High-Crest and Birchcliff Energy – Federal Court of Appeal nullifies cases that were decided by a 2nd judge based on the trial transcript before the 1st judge
Rossiter CJ dealt with the difficulties of a Tax Court Judge in not being able to do much work by assigning the transcripts of some cases that that judge had already heard to other judges to reach a decision based on the transcript, where the parties were amenable to this approach rather than choosing to undergo a fresh trial.
A majority of the Federal Court of Appeal (Stratas JA dissenting) has now decided that the transcript-based decisions are nullities, so that these cases are being remitted back to the first judge (who is available) for decision (based inter alia on the same transcripts). Webb JA stated:
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.
Neal Armstrong. Summaries of High-Crest Enterprises Ltd. v. The Queen, 2017 FCA 88 under Tax Court of Canada Act, s. 14(2) and ETA, s. 191.1(1) – government funding and of Birchcliff Energy Ltd. v. The Queen, 2017 FCA 89 under Tax Court of Canada Act, s. 14(2).