Tax Court update on getting back to business – top ten takeaways
An update on the reopening of the Tax Court of Canada, by Stevan Novoselac and John Sorensen of Gowling WLG
TORONTO – On June 25, the Chief Justice and Associate Chief Justice of the Tax Court of Canada ("TCC") provided a second reopening update. Here are our top ten highlights.1
- The Government of Canada business continuity plan was transitioned on June 5 and, consequently, as of June 22, 25% of the TCC's registry staff have returned to their offices, along with law clerks and administrative support personnel. With staff back in the TCC's offices, it may be possible to pay filing fees as early as July 6 for appeals instituted during the shutdown.
- While the TCC is not yet "up and running", it has embarked on what will be an ongoing process to get back to the "new normal". Available staff have been digitizing all file materials that have not been entered since March 16, with an expectation of bringing active files up to date by July 3.
- To reduce travel, the TCC sittings for the immediate future to at least the New Year will be limited to the largest volume centres in four regions: the West (Vancouver, Calgary and Edmonton); Ontario/Central (Toronto, Hamilton and Ottawa); Quebec (Montreal and Quebec City); and Atlantic (Halifax). Although courtrooms will be reconfigured for protection of the health and safety of all, including the use of plexiglass screens, social distancing and masks, all hearings with witnesses are to be done in person and not by videoconference.
- As the TCC reopens, 52 hearings that were in progress will resume as soon as possible. A total of 1,191 hearings were adjourned or postponed because of the pandemic and 210 conference calls with litigants were cancelled. In total, the TCC lost 202 "sitting weeks" and will make up approximately 78 of those lost weeks by rescheduling matters from July 20 to the end of September.
- The pace at which the TCC's business will get back to normal will depend on the availability of staff and facilities (there are currently challenges with the Toronto and Hamilton locations).
- In terms of priorities, the hearings co-ordinators will soon be in touch to schedule resuming matters that were in progress. Priority will then be given to matters that were scheduled, but cancelled. General procedure matters will take precedence over informal procedure matters. Priority will also be given to matters involving amounts payable to taxpayers (for example, disputed benefits, refunds and credits).
- Judges have been working on reserved judgments and, as the TCC reopens, these reserves will be published on a first-in-first-out basis.
- Starting on July 6, the hearings co-ordinators will be reaching out to parties to reschedule hearing dates in priority sequence, between the dates of July 20 and October 1. The TCC was very explicit in confirming that parties should be prepared, with available dates determined, before taking these calls and that if a party does not accept the offered dates, they will go to the bottom of the queue. Sittings will take priority over all planned holidays, be it judicial, staff, parties, counsel or litigants. What was unclear was whether this applies only to taxpayers, or whether it applies to the Crown as well. It would seem unfair to taxpayers if the TCC put appeals that are not scheduled to the bottom of the pile solely because the Department of Justice (akin to the largest law firm in the country, by far) was not prepared to allocate resources to achieve available hearing dates.
- To help alleviate its backlog, the TCC will offer a "fast track" settlement protocol and provide a notice to the profession and practice note. The TCC also highlighted the new and, as yet little used, "preliminary ruling docket" in Practice Note 23 (https://www.tcc-cci.gc.ca/tcc-cci_Eng/Process/practice23.html), which may expedite some appeals getting resolved.
- The TCC will also soon issue a Practice Note explaining how exhibits will be handled. In general, for general procedure appeals the parties will be expected to file with the TCC four copies of all their documents, bound, indexed and paginated, seven days in advance of the hearing, as well as providing a copy to opposing counsel. For informal procedure appeals, exhibits will need to be filed with the TCC on the day of the hearing, an hour and a half before it starts.
While we continue to provide updates on tax dispute resolution before the TCC as information becomes available, if you have any questions or need help to resolve a pending tax dispute, please do not hesitate to contact us.
1. While we hope our summary is helpful, readers are encouraged to check the TCC's rules, practice notes, directions and orders, to ensure all necessary steps are being taken to properly manage their own TCC appeals.
Stevan Novoselac is the Canadian leader of Gowling WLG's Tax Dispute Resolution team. John A. Sorensen is a partner at Gowling WLG in Toronto, where he specializes in tax and tax dispute resolution. Read the original article on GowlingWLG.com.