DesRoches, 2026 FCA 161: an informal procedure appeal quashed for want of a valid objection survives a procedural fairness challenge

2026 FCA 161 · Federal Court of Appeal

Author: Sas Tullo

This is a short judgment delivered from the bench on an appeal from the Tax Court of Canada. Mr. DesRoches had been assessed under the Excise Tax Act for two reporting periods and tried to appeal to the Tax Court. The Minister moved to quash the appeal because no valid notice of objection had ever been filed, and the Tax Court agreed after a one-day hearing. On appeal Mr. DesRoches argued that the Tax Court had not let him prove that he mailed an objection in 2012, and that it misread his evidence. The Federal Court of Appeal dismissed the appeal. The case matters to any self-represented taxpayer who believes an objection was sent years ago but cannot document it: the Tax Court’s assessment of that evidence will be hard to disturb, and a long, informal hearing devoted to the question is likely to be found fair.

Facts

Mr. DesRoches appealed from a judgment of the Tax Court of Canada dated November 29, 2024, reported as 2024 TCC 152, which quashed his appeal from assessments made under the Excise Tax Act, R.S.C. 1985, c. E-15, for the reporting periods ending December 31, 2010 and December 31, 2013 (para 1). The Tax Court accepted the Minister of National Revenue’s submission that he had not filed a valid notice of objection to the assessments, so that the appeal was not properly before the court (para 2). The Tax Court’s initial impression at the hearing was that the 2012 notice of objection had an air of authenticity, but on the totality of the evidence it could not find, on the balance of probabilities, that the document had been mailed; it reasoned that a person who had mailed an objection in 2012 would likely have raised the outstanding objection in his 2019 communications with the Canada Revenue Agency, and Mr. DesRoches conceded that none of those communications referred to it (para 7).

Issues

The appeal raised two questions as the court framed them. First, whether the Tax Court breached Mr. DesRoches’ right to procedural fairness by failing to afford him the opportunity to present evidence and make representations to establish that he had mailed a notice of objection (para 4). Second, whether the Tax Court misapprehended his evidence on the question whether the 2012 notice of objection was mailed (paras 4, 6).

Holding

The appeal was dismissed with costs in the all-inclusive amount of $1,000 (para 9). Mr. DesRoches was afforded procedural fairness (para 5), and the Tax Court committed no reviewable error in its assessment of the evidence on mailing (paras 6, 8).

The court’s reasoning

The court applied the standard of review in Housen v. Nikolaisen, 2002 SCC 33: errors of law are reviewed for correctness, and errors of fact or of mixed fact and law, absent an extricable question of law, on the more deferential standard of palpable and overriding error. On procedural fairness the court’s role is to determine whether the proceedings were fair having regard to all of the circumstances, citing Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69 at paragraph 54 (para 3).

On fairness, the court reviewed the record and in particular the transcript (para 5). It relied on subsection 18.15(3) of the Tax Court of Canada Act, R.S.C. 1985, c. T-2, which requires the Tax Court to deal with informal procedure appeals “as informally and expeditiously as the circumstances and considerations of fairness permit” (para 5). Consistent with that mandate, the Tax Court had allowed Mr. DesRoches, at his request, to retake the witness stand after the close of evidence, and throughout a hearing that lasted an entire day it had encouraged him to present relevant evidence on the specific issue before it (para 5). The court stressed what that issue was: not the validity of the assessments, but whether the appeal was properly before the Tax Court given the Minister’s preliminary motion to quash, and it held that deciding the preliminary motion before proceeding on the merits was within the Tax Court’s discretion (para 5).

On the evidence, the court found no reviewable error. Mr. DesRoches had not pointed to any specific evidence the Tax Court overlooked, nor persuaded the court that the assessment of the evidence was flawed (para 6). The court recounted the Tax Court’s path to its finding, including the acknowledged air of authenticity of the document, the finding on the totality of the evidence that mailing was not proven on the balance of probabilities, and the absence of any reference to the 2012 objection in the 2019 communications (para 7), and was satisfied that no error justified intervention (para 8).

Practical implications

The decision is a bench judgment and lays down no new rule, but it illustrates two settled points. The first is that a Tax Court finding on whether a notice of objection was mailed is a finding of fact, reviewable only for palpable and overriding error (para 3), and an appellant who cannot identify a specific piece of overlooked evidence will not meet that standard (para 6). The second is that subsection 18.15(3) of the Tax Court of Canada Act cuts both ways in the informal procedure: it relaxes the rules of evidence for the taxpayer, but it also shapes what fairness requires, so that a full-day hearing in which the taxpayer was allowed to reopen his evidence will be found fair even if he leaves feeling that his case was not heard on the merits (para 5).

In my view the most useful lesson lies in the Tax Court’s reasoning that the Court of Appeal endorsed at paragraph 7. The absence of any mention of a supposedly outstanding objection in later correspondence with the Agency was treated as powerful circumstantial evidence that no objection was sent. A taxpayer who has objected and heard nothing should say so, in writing, every time the Agency is contacted; silence will later be read against the claim.

The current text of subsection 18.15(3) on the Justice Laws website shows an amendment history ending with 2006, c. 11, s. 29, so the provision applied here has not been amended since the decision. Whether an appeal was taken is not verified here.

For a taxpayer in this position the practical message is that the objection step must be provable, by registered mail, by the Agency’s online portal, or by a dated acknowledgment, because once the Minister moves to quash, the whole appeal turns on that proof, and the appellate court will defer to the trial judge’s view of it.

This comment is general information, not legal advice. The law may have changed since the decision; check the current text in the tax wiki.

Citation and links

DesRoches v. Canada, 2026 FCA 161, judgment delivered from the bench at Toronto on September 28, 2026, Monaghan, Roussel, and Heckman JJ.A., reasons of the court by Roussel J.A. Reasons on the Federal Court of Appeal’s site. Also on CanLII. The decision under appeal is the judgment of the Tax Court of Canada dated November 29, 2024, cited as 2024 TCC 152 (para 1).