I. Welcome & introduction of new members

Maitre Dominic Belley and Mr. Kenneth Skingle were introduced and welcomed to the Committee. Other Committee members also briefly introduced themselves.

II. Approval of agenda

The Agenda was approved.

III. Approval of minutes of June 11, 2015 meeting

Minutes of the June 11, 2015 meeting were approved noting a minor spelling error.

IV. What’s new at the TCC

1. The CJ advised there have been no resignations. It is the largest complement that the Court has ever had with 22 appointees plus 5 supernumerary judges, totalling 27. Since February 2014 there have been 5 new appointees. All are now sitting fully trained. Justice Campbell Miller will go supernumerary in early 2016. In May 2016 Justice Hershfield, who is supernumerary, will retire. The average age now of Tax Court judges is in the mid fifties.

Statistics, trends and current inventory

2. In the 2014/15 year annualized to June 2015 ITA informal appeals were up 59%; general procedure appeals up 22%; and informal GST appeals up 14%. There was a 21% overall increase in applications and appeals.
3. Over 5 years the total inventory of Tax Court proceedings is up 28.5% ― a substantial increase. On an annualized basis the increase is 35% per year. Docket entries are up 25% over 4 years.

Regional trends

4. From 2011 to October 31, 2015 there was a 21% decline in the Montreal inventory, an increase of 122% in the Hamilton inventory, a decrease of 52.9% in the Ottawa inventory and an increase of 47% in the Toronto inventory. Atlantic Canada also saw a decrease in inventory. In Toronto, informal proceedings increased by 59%. The number of informal appeals and of self-represented litigants has generally increased.
5. There was a discussion regarding security aspects.
6. Beginning February 29, 2016 there will be a pilot project for motion days in Toronto on the first and third Mondays of each month. Four motions will be set down on each motion day. This is because increasingly motions are being brought, particularly in Toronto.

7. The Court is satisfied with how miscellaneous issues are being raised with the Court. For the most part they are being raised informally. The Tax Court Bench and Bar Committee ("Committee") is strongly encouraged to continue raising concerns and making suggestions to the court. Between meetings, the Committee can email or contact the CJ or the ACJ if there are issues. The Court explored the possibility of appointing a ombudsman similar to the one currently in place at the Quebec Superior Court. DCB advises that that process is not particularly popular in Quebec.
8. Some discussion ensued regarding timelines on reserves. The CJ explains that the ACJ and himself follow the timelines of reserves very closely and indicates that each situation is unique. It is expected that informal decisions would be out within 90 days and general procedure decisions should be out within six months. If a concern about timeliness arises, the CJ suggests it be communicated by letter to him or to the ACJ, with a copy of the letter to go to the other party.

Regional Matters

9. The CJ indicates that the GST inventory issue in Quebec has been resolved. In Quebec there is a unique issue with GST issues being litigated both in Tax Court and in the Court of Quebec. If the matter is already scheduled for the Quebec Court then the Tax Court will adjourn. If not, then Tax Court will proceed with scheduling.
10. In Ontario, a pilot project will commence for Court having copies of common authorities. A letter will be sent when there is a date for hearing, listing common authorities that need not be reproduced. This pilot project is scheduled to commence February 1, 2016.
11. A question arose regarding joint applications. HAG will advise.

V. Report from the courts administration service (CAS)

12. DG and CD reported on their responsibility for proper services to courts and litigants. There has been an increase in resources allocated to registry services. Budget 2015 provided additional funding to CAS and the Federal Courts to address Security matters..
13. The Montreal venue will have to vacate in 2019. Options have been identified.
14. In Quebec City the Court must relocate by 2017. Space at the Palais de Justice is needed by the Province. Options are discussed with Public Works.
15. In St. John’s the move to new premises has gone as planned.
16. In Ottawa the Court is contemplating possibly in the future moving facilities from 90 Sparks Street to a new building in the judicial precinct.
17. In St. John’s the move to new premises has gone as planned.
18. More space may be acquired in Toronto.
19. In Vancouver the Court may have to relocate in 2019.

20. Filing on 91^st day if 90^th day is a statutory holiday: Implementing change to allow this is still work in progress. The system does not readily allow such fixes. Additional funding may be available soon to address these matters or the system as a whole.

VI. TCC rules committee

21. The Court's Rules Committee is consolidating seven sets of rules into two (Informal and General Procedure). The work is largely complete. Review of the Tariff in the General Procedures Rules will be looked at once the consolidation of the Rules will be finalized. There is no update on the proposed social security tribunal and transition from Tax Court. Currently, there is inconsistency concerning acceptance of service electronically, with the issue being handled at the counsel level. Department of Justice is looking at a pilot project for E-Service.

VII. Matters of concern for department of justice

22. Projects (or Group Litigation): This is a follow-up to the discussion at the June 11, 2015 meeting. CJ indicated that the Court tries to identify group appeals early in the litigation so that they can be case managed. Case management is to determine how best to proceed. Challenges arise when there is a large group of self-represented litigants. CJ wants to avoid same case litigated several times. DOJ intends to bring an ITA 174 application for a determination of a question that will have 20,000 potential respondents.
23. Confidentiality clauses in settlement documentation: This is a follow-up to a matter raised at the June 11, 2015 meeting. To the extent DOJ was asking for the inclusion of confidentiality clauses in minutes of settlement, this will be discontinued on a go forward basis. This is not a normal requirement of DOJ (HAG).

VIII. Issues raised by CBA members

General

24. Eric Atkinson’s statement that all was good was read and appreciated. The matter of procedures regarding agreed statements of fact came up and it was suggested that formal procedures cannot be developed for this as it is at the parties’ discretion to consider this or not. There is a You Tube instructional video for self-represented appellants. The Tax Court website is being made attainable to everyone.

Certificate of Service

25. Some CBA members had noticed a recent delay in the Vancouver Registry office for serving notices of appeal on the CRA, and the Court is trying to improve regarding timeliness of same.

Electronic Payment of Fees

26. The Court was asked whether it would be possible to introduce electronic payment of fees via credit card. This is part of the IT challenges that the Court is dealing with.

Timetable Guidance

27. The Court was asked for guidance as to what limits are acceptable for timetable order requests. While the Court would like the parties to manage timetables, the CJ/ACJ believe that simple General Procedure cases should be ready to go within 1 year, with 2 years being the timeframe for more complex cases. The CJ indicated some concern about the number of applications for timetable adjustments coming in. His view is that when people commit to dates in the beginning, they should respect these.

Telephone Conferences

28. Some CBA members have commented that they were having difficulties with the Court's use of conference calling, suggesting that a conference call-in number with password would be preferable to the Court arranging the call. The Court advised that they are not aware of any problems unless a wrong number is given or the phone is not answered. The Court is also concerned with confidentiality and security if the call-in approach is taken.

Assignment of Civil and Common Law Focussed Cases

29. Some cases (trusts and real estate, for example) turn on particular concepts of civil or common law, which can be complex, and the question is whether the Court has any policy on the assignment of such cases to either a civil law or common law trained judge. The CJ advised that the Court does not have any policy in such circumstances and that any of the Court's judges can be assigned any case. The Court has law students who can assist with any required research. The ACJ noted that the Federal Court and the Supreme Court of Canada have the same reality of judges having different backgrounds (civil or common law).

Respondent's Assumptions

30. One CBA member was recently asked for the first time by a judge at the beginning of a trial which of the Respondent's assumptions the appellant did not disagree with, and the issue was whether this was a common practice. This is a question of judicial style and there is no policy on the point. It is not unusual, however, and generally happens more informally, particularly with self-represented litigants.

IX. Varia

31. General Guidelines on Pro Bono Initiatives are posted on the Tax Court website. The CJ indicates that doing pro bono trials in a university setting raises some issues.
32. The results of the amicus project in Toronto were unfortunately not satisfactory. Feedback received was limited. Logistical issues were raised as well as concerns regarding the role of the amicus lawyer and possible confusions.
33. On BSR’s matter regarding Justice's Montreal litigation office not dealing with motions until they are set down, Montreal will now deal with the motions before the matter is set down.