Tax Court of Canada Rules (General Procedure)

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.