Attendees
Tax Court of Canada (TCC)
- The Honourable Eugene Rossiter Chief Justice
- The Honourable Lucie Lamarre Associate Chief Justice
Courts Administration Service (CAS)
- Darlene Carreau (DC) Chief Administrator
- Cristina Damiani (CD) Executive Director & General Counsel
- Sophie Matte (SM) Executive Legal Counsel
- Donald MacNeil (DM) Registrar
- Joel Kom Legal Counsel
Justice Canada (DOJ)
- Shalene Curtis-Micallef (SCM) Assistant Deputy Minister, Tax Law Services Portfolio
- Daniel Bourgeois (DB) Deputy Assistant Deputy Minister
Canadian Bar Association (CBA)
- Nathalie Goyette (NG) – Chair - Davies Ward Phillips & Vineberg LLP (Montreal)
- Neil Bass (NB) - Aird Berlis LLP (Toronto)
- Timothy Fitzsimmons (TF) - PwC Law LLP (Toronto)
- Jehad Haymour (JH) - Bennett Jones LLP (Calgary)
- Mark Tonkovich (MT) - Blake, Cassels & Graydon LLP (Toronto)
- Tamra L. Thomson (TLT) - CBA – Executive Director, Advocacy
II. What’s new at the tax court of Canada (“TCC” or “Court”)
A. Cancellation Impact of COVID-19 on operations
- The pandemic has hindered the Court’s progress in its digitization process. This, together with the Court’s files being processed in Ottawa and sanitary rules limiting the number of staff allowed on the premises, have obliged the Court to cancel all in-person sittings scheduled between August 16 and September 10, 2021 inclusively.
- Post September 10, 2021, the Court plans to progressively resume in-person sittings in major cities. In this regard, priority will be given to hearings adjourned, hearings cancelled, and continuations.
B. Virtual Sittings
- As per the Notice to the Public and the Profession of June 1, 2021, the Court continues to endeavour to conduct virtual hearings, including proceedings previously scheduled to occur in person between August 16 and September 10, 2021. Some virtual hearings are presently scheduled.
- The Court has developed guidelines for virtual hearings. These are:
- General Procedure appeals are eligible for virtual hearings;
- The hearing must be scheduled for three (3) days or less;
- Parties must be represented by counsel;
- No interpretation is required;
- The number of documents is limited;
- The number of witnesses is limited;
- The documents are filed a week in advance of the hearing; and
- Both parties agree to the virtual hearings.
- The Court identified more than 60 appeals between April and July and August 16 to September 10, 2021 that met the above guidelines. The Court offered virtual hearings to the parties to these appeals but notes that there was little uptake after discussion with the parties whose consent was required.
6. The Court continues to hear motions, case management and settlement conferences and status hearings virtually.
7. There are also guidelines that apply to settlement conferences heard virtually. They include the requirement that parties be in the same physical room as their counsel.
8. Finally, the Court reminds parties to a virtual hearing of the need to be well organised. This includes making sure that the documents and books needed during the hearing are readily accessible, and that measures are taken to ensure that the Court is able to assess credibility when such an assessment is required.
III. New rules
9. The TCC Ad Hoc Statutes/Rules Committee is wrapping up its work regarding statute amendments suggestions and some potential rule changes. Once this Committee finishes its work and it is reviewed by the Court, a summary of proposed statute and rule changes will be presented to the Bench & Bar for comment.
IV. Retirements and vacancies
10. The Associate Chief Justice, the Honourable Lucie Lamarre, will retire on August 31, 2021, after having spent 28 years at the Court.
11. The Honourable Justice Johanne D’Auray will retire on September 17, 2021, after 11 years at the Court. [The Chief Justice subsequently informed the Committee that Madam Justice D’Auray will not retire in September, as originally announced.]
12. These retirements, coupled with two new judicial positions to be created in the coming months, will make four (4) vacancies to be filled. [Three (3) with the subsequent news noted in the previous paragraph.]
V. Answers to questions from the public and private bars
13. One CBA member asked whether the General Procedure Rules will include a rule similar to Rule 141 of the Federal Court Rules permitting service by email where parties consent. The Court answered that it is contemplating such a rule. In the meantime, the Court accommodates parties who want service by email, where both parties confirm to the Court that they agree.
14. Asked to provide further details regarding the litigation guardians rule mentioned above, the Court explained that a rule is necessary for appellants who cannot conduct trials, and are not competent to either instruct or retain counsel. In the past year, the Court has encountered this situation eight or nine times. The rule being contemplated will address how the litigation guardian will retain counsel as well as how counsel’s fees will be paid.
15. The Court was asked for its views on situations where litigants take the position that they will bring a motion to the Court unless opposing party agrees to a timeline. The Court reminded attendees that [per Practice Note #7] 60 days after the close of pleadings, the Court Registry sends a letter to the parties requesting that they establish a schedule for completion of the remaining steps in the appeal. Although the Court has spent much of the past months dealing with requests to change timetables, the Court intends to ensure, to the extent possible, that parties agree to a timetable within 60 days after the close of pleadings.
VI. Conclusion of meeting
16. Since this is likely her last attendance at a meeting of the Bench & Bar Committee, the Associate Chief Justice, the Honourable Lucie Lamarre, bid her farewell and thanked members of the Committee.
17. There being no further business, the meeting was adjourned.
18. The Committee wishes to add to these minutes that its members are grateful for Associate Chief Justice Lamarre’s invaluable contribution to this Committee, and more importantly to the Judiciary and Canadian jurisprudence. Her kindness, dedication, integrity and respect to everyone she interacts with, including those who appear before her in court, will be missed.