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Tamra L. Thomson (TLT) - CBA – Executive Director, Advocacy
I. Welcome and approval of agenda
A. Introductory remarks
B. Approval of Proposed Agenda
C. Minutes of June 8, 2021 meeting were approved by email.
II. What’s new at the TCC
A. Impact of COVID-19 on Operations, and Current Plans for In-Person and Virtual Sittings
The pandemic has forced the Court to interrupt its activities for different periods since March 16, 2020. This, coupled with the limitations of staff allowed on site and the fact that the Court has not digitized its operations, has negatively impacted scheduling.
The Court has tried to ramp up with its plan for virtual hearings, but there has been a low uptake for virtual hearings.
From September 13, 2021 to January 7, 2022, the Court held in-person hearings across the country. Because of the evolving circumstances with the pandemic, the Court has cancelled all in-person sittings scheduled for three weeks between January 10 and January 28, 2022, inclusive. Conference Calls, Case Management Conferences and Motions (without evidence) shall continue to be virtual as scheduled between January 10 and January 28, 2022.
The Court will further endeavour to conduct virtual hearings for certain appeals scheduled in that three-week period, but only if the following conditions are met:
the parties are represented by counsel;
the appeal is under the General Procedure;
both parties consent to a virtual hearing;
live interpretation services are not required; and
the number of documents and witnesses allows for a virtual hearing as per the presiding Judge. Whether this latter condition is met will be determined by, and remains at the discretion of, the trial judge.
The Court also hopes to issue revised guidelines for virtual hearings in the upcoming days.
With respect to hearings scheduled for the period starting on January 31, 2022, the Court will further assess the situation in the weeks to come and anticipates issuing further directions by the week of January 24, 2022.
B. Resignations, Appointments and Vacancies
Justice D’Auray has reversed her decision to retire.
Associate Chief Justice Lucie Lamarre retired effective August 31, 2021. Her retirement has created one vacancy.
Two additional vacancies are a result of the two new positions recently created.
In addition, there are likely to be retirements in several significant (non-judicial) positions in the Court's administration and operations in the next year.
C. Statistics and Trends / Current Inventory
Over a ten-year period, the Court’s volume increased by 60%. More precisely:
Ontario’s volume increased by ~49%;
British Columbia’s volume increased by ~14%; and
Quebec’s volume decreased by ~8%.
Over the past year the Court’s volume increased by 10%.
Over the past year the Court’s inventory is up by about 1,000 new appeals.
D. Regional Matters / Issues (if any)
The lack of facilities available for hearings across the country – especially in Toronto, Hamilton and Victoria – and the lack of provincial facilities available for the Court’s use continues to hinder the Court’s activities.
E. Other Issues
Group appeals as well as applications governed by section 174 of the Income Tax Act continue to be problematic for the Court. Legislative changes are needed to resolve the issues surrounding these appeals and applications. This has been an issue for many years and DOJ has been so advised but no action has been taken to date.
III. Courts administration service
A. Update From CAS
CAS reiterates that it deploys its best efforts to support the Court and ensure safe and timely delivery of justice. In this regard, CAS:
is taking all required safety precautions for anyone entering the Court facilities, while also working to ensure uninterrupted access to justice;
monitors public health and safety advice and consults with the government and private sector;
has published a comprehensive guide for Court users available on both the Court’s and CAS’ websites;
is continuing to explore ways to provide justice remotely; and
has recently implemented technology improvements such as better phone services, online assistance, and enhanced assistance in e-filing as well as investments in additional e-courtrooms across Canada.
In addition to supporting safe in-person court operations, CAS continues to work in four primary areas to advance the priorities of the Court:
Transition to Digital Courts: transitioning the Court’s registry management system to a digital system; fully implementing the e-trial toolkit; creating the next generation of e-filing which will include, among other things, electronic payment of fees; and investing in equipping additional e-courtrooms across Canada for electronic hearings;
National Court Facilities and Courtrooms: Delivering and investing in modern, equipped, accessible and secure federal court facilities across Canada
Service excellence: modernizing our practices to consistently provide timely and quality service to the Court and Canadians
Workforce of the Future: Recruiting, training, and retaining its workforce.
IV. Rules committee
A. Update from Rules Committee
Beyond the above-noted update from the Court (under II.E. Other Issues), there was no further update at this time on the work of the Rules Committee.
V. Issues raised by justice canada
A. Follow up on “Identification of Method of Examination for Discovery” in Tax Court litigation timetables
The Court was asked to update the Committee on this issue, as raised at the November 27, 2020 Bench and Bar Committee meeting.
The Court no longer requires parties to specify which method of discovery they will use when the Court requests litigation timetables from them. However, the Court insists that parties should not use written discovery as a way to protract the litigation process. The Court will intervene if it is of the view that parties are requesting unduly long periods for their discoveries.
VI. Issues raised by CBA members
A. Service by email
Several CBA members have raised anew questions about whether and when service of documents by email will be formally accepted under the applicable Tax Court rules. The Court was asked to for an update on this matter, as raised for discussion at the June 8, 2021 Bench and Bar Committee meeting.
The Court is aware of the benefits of electronic service. It occasionally accepts such service in cases where both parties have consented to it. The Court expects to issue a practice note by the end of January 2022 authorizing electronic service.
B. Requests from Tax Court for counsel's/parties' availability for hearing dates
It was noted that there are practical challenges arising from recent experiences of counsel in responding to requests from the Court to advise on their/their client's availability for hearing dates. In some instances, significant time has passed after counsel advised the Court of their availability for the Court to schedule matters for hearing. In the meantime, counsel’s need to remain available for those periods proved to be challenging, given the need to schedule other steps in other matters (e.g. discoveries, other hearings). The Court was asked for guidance on these matters, including whether parties or court administrators may take any further steps to improve these processes.
The Court is of the view that the challenges noted by counsel are attributable in large part, if not entirely, to the pandemic. The situation has been caused by a combination of trials adjourned due to the Court’s closures, lack of uptake of the dates offered to reschedule hearings, significant staff restrictions, and restricted availability for courtrooms for an increasing number of (longer) appeals. If parties are amenable to attending hearings in other cities where there are facilities and scheduling availability, parties are welcome to communicate that fact to the Court.
C. Timing of delivery of Tax Court judgment/order
A CBA member noted that, in a recent case, it took nine days (from the date a final decision was rendered by the Tax Court) for the Registry to send the decision to the parties. This raised concerns as to the parties then having only 21 days to consider and commence an appeal to the Federal Court of Appeal. The CBA member did not understand the reasons for this delay, and raised the matter to ensure that this is not a common occurrence or recurring issue.
The Court considers this to be an exceptional situation and suspects it is also attributable to the difficulties faced by the Registry as a result of the pandemic. Nevertheless, the Court will sensitize the Registry to the issue.
D. Potential availability of summary judgment procedure in Tax Court
A CBA member inquired about any developments in introducing the possibility of summary judgment motion procedures in the Tax Court, akin to procedures available in other Canadian courts (and reflecting the principles stemming from the Supreme Court of Canada decision in Hryniak). This matter has been raised in discussion at prior Bench and Bar Committee meeting(s), including as recorded in the minutes of the November 27, 2020 Bench and Bar Committee meeting.
The Court is still considering the possibility of summary judgment motion procedures. The need for such procedures is uncertain as one could take the view that section 170.1 of the Rules (General Procedure) is akin to summary judgments and therefore deals with the issue. However, it is anticipated that this issue will be further discussed by the Rules Committee, to obtain further input from the judiciary and the private bar.
VII. Other business
The Court will aim to make a decision regarding hearings scheduled for the week of January 31, 2022, and issue further directions, by the week of January 24, 2022.
VIII. Next meeting
A. Date and Location
The next meeting of the Committee will take place (virtually) on January 21, 2022, at 1:00 pm ET.
