Present

Tax Court of Canada (TCC)

• The Honourable Gerald J. Rip Chief Justice ("CJ")
• The Honourable Eugene Rossiter Associate Chief Justice ("ACJ")

Courts Administration Service (“CAS”)

• Daniel Gosselin Chief Administrator, Courts Administration Service (CAS)
• Cristina Damiani Executive Director and General Counsel
• Geneviève Salvas Legal Counsel
• Marie-Eve Aubry Registrar

Department of Justice (Canada) ("DOJ")

• Micheline Van-Erum ("MVE") Assistant Deputy Attorney General
• Sandra Phillips ("SP") Associate Assistant Deputy Attorney General

Canadian Bar Association (CBA)

• Guy Du Pont, Ad.E. (“GDP”) Davies Ward Phillips & Vineberg LLP
• Carman R. McNary (“CRM”) Dentons Canada LLP
• Dennis A. Wyslobicky, Esq. (“DAW”)
• Max Weder, Esq. (“MW”) Davis LLP
• Tamra L.Thomson CBA

Absent: David D. Robertson, Esq. (“DDR”) Couzin Taylor LLP

The meeting commenced at 9:00 a.m. The CJ welcomed the attendees.

I. What’s new at the TCC

IV. Report from the CAS

1. The CAS did not receive any additional funding in the last Budget. However the CAS is hoping to get access to funds for “essential” expenditures including IT (local area networks in Toronto, Ottawa and Montréal), security and a few needed employees. Further details are to follow a meeting scheduled for 21 May 2014.
2. Montréal courts need to relocate for 2019. Options include (i) a new location for a 3-story building (ii) co-location in an existing building or (iii) making use of the Saulnier Building currently used by the City of Montréal. The « ministère de la Justice du Québec » informed CAS that they would like to take over the space used by CAS at the « Palais de Justice » in Québec City. CAS is trying to negociate at least a 2-year delay to relocate.
3. The TCC has been using the Provincial Court facilities in Newfoundland, but this is no longer available effective January 2014. Public Works has identified a new location which should be available for the Federal Courts by December 2014.

V. TCC rules committee - update

The Rules Committee has created 2 subcommittees, one to deal with the General Procedure matters and another to deal with Informal Procedure matters.

Given that jurisdiction for UI and CPP matters might be shifted to the Social Security Tribunal (SST) but that it is not yet sure it will happen, the Rules Committee is not yet ready to work on changes to the rules.

1. E-service: the issue is whether the TCC can adopt procedures like those of the Federal Court allowing parties to file consents to e- service of documents such that the formal requirements for proof of service can be dispensed with. The Rules Committee will be looking at the Federal Court e-service rules to see if it can be done in the TCC from a forms perspective. Mr. Gosselin will then look at it to see if the TCC’s IT systems can handle it. The DOJ is still working on a pilot project for e-service. GDP mentioned that he is currently using the e-service procedures with certain members of the DOJ.

VI. Matters of concern to the DOJ

None reported

VII. Issues raised by email survey

From: William Ryan (Stewart Mckelvey)

“I am very please with everything about the Court and how it operates.” Response – none

From: Beaty F. Beaubier (Stevenson Hood Thornton Beaubier LLP) “Good morning,

I would appreciate it if you would raise with the Tax Court an issue regarding their administrative practice regarding informal Appeals. Currently, on its own motion and without any prior consultation with counsel, the Court will simply send out a Notice of Hearing scheduling the trials of Informal Appeals. Very often, the dates arbitrarily chosen by the court conflict with commitments that already exist for either counsel or their clients.

It would be far more efficient, in my opinion, if a court administrator would set up a conference call with the taxpayer’s counsel and Department of Justice and propose certain dates. We could then check with our clients and get back to the court within (for example) 7 business days to either confirm the date proposed by the court or suggest alternate dates. In this regard, if the court would also advise counsel when it will be sitting in a particular centre (say in the next 6 months), that would also facilitate the choosing of dates for hearings.

If you have any questions, please let me know.”

Response – The TCC does not have the personnel necessary to liaise with lawyers to find suitable dates. However, the Court does advise counsel of scheduled sittings on the website, 1 year in advance on a rolling basis. The CJ and ACJ will see whether it is possible to indicate on the website when the Court will be sitting and also update this on a rolling basis to the extent possible.

Interest Waiver: GDP referred to interest waiver in the context of settlement negotiations for appeals before the Tax Court.

Response: The issue regarding interest waiver is that quite often TCC cases will not settle until the Appellant knows what interest relief will be granted under pending taxpayer relief applications. The CRA is on record as saying generally that while it will not negotiate interest relief, it will provide informal decisions regarding relief beforehand to facilitate settlement. The CRA will not do the interest relief calculations but will indicate the extent of relief that would be granted. The problem, in Toronto in particular, is apparently that the CRA is not following the stated procedure of indicating the extent of taxpayer relief proposed, and this is frustrating settlement negotiations. DOJ should follow up with the CRA.

VIII. Pro bono students Canada project & pro bono law Ontario project – update

Pro Bono Students Canada and Pro Bono Law Ontario Projects: CRM was asked to look into the state of pro bono resources and assistance for unrepresented tax litigants in Canada and presented a memorandum. Highlights included:

1. There is little pro bono or legal aid assistance for tax litigants in Canada
2. The only assistance of note is the Pro Bono Students Canada – Tax Advocacy Program
3. The result is that tax litigants must generally rely on one of three potential sources of pro bono assistance:
   1. A lawyer who is willing to assist for free or at a reduced rate. Referral sources are limited however, but include JusticeNet in Ontario and Lawyer Referral in Alberta (only two lawyers on Lawyer Referral identify tax expertise)
   2. Some legal clinics, like the Edmonton Community Legal Clinic provide access to volunteer lawyers, however, there was no clinic for tax matters
   3. The Tax Advocacy Program associated with Pro Bono Students Canada appears to be the only program that directly targets unrepresented tax litigants, providing the assistance of law students for tax litigation. Other law school student counsel programs that were contacted said that they would be reluctant to take on tax litigation due to the technical expertise required.

Tax Court Guidelines: The CJ tabled draft TCC General Guidelines explaining what the Court and Registry offices could and could not do to support pro bono work, having regard to the concepts of equality and impartiality.

Additional sittings: The Court may arrange additional sittings, subject to courtroom and judges’ availability and appeal inventory, provided requests are made 12 months in advance. However, the Court will not select appeals to be scheduled for any group for any particular week (although it might schedule informal appeals if inventory permits), will not “reserve” any sitting week for any pro bono group, and will not provide any special information to any group beyond what is on the Court’s website or otherwise available to the public.

Examination of Court files: All of the Court’s files are all maintained in Ottawa, and Regional office files are also maintained independently in Vancouver, Toronto and Montréal. For requests to view files in local offices (Halifax, Fredericton, Québec City, Winnipeg, Calgary and Edmonton), the files will have to be forwarded from Ottawa. The Court cannot provide copies of pleadings or other documents to any pro bono group on any basis other than upon payment of the same fees and the same procedures and timing that apply to the public generally.

IX.Varia

1. E-Service Update – see above under TCC Rules Committee Update
2. Saving Paper and Common Book of Authorities – Update: The common book of authorities proposal was presented to Judges shortly after the 24 November 2013 B&B meeting and they were not keen on the idea. Some of the Judges were concerned that the TCC did not have enough control over some of the court offices where they sit and were concerned that the materials would not be available for hearings as contemplated. There was a concern also that Judges generally want materials in a form that they find convenient, and this varies by Judge. For example, some Judges will only deal with materials in hard copy while others want everything electronically. Despite the reluctance of the TCC Judges, it was pointed out that certain courts prohibit certain cases from being reproduced by litigants – for example, the Federal Court of Appeal prohibits the reproduction of Houssen. Given the nature of the discussion, the CJ said he will raise the issue again with the Judges and that, for example, a proposal might be to make the common book of authorities available in Toronto on a trial basis.

ii. Timetable Orders – Update

The B&B reviewed the following proposal for dealing with missed timetable deadlines:

1. If a party has missed a timetable deadline and has not followed Practice Note No. 14, then the opposing party may write to alert them and to note that they have to bring a motion to extend the timetable deadline(s). The opposing party may advise that if no motion is brought within 15 days, the Tax Court will be advised of the missed deadline(s).
2. If the opposing party does not bring a motion within the 15 days, a letter may be sent to the Tax Court advising of the missed deadline(s).
3. Upon receipt of such a letter, the Tax Court will schedule a show cause hearing by conference call if necessary, at which the party who missed the deadline(s) will have to show why the appeal should not be dismissed/allowed. The notice of the show cause hearing will indicate that, if a motion to extend the timetable deadline(s) is filed before the hearing, the hearing will be cancelled.
4. Where appropriate, Orders issued extending timetable deadline(s) will provide that, if any extended deadline is missed, the appeal will be dismissed.

Costs, if any, should only be awarded where one party has missed a deadline. In the normal course, no costs should be awarded when both parties agree that a timetable extension is necessary and a request is made prior to the expiration of the timetable deadline.

Discussion: The issue this proposal is designed to address was raised by SP at the 24 November 2013 B&B meeting. From the DoJ’s standpoint missed deadlines are almost always the taxpayer’s, and are usually unrepresented litigants. SP mentioned that the missed deadlines invariably result in Justice bringing a motion and the deadlines invariably get extended. In effect, Justice’s concern is that they end up doing the work for the taxpayer to get an extension. Justice is seeking to avoid the cost/time of effectively preparing motions for the taxpayer.

The CJ commented that the Court is sympathetic to some reasons for missed deadlines (e.g. to fulfill undertakings on discovery) but not others (e.g. settlement discussions are ongoing). Currently, costs are not typically awarded until after the third request for a change in the timetable, provided the requests are not frivolous. The CJ has agreed to consider the proposal in more detail.

iii. Social Security Tribunal (“SST”)

See TCC Rules Committee update.

X. Other matters

The Committee was advised that the terms of Committee service of GDP, CRM and DDR were up. The CJ, ACJ and other members of the Committee expressed their gratitude to these members for their service and wished them well. It was noted in particular that GDP has served 5 years on the Committee, including 2 successful terms as Chair.

XI. Next meeting

The meeting was adjourned at 12:00 p.m. The next meeting will be held on Sunday 30 November 2014 in Vancouver. Tamra Thomson advised that hotel rooms had already been booked for Committee members representing the CBA.