ARCHIVED — Vol. 146, No. 49 — December 8, 2012

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Rules Amending Certain Rules Made under the Tax Court of Canada Act

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.)

Issue and objectives

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

The general objectives of the proposed Rules amending the Tax Court of Canada Rules (General Procedure) are

  • (1) to streamline the process of hearings and to codify the practice relating to litigation process conferences;

  • (2) to implement new rules and amend existing rules governing expert witnesses and the admissibility of their evidence in the Tax Court of Canada;

  • (3) to allow the Court to proceed with a hearing of one or more appeals, while other related appeals are stayed pending a decision on the lead cases heard by the Court;

  • (4) to encourage parties to settle their dispute early in the litigation process; and

  • (5) to make technical amendments.

Description and rationale

(1) Streamlining the process of hearings and codifying the practice relating to litigation process conferences

A proposed definition of “litigation process conference” is added to section 2. That definition lists the hearings referred to in section 125 and the conferences referred to in subsection 126(2) and sections 126.1 and 126.2.

Amendments are proposed to subsection 123(4) to indicate that the Registrar or a designated person may fix the time and place for the hearing subject to any direction by the Court.

Proposed subsection 123(4.1) indicates that the Court may, on its own initiative, fix the time and place for the hearing.

Proposed subsection 123(6) indicates that, if the time and place for a hearing have been fixed after a joint application of the parties, the hearing should not be adjourned unless special circumstances justify the adjournment and it is in the interest of justice to adjourn it.

Amendments are required to be made to section 125 (Status Hearing) to provide that initial status hearings are ordered to take place approximately two months after the filing of the reply, and further status hearings can take place later in the appeal to ensure the appeal is ready for trial and to fix a trial date. Finally, proposed subsection 125(8) provides that where a party fails to comply with an order or direction made at a status hearing, or if a party fails to appear at a status hearing, the Court may allow or dismiss the appeal or make any other order that is appropriate.

Existing section 126 is replaced by proposed section 126, which is designed to allow the Chief Justice to assign a judge to manage an appeal that is complex, or slow moving, or for some other reason requires ongoing management by a judge. The judge takes responsibility for the progress of the appeal to ensure that the appeal proceeds to trial in a timely way while conserving judicial resources.

Proposed section 126.1 provides that a trial management conference can be held after the appeal hearing date has been set and is presided over by the judge assigned to preside at the hearing. The conference is to ensure that the hearing proceeds in an orderly and organized fashion.

Proposed section 126.2 permits the Court to direct that a conference be held for the purpose of exploring the possibility of settlement of any or all of the issues.

Amendments are required to section 127 to add references to sections 125 and 126, and to proposed section 126.1.

Amendments are required to section 128 to add references to matters related to a settlement or settlement discussions during a litigation process conference.

(2) Implementing new rules and amending existing rules governing expert witnesses and the admissibility of their evidence in the Tax Court of Canada

Subsection 145(1) is amended to replace the reference to “affidavit” by “expert report.”

Proposed subsection 145(2) provides that the expert’s report must set out the proposed evidence of the expert, the expert’s qualifications and be accompanied by a certificate signed by the expert acknowledging that the expert agrees to be bound by the Code of Conduct for Expert Witnesses that is added as a schedule to the Rules to ensure that expert witnesses understand their independent advisory role to the Court. Proposed subsection 145(3) indicates that if an expert fails to comply with the Code of Conduct, the Court may exclude some or all of the expert’s report.

Proposed subsection 145(4) requires a party to seek leave to the Court if they intend to call more than five expert witnesses at a hearing and proposed subsection 145(5) indicates what the Court has to consider in deciding to grant leave.

Proposed subsection 145(6) allows parties to name a joint expert witness.

Existing subsection 145(2) is renumbered subsection 145(7) and specifies the conditions that need to be met in order for evidence of an expert witness to be received at the hearing.

Existing subsection 145(4) is renumbered subsection 145(8) and indicates how evidence in chief of an expert witness is to be given at a hearing.

Proposed subsection 145(9) indicates what may be addressed during a litigation process conference, other than a settlement conference, in respect of expert witnesses.

Proposed subsections 145(10), (11), (12), (13) and (14) introduce new rules that deal with expert conferences.

Existing subsection 145(3) is renumbered subsection 145(15) and is amended to change the number of days, from 15 to 60, for a copy of rebuttal evidence to be served on all parties.

Proposed subsection 145(16) indicates when evidence of an expert witness can be led in surrebuttal of any evidence tendered under subsection (15).

Proposed subsections 145(17), (18), (19) and (20) allow the Court to require that some or all of the experts testify as a panel. Experts are only allowed to pose questions to each other with leave of the Court to ensure the orderly presentation of evidence. The rules governing cross-examination and re-examination will continue to apply to experts testifying concurrently.

(3) Allowing the Court to proceed with a hearing of one or more appeals, while other related appeals are stayed pending a decision on the lead cases heard by the Court

Proposed section 146.1 is intended to apply where there is more than one appeal which has common or related issues of fact or law. It allows the Court to proceed with the hearing of one of the appeals, the lead case, while other related appeals are stayed pending a decision on the lead case. The parties in a related appeal have to agree to be bound, in whole or in part, by the final decision on the lead case.

(4) Encouraging parties to settle their dispute early in the litigation process

The provisions of the Rules addressing offers to settle are designed to encourage parties to settle their dispute early in the litigation process. An early settlement has the added advantage of reducing the costs borne by the parties and conserving judicial resources.

Parties are entitled to make and accept offers of settlement at any time before there is a judgment and any written offer to settle will be considered by the Court in assessing costs under section 147. In addition to this general rule, there is a need to encourage parties to reach an early settlement, ideally before the beginning of the trial or hearing. This is the specific objective of adding subsections 147(3.1) to (3.8).

(5) Making technical amendments

The following technical amendments are also being proposed:

To amend section 6 to provide that the Court may direct that any step in a proceeding may be conducted by teleconference, by videoconference or by a combination of teleconference and videoconference.

To amend section 52 by adding a new subsection to provide that a demand for particulars shall be in Form 52 and shall be filed and served in accordance with the Rules, and to add Form 52 to Schedule I.

To amend sections 53 and 58 to regroup all matters where the Court may strike out or expunge all or part of a pleading or other document under section 53, and all matters relating to the determination of questions of law, fact or mixed law and fact under section 58. As a consequence of these changes, sections 59, 60, 61 and 62 are repealed.

To add subsection 67(7) to provide for when proof of service of a motion must be filed.

To repeal subsection 95(3) as a result of the changes made to the expert witness rules.

To amend subsection 119(3) as a result of the changes made to the expert witness rules.

To amend paragraph 146(1)(d) to change the number of days for service from 10 to 5.

To add subsection 153(3) to provide that the taxing officer may direct that the taxation of a bill of costs be conducted by teleconference, videoconference or by combination of both.

To amend the reference to “issuing a judgment” by “rendering a judgment” in subsection 167(1).

To remove the reference to “and it shall be entered and filed there whereupon section 17.4 of the Act shall be complied with” in subsection 167(3).

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.

Implementation, enforcement and service standards

The amended rules will be incorporated into the Tax Court of Canada Rules (General Procedure) and will be implemented and enforced in the same manner as other rules.

Contact

Geneviève Salvas
Legal Counsel
Chambers of the Chief Justice
Tax Court of Canada
200 Kent Street
Ottawa, Ontario
K1A 0M1
Telephone: 613-996-2700
Fax: 613-943-8449
Email: genevieve.salvas@cas-satj.gc.ca

Rules Amending Certain Rules Made under the Tax Court of Canada Act

Tax Court of Canada Rules (Informal Procedure)

Tax Court of Canada Rules of Procedure respecting the Canada Pension Plan

Tax Court of Canada Rules of Procedure respecting the Employment Insurance Act

Tax Court of Canada Rules of Procedure Respecting the Excise Tax Act (Informal Procedure)

Tax Court of Canada Rules of Procedure Respecting the Customs Act (Informal Procedure)

Tax Court of Canada Rules of Procedure respecting the Excise Act, 2001 (Informal 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.)

Issue and objectives

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

The general objectives of the proposed Rules amending the Tax Court of Canada Rules (Informal Procedure), the Tax Court of Canada Rules of Procedure respecting the Canada Pension Plan, the Tax Court of Canada Rules of Procedure respecting the Employment Insurance Act, the Tax Court of Canada Rules of Procedure Respecting the Excise Tax Act (Informal Procedure), the Tax Court of Canada Rules of Procedure Respecting the Customs Act (Informal Procedure) and the Tax Court of Canada Rules of Procedure respecting the Excise Act, 2001 (Informal Procedure) are

  • (1)to add a rule indicating when judgments are pronounced and deposited with the Registry; and

  • (2) to make technical amendments.

Description and rationale

(1) Indicating when judgments are pronounced and deposited with the Registry

A new section is proposed for each set of Rules to indicate when a judgment is pronounced and to confirm that a judgment and the reasons relating to it have to be deposited with the Registry.

(2) Making technical amendments

In 2008 (SOR/2008-302), changes were made to the Rules and some subsections dealing with the filing of documents were modified or even repealed. Some consequential amendments were overlooked and, as a result, some sections of the Rules still refer to subsections that no longer exist. The proposed technical amendments will remedy that situation.

In order to conform with the language used in the Tax Court of Canada Rules (General Procedure), the proposed technical amendments will replace the reference to “relating to” with “relevant to” in the Tax Court of Canada Rules of Procedure respecting the Canada Pension Plan and in the Tax Court of Canada Rules of Procedure respecting the Employment Insurance Act.

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.

Implementation, enforcement and service standards

The amended rules will be incorporated into existing rules and will be implemented and enforced in the same manner as other rules.

Contact

Geneviève Salvas
Legal Counsel
Chambers of the Chief Justice
Tax Court of Canada
200 Kent Street
Ottawa, Ontario
K1A 0M1
Telephone: 613-996-2700
Fax: 613-943-8449
Email: genevieve.salvas@cas-satj.gc.ca

PROPOSED REGULATORY TEXT

Notice is given, pursuant to subsection 22(3) (see footnote a) of the Tax Court of Canada Act (see footnote b), that the rules committee of the Tax Court of Canada, pursuant to section 20 (see footnote c) of that Act and subject to the approval of the Governor in Council, proposes to make the annexed Rules Amending Certain Rules Made under the Tax Court of Canada Act.

Interested persons may make representations concerning the proposed Rules within 60 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part Ⅰ, and the date of publication of this notice, and be addressed to the Rules Committee, Tax Court of Canada, 200 Kent Street, Ottawa, Ontario K1A 0M1.

Ottawa, November 16, 2012

THE HONOURABLE GERALD J. RIP
Chief Justice
President of the Rules Committee

RULES AMENDING CERTAIN RULES MADE UNDER
THE TAX COURT OF CANADA ACT

TAX COURT OF CANADA RULES
(GENERAL PROCEDURE)

1. Section 1 of the Tax Court of Canada Rules (General Procedure) (see footnote 1) and the headings before it are replaced by the following:

DEFINITIONS, APPLICATION, INTERPRETATION, FORMS,
VIDEOCONFERENCES AND TELECONFERENCES

2. Section 2 of the Rules is amended by adding the following in alphabetical order:

“litigation process conference” means

  • (a) a status hearing under section 125,

  • (b) a case management conference under subsection 126(2),

  • (c) a trial management conference under section 126.1, or

  • (d) a settlement conference under section 126.2; (conférence dans le cadre d’une instance)

3. Section 6 of the Rules and the heading before it are replaced by the following:

HEARINGS BY VIDEOCONFERENCE OR TELECONFERENCE

6. The Court may direct that any step in a proceeding be conducted by teleconference, by videoconference or by a combination of both and may specify the party responsible for establishing the communication.

4. Section 52 of the Rules is renumbered as subsection 52(1) and is amended by adding the following:

(2) The demand for particulars shall be in Form 52 and shall be filed and served in accordance with these rules.

5. Section 53 of the Rules is replaced by the following:

53. (1) The Court may, on its own initiative or on application by a party, strike out or expunge all or part of a pleading or other document with or without leave to amend, on the ground that the pleading or other document

  • (a) may prejudice or delay the fair hearing of the appeal;

  • (b) is scandalous, frivolous or vexatious;

  • (c) is an abuse of the process of the Court; or

  • (d) discloses no reasonable grounds for appeal or opposing the appeal.

(2) No evidence is admissible on an application under paragraph (1)(d).

(3) On application by the respondent, the Court may quash an appeal if

  • (a) the Court has no jurisdiction over the subject matter of the appeal;

  • (b) a condition precedent to instituting an appeal has not been met; or

  • (c) the appellant is without legal capacity to commence or continue the proceeding.

6. Section 58 of the Rules is replaced by the following:

58. (1) On application by a party, the Court may grant an order that a question of law, fact or mixed law and fact raised in a pleading or a question as to the admissibility of any evidence be determined before the hearing.

(2) On the application, the Court may grant an order if it appears that the determination of the question before the hearing may dispose of all or part of the proceeding or result in a substantially shorter hearing or a substantial saving of costs.

(3) An order that is granted under subsection (1) shall

  • (a) state the question to be determined before the hearing;

  • (b) give directions relating to the determination of the question, including directions as to the evidence to be given — orally or otherwise — and as to the service and filing of documents;

  • (c) fix time limits for the service and filing of a factum consisting of a concise statement of facts and law;

  • (d) fix the time and place for the hearing of the question; and

  • (e) give any other direction that the Court considers appropriate.

7. The heading before section 59 and sections 59 to 61 of the Rules are repealed.

8. Section 62 of the Rules and the heading before it are repealed.

9. Section 67 of the Rules is amended by adding the following after subsection (6):

(7) Proof of service of the notice of motion shall be filed with the Court at least three days before the date on which the motion is to be heard.

10. Subsection 95(3) of the Rules is repealed.

11. Subsection 119(3) of the Rules is replaced by the following:

(3) Before moving for leave to examine an expert witness under subsection (1), the moving party shall serve on all other parties the report of the expert witness referred to in subsection 145(7) unless the Court directs otherwise.

12. (1) Subsection 123(4) of the Rules is replaced by the following:

(4) Subject to any direction by the Court, the Registrar, or a person designated by the Registrar or by the Chief Justice, may fix the time and place for the hearing

  • (a) on receipt of a joint application;

  • (b) on receipt of an application and of a separate memorandum from each party; or

  • (c) on receipt of an application and after the time has expired for the filing of a separate memorandum by each party.

(4.1) Despite subsection (4), the Court may, on its own initiative, fix the time and place for the hearing.

(2) Section 123 of the Rules is amended by adding the following after subsection (5):

(6) If the time and place for a hearing have been fixed on the joint application of the parties, the hearing shall not be adjourned unless the Court is satisfied that there are special circumstances that justify the adjournment and it is in the interests of justice to adjourn it.

13. The Rules are amended by adding the following after section 123:

LITIGATION PROCESS CONFERENCE

14. (1) Subsection 125(1) of the Rules is replaced by the following:

125. (1) If an appeal has not been set down for hearing or terminated by any means within 60 days after the filing of the reply or after the last day for the filing of the reply, whichever is later, subject to any direction by the Chief Justice, the Registrar or a person designated by the Registrar or by the Chief Justice may serve on the Deputy Attorney General of Canada and on the counsel of record for the appellant or, if the appellant acts in person, on the appellant, a notice of status hearing at least 30 days before the date fixed for that hearing, and the hearing shall be held before a judge.

(2) Subsection 125(7) of the Rules is replaced by the following:

(7) Despite subsection (1), the Court may, on its own initiative or at the request of a party, at any time after the expiry of the period for serving a notice of status hearing provided in that subsection, direct counsel for the parties, either with or without the parties, and any party not represented by counsel, to appear before a judge who may

  • (a) set time periods for the completion of any remaining steps before the hearing of the appeal;

  • (b) determine the advisability of amending the pleadings;

  • (c) attempt to identify any issue and shorten the hearing;

  • (d) attempt to obtain admissions of fact or documents;

  • (e) consider directing that a settlement conference be held regarding any issue in the appeal;

  • (f) determine if the parties are ready to proceed with the hearing of the appeal by

    • (i) identifying the parties’ potential witnesses and the documents which may be filed as exhibits,

    • (ii) confirming that all required steps in the appeal have been completed before setting down the appeal for hearing,

    • (iii) determining the approximate duration of the hearing, and

    • (iv) fixing a time and place for the hearing; or

  • (g) make any other order or give any direction that the judge considers appropriate.

(8) If a party fails to comply with an order made or direction given under subsection (5) or (7) or fails to appear at a status hearing at the time and place fixed for it, the Court may, on application or on its own initiative, allow or dismiss the appeal or make any other order that is appropriate.

15. The headings before section 126 and section 126 of the Rules are replaced by the following:

CASE MANAGEMENT

126. (1) The Chief Justice may, on his or her own initiative or at the request of a party, at any time order that an appeal or a group of appeals be subject to case management and may designate one or more judges to act as the case management judge.

(2) The case management judge shall convene a case management conference as soon as possible after the close of pleadings for the purpose of establishing, in conjunction with the parties, a timetable for the conduct of the appeal or group of appeals.

(3) The case management judge may deal with all issues that arise prior to the hearing of the appeal, including by

  • (a) convening case management conferences as necessary, either on their initiative or at the request of a party;

  • (b) giving any directions that are necessary for the just, most expeditious and least expensive determination of the appeal on its merits, including consolidating two or more appeals or parts of appeals that raise common issues or deal with common facts;

  • (c) determining all motions that were made prior to the appeal hearing date or arranging for them to be heard by another judge;

  • (d) despite any other period provided in these rules, setting the period for the completion of any steps in the appeal; and

  • (e) making any order or giving any direction that the case management judge considers appropriate.

(4) If a party fails to comply with the time requirements set out in a timetable established under this section or with any requirement of these rules, or fails to attend any case management conference, the case management judge may

  • (a) strike out any document or portion of a document filed by that party;

  • (b) dismiss the appeal or give judgment in favour of the appellant;

  • (c) amend the timetable in order to allow the party to comply with it;

  • (d) order the party to pay costs, either in a fixed amount or in an amount to be taxed; or

  • (e) make any other order that the case management judge considers just in the circumstances.

(5) A case management judge hearing any motion may dispense in whole or in part with the requirement to file a notice of motion together with the affidavits or other documentary material.

(6) A case management judge shall not preside at the hearing of the appeal except with the consent of the parties.

TRIAL MANAGEMENT CONFERENCE

126.1 (1) A trial management conference may be held on or after an appeal has been set down for hearing, at the request of one of the parties or on the initiative of the judge presiding at the hearing.

(2) At the trial management conference, the judge may

  • (a) obtain from the parties the names and contact information of the witnesses the parties intend to call and the substance of their testimony;

  • (b) consider the possibility of obtaining admissions that would facilitate proof of the non-contentious issues and the admission of documents whose authenticity is not in dispute;

  • (c) consider alternative methods of adducing evidence, including the filing of affidavits or reports;

  • (d) consider expeditious means for adducing evidence;

  • (e) give directions that would facilitate the orderly and expeditious conduct of the hearing;

  • (f) identify and hear, if necessary, any pre-trial motions which the judge considers ought to be dealt with and disposed of before the hearing commences;

  • (g) address the issues referred to in subsection 145(9); and

  • (h) give any direction for the conduct of the hearing that the judge considers just in the circumstances.

SETTLEMENT CONFERENCE

126.2 (1) The Court may, at any time, on its own initiative or at the request of a party, direct that a conference be held to consider the possibility of settling any or all of the issues.

(2) The judge who presides at a settlement conference shall not preside at the hearing of the appeal and shall not communicate with the judge hearing the appeal concerning anything that was said or done at the settlement conference.

(3) Unless otherwise directed by the settlement conference judge, the parties and their counsel, if the parties are represented by counsel, shall attend the settlement conference.

(4) Each party shall, at least 14 days before the date of the settlement conference, serve on the other parties and submit to the Court a settlement conference brief containing

  • (a) an explanation of the party’s theory of the case;

  • (b) a statement of the material facts that the party expects to establish at the hearing of the appeal and how they will be established;

  • (c) a statement of the issues to be determined at the hearing; and

  • (d) a statement of the law and authorities that the party will rely on at the hearing of the appeal.

(5) A settlement conference brief shall not exceed 10 pages except with leave of the settlement conference judge, which may be applied for by informal communication with the Registry.

(6) The settlement conference judge may adjourn a settlement conference and reconvene it at a later date.

16. Section 127 of the Rules is replaced by the following:

127. (1) At the conclusion of a litigation process conference held under section 125, subsection 126(2) or section 126.1,

  • (a) counsel or the parties, if they are not represented by counsel, may sign a memorandum setting out the results of the conference; and

  • (b) the judge presiding at the conference may give any direction that the judge considers necessary with respect to the conduct of the appeal.

(2) Any memorandum signed by counsel or the parties, if they are not represented by counsel, or any direction given by the judge binds the parties unless the judge presiding at the hearing of the appeal directs otherwise.

17. Section 128 of the Rules is replaced by the following:

128. No communication shall be made to the judge presiding at a hearing of an appeal or a motion in an appeal with respect to matters related to settlement or settlement discussions during a litigation process conference.

18. Section 145 of the Rules is replaced by the following:

145. (1) In this section, “expert report” means

  • (a) a solemn declaration made by a proposed expert witness under section 41 of the Canada Evidence Act;

  • (b) a written statement signed by a proposed expert witness accompanied by a certificate of counsel indicating that counsel is satisfied that the statement represents evidence that the proposed expert witness is prepared to give in the matter; or

  • (c) a written statement in any other form authorized by direction of the Court in a particular case and for special reasons.

(2) An expert report shall

  • (a) set out in full the evidence of the expert;

  • (b) set out the expert’s qualifications and the areas in respect of which it is proposed that they be qualified as an expert witness; and

  • (c) be accompanied by a certificate in Form 145(2) signed by the expert acknowledging that they have read the Code of Conduct for Expert Witnesses set out in Schedule III and agree to be bound by it.

(3) If an expert fails to comply with the Code of Conduct for Expert Witnesses, the Court may exclude some or all of their expert report.

(4) A party intending to call more than five expert witnesses at a hearing shall seek leave of the Court under section 7 of the Canada Evidence Act.

(5) In deciding whether to grant leave, the Court shall consider all relevant matters, including

  • (a) the nature of the proceeding, its public significance and any need to clarify the law;

  • (b) the number, complexity and technical nature of the issues in dispute; and

  • (c) the likely expense involved in calling the expert witnesses in relation to the amounts in issue.

(6) Two or more of the parties may jointly name an expert witness.

(7) Unless otherwise directed by the Court, no evidence in chief of an expert witness shall be received at the hearing in respect of an issue unless

  • (a) the issue has been defined by the pleadings or by written agreement of the parties stating the issues;

  • (b) their expert report prepared in accordance with subsection (2) has been served on all other parties not less than 90 days before the commencement of the hearing; and

  • (c) the expert witness is available at the hearing for cross-examination.

(8) Subject to subsection (7), evidence in chief of an expert witness may be given at the hearing

  • (a) by the reading of all or part of the expert report by the witness, unless the Court, with the consent of the parties, permits it to be taken as read; and

  • (b) if the party calling the witness so elects, by the verbal testimony of the expert witness

    • (i) explaining or demonstrating what is in the expert report or in the part that has been given in evidence, and

    • (ii) in respect of other matters, by special leave of the Court, if it considers it appropriate.

(9) A litigation process conference other than a settlement conference may address

  • (a) any objection to the evidence of an adverse party’s proposed expert witness and the basis of the objection;

  • (b) any benefit to the conduct of the proceeding that would be achieved by ordering that the proposed expert witnesses confer with one another before the hearing in order to narrow the issues and identify the points on which their views differ;

  • (c) the need for any additional or rebuttal expert witness evidence;

  • (d) the number of proposed expert witnesses and the manner of presentation of their evidence; and

  • (e) any other issue arising from the expert reports of proposed expert witnesses.

(10) The Court, at the request of a party or on its own initiative, may at any time order that expert witnesses confer with one another before the hearing in order to narrow the issues and identify the points on which their views differ.

(11) The parties and their counsel may attend an expert conference but the conference may take place in the parties’ absence if the parties agree.

(12) The Court may order that an expert conference take place in the presence of a judge.

(13) A joint statement prepared by two or more expert witnesses following an expert conference is admissible in evidence at the hearing.

(14) Discussions in an expert conference and documents prepared for the conference are confidential and shall not be disclosed to the judge presiding at the hearing of the appeal except with consent of the parties.

(15) Unless otherwise directed by the Court, no evidence of an expert witness, including their expert report, shall be led in rebuttal of any evidence referred to in paragraph (7)(b) unless the rebuttal evidence has been reduced to writing in accordance with this section and a copy is served on the other parties not less than 60 days before the commencement of the hearing.

(16) Unless otherwise directed by the Court, no evidence of an expert witness, including an expert report, shall be led in surrebuttal of any evidence tendered under subsection (15) unless the surrebuttal evidence has been reduced to writing in accordance with this section and a copy has been served on the other parties not less than 30 days before the commencement of the hearing.

(17) The Court may require that some or all of the expert witnesses testify as a panel after the completion of the testimony of the non-expert witnesses of each party or at any other time that the Court determines.

(18) The Court may identify matters that are within the area of expertise of the panel members and pose questions to the panel members about those matters.

(19) Expert witnesses shall give their views and may be directed to comment on the views of other panel members and to make concluding statements. They may, with leave of the Court, pose questions to other panel members.

(20) On completion of the testimony of the panel, panel members may be cross-examined and re-examined in the sequence directed by the Court.

19. Paragraph 146(1)(d) of the Rules is replaced by the following:

  • (d) serving on the adverse party or the counsel of record for the adverse party, at least five days before the commencement of the hearing, a notice of intention to call the person as a witness,

20. The Rules are amended by adding the following after section 146:

LEAD CASES

146.1 (1) This section applies if

  • (a) two or more appeals have been filed before the Court;

  • (b) the Court has not made a decision disposing of any of the appeals; and

  • (c) the appeals give rise to one or more common or related issues of fact or law.

(2) The Court may give a direction

  • (a) specifying one or more of the appeals referred to in subsection (1) as a lead case or lead cases; and

  • (b) staying the related appeals.

(3) If the Court gives a direction, each party in a related appeal who agrees to be bound, in whole or in part, by the decision in the lead case shall, within 10 days, file Form 146.1 with the Court.

(4) If a party does not agree to be bound by the decision in the lead case, in whole or in part, or does not file Form 146.1 with the Court, the Court shall give a direction that the appeal is no longer stayed.

(5) The Court may, on its own initiative or at the request of a party, give directions with respect to the related appeals, provide for their disposal or take further steps with respect to those appeals.

(6) If a lead case or lead cases are withdrawn or disposed of before the Court makes a decision in relation to the common or related issues, the Court shall give directions as to

  • (a) whether another appeal or other appeals are to be heard as the lead case or lead cases; and

  • (b) whether any direction affecting the related appeals should be set aside or amended.

21. (1) Subsection 147(3) of the Rules is amended by adding the following after paragraph (i):

  • (i.1) whether the expense required to have an expert witness give evidence was justified given

    • (i) the nature of the proceeding, its public significance and any need to clarify the law,

    • (ii) the number, complexity or technical nature of the issues in dispute, or

    • (iii) the amount in dispute; and

(2) Section 147 of the Rules is amended by adding the following after subsection (3):

(3.1) Unless otherwise ordered by the Court, if an appellant makes an offer of settlement and obtains a judgment as favourable as or more favourable than the terms of the offer of settlement, the appellant is entitled to party and party costs to the date of service of the offer and substantial indemnity costs after that date, as determined by the Court, plus reasonable disbursements and applicable taxes.

(3.2) Unless otherwise ordered by the Court, if a respondent makes an offer of settlement and the appellant obtains a judgment as favourable as or less favourable than the terms of the offer of settlement or fails to obtain judgment, the respondent is entitled to party and party costs to the date of service of the offer and substantial indemnity costs after that date, as determined by the Court, plus reasonable disbursements and applicable taxes.

(3.3) Subsections (3.1) and (3.2) do not apply unless the offer of settlement

  • (a) is in writing;

  • (b) is served no earlier than 30 days after the close of pleadings and at least 90 days before the commencement of the hearing;

  • (c) is not withdrawn; and

  • (d) does not expire earlier than 30 days before the commencement of the hearing.

(3.4) A party who is relying on subsection (3.1) or (3.2) has the burden of proving that

  • (a) there is a relationship between the terms of the offer of settlement and the judgment; and

  • (b) the judgment is as favourable as or more favourable than the terms of the offer of settlement, or as favourable or less favourable, as the case may be.

(3.5) For the purposes of this section, “substantial indemnity costs” means 80% of solicitor and client costs.

(3.6) In ascertaining whether the judgment granted is as favourable as or more favourable than the offer of settlement for the purposes of applying subsection (3.1), the Court shall not have regard to costs awarded in the judgment or that would otherwise be awarded, if an offer of settlement does not provide for the settlement of the issue of costs.

(3.7) For greater certainty, if an offer of settlement that does not provide for the settlement of the issue of costs is accepted, a party to the offer may apply to the Court for an order determining the amount of costs.

(3.8) No communication respecting an offer of settlement shall be made to the Court, other than to a judge in a litigation process conference who is not the judge at the hearing, until all of the issues, other than costs, have been determined.

22. Section 153 of the Rules is amended by adding the following after subsection (2):

(3) The taxing officer may direct that the taxation of a bill of costs be conducted by teleconference, by videoconference or by a combination of both and may specify the party responsible for establishing the communication.

23. (1) Subsection 167(1) of the English version of the Rules is replaced by the following:

167. (1) The Court shall dispose of an appeal or an interlocutory or other application that determines in whole or in part any substantive right in dispute between or among the parties by rendering a judgment and shall dispose of any other interlocutory or other application by issuing an order.

(2) Subsection 167(3) of the Rules is replaced by the following:

(3) A judgment and the reasons relating to it, if any, shall be deposited with the Registry without delay.

24. The Table of Forms in Schedule I to the Rules is amended by adding the following after form number “45”:

FORM NUMBER

TITLE

PAGE

52

Demand for Particulars

 

25. The Table of Forms in Schedule I to the Rules is amended by adding the following after form number “142”:

FORM NUMBER

TITLE

PAGE

145(2)

Certificate Concerning Code of Conduct for
Expert Witnesses

 

146.1

Agreement to Be Bound by Final Decision

 

26. Schedule I to the Rules is amended by adding the following after Form 45:

FORM 52

DEMAND FOR PARTICULARS

-----------------------------------

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

DEMAND FOR PARTICULARS

TO: The (party), (name)

The (party), (name) demands particulars of the following allegations contained in your (pleading):

1.

2.

3.

If the particulars requested are not delivered to the undersigned within 30 days after service of this demand, an application may be made to the Court for an order requiring delivery of them.

Dated at ......................, this ........ day of ..................... 20......

  • (Name, address for service, telephone number and fax number, if any, of moving party’s counsel or moving party)

27. Schedule I to the Rules is amended by adding the following after Form 142:

FORM 145(2)

CERTIFICATE CONCERNING CODE OF CONDUCT
FOR EXPERT WITNESSES

-----------------------------------

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

CERTIFICATE CONCERNING CODE OF CONDUCT FOR EXPERT WITNESSES

I, (name), having been named as an expert witness by the (party), certify that I have read the Code of Conduct for Expert Witnesses set out in Schedule III to the Tax Court of Canada Rules (General Procedure) and agree to be bound by it.

Dated at ......................, this ........ day of ..................... 20......

  • (Signature of expert witness)
  • (Name, address and telephone and fax numbers of expert witness)

FORM 146.1

AGREEMENT TO BE BOUND BY FINAL DECISION IN A LEAD CASE

-----------------------------------

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

AGREEMENT TO BE BOUND BY FINAL DECISION IN A LEAD CASE

The (party), (name), agrees to be bound by the final decision in the lead case or lead cases, in whole (specify) or in part (specify), with a final decision being defined as one from which there is no further right of appeal.

Dated at ......................, this ........ day of ..................... 20......

  • (Signature of party)
  • (Signature of counsel for party)

If the Appellant is represented by counsel, counsel and the Appellant must sign this form. If the Appellant is not represented by counsel, this form is signed only by the Appellant.

28. The Rules are amended by adding, after Schedule II, the Schedule III set out in the schedule to these Rules.

TAX COURT OF CANADA RULES
(INFORMAL PROCEDURE)

29. The Tax Court of Canada Rules (Informal Procedure) (see footnote 2) are amended by adding the following after section 8:

PRONOUNCING AND ENTERING OF JUDGMENTS

9. (1) The Court shall dispose of an appeal or an interlocutory or other application that determines in whole or in part any substantive right in dispute between or among the parties by rendering a judgment and shall dispose of any other interlocutory or other application by issuing an order.

(2) A judgment shall be dated on the day it is signed and that day is the date of the pronouncement of the judgment.

(3) A judgment and the reasons relating to it, if any, shall be filed with the Registry without delay.

30. Subsection 18(3) of the Rules is replaced by the following:

(3) An application under subsection (1) shall be made by filing with the Registry, in the manner provided in section 4.1, three copies of the application made to the Minister accompanied by three copies of the notice of objection or the request, as the case may be, and three copies of the Minister’s decision, if any.

31. Subsection 18.1(2) of the Rules is replaced by the following:

(2) An application under subsection (1) shall be made by filing with the Registry, in the manner provided in section 4.1, three copies of the application accompanied by three copies of the notice of appeal.

32. Subsection 18.3(2) of the Rules is replaced by the following:

(2) An application under subsection (1) shall be filed in the manner provided in section 4.1 and shall include a copy of the notice of suspension as well as a copy of the notice of objection filed with the Minister.

33. The Rules are amended by replacing subsections 4(3) and (5) with section 4.1 in the following provisions:

  • (a) the note at the end of Schedule 18(1);

  • (b) the note at the end of Schedule 18(2); and

  • (c) the note at the end of Schedule 18.1.

TAX COURT OF CANADA RULES OF PROCEDURE
RESPECTING THE CANADA PENSION PLAN

34. Subsection 6(2) of the Tax Court of Canada Rules of Procedure respecting the Canada Pension Plan (see footnote 3) is replaced by the following:

(2) An application under subsection (1) shall be made by filing with the Registrar, in the manner provided in section 5.1, three copies of the application accompanied by three copies of the notice of appeal.

35. Subsection 12(1) of the Rules is replaced by the following:

12. (1) The Minister shall reply in writing to every notice of appeal or notice of intervention filed with or mailed to a Registry under subsection 5(4) or 9(1).

36. The Rules are amended by adding the following after section 17:

PRONOUNCING AND ENTERING OF JUDGMENTS

17.1 (1) The Court shall dispose of an appeal or an interlocutory or other application that determines in whole or in part any substantive right in dispute between or among the parties by rendering a judgment and shall dispose of any other interlocutory or other application by issuing an order.

(2) A judgment shall be dated on the day it is signed and that day is the date of the pronouncement of the judgment.

(3) A judgment and the reasons relating to it, if any, shall be deposited with the Registry without delay.

37. Paragraph 18(1)(a) of the Rules is replaced by the following:

  • (a) any other party to the appeal to make discovery on oath of the documents that are or have been in that party’s possession, control or power relevant to any matter in question between them in the appeal,

38. The note at the end of Schedule 6 to the Rules is amended by replacing subsections 5(5) and (7) with section 5.1.

TAX COURT OF CANADA RULES OF PROCEDURE
RESPECTING THE EMPLOYMENT
INSURANCE ACT

39. Subsection 6(2) of the Tax Court of Canada Rules of Procedure respecting the Employment Insurance Act (see footnote 4) is replaced by the following:

(2) The application under subsection (1) shall be made by filing with the Registrar, in the manner provided in section 5.1, three copies of the application accompanied by three copies of the notice of appeal.

40. Subsection 12(1) of the Rules is replaced by the following:

12. (1) The Minister shall reply in writing to every notice of appeal or notice of intervention filed in or mailed to a Registry under subsection 5(4) or 9(1).

41. The Rules are amended by adding the following after section 17:

PRONOUNCING AND ENTERING OF JUDGMENTS

17.1 (1) The Court shall dispose of an appeal or an interlocutory or other application that determines in whole or in part any substantive right in dispute between or among the parties by rendering a judgment and shall dispose of any other interlocutory or other application by issuing an order.

(2) A judgment shall be dated on the day it is signed and that day is the date of the pronouncement of the judgment.

(3) A judgment and the reasons relating to it, if any, shall be deposited with the Registry without delay.

42. Paragraph 18(1)(a) of the Rules is replaced by the following:

  • (a) any other party to the appeal to make discovery on oath of the documents that are or have been in that party’s possession, control or power relevant to any matter in question between or among them in the appeal,

43. The note at the end of Schedule 6 to the Rules is amended by replacing subsections 5(5) and (7) with section 5.1.

TAX COURT OF CANADA RULES OF PROCEDURE
RESPECTING THE EXCISE TAX ACT
(INFORMAL PROCEDURE)

44. The Tax Court of Canada Rules of Procedure Respecting the Excise Tax Act (Informal Procedure) (see footnote 5) are amended by adding the following after section 8:

PRONOUNCING AND ENTERING OF JUDGMENTS

8.1 (1) The Court shall dispose of an appeal or an interlocutory or other application that determines in whole or in part any substantive right in dispute between or among the parties by rendering a judgment and shall dispose of any other interlocutory or other application by issuing an order.

(2) A judgment shall be dated on the day it is signed and that day is the date of the pronouncement of the judgment.

(3) A judgment and the reasons relating to it, if any, shall be deposited with the Registry without delay.

45. Subsection 16(3) of the Rules is replaced by the following:

(3) An application under subsection (1) shall be made by filing with the Registrar, in the manner provided in section 4.1, three copies of the application made to the Minister accompanied by three copies of the notice of objection or the request, as the case may be, and three copies of the Minister’s decision, if any.

46. Subsection 16.1(2) of the Rules is replaced by the following:

(2) An application under subsection (1) shall be made by filing with the Registrar, in the manner provided in section 4.1, three copies of the application accompanied by three copies of the notice of appeal.

47. The Rules are amended by replacing subsections 4(3) and (5) with section 4.1 in the following provisions:

  • (a) the note at the end of Schedule 16(1);

  • (b) the note at the end of Schedule 16(2); and

  • (c) the note at the end of Schedule 16.1.

TAX COURT OF CANADA RULES OF PROCEDURE
RESPECTING THE CUSTOMS ACT
(INFORMAL PROCEDURE)

48. The Tax Court of Canada Rules of Procedure Respecting the Customs Act (Informal Procedure) (see footnote 6) are amended by adding the following after section 8:

PRONOUNCING AND ENTERING OF JUDGMENTS

8.1 (1) The Court shall dispose of an appeal or an interlocutory or other application that determines in whole or in part any substantive right in dispute between or among the parties by rendering a judgment and shall dispose of any other interlocutory or other application by issuing an order.

(2) A judgment shall be dated on the day it is signed and that day is the date of the pronouncement of the judgment.

(3) A judgment and the reasons relating to it, if any, shall be deposited with the Registry without delay.

49. Subsection 19(3) of the Rules is replaced by the following:

(3) An application under subsection (1) shall be made by filing with the Registrar, in the manner provided in section 4.1, three copies of the application made to the Minister accompanied by three copies of the notice of objection and three copies of the Minister’s decision, if any.

50. Subsection 20(2) of the Rules is replaced by the following:

(2) An application under subsection (1) shall be made by filing with the Registrar, in the manner provided in section 4.1, three copies of the application accompanied by three copies of the notice of appeal.

51. The Rules are amended by replacing subsections 4(3) and (5) with section 4.1 in the following provisions:

  • (a) the note at the end of Schedule 19; and

  • (b) the note at the end of Schedule 20.

TAX COURT OF CANADA RULES OF PROCEDURE
RESPECTING THE EXCISE ACT, 2001
(INFORMAL PROCEDURE)

52. The Tax Court of Canada Rules of Procedure respecting the Excise Act, 2001 (Informal Procedure) (see footnote 7) are amended by adding the following after section 8:

PRONOUNCING AND ENTERING OF JUDGMENTS

8.1 (1) The Court shall dispose of an appeal or an interlocutory or other application that determines in whole or in part any substantive right in dispute between or among the parties by rendering a judgment and shall dispose of any other interlocutory or other application by issuing an order.

(2) A judgment shall be dated on the day it is signed and that day is the date of the pronouncement of the judgment.

(3) A judgment and the reasons relating to it, if any, shall be deposited with the Registry without delay.

53. Subsection 19(3) of the Rules is replaced by the following:

(3) An application under subsection (1) shall be made by filing with the Registrar, in the manner provided in section 4.1, three copies of the application made to the Minister accompanied by three copies of the notice of objection and three copies of the Minister’s decision, if any.

54. Subsection 20(2) of the Rules is replaced by the following:

(2) An application under subsection (1) shall be made by filing with the Registrar, in the manner provided in section 4.1, three copies of the application accompanied by three copies of the notice of appeal.

55. The Rules are amended by replacing subsections 4(3) and (5) with section 4.1 in the following provisions:

  • (a) the note at the end of Schedule 19; and

  • (b) the note at the end of Schedule 20.

SCHEDULE
(Section 30)

TAX COURT OF CANADA RULES (GENERAL PROCEDURE)

SCHEDULE III
(Paragraph 145(2)(c) and Form 145(2) of Schedule I)

CODE OF CONDUCT FOR EXPERT WITNESSES

----------------------------------

GENERAL DUTY TO THE COURT

1. An expert witness has an overriding duty to assist the Court impartially on matters relevant to his or her area of expertise.

2. This duty overrides any duty to a party to the proceeding, including the person retaining the expert witness. An expert witness must be independent and objective and must not be an advocate for a party.

EXPERT REPORTS

3. An expert report referred to in subsection 145(1) of the Rules shall include

  • (a) a statement of the issues addressed;

  • (b) a description of the qualifications of the expert on the issues addressed;

  • (c) the expert’s current curriculum vitae attached as a schedule;

  • (d) the facts and assumptions on which the opinions in the report are based;

  • (e) a summary of the opinions expressed;

  • (f) in the case of a report that is provided in response to another expert’s report, an indication of the points of agreement and disagreement with the other expert’s opinions;

  • (g) the reasons for each opinion expressed;

  • (h) any literature or other materials specifically relied on in support of the opinions;

  • (i) a summary of the methodology used, including any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out, and whether a representative of any other party was present; and

  • (j) any caveats or qualifications necessary to render the report complete and accurate, including those relating to any insufficiency of data or research and an indication of any matters that fall outside the expert’s field of expertise.

4. An expert witness must report without delay to persons in receipt of the expert report any material changes affecting the expert’s qualifications or the opinions expressed or the data contained in the expert report.

EXPERT CONFERENCES

5. An expert witness who is ordered by the Court to confer with another expert witness shall

  • (a) exercise independent, impartial and objective judgment on the issues addressed;

  • (b) endeavour to clarify with the other expert witness the points on which they agree and those on which their views differ; and

  • (c) not act on any instruction or request to withhold or avoid agreement with another expert witness.

Footnote a
R.S., c. 51 (4th Supp.), s. 7

Footnote b
R.S., c. T-2

Footnote c
S.C. 2002, c. 8, s. 78

Footnote 1
SOR/90-688a

Footnote 2
SOR/90-688b

Footnote 3
SOR/90-689

Footnote 4
SOR/90-690; SOR/98-8, s. 2

Footnote 5
SOR/92-42

Footnote 6
SOR/2004-99

Footnote 7
SOR/2004-102