Tax Court of Canada Act

Section 12


Gagnon v. Inc., 2019 QCCA 1166

allowing class action for deceptively collecting GST on exempt products did not trench on Tax Court's jurisdiction

The class-action plaintiffs sought damages equal to the GST and QST that had been erroneously charged to them on their purchases from the defendant (Amazon). The class-action plaintiffs sought damages equal to the GST and QST that had been erroneously charged to them on their purchases from the defendant (Amazon). The two year period for applying to the ARQ for a refund under ETA s. 261 (and under the Quebec equivalent) had expired. The plaintiffs alleged that the Amazon invoices were “deceptive,” and relied on s. 227.1 of the Consumer Protection Act (Quebec) (“CPA”), which provided:

No person may, by any means whatever, make false or misleading representations concerning the existence, charge, amount or rate of duties payable under a federal or provincial statute.

Marcotte JCA accepted that the Quebec Superior Court would have had no jurisdiction to consider this claim if it was merely “a disguised attempt to receive a tax refund to which the [class action] members no longer have a right” (para. 44, TaxInterpretations translation) However, before allowing the claim to proceed, she stated (at para. 46):

[T]o the extent that the alleged failure relates to a deceptive invoicing practice contrary to the CPA, and not simply to the collection of taxes on exempt products, I consider that the Superior Court remained competent to be seized of such action.

Locations of other summaries Wordcount
Tax Topics - Excise Tax Act - Section 261 - Subsection 261(1) class action to proceed against Amazon for “deceptively” collecting GST/QST on exempt product sales was permitted 294

Section 17.1

Subsection 17.1(1)


Canada v. BCS Group Business Services Inc., 2020 FCA 205

a corporation must be represented by counsel in General Procedure appeals

The sole issue was the interpretation of the words “in person” in the expression “may appear in person”. In finding that the Tax Court lacked the authority, in proceedings instituted by the taxpayer (“BCS”) subject to the Tax Court of Canada Rules (General Procedure), to permit BCS to be represented by the (non-lawyer) individual (“Gagnon”) who was its sole shareholder, director and officer – so that the Tax Court erred in finding “that Mr. Gagnon personified BCS and that he was exercising BCS’s right to appear ‘in person’” (para. 64), Gauthier JA stated (at paras. 6):

… I have concluded that the legislator did not intend to oust the common law and civil law principle that a corporation, because of its very nature, cannot appear “in person” before a court. It can only be represented by an agent who is a distinct person than the corporation. In my view, the grammatical structure of the provision is not sufficient to reach a different conclusion when one considers the nature of the rights described in the paragraph, the clear statutory scheme and its object. By adopting detailed provisions dealing with representation in the Act, the legislator limited the TCC’s implied power to control who may represent the corporation in their courtroom, especially in proceedings subject to the General Procedure. ...

[T]he ordinary meaning of the words “in person” (as opposed to the legal concept of “person”), and the common law/civil law concept that a corporation cannot appear in person because of its very nature strongly suggest that under section 17.1, a party who is a corporation must be represented by counsel as defined by subsection 17.1(2).

Words and Phrases
in person
Locations of other summaries Wordcount
Tax Topics - Other Legislation/Constitution - Federal - Tax Court of Canada Rules (General Procedure) - Section 30 - Subsection 30(2) Rule 30(2) accorded unauthorized discretion re corporate representation to Tax Court judges 468

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) 555

Section 14

Subsection 14(2)


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 407

Section 16


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)


Tedesco v. Canada, 2019 FCA 235

discontinuance did not imply adjudication of appealed issue

CRA issued Notices of Determination to deny losses of a limited partnership (TSI). Both TSI and its partners launched appeals to the Tax Court. However, TSI then filed a Notice of Discontinuance, which resulted in its appeal being deemed by s. 16.2(2) of the Tax Court of Canada Act to have been dismissed. The individual partners continued with their appeals, arguing that the Notices of Determination had been statute-barred.

Webb JA reversed the finding below that it was an abuse of process for the partners to continue their individual appeals. It was not germane that the TSI appeal had been deemed by s. 16.2 to have been dismissed. In reality, the question at issue (of the interpretation of s. 152(1.4)) had not yet been passed on by a court, so that hearing the individuals' appeals could not be characterized as abusive relitigation of that issue.

Locations of other summaries Wordcount
Tax Topics - General Concepts - Abuse of Process individual partners could continue their own appeals following discontinuance of the partnership’s similar appeal 307

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 177

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 196
Tax Topics - Income Tax Act - Section 171 - Subsection 171(1) inherent jurisdiction to void reassessments which breach undertaking 149
Tax Topics - Income Tax Act - Section 241 s. 241 does not override implied undertaking rule 153

Section 18

Subsection 18(1)


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

Subsection 18.15(4)


Muszka v. The Queen, 94 DTC 6076, [1994] 1 CTC 365 (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


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."

Section 21


Lilyfield Development Inc. v. The Queen, 2020 TCC 16

appeal is not launched until Notice of Appeal is filed

Similarly to the corresponding provision of the OBCA considered in 1455257 Ontario, s. 219(2)(a) of the Corporations Act of Manitoba provides that a proceeding commenced by a corporation before its dissolution can be continued as if it had not been dissolved. A taxpayer, before its dissolution for failure to file returns, had brought an application (to which its proposed Notice of Appeal was attached) to extend the time for launching its appeal, with that Notice being filed immediately after the granting of the application, which occurred after the corporation was dissolved.

MacPhee J found that the filing of the extension application was insufficient to consider that the proceeding (the appeal) had been launched before the dissolution – and essentially followed 1455257 Ontario in finding that the Manitoba statute “does not allow a dissolved corporation to initiate a civil procedure” (para. 13), and also stated (at para. 12):

Pursuant to the Tax Court of Canada Rules (General Procedure), an originating document means a document that is filed under section 21 of the Tax Court of Canada Act … . The only document filed by the Appellant under section 21 … was the Notice of Appeal, which was filed on May 26, 2017, a little more than a month after the corporation was dissolved.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 169 - Subsection 169(1) a dissolved corporation’s appeal to the Tax Court was a nullity notwithstanding a prior Tax Court approval of an application to appeal 318

TCCA (General Procedure) s. 63(2)

See Also

Foundation Instruments Inc. v. The Queen, 92 DTC 1879, [1992] 2 CTC 2167 (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, [1992] 2 CTC 2070 (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".