Present

Tax Court of Canada (TCC)

• The Honourable Eugene Rossiter Chief Justice ("CJ")
• The Honourable Lucie Lamarre Associate Chief Justice ("ACJ")

Courts Administration Service (CAS)

• Daniel Gosselin ("DG") Chief Administrator, Courts Administration Service (CAS)
• Cristina Damiani ("CD") Executive Director and General Counsel
• Genevieve Salvas ("GS") Legal Counsel
• Donald MacNeiJ ("OM") Registrar

Department of Justice (Canada) ("DOJ")

• Micheline Van-Erum ("MVE") Assistant Deputy Attorney General
• Henry Gluch ("HAG") Associate Assistant Deputy Attorney General

Canadian Bar Association (CBA)

• Alexandra K. Brown ("AKB") Blake, Cassels & Graydon LLP (Toronto)
• David D. Robertson ("DDR") Couzin Taylor LLP (Calgary)
• Bruce S. Russell, Q.C. ("BSR") Mclnnes Cooper (Halifax)
• Max J. Weder ("MJW") Davis LLP (Vancouver)
• Dennis A Wyslobicky ("DAW") (Oakville)
• Tamra L.Thomson Director, Legislation and Law Reform

The meeting commenced at 9:00 a.m.

I. Welcome & introduction of new members

Associate Chlef Justice Lamarre was introduced and welcomed to the Committee.

II. Approval of agenda

The Agenda was approved.

III. Approval of minutes of 30 november 2014 meeting

Minutes approved subject to correcting IV(B)(b) [Court's inventory is 8,000-10,000 cases] and IV(B)(c) [removing Justice Tardif from list of Judges who hear cases in both official languages].

IV.  What's new at the TCC

A. Resignations, Appointments and Vacancies

Former Chief Justice Rip has become supernumerary and Justice Campbell Miller becomes supernumerary in 2016.

Appointment of Justices Lafleur and Ouimete announced February 6, 2015.

Appointment of Justices Sommerfeldt and Visser announced May 29, 2015. As a result there is a single vacancy remaining on the Court and five judges are supernumerary for a total complement of 27.

B. Statistics and Trends/Current Inventory The CJ reported:

1. Inventory is 8,000 - 10,000 and approximately 5,000 files are opened and closed each year. The average time for disposing of a court file is 1.65 years. There are currently 60% fewer cases in Atlantic Canada than 5 years ago. While inventory also reduced in other areas, it is up in Toronto (perhaps as a result of group appeals).
2. There will be a change to the Notice of Appeal fonn requesting that a preferred registry be identified; CAS explained that identifying a preferred registry does not tie counsel, as work is actually all done in Ottawa.
3. The Court sits same number of days each year. Collapse rate of 50% remains roughly the same each year. As a result, the Court generally double books sittings.

C. Matters from the Court

Tax Court of Canada Ombudsman

1. The CJ and ACJ would encourage members of the bar to bring concerns to their attention.
2. The Court may consider a mechanism for communication of issues. Alternatives will be canvassed with the Judges on the Court and should be discussed at the November 2015 meeting.
3. Any suggestions or comments should be forwarded to a representative on the Bench and Bar Committee who will in tum contact the CJ.

The Tax Court does not sit between July 15th and August 15th.

D. Toronto Motions Day Pilot Project

1. In response to requests, a pilot project in Toronto is to start October 1st with motion days on the 1st and 3rd Monday of each month. The pilot will run for 6 months and if the system works well, it will be rolled out to Vancouver and Montreal
2. Counsel should still contact hearings coordinator for a date.

3. A practice directive will be issued. [In fact, a Notice to the Profession will be issued.]
4. Majority of motions are from Justice although sometimes the longer ones are coming from Appellants' counsel.
5. A concern was raised that the Montreal litigation office will not deal with a motion until the motion is set down. HAG will look into it.

6. Reminder: Conference call and video conference are also available.

E. Regional Matters / Issues

None

V. Report from the CAS

A. General Update from CAS

1. Additional funding received for security.

2. CAS had requested $30M for IT infrastructure and money to relocate Montreal premises and to deal with workload issue (rnainJy Toronto and Ottawa), but unfortunately no additional funding has so far been forthcoming. This matter is still being pursued.
3. CJ - The Court is still a "paper coUI1" and lack of funding for IT has been problematic. Once funding is received, it will take five years to become fully electronic.

B. Matters Arising from 15 May 2014 Meeting

1. Facilities Relocation Update:
   • Montreal relocation had deadline of March 31, 2015 for decision; must be out by 2019, but Public Works needs 3 - 4 years advance notice.
   • In Quebec City a new location is needed by 2017.
   • In Ottawa, the move was tied to rehabilitation of Supreme Cowi of Canada building and has been postponed. However, there is no immediate impact as space is available until 2030.
   • In St. John's, the office is operational and Court will be hearing cases there next week.
2. Can documents now be filed electronically on the 91^st day if 90th day is a statutory holiday?
   • The change is possible and is now being implemented. [The CAS advises that this change is possible and on a priority list with IT, however, they do not have an implementation date.]

VI. TCC rules committee

A. General Update from Rules Committee

The CJ mentioned that there are 2 subcommittees of the TCC Rules Committee, one for the General Procedure Rules and one for the Informal Procedure Rules.

Two priorities for next year:

1. Update on Consolidation of Rules Project
   • Tax lawyer from Finance has been seconded and received instructions.
   • The goal is to circulate draft in September in one official language for review at the October meeting of the Rules Committee. The next steps will be translation, consultation with bar and DOJ, and then Treasury Board, so probably it will be 3 years before process is complete (though a Practice Note may be issued before final Treasury Board approval is received).
   • The CJ anticipates that there will be glitches requiring changes and amendments over the subsequent three to five years.
   • At meeting on June 10^th, dealing with smaller amendments was postponed until consolidation into two sets of rules is completed.

• Update on Review of Tax Court Costs Tariff
  • The Tariff will be reviewed after the rules are consolidated.
  • Considerable work has already been done on this issue. A cross­ Canada survey has been prepared, however, it is a challenge to reconcile the difference between public sector and private sector rates.
  • The Court understands that this issue is important and an important part of a litigant's budget.

B. Matters Arising from 30 November 2014 Meeting

1. Update on Social Security Tribunal and transition from Tax Court
   • Nothing to add to last report.
2. E-Service- Update on DOJ Pilot Project
   • The e-service system is almost ready to be used, so it is hoped it will be rnnning effectively in the summer of 2015 and then the pilot project can take place. Training for external counsel (limited to those with the largest number of open tax litigation files with the DOJ in Toronto and Ottawa) should occur at the end of summer.
   • Meanwhile, DOJ counsel and external counsel can mutually agree to use e-mail for service of documents.

VII. Matters of concern for the department of justice

A. General Update from Department of Justice

1. Case Management of Projects (Group Litigation).
   • Numerous projects before the TCC.
   • Challenge is to determine who is in the project/group and who is not. Many are self-represented. Section 174 is a rule available to DOJ.
   • The CJ is working to develop a protocol for the Judges to follow for group appeals (though Judges wi.11have discretion to follow protocol or not). The protocol envisioned is as follows:
     • Identification by (1) DOJ, (2) hearings coordinator, (3) registry officer, (4) lawyer for taxpayer, or (5) Judge who becomes aware of issue during a status hearing.
     • The Judge will try to identify the counsel with the most appellants/clients and may arrange conference call with DOJ and that counsel.
     • The Court will then ask DOJ how many more are expected and to identify other counsel who are acting.
     • In addition, the Judge will ask whether there are other objections outstanding and will seek to have CRA reassess or confirm all taxpayers who have filed objections.
     • A conference call will be held to receive suggestions on lead cases. The Court will then contact self-represented litigants for comments on which case should be the test case.
     • The Court will then write to lay litigants and ask whether they agree to be bound. If appellants don't agree to be bound, then a trial date will be set for each case.
   • DOJ has two primary concerns with the protocol as outlined:
     1. It is possible under this procedure (and undesirable) that an outlier's case would proceed before the test case for the rest of the group; and
     2. There is also concern about the Court dealing with cases that are not yet before the court (i.e., at the objection or pre-objection stage).
   • Another concern expressed from the appellant's point of view was about a case being joined into the group inappropriately where its facts are different.
   • The CJ indicated that the protocol is neither cast in stone nor mandatory and Judges will work with it as they see fit

B. Matters Arising from 30 November 2014 Meeting

1. Update on Common Book of Authorities
   • The court intends to make this available in the fall in Toronto.
2. Update on Time Table Requests
   • The CJ noted that requests for changes are received at a rate of about 40-80 per week and it takes one fulltime staff person to deal with them. The Court requests that counsel set a reasonable schedule and then adhere to it; the Court will not impose pressure and will generally accept the timetable proposed by counsel.

VIIl.  Issues raised by CBA members

A. Matters of Concern Raised by CBA members

1. Confidentiality Clauses in Settlement Agreements
   • Context:
     • Adam Aptowitzer's article "Tax Litigation and the Veil of Secrecy" in the Feb. 6, 2015 The Canadian Taxpayer (Vol. xxxvii, No. 3, pp. 17-18) notes that the Crown has increasingly been insisting on confidentiality clauses in minutes of settlement. In his view, the use of such "secret deals" is "completely inappropriate" and inconsistent with the dispensation of justice being "public and transparent".
   • DOJ will look into it.
   • It was suggested that confidentiality clauses should only be included at taxpayer's request.
2. TCC Rule 95 and Right to Demand Evidence on Examination for Discovery
   • Context: See attached Law Note from Richard Yasny DOJ: the problem is resolved if the question is correctly phrased: "Do you have a contract to support your allegation of the transaction." It is not appropriate to ask "provide me with all the evidence that you intend to use to prove the facts" - as that is counsel's work product.
3. Outstanding Judgments

• Concern has been raised by members of the bar regarding judgments from the Tax Court that have been outstanding for more than a year.
  • Every month, the CJ gets a list of Judges Listing every outstanding judgment and its age. The CJ has very limited powers to address the issue but will meet with the Judge and seek to persuade them that time is of the essence, as well as an·anging to bring in students to assist with the file. Also the Court can assist Judges with training on how to move judgments along.
  • Last resort is to take file from the Judge.

IX. Varia

A. Pro Bono Students Canada Project & Pro Bono Law Ontario Project - Update

1. Universities' Pro Bono Program- Update
   • Continuing.
   • Requests from a couple of universities to conduct trials in facilities at the universities. There is concern about this particularly with lay litigants.
2. Amicus project in Toronto - Update
   • Evaluation being done of the program in Toronto.

B. Social Security Tribunal - Update

1. None

C. Future Changes in CBA Representation on Bench & Bar

1. Max Weder's and David Robertson's terms as CBA commjttee members expire in 2015 (though Max Weder has only been on the Committee for a single term of 3 years).

X. Next meeting

A.Date & Location

Not set.