(Disponible uniquement en anglais)
Attendees
Tax Court of Canada (TCC)
- The Honourable Eugene Rossiter (CJ) Chief Justice
- The Honourable Patrick J. Boyle (AACJ) Acting Associate Chief Justice
- Sophie Matte (SM) Executive Director & General Counsel
- Louis-Alexandre Guay (LAG) Executive Legal Counsel
- Joel Kom (JK) Legal Counsel
- Donald MacNeil (DM) Registrar
Courts Administration Service (CAS)
- Darlene Carreau (DC) Chief Administrator
Justice Canada (DOJ)
- Jade Boucher (JB) Acting Assistant Deputy Minister, Tax Law Services Portfolio
- Daniel Bourgeois (DB) Senior General Counsel, Tax Law Services Portfolio
Canadian Bar Association (CBA)
- Laurie A. Goldbach (LG) – Committee Chair Borden Ladner Gervais LLP (Calgary)
- Peter Aprile (PA) Counter Tax Litigators (Toronto)
- Marie-France Dompierre (MFD) Davies Ward Phillips & Vineberg LLP (Montréal)
- Robert Duong (RD) Agence du revenu du Canada (Montréal)
- Pooja Mihailovich (PM) Osler, Hoskin & Harcourt LLP (Toronto)
- Tamra L. Thomson (TLT) - CBA – Executive Director, Advocacy
I. Welcome and approvals
A. Introductory Remarks
Members of the Committee introduced themselves.
B. Review of Proposed Agenda
Agenda approved.
C. Approval of Minutes of November 27, 2022 and June 19, 2023 Meetings
The Minutes were attached to the Agenda for approval. DC comments on both Minutes have been incorporated. Awaiting comments from the TCC.
II. What’s new at the TCC
A. Current Operations
CJ indicated that there are positions for 25 judges and two associate justices, but there are currently only 21 judges and no associate judges. Three judges are presently on leave. Effectively, the TCC is down seven judges and two associate judges, and is sitting with 18 operating judges. Delays in judicial appointments are a problem and the TCC cannot do anything about it but wait for appointments to be made. The TCC is facing and will continue to face significant limitations in its ability to move case inventory if the situation is not dramatically changed.
Case scheduling is complete up to October 31, 2024; scheduling for November and December 2024 will be out in two weeks, a year ahead. It is difficult to create the sitting schedule when the Court is uncertain about how many judges will be at its disposal. The Court works with estimates and “TBD sittings (To be determined)”, meaning sittings the Court hopes to fill, but the estimates and TBD sittings do not always materialize
Regarding facilities, CJ has indicated that there are not enough chambers at 200 Kent to accommodate all judges, associate judges and supernumerary judges. . The $255M facilities budget is moving slowly around the country, and renovations at the Kent St. facilities might be further delayed.
The Hamilton location was temporarily closed because of safety concerns for the public, staff and judiciary in light of recent incidents (broken glass, signs removed, criminal incidents outside the office including a murder) and approximately 200 homeless occupants around the office. The City of Hamilton addressed some of these issues, and the Hamilton office will therefore soon re-open on a temporary basis. This office will move to a new location between late 2024 and early 2026.
The TCC technology infrastructure is in the same spot it was six months ago, and the CJ’s view based on speaking with TCC colleagues is that the TCC is unlikely to be equipped to hold e-trials until 2030.
B. Resignations, Appointments and Vacancies
CJ indicated that there are four judicial vacancies (including the ACJ position) and two associate judge vacancies.
In 2024, Justice Owen and Justice D’Arcy will retire on May 1st, CJ will elect to become supernumerary on June 1st, Justice Pizzitelli will retire in September and Justice Sommerfeldt will retire in October. With other upcoming retirements, 10 to 12 new appointees will be required in the coming years.
Government has at least 6 months’ notice of retirements. Once a new judge is appointed, they go through an orientation process. It takes at least six months before the judge takes on a docket, and this docket only has Informal proceedings. It takes at least 12 months before the judge takes on General proceedings. During the orientation process, the new judge meets with the CJ, goes through judge-focused CLE and shadows other judges. And the Court is out for one week in June and four weeks over July and August, meaning that a judge appointed in late spring or early summer will see further delays until they take on a docket.. The Court has made the government aware of the lengthy on-boarding process for new judges.
C. Statistics and Trends / Current inventory
CJ indicated that the current inventory is stable, with some drops because the Court is disposing of GLGI matters.
D. Regional matters/Issues
No issues.
III. CAS update
DC provided an update on investment in court facilities and services issues for CAS.
Court Facilities
A $250M, multi-year budget program is in place across Canada, notably the flagship facilities in Toronto and Montreal, and modernizing technology infrastructure and security. The LEED-certified plan to build the Montreal site has been completed and approved and construction should begin in Spring 2024. Making the 180 Queen St. facility in Toronto a full facility is more complex. The Hamilton facility is scheduled to be moved to Oakville. For digital courts, a $12M budget will be spent over two years to build Cloud-based infrastructure; strengthen cybersecurity and data to support digital courts; and deploy automatic solution to replace legacy systems with e-courts.
Services
CAS is facing challenges regarding the requirement to provide for immediate translation of judicial decisions under the Official Languages Act and the backlog of approximately 1,000 judicial decisions to be translated across all four courts. The challenges are caused by the quick coming-into-force of the amendment to the Act that requires immediate translation of decisions carrying precedential value and the lack of funding to support translation. CAS is waiting for Budget 2024 funding to proceed with a multi-prong approach moving forward (CAS did not receive translation funding in Budget 2023). In anticipation of funding, CAS is staffing a team of jurilinguists and has contracted with KPMG to improve the translation process. Regarding the use of digital technology, the Federal Court is using artificial intelligence tools on a pilot basis, mainly for immigration decisions, to expedite a first translation draft to be reviewed by humans.
IV. TCC rules committee
CJ provided the following update.
The rules governing the jurisdiction of Associate Judges are now in effect. They will be reviewed in three years to see if they need adjustments.
The Committee approved a package of General Procedure amendments in October 2023. These amendments include changes regarding electronic service, international service, and the redaction of personal information. The Court is working with DOJ and Treasury Board to implement these amendments and estimates the rules will be in effect in the fall of 2024.
Discussion continues regarding potential fees for late settlements and late adjournments.
Discussion to streamline Informal Procedure rules to continue at the next Committee meeting.
The Committee discussed an issue regarding applications for extension of time. In many cases, DOJ will consent to the application without confirming that the application was made before the relevant deadline. If the application is not made before the deadline, the TCC has no jurisdiction to grant the application, even if DOJ consents to the application. Going forward, when DOJ consents to an application to extend time, DOJ will provide the relevant dates in order to show the application was made before the deadline.
The Committee also discussed an issue relating to Reply deadlines and repeated extensions of these deadlines, often by consent. There was no consensus on how to address this issue. The CJ recently released a Practice Direction and Order that will now govern Reply deadline extensions.
Discussions were held regarding the idea of scheduling cases’ timetables at the same time that the Court considers requests to extend Reply deadlines. CJ raised various issues in this regard, ranging from timetable compliance issues, significant issues in changing timetables, and how timetables can be changed as a result of negotiations. CJ stressed the need to keep case inventory moving.
V. Issues raised by Justice Canada
No issues.
VI. Issues raised by CBA members
A. Mandatory Participation in Settlement Conferences
The CBA invited the Court to consider making Settlement Conferences available in binary (all or nothing) cases so that a party might reconsider the merits of even proceeding to trial.
CJ referred to the draft June 2023 Minutes where mandatory participation in settlement conferences was also discussed.
CJ indicated that the TCC is open to the idea when there is room for negotiations between parties who have difficulty settling, which is not the case in all-or-nothing TCC matters. Parties have to negotiate and be mindful that the settlement judge is one judge out of 25 judges. An efficient settlement conference requires that the parties actually want to substantially negotiate and are willing to compromise, with substantial discussion between the parties, with settlement possibly occurring even after active involvement of case management judge.
PM expressed the view that from a practical standpoint, hearing from a judge may help move the file along. CJ and AACJ have indicated that while this can be helpful, limited resources make it impossible to conduct a settlement conference on every file, especially with 18 judges currently sitting. CJ indicated that discussions will be held with judges about using their roles as case management judges to encourage the parties to have settlement talks.
Discussion was held about the possibility that the parties submit a mandatory settlement offer before getting a hearing date. AACJ mentioned that some courts in the country ask parties to do so. PM mentioned that there is no downside from the private sector’s perspective; DB expressed caution about importing private litigation approach into tax litigation because the Crown as a respondent may be unable to comply with such a mandatory requirement due to the need for a principled settlement.
PA suggested that any measure would help if it would lead to earlier access to a CRA litigation officer, because the litigation officer holds decision-making authority and is generally only accessible once a settlement conference is scheduled.
B. Delays in Communicating Hearing Dates to Parties
There has not been much progress since the June 2023 meeting.
The Court faced several challenges on the scheduling front since the last meeting that made it difficult to implement a new process. CJ indicated that the TCC is committed to improving communication with the partiesand discussions are underway to improve the process.
Reassigning sittings following collapsed hearings has been discussed. In response to MFD, CJ indicated that sittings can be reassigned following adjournments, late settlements or other circumstances that lead to collapsed hearings. However, this has challenges. General Procedure hearings are often scheduled for several days, and when they collapse, it is difficult to fill the vacant time with anything but Informal Procedure matters. The challenge with doing this is that Informal Procedure matters require 30 days’ notice, which makes last-minute backfilling difficult. In response to PA, CJ indicated that backfilling with last-minute settlement conferences can be done, but backfilling trial dates must be prioritized. In response to MFD, CJ indicated that backfilling with motion days can be looked into.
CJ indicated that backfilling dockets is hard considering that trials are increasing in length.
C. Use of Large Language Models/Artificial Intelligence in Court Submissions
The CBA invited the Court to consider addressing the use of AI in Court submissions.
CJ noted the use of AI and directives issued by other Canadian courts. This issue is not a priority for the TCC at this time, but it is certainly an issue the Court will be looking at.
D. Disclosure of Presiding Justice before Hearing Dates
CBA members asked if the Court might consider a return to the practice of disclosing the name of the presiding judge 10–14 days in advance of a scheduled hearing to enable the parties to prepare better. Their understanding was that the Court stopped this practice to prevent “judge shopping” but that issue can be addressed by making it known that once a trial judge is assigned it will not be changed (other than if the Court wishes so).
CJ reiterated the concern about judge shopping for hearings. Parties and counsel should be able to properly prepare for hearings regardless of who the judge is. That said, TCC can look into disclosing the name of a judge for a settlement conference. AACJ mentioned that parties can ask for pre-trial conferences if a judge does not call one.
In either case, CJ has the prerogative to change judges at the last minute because of operational needs.
E. Form of Legal Citations
The Court was asked whether it would consider issuing clarifications regarding the type of legal citations parties should use. On some occasions, parties cannot provide hyperlinked citations for official reporters, yet the Court may request scans of official reporters for submissions. Parallel citations may be better to allow pinpoint citations to line up properly.
CJ indicated that parties should make it simple and give the reference that they want the judge to see.
VII. Other business
PM raised an issue regarding opening hours of courtrooms. Recently, trials began at 9:30 AM, but courtrooms do not open before 9:25 AM. CJ will instruct that courtrooms open at 9:00 AM for counsel.
VIII. Next meeting
Date and venue TBD, after new CJ is named. Judges’ meeting is scheduled for June 17, 2024, and the new CJ will decide whether to continue the practice of holding the Bench and Bar meeting adjacent to that meeting. In the meantime, the Court will look at the following issues that were raised at this meeting:
- Having Case Management Judges encourage parties to hold settlement discussions;
- Considering whether parties should be required to exchange settlement offers before getting a hearing date;
- Scheduling settlement conferences and non-case-managed motions into dockets where sittings have collapsed;
- Disclosing the name of settlement conference judges in advance; and
- Arranging earlier access to courtrooms in both the mornings and afternoons.
LG noted this was CJ Rossiter’s final Bench & Bar meeting and thanked him for his work and his contributions towards encouraging communication and cooperation between the Court and the bar.