Tax Court of Canada Act

TCCA (General Procedure) s. 12(1)

Cases

The Queen v. Carew, 92 DTC 6608 (FCA)

The Crown served its reply to the taxpayer's notice of appeal on the 60th day required by Rule 44(1) but, due to an unexplained failure of the subordinate employee, the reply was not presented for filing until the following day. In finding that the Crown should be granted an extension, Hugessen J.A. stated (p. 6610):

"In the context of this litigation the addition of one day to the time of filing (but not even of service) of the reply is of no consequence."

[C.R: Rule 63]

Section 17.1

Subsection 17.1(1)

See Also

Masa Sushi Japanese Restaurant Inc. v. The Queen, 2017 TCC 239

s. 17.1 does not contemplate representation of a corporation by other than counsel

Graham J found that this Rule 30(2) would be ultra vires (as being beyond the scope of what was contemplated by s. 17.1(1),) if it were interpreted as permitting a corporation, with the Court’s leave, to be represented by a non-lawyer (in this case, a CPA). Accordingly, he found that Rule 30(2) should be “read down” to provide that a corporation may only be represented by counsel.

He also indicated that the concept of a corporation appearing “in person” was nonsensical, stating:

A human can be physically present in court. A corporation, being a creation of law with no physical substance, cannot.

Accordingly, corporations cannot appear in the Court through an officer.

Locations of other summaries Wordcount
Tax Topics - Other Legislation/Constitution - Federal - Tax Court of Canada Rules (General Procedure) - Section 30 - Subsection 30(2) a corporation can only be represented by counsel (no CPAs or officers) 509

Section 14

Subsection 14(2)

Cases

Birchcliff Energy Ltd. v. Canada, 2017 FCA 89

already-heard case decided after reassigned to 2nd judge was nullity

Webb JA stated (at para 2):

The appeal from this judgment was heard shortly after the appeal was heard in High-Crest Enterprises Limited v. Her Majesty the Queen, 2017 FCA 88. In both cases a file was removed from the same Tax Court Judge who heard the tax appeals and reassigned to another judge to render judgment.

Webb JA concluded (at para 4):

In High-Crest I concluded that the Chief Justice of the Tax Court did not have the power to remove the file from this particular judge and reassign it to another judge to render judgment. The conclusion and reasons are equally applicable in this case… . [T]he decision rendered by the second judge is a nullity and I would refer the matter back to the judge who heard the tax appeal to render judgment.

High-Crest Enterprises Limited v. Canada, 2017 FCA 88

CJ had no power to reassign case after trial to 2nd judge

The appellant’s appeal was tried before a Tax Court judge on February 26, 2014. On June 23, 2015, the Chief Justice informed counsel for both parties: “I must remove the appeal file from the presiding judge of this appeal for the purpose of having a judgement rendered on this appeal as soon as possible.” He gave the parties two options: have the appeal assigned to another TCC judge for decision based upon the transcript of the appeal; or have a fresh trial before a different judge. Counsel agreed to the first option, the appellant’s appeal was dismissed by the second judge (Owen J.) and it appealed to the Federal Court of Appeal.

In finding that the decision of Owen J was a nullity, Webb JA stated (at paras 23, 38, 40):

The general rule, as noted by the Supreme Court, is that a judge who is seized of a matter is the one who has the jurisdiction to continue with that matter. In my view, if Parliament intended to alter this rule to provide the Chief Justice with the power to remove a file from a judge who was seized of this matter, clearer language would be required. …

Any removal by the Chief Justice of a judge who is seized of a matter would also conflict with the principle that the person who decides a case must be the same person who hears the case… .

Since the decision rendered by the second judge is a nullity, I would refer the matter back to the judge who heard the case to render a decision.

Locations of other summaries Wordcount
Tax Topics - Excise Tax Act - Section 191 - Subsection 191(1) - Government Funding potential application of purpose test 393

Section 16

Cases

C.D. v. MNR, 91 DTC 5210 (FCA)

After referring (at p. 5211) to the principle "that the courts must administer justice in public", and noting that this principle is subject only to narrowly defined exceptions, Décary J.A. found that a taxpayer was not entitled to have an in camera hearing "for the sole purpose of hiding from a professional body a conduct which might lead to disciplinary proceedings" (p. 5213).

Section 16.2

Subsection 16.2(2)

See Also

Heath v. The Queen, 2018 TCC 119 (Informal Procedure)

notice of discontinuance could not be reversed even with Crown consent

The unrepresented taxpayer filed a notice of discontinuance for her appeal of the denial of the new housing rebate after being advised by Crown counsel that her appeal was unlikely to succeed – but a day later, was informed by Crown counsel that she would be allowed the rebate. However, the Registrar refused to accept the parties’ joint consent to judgment to this effect on the basis that a notice of discontinuance had already been filed.

After referring to s. 16.2(2) and Scarola, 2003 FCA 157, Smith J stated (at paras. 10, 12):

…[T]he FCA concluded that “Parliament has chosen to legislatively determine the legal consequences of a notice of discontinuance”, rather than leaving it to judicial discretion (para. 18). … The FCA went on to find that a discontinuance under subsection 16.2(2) “produces the same effect as a judgment of dismissal by the Court” (para. 21).

… The FCA … noted:

…I believe section 16.2 by its plain meaning took away any inherent or residual jurisdiction in the Court to allow for withdrawals of notices of discontinuance. Both law and logic suggest that there is no more scope or authority for doing so than there is for re-opening a matter after the Court has rendered its judgment. [My emphasis.]

Smith J dismissed the taxpayer’s motion to set aside the notice of discontinuance, but added (at para. 14):

… I leave it to the Minister to consider the appropriateness of a reassessment to implement the terms of the consent, possibly pursuant to subsection 298(2) … .

Locations of other summaries Wordcount
Tax Topics - Excise Tax Act - Section 298 - Subsection 298(2) CRA could effectively reverse notice of discontinuance by reassessing 163

Section 17.2

See Also

Fio Corporation v. The Queen, 2014 TCC 58

time of commencement of appeal

On the same day, the taxpayer delivered its notice of appeal to the Tax Court, informed CRA of the appeal, and delivered its documents and list of documents. The Minister then used these documents to issue a second reassessment. The taxpayer successfully argued that this was a breach of the Minister's duty, as a litigant, to refrain from using discovery information outside of the relevant proceedings (see summary under s. 152(4)). As a preliminary matter, D'Arcy J found that:

  • the taxpayer's appeal had been instituted immediately upon the Tax Court's receipt of the notice of appeal, rather than when the Court served the notice on the Minister nearly four weeks later (para. 36); and
  • the documents were not disclosed voluntarily, but as part of the discovery process (and the taxpayer disclosed promptly in order to hurry the proceedings along) (para. 38).
Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 152 - Subsection 152(4) implied undertaking of confidentiality during discovery 188
Tax Topics - Income Tax Act - Section 171 - Subsection 171(1) inherent jurisdiction to void reassessments which breach undertaking 139
Tax Topics - Income Tax Act - Section 241 s. 241 does not override implied undertaking rule 143

Subsection 18(1)

Articles

Christie A.C.J., "Practice in the Tax Court of Canada", 1991 British Columbia Tax Conference, Volume 1

Subsection 18.15(4)

Cases

Muszka v. The Queen, 94 DTC 6076 (FCA)

A chartered accountant, who was the friend of the taxpayer and allegedly had intimate knowledge of the assessments in question and the business affairs of the taxpayer, appeared as agent for the taxpayer. It was improper of the Tax Court Judge to prohibit the agent from testifying given that such agent was not an officer of the court whose credibility must be accepted without qualification.

Section 18.24

Cases

Ray v. Canada, 2004 DTC 6028, 2004 FCA 1

In rejecting a submission that deference should be given to the interpretation given by the Tax Court below in interpreting s. 118.2(2)(n) of the Income Tax Act, Sharlow J.A. stated (at p. 6031) that "decisions of the Tax Court and questions of law are to be reviewed on the standard of correctness, regardless of the procedure under which the decision was made".

Gastrebski v. The Queen, 94 DTC 6355 (FCA)

In finding that the standard for review by the Court of Appeal was the same for appeals from informal Tax Court decisions as for appeals from the formal procedure (i.e., a standard of correctness) Linden J.A. stated (pp. 6357):

"The legal issues involved in both situations of review are the same, the decision-making body being appealed from is the same and the supervising Court is the same ... . The legislation being interpreted in these cases is tax legislation, where consistency is particularly necessary."

TCCA (General Procedure) s. 63(2)

See Also

Foundation Instruments Inc. v. The Queen, 92 DTC 1879 (TCC)

Garron J. found that the appropriate sanction for the Crown filing its Reply three days late (due to an error in calculating the 60-day deadline) was that set out in s. 63(2)(b), given that the delay was minimal and no prejudice of any specific nature was established by the taxpayer.

Discovery Research Systems Inc. v. The Queen, 92 DTC 1306 (TCC)

[C.R: Rule 12(1)]

In denying an extension of the time for filing Replies of the Minister, Bonner J. stated (p. 1307):

"If extensions of the time for filing Replies were permitted in cases of delay caused by simple inadvertence there would be a swift return to the 'battle days' when, under the rules which governed proceedings commenced before 1991, the great majority of Replies were served and filed well after the sixty day deadline.

Carew v. The Queen, 92 DTC 1291 (TCC)

In refusing to grant an extension under s. 63(1) in respect of a one-day delay in filing a Reply due to administrative inefficiencies, Kempo J. stated that "to exercise that power with respect to that Rule in matters other than those of highly unusual, very exceptional or non-contemplated circumstances would, in my view, trivialize it".