Vol. 142, No. 14 — April 5, 2008

Rules Amending the Tax Court of Canada Rules (General Procedure)

Statutory authority

Tax Court of Canada Act

Sponsoring agency

Tax Court of Canada

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Rules.)

Description

The Tax Court of Canada Act (the Act) provides that rules regulating the pleadings, practice and procedure in the Tax Court of Canada are established by a rules committee, subject to the approval of the Governor in Council.

The general purpose of the proposed Rules Amending the Tax Court of Canada Rules (General Procedure) [the Rules] is

(1) to reflect the broadened jurisdiction of the Tax Court of Canada to hear and determine references and appeals under the Softwood Lumber Products Export Charge Act, 2006;

(2) to make consequential amendments resulting from amendments to the Act made pursuant to AnAct to amend the Judges Act and certain other Acts in relation to courts, S.C. 2006, c. 11;

(3) to clarify the rules for proceedings on behalf of a party under a legal disability; and

(4) to make technical amendments.

Rationale for the amendments

(1) Increased jurisdiction for references and appeals under the Softwood Lumber Products Export Charge Act, 2006

Amendments are required in paragraphs 21(1)(a) to (c), section 24, forms 21(1)(a) to (c) and 65, and subparagraph 1(b)(iii) of Tariff A of Schedule II to refer to the Softwood Lumber Products Export Charge Act, 2006.

(2) Consequential amendments resulting from amendments to the Act

Section 17.2 of the Act was amended pursuant to AnAct to amend the Judges Act and certain other Acts in relation to courts, S.C. 2006, c. 11. The effect of the amendment was to remove from the Act certain procedural provisions which are better addressed in the Rules.

The amendments to subsections 21(2) and (3) are required to describe the method of filing documents with the Registry.

The amendment to subsection 21(4) will allow for a delay of five days for the payment of the filing fee. Further, where the parties decide to file documents by fax or by electronic filing, they will not be required to send paper copies to the Registry unless requested.

Also, it is proposed to repeal sections 22 (deemed date of filing) and 23 (service on Her Majesty) as these rules are set out in subsections 17.2(2.1) and (3) of the Act.

(3) Proceedings on behalf of a party under a legal disability

Proposed new section 29.1 is intended to clarify that a party under a legal disability is required to be represented in order to institute or continue a proceeding. The proposed amendment to subsection 30(3) is to clarify that if the representative of the party under a legal disability is not a counsel, the representative shall be represented by counsel.

Further, it is proposed to amend paragraphs 36(1)(a), 82(4)(a), subsections 93(5) and 100(5) to change the reference to “under disability” by “under a legal disability.”

(4) Technical amendments to the Rules

The following technical amendments are also being proposed:

To amend the English version of the definition of “electronic filing” to add a comma after “by electronic means.”

To delete the enumeration of statutory references in section 3 and subsection 29(1). Section 12 of the Act sets out the jurisdiction of the Court and section 17 of the Act provides that the general procedure applies in respect of any proceedings over which the Court has jurisdiction.

To amend subsection 18(1) to follow the same terminology used in subsections 21(2) and (3).

To amend the reference to “control or power relating to any matter…” by “control or power relevant to any matter” in subsection 82(1).

To amend the reference to “documents relating to” by “documents relevant to” in subsection 82(2), forms 82(4)(A) and 82(4)(B).

To amend the reference to “document relating to” by “document relevant to” in subsection 82(5) and form 82(4)(A).

To amend the reference to “question relating to” by “question relevant to” in subsection 95(1).

To amend the reference to “documents and things relating to” by “documents and things relevant to” in paragraph 105(3)(a).

To amend the reference to “control or power relating to” by “control or power relevant to” in subsection 141(1) and Form 82(3).

To add the reference to “Unless the Court otherwise directs” in subsection 89(2) to allow the Court to limit the use at the hearing of a document not previously disclosed in accordance with subsection 89(1).

To remove the requirement that the independent interpreter be approved by the Registrar in subsection 102(4).

To remove the reference to “Subject to the provisions of the Act,” in subsection 147(1).

To modify the amount from $50 to $75 for expert witnesses in subsection 5(1) of Tariff A of Schedule II.

Alternatives

No other alternatives were considered, as the Act requires that the Court’s rules be amended by regulation.

Benefits and costs

These amendments are designed to improve procedures before the Tax Court of Canada. It is expected that these changes will have little financial impact.

Consultation

The proposed amendments were considered by the Tax Court of Canada Rules Committee, which is composed of judges from the Tax Court of Canada and practising lawyers from both the private and public sectors.

Contact

Charles M. Nadeau
Counsel and Executive Officer
Chambers of the Chief Justice
Tax Court of Canada
200 Kent Street
Ottawa, Ontario
K1A 0M1
Telephone: 613-995-4789
Fax: 613-943-8449
Email: charles.nadeau@cas-satj.gc.ca

PROPOSED REGULATORY TEXT

14. The portion of subsection 95(1) of the Rules before paragraph (a) is replaced by the following:

95. (1) A person examined for discovery shall answer, to the best of that person’s knowledge, information and belief, any proper question relevant to any matter in issue in the proceeding or to any matter made discoverable by subsection (3) and no question may be objected to on the ground that

15. Subsection 100(5) of the Rules is replaced by the following:

(5) The evidence given on the examination for discovery of a party under legal disability may be read into or used in evidence at the hearing only with leave of the judge.

16. Subsection 102(4) of the Rules is replaced by the following:

(4) If the person being examined understands neither English nor French, or is deaf or mute, the examining party shall provide and pay the fees and disbursements of a competent and independent interpreter who shall take an oath or make an affirmation to interpret accurately the administration of the oath or affirmation, the questions to be put to the person being examined and the person’s answers.

17. Paragraph 105(3)(a) of the Rules is replaced by the following:

(a) all documents and things relevant to any matter in issue in the proceeding that are in that person’s possession, control or power and that are not privileged, or

18. Subsection 141(1) of the Rules is replaced by the following:

141. (1) A party who requires the attendance of a person as a witness at a hearing may serve the person with a subpoena requiring the person to attend the hearing at the time and place stated in the subpoena and the subpoena may also require the person to produce at the hearing the documents or other things in the person’s possession, control or power relevant to the matters in question in the appeal that are specified in the subpoena. (Form 141(1))

19. Subsection 147(1) of the Rules is replaced by the following:

147. (1) The Court may determine the amount of the costs of all parties involved in any proceeding, the allocation of those costs and the persons required to pay them.

20. The Table of Forms in Schedule I to the Rules is amended by replacing the title of Form 21(1)(b) and Form 21(1)(c) with the following:

21. Paragraph (b) of Form 21(1)(a) of Schedule I to the Rules is replaced by the following:

(b) Identify the assessment(s) under appeal: include date of assessment(s) and, if the appeal is under the Income Tax Act, include taxation year(s) or, if the appeal is under the Excise Tax Act, the Customs Act, the Air Travellers Security Charge Act, the Excise Act, 2001 or the Softwood Lumber Products Export Charge Act, 2006, include the period to which the assessment(s) relate(s),

22. The portion of Form 21(1)(b) of Schedule I to the Rules before paragraph (a) is replaced by the following:

FORM 21(1)(b)

REFERENCE UNDER SECTION 173 OF THE INCOME TAX ACT, SECTION 310 OF THE EXCISE TAX ACT, SECTION 97.58 OF THE CUSTOMS ACT, SECTION 51 OF THE AIR TRAVELLERS SECURITY CHARGE ACT, SECTION 204 OF THE EXCISE ACT, 2001 OR SECTION 62 OF THE SOFTWOOD LUMBER PRODUCTS EXPORT CHARGE ACT, 2006, AS THE CASE MAY BE

TAX COURT OF CANADA

IN THE MATTER of an agreement that a question should be determined by the Court under section 173 of the Income Tax Act, section 310 of the Excise Tax Act, section 97.58 of the Customs Act, section 51 of the Air Travellers Security Charge Act, section 204 of the Excise Act, 2001 or section 62 of the Softwood Lumber Products Export Charge Act, 2006, as the case may be.

23. The portion of Form 21(1)(c) of Schedule I to the Rules before paragraph (a) is replaced by the following:

FORM 21(1)(c)

SECTION 174 OF THE INCOME TAX ACT, SECTION 311 OF THE EXCISE TAX ACT, SECTION 52 OF THE AIR TRAVELLERS SECURITY CHARGE ACT, SECTION 205 OF THE EXCISE ACT, 2001 OR SECTION 63 OF THE SOFTWOOD LUMBER PRODUCTS EXPORT CHARGE ACT, 2006, AS THE CASE MAY BE

TAX COURT OF CANADA

IN THE MATTER of an application by the Minister of National Revenue made under section 174 of the Income Tax Act, section 311 of the Excise Tax Act, section 52 of the Air Travellers Security Charge Act, section 205 of the Excise Act, 2001 or section 63 of the Softwood Lumber Products Export Charge Act, 2006, as the case may be, for the determination of a question.

24. The portion of Form 65 of Schedule I to the Rules after the fourth paragraph is replaced by the following:

TO: (Name and address of responding party’s counsel or responding party)

NOTE that if the proceeding in which the motion is made is a reference under section 173 or 174 of the Income Tax Act, section 310 or 311 of the Excise Tax Act, section 97.58 of the Customs Act, section 51 or 52 of the Air Travellers Security Charge Act, section 204 or 205 of the Excise Act, 2001 or section 62 or 63 of the Softwood Lumber Products Export Charge Act, 2006, the style of cause shall be the same as in the originating document and the body of the notice of motion shall be adjusted accordingly.

25. The portion of Form 82(3) of Schedule I to the Rules before the heading “Schedule A” is replaced by the following:

The following is a list of all the documents which are or have been in the appellant’s (or respondent’s) possession, control or power relevant to any matter in question between or among them in the appeal and which is filed and served in compliance with section 82.

26. (1) Section 1 of Form 82(4)A of Schedule I to the Rules is replaced by the following:

1. I have conducted a diligent search of my records and have made appropriate enquiries of others to inform myself in order to make this affidavit. This affidavit discloses, to the full extent of my knowledge, information and belief, all documents relating to any matter in question in this proceeding that are or have been in my possession, control or power.

(2) Section 6 of Form 82(4)A of Schedule I to the Rules is replaced by the following:

6. I have never had in my possession, control or power any document relevant to any matter in question in this proceeding other than those listed in Schedules A, B and C.

27. (1) Section 3 of Form 82(4)B of Schedule I to the Rules is replaced by the following:

3. I have conducted a diligent search of the corporation’s (or the Canada Revenue Agency’s) records and made appropriate enquiries of others to inform myself in order to make this affidavit. This affidavit discloses, to the full extent of my knowledge, information and belief, all documents relevant to any matter in question in this action that are or have been in the possession, control or power of the corporation (or the Canada Revenue Agency).

(2) Section 7 of Form 82(4)B of Schedule I to the Rules is replaced by the following:

7. The corporation (or the Canada Revenue Agency) has never had in its possession, control or power any documents relevant to any matter in question in this proceeding other than those listed in Schedules A, B and C.

28. Subparagraph 1(b)(iii) of Tariff A of Schedule II to the Rules is replaced by the following:

(iii) a reference under section 173 or 174 of the Income Tax Act, section 310 or 311 of the Excise Tax Act, section 97.58 of the Customs Act, section 51 or 52 of the Air Travellers Security Charge Act, section 204 or 205 of the Excise Act, 2001 or section 62 or 63 of the Softwood Lumber Products Export Charge Act, 2006, and

29. Subsection 5(1) of Tariff A of Schedule II to the Rules is replaced by the following:

5. (1) When a witness, other than a party, is called on to give evidence in consequence of any professional or technical services rendered by that witness, there shall be substituted for the amount of $75 in subsection 4(1) of this Tariff an amount not exceeding $350 per day subject to increase in the discretion of the taxing officer but otherwise section 4 is applicable to such a witness.