Tax Court of Canada Rules (General Procedure) (SOR/90-688a)

Listing for Hearing

How Appeal is Set Down for Hearing

• 123 (1) After the close of pleadings, any party to an appeal, who is not in default under these rules or a judgment of the Court and who is ready for hearing, may apply in writing to the Registrar to fix the time and place of hearing.

• (2) Where all parties agree on the making of a joint application, it shall be made in Form 123.

• (3) Where all parties do not agree on making a joint application, the party making the application shall file a memorandum containing the information, as far as the applicant is concerned, required in Form 123 and shall serve a copy of the memorandum on all other parties and those parties shall, within ten days of service of the memorandum, file and serve on the party applying a similar memorandum.

• (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.

• (5) The Registrar shall forthwith send, by registered mail, notice of the time and place fixed for the hearing to all parties.

• (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.

Litigation Process Conference

124 [Repealed, SOR/2004-100, s. 16]

Status Hearing

• 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) A counsel who receives a notice of status hearing shall forthwith give a copy of the notice to that counsel’s client.

• (3) Unless the appeal has been set down for hearing or terminated by any means before the date fixed for the status hearing, the counsel of record shall attend the status hearing and the parties may attend the hearing.

• (4) Where a party represented by counsel does not attend the hearing, that counsel shall file proof that a copy of the notice was given to the party.

• (5) At the status hearing,

  • (a) if a reply has been filed, the judge may

    • (i) set time periods for the completion of any remaining steps in the appeal,

    • (ii) dismiss the appeal for delay, or

    • (iii) make any order or give any other direction that is appropriate; and

  • (b) if a reply has not been filed, the judge may,

    • (i) direct that the appeal be allowed if the facts alleged in the notice of appeal entitle the appellant to the judgment sought,

    • (ii) direct that the appeal be heard on the basis that the facts alleged in the notice of appeal are presumed to be true and make a direction regarding the hearing fee, or

    • (iii) make any order or give any other direction that is appropriate.

• (6) The presumption in subparagraph (5)(b)(ii) is a rebuttable presumption.

• (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.

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 are made prior to the appeal hearing date or arranging for them to be heard by another judge;

  • (d) despite any other time requirement provided in these rules, setting the time 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 as soon as a date for hearing the appeal has been fixed, 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.

Memorandum or Direction

• 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.

No Disclosure to the Court

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.

Admissions

Interpretation

129 In sections 130 to 132, authenticity includes the fact that,

• (a) a document that is said to be an original was printed, written, signed or executed as it purports to have been,

• (b) a document that is said to be a copy is a true copy of the original, and

• (c) where the document is a copy of a letter, telegram, telecommunication or a fax, the original was sent as it purports to have been sent and was received by the person to whom it is addressed.