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Mark Tonkovich (MT) Blake, Cassels & Graydon LLP (Toronto)
Tamra L. Thomson (TLT) - CBA – Executive Director, Advocacy
I. Welcomes and approval of agenda
A. Approval of Minutes of November 27, 2020 Meeting
The Minutes of the November 27, 2020 meeting were approved.
B. Approval of Minutes of December 1, 2019 Meeting
After some discussion, it was determined that the minutes of the December 1, 2019 meeting had been subject to revision and would be reviewed by the Chief Justice following which they would be circulated for approval either by email or at the next meeting.
II. Welcoming of new chief administrator
The Chief Justice introduced Darlene Carreau as the new Chief Administrator, CAS.
III. What’s new at the tax court of Canada (TCC or court)
A. Impact of COVID-19 on operations
The Chief Justice advised the Committee as to the impact of COVID-19 on the TCC's operations.
In its November 26, 2020 Notice to the Public and Profession, the Court announced the cancellation of sittings for November 30, 2020 through January 15, 2021 (the Cancellation) at all locations across Canada for in-person sittings, with very few exceptions.
The Chief Justice advised that on February 5, 2021 the decision was made to extend the Cancellation until March 15, 2021; to be reassessed in the first week of March. A notice to the profession will be sent on February 9, 2021.
During the Cancellation and subject to items 10 to 13, all proceedings that have been scheduled and that are not set to be heard in-person will continue. This includes trial and case management hearings (which will be done by conference call/videoconference).
Subject to items 10 to 13, unless intervening events occur, Court sittings will resume on March 15, 2021 with the docket as presently fixed.
Cases adjourned that call for in-person sittings will be rescheduled as and when possible. Following the first lockdown, notwithstanding the efforts of the Court’s staff, most litigants contacted for rescheduling did not want to proceed. Consequently, the Court will try, but will not guarantee previously scheduled hearings will be given priority. .
Further to discussions CAS Executives had with Government Health officials in mid-December regarding the Covid context at the time and aerosol considerations, CAS directed the Court to reduce staff attendance by 50%; the effect of which would be, should the Court proceed with in person sittings, to cut these down by 40-50%.
In January 2021, OCHRO (Office of the Chief Human Resources Officer) within Treasury Board advised CAS to limit on-site staff to employees ensuring essential services, the effect of which is only about 20% of Court staff are physically on site. Only 25 staff are presently on site in Ottawa and only 3-4 in Toronto.
The Chief Justice advised that additional measures taken in light of reduced staff include reviewing all reserves by Judge and trying to bring in staff to coincide with when reserves will be ready for review. Regardless of any measures, there may be delays.
The future is uncertain. The Court will continue to take in account the following in its decisions on re-opening:
Any applicable Public Health Canada, Treasury Board and CAS directives;
The Federal, Provincial and Municipal guidelines which affect an itinerant Court such as the TCC;
The state of affairs in Toronto, Montreal and Vancouver, given the concentration of appeals are in those cities. The Chief Justice noted that 44% of the current inventory of appeals are in the Greater Toronto Area;
The number of staff on site and the number of staff that can travel; and
Input received from TCC staff who are hands on in terms of operations since the first lockdown.
The Chief Justice noted that inventory is consistent with pre-pandemic levels but believes this is mostly due to CRA not issuing many assessments. Levels are expected to dramatically increase post pandemic.
IV. Digitization status
SCM inquired as to the progress on digitalization status.
The Chief Justice indicated such efforts are continuing and that the Court is still hoping for full digitalization of active files maybe by June 2021.
CD advised that the April 2021 target is unlikely to be met due to the current reduced staffing levels that are currently devoted to more urgent/pressing tasks on site.
The Chief Justice cautioned parties not to equate digitization of active files with imminent implementation of virtual hearings.
In addition to increasing bandwidth, additional requirements for virtual hearings will require:
Development/adaption of practices and procedures and an IT program for conduct of virtual hearings. The current system used by the Federal Court of Canada is not adequate for use by the TCC;
Training of Judges and Court staff; and
Appropriate staffing; particularly additional IT staff.
The most immediate impact of digitalization on active files will be on filing of documents and managing group appeals.
V. New issue – Quebec appeals
The Associate Chief Justice identified an issue with GST appeals in Quebec that could also impact income tax appeals.
Some appellants withdraw their appeals to the TCC on agreement with Quebec tax authorities acting on behalf of the CRA in GST matters, to be bound by the decision of the Quebec Court.
However, in the absence of a waiver and other than as a consequence of a decision of the TCC, CRA is precluded from re-assessing a taxpayer beyond the normal reassessment period. The CRA has no statutory authority to reassess a taxpayer to give effect to a decision of a Quebec Court.
The Associate Chief Justice raised concern that Quebec litigants who withdraw their TCC appeals may be (unknowingly) giving up their rights. This can affect income tax appeals as well.
Taxpayers should be advised of this possibility before they withdraw appeals.
The Associate Chief Justice intends to raise this issue directly with the Quebec Bar.
VI. Next meeting
No formal scheduling of the next meeting of the Committee was discussed. Both the Committee and the Court remain open to scheduling a meeting at any point on the request on either the Court of the Committee.
VII. Other business
There being no further business, the meeting was adjourned.
