May 22 2018 Montreal

Attendees

Tax Court of Canada (TCC)

• The Honourable Eugene Rossiter Chief Justice
• The Honourable Lucie Lamarre Associate Chief Justice

Courts Administration Service (CAS)

• Daniel Gosselin (DG) Chief Administrator
• Cristina Damiani (CD) Executive Director & General Counsel
• Sophie Matte (SM) Executive Legal Counsel
• Donald MacNeil (DM) Registrar

Justice Canada (DOJ)

• Lynn Lovett (LL) Assistant Deputy Minister, Tax Law Services Portfolio
• Daniel Bourgeois (DB) Deputy Assistant Deputy Minister

Canadian Bar Association (CBA)

• Alexandra K. Brown, Chair (AKB) Blake, Cassels & Graydon LLP (Toronto)
• Dominic C. Belley (DCB) Norton Rose Fulbright (Montreal)
• D'Arcy Schieman (DS) Osler, Hoskin & Harcourt LLP (Toronto)
• D. Andrew Rouse (DAR) Peters Rouse (Fredericton)
• Ken S. Skingle (KSS) Felesky Flynn LLP (Calgary)
• Tamra L. Thomson (TLT) - CBA – Director, Legislation and Law Reform

The meeting commenced at 9:00.

I. Welcome and approval of agenda

1. Introductory remarks by, and welcome from, AKB.
2. The agenda was approved as circulated with no amendments.
3. The minutes of the November 19, 2017 Committee meeting had been previously circulated and approved by email.

II. What’s new at the TCC

A. Resignations, Appointments and Vacancies

4. The CJ announced no resignations or appointments, but is concerned about the impact of the ongoing numbers of vacancies and judges on leave.
5. The CJ noted that Justice Paris is scheduled to retire in April, 2019.

B. Statistics and Trends / Current Inventory

6. The CJ identified the following TCC statistics and trends over the six year period from 2011 to 2017:
   1. The total number of appeals in inventory has increased by 47.6% (an increase of 42.5% by way of general procedure and an increase of 94.9% by way of informal procedure), comprising an increase of 59.6% in income tax appeals filed and an increase of 17.7% in GST appeals filed.
   2. With more geographic precision, inventory has increased as follows:
      1. 52.9% in Calgary;
      2. 71.8% in Edmonton;
      3. 32.5% in British Columbia;
      4. 91.9% in Toronto;
      5. 66.4% in Ontario;
      6. 12.2% in Montreal;
      7. 8.7% in Quebec; and
      8. no material change in the Maritimes.
   3. Docket entries have increased by 21.6%.
7. The CJ had the following further comments:
   1. The volume of new TCC appeals continues to put strains on the available resources of the TCC.
   2. The first sittings have occurred in the new court facility in Hamilton.
   3. Another floor is being added to the court facility in Toronto, with 2 additional courtrooms.
   4. Between 2010 and 2017, there has been significant increase in settlement conferences in Vancouver and Toronto, with rates 6 times higher than in Montreal, with the following settlement rates in those centres:
      1. Vancouver, 75%;
      2. Toronto, 69.69%;
      3. Montreal, 91%.

C. Regional Matters / Issues (if any)

8. There were no other regional issues discussed.

D. Other Issues (if any)

9. The Court raised the issue of how to deal with applications brought under section 174 of the Income Tax Act.

III. Courts administration service

A. Update From CAS

10. DG advised that:
    1. the federal government provided $47MM in the 2018 Budget, over a 5 year period;
    2. Budget 2018 was useful for program integrity but that funding is still required for the new Court and Registry Management System and for translation, and that discussions are ongoing regarding Budget 2019;
    3. there is a new office in Hamilton;
    4. new floor construction in Toronto will begin in 2019, with delivery in 2021 or 2022;
    5. a new building in Montreal, for 2022, is under consideration;
    6. a new office has opened in Quebec City;
    7. the Federal Court has requested that a new office be opened in Saskatchewan, with an aboriginal courtroom;
    8. CAS is anticipating electronic courtrooms moving forward:
       1. under a pilot, software is currently being tested;
       2. the Federal Court has enjoyed success in this regard;
       3. Justice Owen has used an electronic courtroom in the Tax Court;
    1. there is currently a 15-18 month delay before translation is available;
    10. requested $50MM in funding for translation services, received $2MM;
    11. Budget 2018 announced 29 additional employees for the TCC, including 3 new employees in Hamilton;
    12. Ontario received $800MM and Québec received $500MM, to modernize their respective courts.
    13. The CJ commented that the TCC will not hold E-Trials unless and until the entire appeal process is fully digitized, and until the technology is available to all parties.

IV. TCC rules committee

A. Update on Consolidation of Rules Project

11. The proposed new General Rules are currently being reviewed by the Department of Justice and are expected to be completed in August. 
12. The separate sets of Informal Rules are being merged into one set, with completion expected by the fall of 2018.
13. Rules Committee will meet in October, 2018 and will consider:
    1. Refining group appeal rule;
    2. Lead times for settlements, attempting to convince litigants to settle earlier.

V. Issues raised by justice Canada

14. DOJ raised the possibility of advising the Court in advance when the involvement of a judge’s former firm may raise a conflict, in order to avoid the need to reschedule immediately before a hearing.
15. Suggestion to convey participation of particular law firm to Court and for parties to communicate potential conflicts to Court.  Would allow justices to identify potential conflicts.
16. The CJ noted that when a new judge is appointed, the judge develops a “Conflict List”, which is a list of files, individuals, and counsel with which the judge has a relationship and which represents a real or potential conflict of interest.  In addition, if a party has a concern, it should be communicated to the hearings coordinator.

VI. Issues raised by CBA members

17. CBA members raised the following issues:
    1. Bill C-58 re: Access to Information
       1. Submission by CBA to Senate.
    2. Possible revision of Court’s standard letter on receipt of subsection 169(3) letter, which states that the matter will be scheduled for a hearing if a Notice of Discontinuance is not filed.
    3. Discussed moving forum to TCC for hearings relating to revocation/refusal of charitable registration.
    4. Referrals to Rules Committee
       1. Practice of announcing hours of sitting still irregular
          1. Hours of sitting will be announced by judge at commencement of hearing, as previously communicated to judges;
       2. Request for limitation on oral discovery and practice direction stating Court will be disinclined to extend timetable where discoveries not completed within the deadline
          1. Suggestion that relevance rules could be tightened;
       3. Request for amendment staying time period for responding to a pleading where particulars are requested
          1. Could allow time to file pleadings to run after Demand for Particulars;
       4. Enquiry about amendment to subsection 17.1(1) of the Tax Court of Canada Act to render subsection 30(2) of the Rules intra vires
          1. Reference to Suchocki Accounting Ltd. v. H.M.Q., 2018 TCC 88 - in TCC General Procedure matter, corporation must be represented by counsel.

VII. Other business

18. No other discussion items were raised.

VIII. Next meeting

19. The proposed date for the next meeting is Sunday, November 25, 2018, commencing at 9 AM in Vancouver, British Columbia, in connection with the Canadian Tax Foundation Annual Conference which will commence on that date in Vancouver.