Present

Tax Court of Canada (TCC)

• The Honourable Gerald J. Rip Chief Justice ("CJ")
• The Honourable Eugene Rossiter Associate Chief Justice ("ACJ")

Courts Administration Service (CAS)

• Daniel Gosselin ("DG") Chief Administrator, Courts Administration Service (CAS)
• Cristina Damiani ("CD") Executive Director and General Counsel
• Genevieve Salvas ("GS") Legal Counsel
• Donald MacNeiJ ("OM") Registrar

Department of Justice (Canada) ("DOJ")

• Micheline Van-Erum ("MVE") Assistant Deputy Attorney General
• Sandra Phillips ("SP") Associate Assistant Deputy Attorney General

Canadian Bar Association (CBA)

• Alexandra K. Brown ("AKB") Blake, Cassels & Graydon LLP (Toronto)
• David D. Robertson ("DOR") Couzin Taylor LLP (Calgary)
• Bruce S. Russell, Q.C. ("BSR") Mclnnes Cooper (Halifax)
• Max J. Weder ("MJW") Davis LLP (Vancouver)
• Dennis A Wyslobicky ("DAW") (Oakville)
• Absent: Tanu-a L.Thomson CBA - Law Reform Liaison

The meeting commenced at 9:00 a.m.

I. Welcome and approvals

Don MacNeil, Bruce Russell and Alexandra Brown were introduced and welcomed to the Committee.

II. Approval of agenda

The Agenda was approved subject to adding an item at VIII. A. (c) regarding the impact of Trial Lawyers Association of British Columbia v. British Columbia (Attorney General).

III. Minutes approved

The minutes of the meeting of the Tax Court of Canada Bench and Bar Committee of 15 May 2014 were approved subject to changing the reference to UI on page 3 to EL Translation will be circulated when available.

IV. What's new at the TCC

There is new signage at 200 Kent Street in Ottawa.

A. Resignations, Appointments and Vacancies

The resignation of Justice Sheridan announced at the last meeting is now effective.

Justice Bedard has resigned but continues to sit as a deputy judge in Montreal/Sherbrooke area.

Two existing vacancies will be filled shortly. Justices Hershfield and Campbell have indicated their intention to elect supernumerary status ("sn") by the end of summer 2015.

B. Statistics and Trends/Current Inventory

The CJ reported:

1. Detaxer cases: The CJ is case managing a large number of these cases though in most cases the only remaining issue is the assessment of gross negligence penalties. The TCC will be organizing the hearing of these cases in the New Year. The cases arise throughout Canada and the appellants are frequently representing themselves.
2. The ACJ reported that the 20 per cent increase in volume from 2 years ago has been maintained. The Court's inventory is 8000 - 10000 cases and there is a turnover of approximately 5000 cases each year. The inventory is low in the Atlantic Provinces. Approximately half the cases settle before trial and the average time for disposing of all cases, inclucling Informal Procedure cases, is 1.67 years whereas the goal is an average of 1.5 years. [See also TCC statistics attached but these should be viewed with caution because of input issues.]
3. The ACJ explained that judges are assigned according to a rotation system. For example, if 12 judges are available for a particular week, 2 or 3 go to Toronto, 2 or 3 go to Montreal, and 1 goes to Vancouver, with the remaining 6 judges going elsewhere in the country. File assignments are done by hearing coordinators except for more significant matters (approximately 10% of cases) that are assigned by the CJ. Almost 50% of the TCC bench can conduct trials in either language: Justices Hogan, Boyle, Paris, Rip, Jorre, Lamarre, D' Auray, ArchambauJt(sn).

C. Regional Matters / Issues (if any)

1. Atlantic
   • There is a new court facility on 354 Water Street in St. John's to be ready around March 31, 2015.
   • In Halifax the courthouse is being refurbished.
2. Quebec
3. Ontario
4. Prairies
5. Pacific

D. Matters Arising from 15 May 2014 Meeting

1. Update on double and triple booking of cases in Montreal: Quebec has a history of settling cases within the 30 days prior to trial. The settlement rate is higher in Montreal (80%) and in the Quebec courts (95%) than elsewhere in the country where it is generally around 50%. The Court has been very successful with double­ booking the courtrooms. As so many cases are settled in 30 days preceding the hearing date, and because both cases scheduled for a particular day frequently settle, the TCC may triple book in the future.
2. Update on Bar informing Court of whether QST case has proceeded when GST held in abeyance: The situation in Quebec has improved. The CJ advised that the TCC is now more commonly setting GST cases down for hearing even though the related QST case is not scheduled to be beard by the Quebec court until 2016. There is an issue with MRQ assessing the QST first and then assessing the GST a year or so later.
3. Any further significant group of cases: It was noted that the Court has now disposed of a large number of charitable donation cases.

V. Report from the CAS

A. General Update from CAS

1. Richard Tardiff, the new Deputy Chief Administrator of the Courts Administration Service, started in July, 2014, having previously been involved intransformation at the Department of Justice.

B. Matters Arising from 15 May 2014 Meeting

1. The CAS has requested but not yet received additional funding to improve the ITinfrastructure and address increased workload due to an increase in the number of self-represented taxpayers and an increase in the complexity of files, and to address other issues, including relocati.on of the Montreal office.
2. Facilities relocation update
   • Montreal relocation must be addressed by March 31, 2015. Options include remaining at the existing facility (30 McGill) or relocating to the old Palais de Justice de Montreal or pursuing other options already described.
   • Quebec -TCC told informally of need to relocate by 2017.
   • Ottawa - Discussion of moving in 2030 but project is linked to refurbishment of Supreme Court of Canada building.
3. New location for Newfoundland sittings: The new facility on Water Street in St. John's should be ready by March, 2015.

VI. TCC rules committee

A. General Update from Rules Committee

The ACJ mentioned that there are 2 subcommittees of the TCC Rules Committee, one for the General Procedure Rules and one for the Informal Procedure Rules.

Two priorities for next year:

1. Consolidation of Rules from seven sets to two sets (one GP and one IP). The Court hopes to second an individual from Finance or Justice to assist with this project.
   • The target is to have changes ready for review at October 2015 meeting of Rules Committee and for consolidation in March 2016.
   • Any new submissions for the subcommittees should be submitted soon.
2. Comprehensive analysis of the tariff
   • The Rules Committee has been discussing the tariff for a number of years. There is no consensus on whether the tariff should vary according to the amount in dispute or the complexity of the issues or whether it should be regionalized. Submissions are welcome.
   • The new rules respecting experts were discussed.
   • TCC has an officer assigned to taxation of costs; TCC had anticipated 150 per year, but now down to about 25 per year.
   • SP expressed concern about litigating the issue of costs because of the expense involved. The DOI view is that the tariff should be the default.

B. Matters Arising from 15 May 2014 Meeting

1. Social Security Tribunal Transition Rules
   • MVE reported that there is a huge backlog with the SST. There are 11,000 cases in backlog, which must be dealt with before the SST takes on additional cases and 22 new members have been assigned to deal with the backlog. In the meantime, the TCC is still hearing EI and CPP cases.
2. E-service Update
   • MVE reported that there is to be a pilot project on e-service but it is progressing slowly.
   • DOJ policy is that there is no e-service although individual DOJ lawyers may consent to e-service on a file by file basis.

VII. Matters of concern for the department of justice

A. General Update from Department of Justice

• MVE reported that 2012 budget covered three years and cuts have been achieved as directed. The government has ordered a review of costs across the board, wishing to stop the annual increase in the DOJ budget of 4% per year. There is no anticipation of hard cuts in Tax Law Services but rather a focus on changes in how things are done.

B. Matters Arising from 15 May 2014 Meeting

1. Timetable Orders and Proposed Procedure for Missed Deadlines (See page 7 of 15 May 2014 Meeting Minutes)
   • It was agreed that in cases of missed deadlines the DOJ should contact the hearings coordinator and ask that either a status hearing (if it seeks to have the appeal dismissed) or a show cause hearing be scheduled.
   • Common book of authorities: It was suggested that a pilot project in Toronto might be workable with counsel perhaps providing copies of the pages in these authorities explicitly relied on. The issue will be raised again internally at the TCC at the December 2014 judges' meeting. DOJ and CBA both expressed support for the TCC to proceed with a common book of authorities.
2. Other (Added)
   • Timetable Orders and requests for change
     • The CJ said the court is still getting 100 requests per month for changes to timetables and is reluctant to grant extensions on the basis that parties are discussing settlement. The ACJ pointed out that generally the deadlines were proposed by the parties and enshrined in an Order and the parties should therefore adhere to them. The ACJ expressed concern about the judicial resources diverted to these requests. If asking for long periods of time, parties must explain why.
     • Granting a request for an extension is routine on the first request; after that, the presumption is that there will be no extension.
     • The possibility was raised of the TCC issuing a practice direction about putting the justification for amending timetables in a letter.
     • Regarding requests that cases be held in abeyance, if the case is not substantially similar to a case already underway, the CJ will ask for a commitment to be bound before granting such a request. It was suggested that in order to avoid difficulties later, the party might be asked for a commitment even if it does appear to the judge examining the files that the matters are substantially similar.

Vlll. Issues raised by CBA members

A. Matters of Concern Raised by CBA members

• Electronic Filing of Notices of Appeal where 90-day Deadline Falls on Satw-day, Sunday, or Statutory Holiday (BSR).
  • CAS agreed to look into whether the software can be adjusted to accommodate the shifting of the filing date from 90 to 91 or 92 days in this situation.
• Impact of apparent CRA Appeals initiative to clear inventory and potential impact on Tax Court Inventory (MJW)
  • CRA does not expect an increase to Tax Court inventory as a result of efforts to clear the backlog.
• Filing Fees and Trial Lawyers Association of British Columbia v. British Columbia (Attorney General)
  • The ACJ noted that filing fees are a Treasury Board issue and the Court does have the discretion to waive the fee which it is asked to exercise from time to time. The CJ noted that this matter will be considered when the tariff is reconsidered.

IX. Varia

A. Pro Bono Students Canada Project & Pro Bono Law Ontario Project - Update

• U of T, U of C, U of 0, Laval, U of Montreal, Sherbrooke are all part (or about to become part) of the program. BSR is also attempting to introduce a program in Dalhousie.
  • The CJ noted that the TCC's list is set down without preference for university pro bono programs so no community is disadvantaged.
  • TCC Guidelines on Pro Bono Initiatives are attached.
• Pro Bono Ontario Project where lawyers appear as amicus started pilot project last week with first trial in Toronto and is sponsored by Pro Bono Law Ontario and KPMG Law.

B. Social Security Tribunal - Update: See VII (B)(a) above.

X. Next meeting

The meeting was adjourned at 12:30 p.m. The date and place of the next meeting will be determined early in the New Year.