Tax Court of Canada: Timelines and Protocols for Reopening

May 19, 2020

On Friday, May 15, 2020, the Canadian Tax Foundation hosted a webinar on the proposed timelines and protocols for reopening the Tax Court of Canada.   Due to the COVID-19 pandemic, the Tax Court of Canada has been closed to the public since March 16, 2020.  All sittings and conference calls were cancelled (up to and including the end of May, 2020), and the Registry Office remains closed for the transaction of business until further notice.

Chief Justice Eugene Rossiter spoke on behalf of the Court and also answered questions from webinar viewers.  He advised:

  1. At this time, there is no firm date on when staff will be permitted to return to work.  This time frame is within the control of the Treasury Board because staff fall under the purview of the Courts Administration Service (or “CAS”).   The CAS was established in 2003 and served to consolidate the registry offices of the Federal Court of Canada and the Tax Court of Canada.   The CAS is currently subject to a “business continuity plan” in light of the pandemic, and only those staff necessary for critical services (i.e., affecting the health and welfare of Canadians, and/or the life and liberty of Canadians) are permitted to work.  Further information on the CAS can be found here: https://www.cas-satj.gc.ca/en/about/mandate.shtml.
  2. Once Registry staff are permitted to return to work, the Chief Justice will then have jurisdiction and control over the processes and time frames for reopening.  The Court intends to begin prioritizing matters as follows:
    • Trials that were already commenced at the time of the shutdown.
    • General matters that were supposed to proceed during the time the Court was closed.
    • Informal matters pertaining to GST credits, EI benefits.
  3. Motion days will be suspended indefinitely.  Motions will be heard through written submission on the consent of parties.
  4. All sittings from now until the end of 2020 will only occur in certain major centers, namely: Vancouver, Calgary, Edmonton, Toronto, Ottawa, Montreal, Quebec City, and Halifax.
  5. If you have a hearing scheduled between now and the end of 2020 in a center other than the major centers noted above, the hearing will be cancelled.  It is not clear when the hearing will be rescheduled.  However, the Chief Justice indicated that it might be possible (depending on availability) to move the hearing location to one of the major centers.
  6. The Court is not set up to run hearings by video-conference.  At this time, their files are not digitized, and most major centers are not set up to run a video-conference hearing. 
  7. Amendments to the Income Tax Act (Canada) and related legislation will likely be necessary in order to adjust hard deadlines for filing appeals to the Court.
  8. When hearings do commence, the Court will be establishing procedures for the handling of exhibits and documents, which will be provided to counsel and taxpayers in advance.

I was very appreciative that the Chief Justice took the time to provide this information to counsel, and also that he was willing to take questions and even provide immediate responses (when possible).  Many of the concerns raised during the webinar are also concerns of the Court, and I recognize that the Court faces considerable obstacles when it comes to solving these issues.

However, I am very concerned about what this means for access to justice for taxpayers.  For example, I had two general procedure hearings scheduled for 2020 – both of which were to be heard in Saskatoon, Saskatchewan.  It is my understanding that these hearings will now be cancelled by the Court, since Saskatoon is not one of the major centers identified.  Therefore, my clients appear to have two options: (1) wait for the hearing to be rescheduled by the Court; or (2) ask to have the hearing in a different location – which will result in a significant increase in cost and interruption to their business.  These clients have already faced significant delays in having their matter heard.  For those taxpayers who are unrepresented, the changes to scheduling and procedure will prove even more difficult to navigate.

Chief Justice Rossiter indicated that the Court would provide a further update sometime during the week of May 24th.   The current Notice to the Public and Profession (published April 17, 2020) can be found here: https://www.tcc-cci.gc.ca/tcc-cci/pdf/Notice%20to%20the%20Public%20and%20the%20Profession%20-%20April%2017%202020(EN).pdf.