Tax Court of Canada Rules of Procedure respecting the Excise Act, 2001 (Informal Procedure) (SOR/2004-102)

Short Title

1 These rules may be cited as the Tax Court of Canada Rules of Procedure Respecting the Excise Act, 2001 (Informal Procedure).

Interpretation

2 The following definitions apply in these Rules.

Act

Act means the Tax Court of Canada Act. (Loi)

assessment

assessment includes a reassessment and an additional assessment. (cotisation)

counsel

counsel means every person who may practise as a barrister, advocate, attorney or solicitor in any of the provinces. (avocat)

electronic filing

electronic filing means the act of filing, by electronic means, through the Court’s website (www.tcc-cci.gc.ca) or any other website referred to in a direction issued by the Court, any document listed on those sites. (dépôt électronique)

Minister

Minister means the Minister of National Revenue. (ministre)

Registrar

Registrar means the person appointed as Registrar of the Court by the Chief Administrator of the Courts Administration Service in consultation with the Chief Justice. (greffier)

Registry

Registry means the Registry established by the Chief Administrator of the Courts Administration Service at the principal office of the Court at 200 Kent Street, 2nd Floor, Ottawa, Ontario K1A 0M1 (telephone: (613) 992-0901 or 1-800-927-5499; fax: (613) 957-9034; website: www.tcc-cci.gc.ca) or at any other local office of the Court specified in notices published by the Court. (greffe)

Application

3 These Rules apply to appeals brought under the Excise Act, 2001, other than appeals to which the Tax Court of Canada Rules (General Procedure) apply.

Associate Judges

• 3.1 (1) An associate judge of the Court has all the powers of a judge of the Court under these Rules.

• (2) Any associate judge may sit and act at any time and at any place in Canada for the transaction of the business of the Court, and, where the associate judge so sits or acts, that associate judge constitutes the Court.

Filing a Notice of Appeal

4 An appeal referred to in section 3 shall be instituted by filing a notice of appeal, which may be in the form set out in Schedule 4, using one of the following methods:

• (a) depositing the notice with the Registry;

• (b) sending it by mail to the Registry; or

• (c) sending it by fax or by electronic filing to the Registry.

Filing of other Documents

4.1 Except as otherwise provided in these rules and unless otherwise directed by the Court, a document other than a notice of appeal may be filed using one of the following methods:

• (a) depositing it with the Registry;

• (b) sending it by mail to the Registry; or

• (c) sending it by fax or by electronic filing to the Registry.

Filing Date

4.2 Except as otherwise provided in these rules and unless otherwise directed by the Court, the date of filing of a document is deemed to be

• (a) in the case of a document filed with the Registry or sent by mail or by fax, the date shown by the date received stamp placed on the document by the Registry at the time it is received; or

• (b) in the case of a document filed by electronic filing, the date shown on the acknowledgment of receipt issued by the Court.

Electronic Filing

• 4.3 (1) Except as otherwise provided in these rules and unless otherwise directed by the Court, when a document is filed by electronic filing, the copy of the document that is printed by the Registry and placed in the Court file is deemed to be the original version of the document.

• (2) A party who files a document by electronic filing shall, if required by these rules or at the request of a party or the Court, provide a paper copy of the document and file it with the Registry.

• (3) If the Registry has no record of the receipt of a document, it is deemed not to have been filed, unless the Court directs otherwise.

Appellant’s Address for Service of Documents

• 5 (1) The notice of appeal shall also include the appellant’s address for service of documents.

• (2) The appellant’s address for service may be the address of the appellant or the appellant’s counsel or agent.

• (3) A written notice of any change in the appellant’s address for service shall forthwith be provided to the Registry by the appellant or by the appellant’s counsel or agent, which address shall thereafter be that party’s address for service.

• (4) Until notice of a change of the appellant’s address for service is received at the Registry, any service required to be made on the appellant of any documents pertaining to the appeal shall be made by mail to the address contained in the notice of appeal and shall constitute good and sufficient service on the appellant.

Reply to Notice of Appeal

• 6 (1) Every reply to a notice of appeal shall contain a statement of

  • (a) the facts that are admitted;

  • (b) the facts that are denied;

  • (c) the facts of which the respondent has no knowledge and puts in issue;

  • (d) the findings or assumptions of fact made by the Minister when making the assessment;

  • (e) any other material facts;

  • (f) the issues to be decided;

  • (g) the statutory provisions relied on;

  • (h) the reasons the respondent intends to rely on; and

  • (i) the relief sought.

• (2) Within five days after a reply is filed, the Minister shall serve a copy of it by registered mail addressed to the appellant’s address for service of documents.

Expert Witnesses

• 7 (1) A party who intends to call an expert witness at the hearing of an appeal shall, not less than 10 days before the commencement of the hearing, file at the Registry and serve on the other parties a report, signed by the expert, setting out the expert’s name, address and qualifications and the substance of the expert’s testimony.

• (2) An expert witness may not testify, except with leave of the presiding judge, if subsection (1) has not been satisfied.

Discontinuance

• 8 (1) A party who instituted an appeal in the Court may, at any time, discontinue that appeal by written notice.

• (2) Such discontinuance may be in the form set out in Schedule 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.

Costs

• 9 (1) The Court may determine the amount of the costs of all parties involved in any proceeding, the allocation of those costs and the persons required to pay them.

• (2) The Court may award costs not exceeding the amounts listed in section 10 to the respondent only if the actions of the appellant have unduly delayed the prompt and effective resolution of the appeal.

• (3) The Court may direct the payment of costs in a fixed sum, in lieu of any taxed costs.

10 On the taxation of party and party costs, the following fees may be allowed for the services of counsel:

• (a) for the preparation of a notice of appeal or for advice relating to the appeal, $185;

• (b) for preparing for a hearing, $250;

• (c) for the conduct of a hearing, $375 for each half day or part of a half day; and

• (d) for taxation of costs, $60.

11 Unless otherwise directed by the Court, where an appellant is represented or assisted by an adviser other than counsel, disbursements in respect of services referred to in section 10 may be allowed on the taxation of party and party costs in an amount not to exceed one half of the amounts listed in section 10.

• 12 (1) Such other disbursements may be allowed as were essential for the conduct of the appeal if it is established that the disbursements were made or that the party is liable for them.

• (2) There may be allowed all services, sales, use or consumption taxes and other like taxes paid or payable on any counsel fees and disbursements allowed if it is established that such taxes have been paid or are payable and are not otherwise reimbursed or reimbursable in any manner whatever, including, without restriction, by means of claims for input tax credits in respect of such taxes.

• 13 (1) A witness, other than a witness who appears to give evidence as an expert, is entitled to be paid by the party who arranged for his or her attendance $75 per day, plus reasonable and proper transportation and living expenses.

• (2) An amount is not payable under subsection (1) in respect of an appellant unless the appellant is called on to testify by counsel for the respondent.

• (3) There may be paid to a witness who appears to give evidence as an expert a reasonable payment, not to exceed $300 per day unless the Court otherwise directs, for the services performed by the witness in preparing to give evidence and giving evidence.

• 14 (1) Subject to subsection 9(3), costs shall be taxed by the Registrar or any other person that may be designated by the Chief Justice as a taxing officer.

• (2) An appellant whose costs are to be taxed shall file with the Registrar a bill of costs, which may be in the form set out in Schedule 14.

• (3) The Registrar shall forthwith send a true copy of the bill of costs to counsel for the respondent.

• (4) Immediately following the taxation, the Registrar shall send to each of the parties a certificate of taxation.

• 15 (1) Any party may appeal to a judge of the Court from the taxation by notice in writing sent to the Registrar within 20 days of the date of mailing of the certificate of taxation.

• (2) The time referred to in subsection (1) may be extended by a judge of the Court.

Costs in Vexatious Proceedings

16 Where a judge has made an order under section 19.1 of the Act, costs may be awarded against the person in respect of whom the order has been made.

Removal of an Appeal from the Informal Procedure to the General Procedure or from the General Procedure to the Informal Procedure

17 An application by the Attorney General of Canada to remove an appeal from the informal procedure to the general procedure shall be by motion, and the Court may give such directions as are necessary for the subsequent conduct of the appeal. There shall be no additional filing fee for proceeding in the general procedure unless the Court so directs.

• 18 (1) Where a person who has appealed under the Excise Act, 2001 has not elected in the notice of appeal that sections 18.3001 and 18.3003 to 18.302 (Informal Procedure) of the Act shall apply, that person may, within 90 days from the date on which the reply is served or within such additional time as the Court may, on motion for special reasons, allow, make such an election.

• (2) An election under subsection (1) may be in the form set out in Schedule 18.

Application for Extension of Time

• 19 (1) A person who has made an application to the Minister to extend the time for the filing of a notice of objection may apply to the Court to have the application granted after either

  • (a) the Minister has refused the application, or

  • (b) 90 days have elapsed after service of the application, and the Minister has not notified the person of the Minister’s decision,

  but no application under this section may be made after the expiration of 30 days after the day on which notification of the Minister’s decision was mailed to the person.

• (2) An application made under subsection (1) may be in the form set out in Schedule 19.

• (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.

• (4) The Court may dispose of an application made under subsection (1) by

  • (a) dismissing it, or

  • (b) granting it,

  and, in granting it, may impose such terms as it deems just or order that the notice of objection be deemed to be a valid objection as of the date of the order.

• (5) No application shall be granted under this section to a person unless

  • (a) the application is made within one year after the expiration of the time specified by the Excise Act, 2001 for filing a notice of objection*; and

  • (b) the person demonstrates that

    • (i) within the applicable time specified in paragraph (a), the person

      • (A) was unable to act or to give a mandate to act in the person’s name, or

      • (B) had a bona fide intention to object to the assessment,

    • (ii) given the reasons set out in the application and the circumstances of the case, it would be just and equitable to grant the application, and

    • (iii) the application to extend time was made to the Minister as soon as circumstances permitted it to be made.

  • * Subsection 195(1) of the Excise Act, 2001 provides:

    • “195. (1) Any person who has been assessed and who objects to the assessment may, within 90 days after the date of the notice of the assessment, file with the Minister a notice of objection in the prescribed form and manner setting out the reasons for the objection and all relevant facts.”

• (6) The application pursuant to subsection (1) is deemed to have been filed on the date of its receipt by the Registry, even if the application is not accompanied by the documents listed in subsection (3), provided that those documents are filed within 30 days after that date or within any reasonable time that the Court establishes.

• 20 (1) An application for an order extending the time within which an appeal may be instituted may be in the form set out in Schedule 20.

• (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.

• (3) No application shall be granted under this section to a person unless

  • (a) the application is made within one year after the expiration of 90 days after the day on which the notice was sent to the person informing the person that the Minister has confirmed the assessment or has reassessed; and

  • (b) the person demonstrates that

    • (i) within the 90-day period specified in paragraph (a), the person

      • (A) was unable to act or to give a mandate to act in the person’s name, or

      • (B) had a bona fide intention to appeal,

    • (ii) given the reasons set out in the application and the circumstances of the case, it would be just and equitable to grant the application,

    • (iii) the application was made as soon as circumstances permitted it to be made, and

    • (iv) there are reasonable grounds for appealing from the assessment.

• (4) The application pursuant to subsection (1) is deemed to have been filed on the date of its receipt by the Registry, even if the application is not accompanied by the notice of appeal referred to in subsection (2), provided that the notice of appeal is filed within 30 days after that date or within any reasonable time that the Court establishes.

Judgments on Admissions or Certain Documentary Evidence

21 A party may, at any stage of a proceeding, apply for judgment in respect of any matter

• (a) on any admission in the pleadings or other documents filed in the Court, or in the examination of another party, or

• (b) in respect of which the only evidence consists of documents and such affidavits as are necessary to prove the execution or identity of such documents,

without waiting for the determination of any other question between the parties.

Subpoena

• 22 (1) A party who requires the attendance of a person as a witness at a hearing may serve the person with a subpoena requiring the person to attend the hearing at the time and place stated in the subpoena, and the subpoena may also require the person to produce at the hearing the documents or other things in the person’s possession, control or power relating to the matters in question in the appeal that are specified in the subpoena.

• (2) On the request of a party or of counsel, the Registrar or some other person authorized by the Chief Justice, shall sign, seal and issue a blank subpoena, and the party or counsel may complete the subpoena and insert the names of any number of witnesses.

• (3) A subpoena shall be served on a witness personally and, at the same time, witness fees and expenses in accordance with section 13 shall be paid or tendered to the witness.

General

23 Subject to any order that the Court, in special circumstances, may make restricting access to a particular file by persons other than the parties to a matter before the Court, any person may, subject to appropriate supervision, and when the facilities of the Court permit without interfering with the ordinary work of the Court,

• (a) inspect any Court file relating to a matter before the Court; and

• (b) on payment of $0.40 per page, obtain a photocopy of any document on a Court file.

• 24 (1) Failure to comply with these Rules shall not render any proceedings void unless the Court so directs, but such proceedings may be set aside either in whole or in part as irregular and may be amended or otherwise dealt with in such manner and upon such terms as, in the opinion of the Court, the circumstances of the case require.

• (2) Where a person makes an application to set aside a proceeding for irregularity, the objections intended to be put forward shall be stated clearly in the application.

• (3) The Court may, where and as necessary in the interests of justice, dispense with compliance with any rule at any time.

• (4) Where matters are not provided for in these rules, the practice shall be determined by the Court, either on a motion for directions or after the event if no such motion has been made.

Contempt of Court

• 25 (1) A person is guilty of contempt of court who

  • (a) at a hearing of the Court fails to maintain a respectful attitude, remain silent or refrain from showing approval or disapproval of the proceeding;

  • (b) wilfully disobeys a process or order of the Court;

  • (c) acts in such a way as to interfere with the orderly administration of justice or to impair the authority or dignity of the Court;

  • (d) is an officer of the Court and fails to perform his or her duties;

  • (e) is a sheriff or bailiff and does not execute a writ forthwith or does not make a return thereof; or

  • (f) contrary to these rules and without lawful excuse,

    • (i) refuses or neglects to obey a subpoena or to attend at the time and place appointed for his or her examination for discovery,

    • (ii) refuses to be sworn or to affirm or to answer any question put to him or her,

    • (iii) refuses or neglects to produce or permit to be inspected any document or other property, or

    • (iv) refuses or neglects to answer interrogatories or to make discovery of documents.

• (2) Subject to subsection (6), before a person may be found in contempt of court, the person alleged to be in contempt shall be served with an order, made on the motion of a person who has an interest in the proceeding or at the Court’s own initiative, requiring the person alleged to be in contempt

  • (a) to appear before a judge at a time and place stipulated in the order;

  • (b) to be prepared to hear proof of the act with which the person is charged, which shall be described in the order with sufficient particularity to enable the person to know the nature of the case against the person; and

  • (c) to be prepared to present any defence that the person may have.

• (3) A motion for an order under subsection (2) may be made ex parte.

• (4) An order may be made under subsection (2) if the Court is satisfied that there is a prima facie case that contempt has been committed.

• (5) An order under subsection (2) shall be personally served, together with any supporting documents, unless otherwise ordered by the Court.

• (6) In a case of urgency, a person may be found in contempt of court for an act committed in the presence of a judge in the exercise of his or her functions and condemned at once, provided that the person has first been called on to justify his or her behaviour.

• (7) A finding of contempt shall be based on proof beyond a reasonable doubt.

• (8) A person alleged to be in contempt may not be compelled to testify.

• (9) Where the Court considers it necessary, it may request the assistance of the Attorney General of Canada or any other person in relation to any proceedings for contempt.

• (10) Where a person is found to be in contempt, a judge may order, in addition to any other order made in respect of the proceedings, any or all of the following:

  • (a) that the person be imprisoned for a period of less than two years;

  • (b) that the person pay a fine;

  • (c) that the person do or refrain from doing any act;

  • (d) that the person’s property be sequestered; and

  • (e) that the person pay costs.