Attendees
Tax Court of Canada (TCC)
- The Honourable Eugene Rossiter Chief Justice
- Sophie Matte (SM) Executive Director & General Counsel
- Louis-Alexandre Guay (LAG) Executive Legal Counsel
- Joel Kom (JK) Legal Counsel
- Donald MacNeil (DM) Registrar
Courts Administration Service (CAS)
- Darlene Carreau (DC) Chief Administrator
Justice Canada (DOJ)
- Jade Boucher (JB) Acting 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
Approval of minutes of the November 27, 2022 meeting was deferred.
II. What’s new at the TCC
The Chief Justice reported on developments at the TCC.
A. Current Operations
- Don MacNeil will retire in 2024 or 2025. Looking for a new Registrar.
B. Resignations, Appointments and Vacancies
- In 2022, received two new deputy judge positions for the Court, not yet filled.
- In 2022, received two new judicial positions. In 2023, received a further new judicial position (now 25 total).
- Appointment process remains slow. No Associate CJ since 2021.
- From the time of appointment, there is a 5 – 6 month training program before a new judge hears their own cases.
- Currently three vacancies; Justice Boyle going supernumerary once ACJ appointed.
- In 2024, anticipating four retirements
C. Statistics and Trends / Current Inventory
- Appeals and applications filed in 2022-23, down about 20% from last full year.
- Appeals and applications disposed of – basically the same; large group of GLGI appeals have fallen off the docket.
- Appeals perfected tracking to 2019-20 statistics.
- Appeals scheduled for hearing up; specifically, 30% up for managed cases; down by 40% for settled cases.
- Toronto continues to be growth centre for volume. Toronto and Vancouver account for about 65% to 68% of total volume; Montreal on the decline. Steady overall.
D. Regional Matters / Issues
- New facilities:
- Montreal and Toronto renovations and construction in process.
- Ottawa – funds in place for renovations but not yet commenced.
- Hamilton – temporary facility, looking to move to Oakville or Burlington, into facilities with 2 courtrooms. Plan to divide Toronto into 2-3 GTHA regions, including Hamilton.
- The facilities committee is chaired by Justice Graham.
III. Courts administration service update
DC reported on CAS operations.
- July 3, 2023 marks the 20th anniversary of the Courts Administration Service.
- Digital solutions and generational opportunity to refresh and expand spaces – 13 Court facilities being refreshed, converting 57 courtrooms; 16 e-courtrooms; 7 to be added this year.
- Flagship projects: Toronto and Montreal - Courtroom and Chamber space; Montreal planned occupancy spring 2027.
- Working on relocating Hamilton facilities.
- Official Languages Act amendments passed last week awaiting Royal Assent. Then one year to implement. Will need additional translation services, no commensurate funding has been provided to implement this legislative amendment. CAS is considering use of AI only for translations. Each court will determine which cases have precedential value.
- CAS serves four Courts, but funding has not kept up with demands. This is problematic as it puts obligations, including new legal obligations on Courts without appropriate funding
- Estimated cost of translations required is $25m for TCC, FC, FCA and SCC
The CBA noted that the Federal Court Bench & Bar Committee has also raised concerns about the cost of compliance with the Official Languages Act amendments, and where the funds will come from. The CBA will continue to raise concerns about ongoing funding with the government.
IV. TCC rules committee update
The Chief Justice reported on the work of the Rules Committee.
- Proposed Rules on Associate Judges were recently published and are open for comment. Hope to be in effect July 2023.
- Rules Committee met last on May 15, 2023
- Draft Rule governing agents reviewed, with exceptions for relatives and CPAs
- Amendments (20 pages) to various areas of the Rules, i.e., definitions for “electronic” and “document”; international service; no bank account numbers and allow redactions
- Informal Procedure Rules also being considered.
- Next meeting is in October 2023.
- Court Administrative Fee Rule: The Rules Committee is considering a late resolution fee to promote early settlement. The concept is to fix costs per operational time in Court (i.e., $3000/day). For example, if parties settle six months before trial, they would be responsible for 30% of the costs, with a declining balance as the trial draws nearer. MT asked if the Bar would have an opportunity to comment on the proposal. The CJ noted that two members of the private Bar are on the Rules Committee.
V. Issues raised by justice canada
A. Greater Access to Hearings Schedule of the TCC
Further to discussion at November 2022 Committee meeting, Justice Canada asked for an update from the Court on the request for greater public access to the TCC hearings schedule, and the TCC proposal to move to 90-days’ notice for Informal Procedure appeals. Currently can only see 30 days in advance. The Court will look at extending this to 60-90 days, but will not name the presiding judge that early.
B. Status of Group Appeals Objections and Appeals
JB and DB gave an overview of the status of group objections before the CRA and their potential impact on the Tax Court of Canada inventory, referencing their letter of 12 June.
- For the last 10 years, the trend is declining. From 160,000 objections related to groups in 2014, there remained 32,000 Notices of Objection related to groups as of March 31, 2023
- CRA thinks they will address 1/3 of these files by April 2024
- Appeal rates for the group appeals are within 2-7%. Generally, the number of group objections is declining.
CBA members noted interest in making comments to the Court on this topic if the Court is planning to adopt its own solution. The CJ indicated that input from the private bar would be welcome.
VI. Issues raised by CBA members
A. Group Appeals
See above.
B. Electronic Service
Further to discussion at the last Committee meeting, the CBA asked about streamlining the process for electronic service of documents, possibly deeming consent to electronic service by email (at least for some categories of appeals, such as General Procedure appeals where party is represented by counsel and counsel’s email address is in filings with the Court). MT noted with favour the Federal Court of Appeal practice direction, which permits email service and puts the onus on the parties/counsel. Deemed to consent to service subject to revocation. DB noted practical problems of e-service on DOJ without consent.
The CJ noted that the Rules Committee reviewed Practice Direction and Order, February 3, 2022 and approved a draft rule at its recent meeting. Inviting further discussion. This will be put on the October 2023 Rules Committee meeting.
C. Mandatory Participation in Settlement Conferences and Use of Discovery Plans
Further to discussion at the last Committee meeting, the CBA asked the Court for an update on its consideration of this topic at its recent judges’ meeting.
The Court is not inclined to mandate participation in settlement conferences. Litigation is the litigation of the parties. The existing deadlines and timetable Orders drive behaviour. The impetus for action needs to come from the litigants, not the Court.
D. Mandatory Use of Discovery Plans
Further to discussion at the last Committee meeting, the CBA asked if there was any update from the Court. The CJ noted that it was not discussed by the judges because the Judges’ meeting where this was on the agenda was cancelled.
E. Delays in confirming hearing dates to parties
The CBA asked for greater speed in confirming trial dates (even with interim scheduling communications with the Registry/ Hearings Coordinators, if only to communicate the unavailability of trial dates in particular cities in the next xx months, especially given that the Court is able to schedule its hearings far in advance. In certain cities (especially Vancouver and Montreal), parties submit their availability for trial and do not get confirmation from the Court for many weeks or months (e.g. June 2022 request for hearing dates for a four-day trial went unanswered until March 2023). This complicates scheduling for counsel, as it can be difficult to hold the dates for this long.
The CJ is aware of this issue and expects processes to be back on track by late summer.
F. Written Discoveries
The CBA addressed the perceived procedural delays arising from use of written rather than oral discoveries. Members of the Bar note that written discoveries may be more flexible and efficient for the parties, despite appearing to take more time in litigation timetables proposed to the Court.
The Court recognizes that there are cases where written discoveries are useful and efficient, but will only approve responsible timetables. Absent reasonable explanations, timetables with long deadlines will not be approved.
G. Agreements as to Facts in TCC Appeals
A CBA asked about the practice of entering Statements of Agreed Facts in appeals before the Court, noting that a Practice Direction (e.g. for parties to consider agreements as to facts well in advance, at least within 30 days of trial date, etc.) may encourage counsel to arrive at agreements and streamline proceedings.
The Court noted that, given the Rules on Notices to Admit, no Practice Direction is required.
H. Judicial Appointment Process, including Residency Requirement for Judges
The CBA presented findings from its informal survey on barriers to applying for judicial appointments. The themes that emerged included comments on diversity, types of practice, the residency requirement (for the TCC and Federal Courts), work/life balance and a few comments on compensation.
The CJ continues to encourage strong candidates to apply. The JAC does a good job of bringing forward highly qualified candidates. The residency requirement is legislative and, in his view, helps to ensure the collegiality of the Court.
I. Court Protocols on Use of Pronouns and Pronunciation of Names
A recent CBA report on Access to Justice for Trans People showed that transgender, non-binary and gender diverse people face significant barriers to access to justice. As a small first step to redress this problem, some courts have updated their introduction procedures to avoid misgendering people, with a view to treating people of all gender identities and gender expressions equally. At the same time, mispronunciation of names is an issue that significantly, though not exclusively, impacts racialized minorities. Mispronunciation of names contributes to stigma and marginalization by signaling to certain individuals and groups that they do not belong, are less valued, and are not respected. The CBA has been working with other Courts on procedures to address the use of pronouns and updated counsel slips with space for guidance on pronunciation of counsel and parties’ names. The CBA Judges Section has offered training to judges on best practices. The CBA asked if the Court has considered reviewing its protocols on these matters.
The Tax Court is aware of these initiatives and will look into its practices.
VII. Other business
Mark Tonkovich’s term as Chair of the Bench and Bar Committee ends in August 2023. He thanked the Chief Justice and the Committee for the opportunity and expressed appreciation for the important role the Committee plays for the CBA membership.
VIII. Next meeting
The next meeting will likely be held concurrently with the annual CTF conference in November 2023.