the notices of reassessment in issue. Similarly, since the deponent of one of the affidavits relied on a fax received from Ms. Gratl to conclude that she knew of the notices of reassessment and related notice of objection, and was receiving letters and messages from the CRA, it would have been helpful to include a copy of the fax as an exhibit. As a further example, one of the documents that was exhibited, and on which the Minister relied to establish mailing of the notices, was a form that was both undated and incompletely filled out.
 However, the palpable and overriding error standard is a high one. It prohibits an appellate court from setting aside a factual finding if there was “some evidence” on which the trial or motion judge could have relied to reach that finding: Housen v. Nikolaisen, 2002 SCC 33 at para. 1,  2 S.C.R. 235. Here, despite the evidentiary issues referred to above, the affidavits filed by officers of the CRA provided evidence on which the Tax Court was fully entitled to rely. It follows that the Tax Court made no reviewable error in finding that the notices were sent.
Thus the appeal was dismissed with costs fixed at $1,000.