June 13 2022 Virtual Meeting

Attendees

Tax Court of Canada (TCC)

• The Honourable Eugene Rossiter Chief Justice
• Sophie Matte (SM) Executive Director & General Counsel
• Donald MacNeil (DM) Registrar

Courts Administration Service (CAS)

• Darlene Carreau (DC) Chief Administrator
• Louis-Alexandre Guay (LAG) Legal Counsel

Justice Canada (DOJ)

• Anick Pelletier (AP) Assistant Deputy Minister, Tax  Law Services Portfolio
• Daniel Bourgeois (DB) Senior General Counsel, Tax Law Services Portfolio

Canadian Bar Association (CBA)

• Mark Tonkovich (MT) – Committee Chair Blake, Cassels & Graydon LLP (Toronto)
• Neil Bass (NB) - Aird Berlis LLP (Toronto)
• Timothy Fitzsimmons (TF) - PwC Law LLP (Toronto)
• Nathalie Goyette (NG) Davies Ward Phillips & Vineberg LLP (Montréal)
• Pooja Mihailovich (PM) Osler, Hoskin & Harcourt LLP (Toronto)
• Tamra L. Thomson (TLT) - CBA – Executive Director, Advocacy

I. Welcome and approvals

A. Minutes of January 6 and January 21, 2022 meetings

1. The minutes of January 6 were approved.

II. What’s new at the TCC

Chief Justice Rossiter gave an update to the Committee.

A. Current Operations (including continuing impact of COVID-19)

1. The Court’s operations continue to normalize following two years of reduced activity due to the COVID-19 pandemic. The Court is currently operating nearly at pre-pandemic levels. Each week, 10-11 judges preside at hearings in locations across the country. Approximately 80 percent of Court staff have returned to working in the Court offices fulltime.
2. The Court has 11,720 active files, the highest-ever caseload. The number of active cases has increased in the last year, the reasons for which are unclear. The Court is currently scheduling hearings into May/June 2023.

B. Resignations, App​ointments, and Vacancies

1. Justice D’Auray retired, effective April 4, 2022. The Court expects several more retirements in the next 12-24 months.

2. The Court received two recent appointments: Justice Joanna Hill and Justice Jean Marc Gagnon were appointed in March 2022. The new justices are currently completing training and orientation, and the Court expects Justice Hill and Justice Gagnon will begin hearing cases in September 2022.

3. The Court currently has two vacancies (created on the retirement of Associate Chief Justice Lamarre and Justice D’Auray). The Court is unsure when these vacancies may be filled. The Court is expecting a third vacancy when the Budget Implementation Act , 2022, No. 1 (Bill C-19) is passed. It will create a new judicial position announced in the 2022 federal budget. This will bring the Court’s total judges to 25 positions.

4. The Court also expects the creation of two new associate Judge positions (which had previously been expected to be styled as "prothonotaries"). The roles and responsibilities for the associate judge positions will be determined in the next 8-12 months, with applications possibly accepted in summer 2023. Applications for these new positions will be considered directly by the office of the Minister of Justice, rather than the Judicial Advisory Committee. The Court expects these additional judicial positions will help the Court manage its caseload and operations.

C. Statistics and Trends / Current Inventory

1. Over a ten-year period, the Court’s caseload has increased by 66 percent. Case numbers in Ontario and Alberta are up approximately 80 percent. On the other hand, case numbers in British Columbia and Quebec are down 10 percent and 12 percent, respectively. The caseload in Toronto is up over 100 percent.
2. The Court is particularly concerned about its “Ready to be Scheduled” metric. Over a ten-year period, the number of cases “Ready to be Scheduled” is up 143 percent. In Toronto, 46 percent of cases are “Ready to be Scheduled”. However, due to the lack of courtroom facilities, the Court cannot set these matters down for hearings. This is troubling because, since 2007, the Court’s total hearing days have increased 38 percent, with the same number of judges (not including the new positions recently created).

D. Regional Matters / Issues

1. The Court had no regional matters to report.

E. Other Matters

1. The Court noted that it added three new judicial law clerk positions, bringing the Court’s complement of clerks to 18 for the class starting in August 2022.
2. The Court is developing its protocols and practices for virtual hearings.
3. The Court continues to monitor whether and how it (or the Federal Court) has jurisdiction to adjudicate challenges by taxpayers to reassessments of the federal government’s COVID-19 pandemic relief programs (Canada Emergency Response Benefit, Canada Emergency Wage Subsidy, etc.).
4. Louis-Alexandre Guay was recently appointed Executive Legal Counsel for the Court.

F. Notices to the Public and the Profession – Remote Commissioning of Affidavits and Electronic Signatures

1. The Court has sought feedback on two Notices to the Public and the Profession. One allows for remote commissioning of affidavits. The other describes a pilot project allowing parties to use electronic signatures on certain court documents:

Notice to the Public and the Profession on remote commissioning of affidavits – links: ENGLISH, FRENCH

Notice to the Public and the Profession on electronic signatures pilot project – links: ENGLISH, FRENCH

2. These Notices expire on June 30. The CJ asked for comments from the Committee on whether the Notices are working well, if there are any suggested changes, if the Notices should be extended, etc.
3. The Committee, including representatives from the CBA and Justice Canada, noted that the practices described in the Notices are helpful and efficient, and the profession would like to see the Notices renewed.
4. The CJ noted that the Court would extend the application of the Notices to December 31, 2022. The Notices, and any further extension, will be discussed at the next meeting.

III. Courts administration service update

1. Darlene Carreau gave an update to the Committee.

2. CAS continues to focus on its four priorities: digitization, workforce, court facilities, and service standards.
3. CAS continues to invest in helping the federal courts digitize their operations, including investments in the Tax Court’s IT infrastructure and online filing and payment technologies. CAS intends to replace the legacy file management system for the four federal courts. An RFP may be issued in Fall 2023. This investment is contingent on the required authorizations and funding from the federal government.
4. CAS continues to identify how it may shape its workforce of the future. In particular, how it may attract, develop and retain top talent, especially court registry staff. In the current labour market, CAS has lost employees to other government agencies that may offer greater flexibility for working from home. CAS is considering how its employees may work differently and more efficiently.
5. CAS is making significant investments in court facilities across the country. CAS’s goal is to make all of its 56 courtrooms modern, properly equipped, secure, and accessible. CAS has 10 full e-courtrooms, and intends to add five more by Fall 2022. Investments in the courtrooms include adding wi-fi and electrical power outlets to the bench and counsel tables.
6. CAS continues to adapt its procedures as the pandemic recedes. CAS is reducing the pandemic-related measures for court facilities across the country, including restoring full capacity and removing plexiglass in courtrooms, where it is safe to do so. CAS will have streamlined processes for pre-screening court attendees, sanitation in and around court facilities, and ensuring safe air quality. 

IV. TCC rules committee update

1. The CJ reported that Rules Committee will consider amendments to the Court’s rules to address the roles and responsibilities of the new associate judge positions. A number of other matters will also be addressed, including taxpayers’ use of agents or litigation guardians as representatives in hearings, the procedures for group appeals, etc.
2. The Rules Committee will meet for two days later this year.

V. Issues raised by justice Canada

1. Daniel Bourgeois reported that Justice Canada had no additional issues to discuss.

VI. Issues raised by CBA members

A. Settlement Conferences

1. A CBA member raised questions pertaining to procedures and best practices for Tax Court settlement conferences:

1. Would the Court please address whether the Judge on a settlement conference remains seized of the matter until the parties submit a Consent to Judgment?

In response, the CJ noted that the Court will not assign another judge to a settlement matter where one judge has already been assigned. The Court would consider reconvening a settlement conference with the same judge if the parties needed additional direction.

2. If during the Settlement Conference the parties appear to have reached a settlement but are ultimately unable to agree to the terms of a Consent to Judgment following that conference:
   1. Are there protocols or best practices for how the results of a settlement conference may be best documented at the completion of the conference? For example, the common practice in some provincial superior courts is that the parties are expected to reduce to writing the agreements reached/the court orders being requested before the conclusion of a settlement conference. Is encouraging a similar practice in Tax Court advisable?  Is there room for the Court to communicate any additional best practices for the conduct and completion of settlement conferences?

In response, the CJ noted that the Court has no formal directions for the conduct of settlement discussions or recording the parties’ agreement. As a practical matter, the parties should consider reducing the settlement to writing and having the written settlement signed by the parties and counsel. In the absence of a written signed settlement agreement, query whether the parties actually settled. The practice of law is no longer conducted on handshakes. The Court has a success rate of approximately 50 percent for settlement conferences. However, the Court will not hold the parties’ hands on a settlement agreement and the manner in which it may be recorded.

2. If further issues arise following the conclusion of a settlement conference, is it appropriate for the parties to request to appear (again) before the same Judge on the settlement conference with a view to assisting the parties with implementation of the agreement flowing from the settlement conference? 

Yes, the Court will agree to convene a follow-up settlement conference if this may help the parties resolve any matters that remain in dispute. The same judge would preside at the follow-up settlement conference.

B. Bifurcation

2. A CBA member asked how the Court will determine requests for bifurcation. The accepted practice seemed to be that requests were made in writing on consent by the parties. However, a CBA member recently received direction from the Court Registry that requests were to be made by way of a motion.

In response, the CJ said he was unaware of any change of procedure for bifurcation requests. The CJ stated that he would look into this matter.

C. Hearing Locations

3. A CBA member asked whether a taxpayer who had previously requested a hearing in Toronto could subsequently ask the Court Registry to schedule the hearing in a suitable Court location outside Toronto.

In response, the CJ stated that the Court would try to accommodate such requests, and that flexibility on the part of taxpayers and counsel was appreciated in light of the significant backlog of cases in Toronto. The Court has only three or four courtrooms available in Toronto, while the caseload could require seven or more.

VII. Other business

None

VIII. Next meeting

1. The next meeting will be held in person on Sunday November 27, 2022, at 10 am, at 180 Queen Street West, 7^th Floor, Toronto.
2. A meeting to consider potential amendments to the Court’s rules will be convened in Fall 2022.