Canada: Proposed Legislative Changes Affecting Canadian Tax Controversy And Litigation Practice

On April 29, 2013, the Minister of Finance introduced Bill C-60 to implement certain provisions of the Federal Budget tabled in Parliament on March 21, 2013 (Bill C-60). Bill C-60 follows the Department of Finance's release of a Notice of Ways and Means Motion on April 22, 2013.

The amendments in Bill C-60 also follow proposed amendments to the Tax Court of Canada Rules (General Procedure) released on November 16, 2012 and published in the Canada Gazette on December 8, 2012 (the Proposed Rules).

This bulletin discusses these recently proposed legislative amendments, which will certainly affect Canadian tax controversy and litigation practice.

1. Compelling Information in the Audit Process

The Canada Revenue Agency (the CRA) can compel information and documents in the course of an audit. Its powers include the issuance of a form of subpoena or demand called a "requirement."  The Income Tax Act (Canada) (the Act) permits the issuance of a requirement relating to a particular taxpayer. A court order, however, is first required when the CRA wishes to compel information about unnamed persons.

Bill C-60 proposes to change the process for applying for authorization to issue a requirement regarding unnamed persons. The new process will apply to applications made after the statutory amendments receive Royal Assent.

Currently, subsection 231.2(2) of the Act prohibits the CRA from issuing a requirement for information or documents to a person (the Affected Party) relating to unnamed persons unless it first obtains judicial authorization. Subsection 231.2(3) provides that the CRA may apply ex parte to a judge for an order authorizing such a requirement. After the requirement is served, the Affected Party has 15 days to apply for judicial review of the ex parte authorization.

This process was originally enacted to override case law that held that the CRA could not use its requirement power to compel the disclosure of information about third parties unless there was "a genuine and serious inquiry into the tax liability of some specific person or persons." However, in two recent cases, the CRA had its authorization revoked because the taxpayers successfully argued that the CRA had not disclosed all relevant information in its ex parte application to the court.

Based on the proposals in Bill C-60, the CRA will be required to make its application in Federal Court for authorization to issue a requirement for information or documents relating to unnamed persons. Bill C-60 will remove the ex parte aspect of the application and the CRA must give notice to the Affected Party pursuant to the Federal Courts Rules. The CRA still must satisfy the judge that:

• The person or group is ascertainable; and
• The requirement is made to verify compliance by the person or persons in the group with any duty or obligation under the Act.

Bill C-60 will also remove the Affected Party's right to judicial review of the application. Instead, the CRA and the Affected Party may appeal the judge's decision regarding an authorization pursuant to the Federal Courts Rules.

Bill C-60 also proposes amendments to the corresponding provisions in the Excise Tax Act and the Excise Act, 2001 relating to the requirement power and ex parte applications.

2. Accelerated Collection of Tax Debts in Certain Situations

Bill C-60 proposes that the CRA may immediately collect 50% of any amounts assessed in respect of a deduction or credit claimed under a "tax shelter" for donations to charity or other gifts. The CRA will be able to take collection action against such taxpayers even if they later object to an assessment or appeal an assessment to the Tax Court of Canada (the Tax Court). The changes in Bill C-60 will apply to amounts assessed for taxation years that end after 2012.

Large corporations are also subject to immediate collection of 50% of the taxes, interest and penalties assessed, even if they later object to or appeal an assessment. Bill C-60 makes no changes for large corporations.

3. Tax Court Practice – Raising Monetary Limits for Access to the Informal Procedure

There are two parallel sets of procedure in the Tax Court: the general procedure and the informal procedure. Under the general procedure, parties exchange documents, conduct examinations for discovery and eventually proceed to trial. Under the informal procedure, the formal rules of evidence do not apply, there are no examinations for discovery and the Tax Court must set a hearing within a year of the close of the pleadings.

The Informal Procedure for Income Tax Appeals. To access the informal procedure, the "aggregate of all amounts in issue" in appeals under the Act must be C$12,000 or less, or the amount of loss determined under subsection 152(1.1) of the Act must be C$24,000 or less. The "aggregate of all amounts" is defined to be the total of all amounts assessed or determined by the Minister of National Revenue under the Act, but does not include any amount of interest or any amount of loss determined by that Minister.

Bill C-60 proposes to increase these monetary limits in the Tax Court of Canada Act (the Tax Court Act). Bill C-60 raises the monetary limits, under the informal procedure, to an aggregate of all amounts in issue of C$25,000 or C$50,000 of loss determined under subsection 152(1.1) of the Act.

Bill C-60 proposes to allow, within limits, future increases to the monetary limits for accessing the informal procedure rules for income tax appeals to be made by regulation. The limits relating to the "aggregate of all amounts in issue" may be increased up to C$50,000 by regulation and the limits relating to losses determined under subsection 152(1.1) of the Act may be increased up to C$100,000 by regulation.

Bill C-60 proposes several consequential amendments to the Tax Court Act to reflect the new limits. These deal with the effect of judgments under the informal procedure on the aggregate of all amounts in issue and situations when the Tax Court must apply the general procedure despite an election to proceed under the informal procedure.

The Informal Procedure for GST/HST Appeals. Bill C-60 proposes a major change to GST/HST appeals. Bill C-60 proposes to limit access to the informal procedure for GST/HST appeals under Part IX of the Excise Tax Act to situations where the "amount in dispute" is C$50,000 or less. Currently, taxpayers may elect to apply the informal procedure in GST/HST appeals regardless of the amount in dispute.

For an appeal under Part IX of the Excise Tax Act, the "amount in dispute" is currently defined as:

• The amount of tax, net tax and rebate within the meaning of Part IX of the Excise Tax Act, that is in issue in the appeal;
• Any interest or penalty under that Part that is in issue in the appeal; and
• Any amount of tax, net tax or rebate, within the meaning of that Part, that is likely to be affected by the appeal in any other appeal, assessment or proposed assessment of the person who has brought the appeal.

Bill C-60 proposes to exclude interest from the definition of "amount in dispute" for GST/HST appeals.

Bill C-60 also adds provisions to the informal procedure rules for appeals under the Excise Act, 2001 and the Excise Tax Act that did not previously exist but are identical in nature to the existing informal procedure rules for income tax appeals. These provisions will deal with the effect of judgments under the informal procedure and situations when the Tax Court must apply the general procedure despite an election to proceed under the informal procedure.

4. Tax Court Practice – Examinations for Discovery

The Tax Court Act restricts the right of parties to conduct oral examinations for discovery. Currently, oral examinations for discovery may only be held when the parties consent (or a court makes an order) for income tax appeals where the aggregate of all amounts in issue is C$25,000 or less or where the amount of loss is C$50,000 or less. Bill C-60 will raise the limit to C$50,000 and C$100,000 respectively.

For GST/HST appeals, Bill C-60 will introduce a restriction on the right to an oral examination for discovery where the amount in dispute is C$50,000 or less. The limits on discovery will apply to GST/HST appeals even where the CRA exercises its power to have an informal procedure appeal proceed under the general procedure.

5. Tax Court Practice – Determination of Common Questions Affecting Taxpayers Who May or May Not Have Appealed to the Tax Court

Section 174 of the Act currently allows the CRA to apply to have the Tax Court determine a question common to two or more taxpayers where the question arises "out of one and the same transaction or occurrence or series of transactions or occurrences." Bill C-60 proposes to extend section 174 to also apply to "substantially similar transactions or occurrences or series of transactions or occurrences." This proposed amendment greatly expands the scope of section 174 and may lead to more efficient litigation of test cases and other lead cases.

Currently, the CRA must serve its application on the affected parties either by registered mail or personally, in accordance with the Tax Court of Canada Rules (General Procedure). Bill C-60 proposes to allow the CRA to serve the application by regular mail or seek the direction of the Tax Court about the method of service.

Currently, where the Tax Court is satisfied that the determination of the question will affect the assessments or proposed assessments of two or more taxpayers, it may:

• Determine the question if none of the taxpayers have appealed from an assessment; or
• Join a party to an appeal if any of the taxpayers have appealed from an assessment and proceed to determine the question.

Bill C-60 proposes to allow the Tax Court to:

• Name the taxpayers in respect of whom the question will be determined;
• Join parties to existing litigation if those parties have started an appeal to the Tax Court; and
• Proceed to determine the question.

However, the Tax Court must be satisfied that the question is common to the assessments.

For example, imagine that corporate Taxpayers A, B and C were reassessed to deny deductions claimed for donations to a charity. Taxpayers A and B appealed their reassessments to the Tax Court while Taxpayer C filed an objection but had not appealed. In all three cases, the CRA denied the deductions because the deductions were not "gifts".  Under the proposed section 174, the CRA may apply to have the Tax Court determine whether the payments to the charity were "gifts."  If the Tax Court allows the application, the Tax Court could join Taxpayer A and B's appeals and name Taxpayer C as bound by its determination. The Tax Court could then determine that the donations were "gifts" and the determination would be binding on the CRA with respect to Taxpayers A, B and C.

Currently, a determination by the Tax Court is final and conclusive for the purposes of any assessments of tax payable by the taxpayers named by it, subject to a right of appeal. Under Bill C-60, the determination is final and conclusive of any assessments of tax payable by the taxpayers named in the Tax Court's order.

Currently, the CRA and any taxpayers affected may appeal a determination to the Federal Court of Appeal. Bill C-60 proposes to modify the appeal process after the Tax Court determines a common question. A taxpayer may only appeal if:

• The question arises out of one and the same transaction or occurrence or series of transactions or occurrences;
• The taxpayer has appealed an assessment to the Tax Court in respect of which the question is relevant; or
• The taxpayer has been granted leave by a judge of the Federal Court of Appeal.

While the CRA may bind a taxpayer with "substantially similar transactions" who has not appealed to the Tax Court, the taxpayer may only appeal if the question arises from the same transaction, or if the taxpayer has appealed to the Tax Court. Otherwise, the taxpayer requires leave to appeal.

The proposed amendments to section 174 are broader than the proposed changes to the Tax Court of Canada Rules (General Procedure) regarding lead cases, discussed below.

6. Tax Court Practice – Partial Dispositions of Appeal – Jurisdiction of the Tax Court

Currently, the Tax Court may dispose of an appeal by:

• Dismissing it; or
• Allowing it and:
  • Vacating the assessment;
  • Varying the assessment; or
  • Referring the assessment back to the CRA for reconsideration and reassessment.

Bill C-60 will introduce a procedure to allow the Tax Court to dispose of issues in an appeal separately. Where there are multiple issues in an appeal, the Tax Court may dispose of one issue if the parties consent. Appeals to the Tax Court regarding the remaining issues continue after the partial disposition. Appeals to the Federal Court of Appeal may be taken from a partial disposition while the parties litigate the remaining issues in the Tax Court.

7. Some Important Changes to the Tax Court Rules

The amendments to the Act in Bill C-60 follow proposed amendments to the Tax Court of Canada Rules (General Procedure) in the Proposed Rules released on November 16, 2012 and published in the Canada Gazette on December 8, 2012.

Lead Cases Where Appeals Filed in the Tax Court. Proposed Rule 146.1 deals with lead cases. The Proposed Rules allow the Tax Court to designate one case as a lead case and stay all related appeals where the appeals give rise to common issues of fact or law. The Proposed Rule regarding lead cases addresses similar issues as the proposed amendments to section 174 of the Act in Bill C-60 regarding the determination of common questions. However, unlike the proposed amendments to the Act in Bill C-60, the Proposed Rules regarding lead cases only apply to litigation in the Tax Court and operate by consent. The Tax Court must lift the stay if a party in a related appeal does not agree to be bound by the lead case within 10 days of the Tax Court designating a lead case.Proposed Rule 146.1 differs significantly from the lead case rule in Practice Note 17 released January 18, 2010. Pursuant to Practice Note 17, the Tax Court sent parties to a related appeal a copy of the decision in the lead case in respect of the common or related issues. A party to a related appeal then had 90 days to notify the Tax Court whether it agreed to be bound by the decision.

Experts. The Proposed Rule 145 deals with the presentation of expert evidence in appeals under the Tax Court of Canada Rules (General Procedure).

Expert reports must set out in full the evidence of the expert, set out the expert's qualifications and set out the areas in which it is proposed the expert be qualified as an expert witness.

Expert reports will be due 90 days before the hearing of an appeal rather than the current 30 days. Rebuttal reports will be due 60 days before the hearing rather than 15 days. Evidence led in surrebuttal of a rebuttal report will have to be made in a written report and served 30 days before the start of the hearing.

Parties intending to call more than five expert witnesses must seek leave of the court under section 7 of the Canada Evidence Act. The current Tax Court of Canada Rules (General Procedure) are silent about this matter. Proposed Rule 145(4) will make the limit in the Canada Evidence Act explicit.

The Canada Evidence Act is silent regarding the factors to consider in deciding whether to permit a party to call more than five experts. Proposed Rule 145(5) directs the court hearing such a motion to consider "all relevant matters" including:

• The nature of the proceeding, its public significance and any need to clarify the law;
• The number, complexity and technical nature of the issues in dispute; and
• The likely expense involved in calling the expert witnesses in relation to the amounts in issue.

The Proposed Rules will repeal Rule 95(3). Parties will no longer be able to ask for the findings, opinion and conclusions of an expert engaged by the other party during an examination for discovery. This amendment will remove an advantage typically enjoyed by the CRA in the litigation process. The CRA does not often hire experts prior to examinations for discovery and therefore often answers that it has not hired an expert and there are no findings to disclose when asked for this information at an examination for discovery.

Experts will have to agree to abide by a code of conduct set out in the Proposed Rules. Every expert report will have to include a certificate signed by the expert acknowledging his or her agreement with the code of conduct. The Tax Court may exclude some or all of an expert's report if the expert fails to abide by the code of conduct.

The Tax Court will also be able to order pre-trial expert conferences. Experts will meet, with or without the parties, and with or without a judge present, to confer in order to narrow the issues and identify the points on which their views differ. Joint statements produced by experts after an expert conference will be admissible as evidence.

The Tax Court may order that experts testify together as a panel, after hearing all non-expert witnesses. This approach is known as "hot-tubbing" and is a new concept in Canada.

Litigation Process Conferences: Status Hearings, Case Management, Trial Management Conferences and Settlement Conferences. The Proposed Rules codify practice regarding "Litigation Process Conferences", which are defined to mean status hearings, case management conferences, trial management conferences and settlement conferences. The rules relating to Litigation Process Conferences are found starting at Rule 125.

• Status Hearings. Currently, Rule 125 provides that the Registrar of the Tax Court may serve a notice of a status hearing on counsel for the parties four months after the filing of a reply or the last day for filing a reply. In practice, the Registrar of the Tax Court issues notices of status hearing after two months, pursuant to Practice Note 17. In the Proposed Rules, the initial status hearing may be ordered 60 days after the filing of the reply. The Proposed Rules provide that further status hearings may be held. The Tax Court may order further status hearings on its own initiative or at the request of a party.
• Case Management. Proposed Rule 126 provides for case management. A judge may be assigned to manage an appeal that is complex or slow moving to ensure the appeal proceeds to trial in a timely way. Except with the consent of the parties, a case management judge will not preside at the hearing.
• Trial Management Conferences. Proposed Rule 126.1 provides for a trial management conference. After a hearing date is set, the parties may request a trial management conference, or the judge presiding over the hearing may order one on his or her own initiative. A trial management conference will be presided over by the judge who will preside over the hearing. The judge at a trial management conference may obtain the names and contact information of the witnesses the parties intend to call and the substance of their testimony, consider admissions and alternative methods of adducing evidence, and consider any pre-trial motions.
• Settlement Conferences. Proposed Rule 126.2 provides for settlement conferences. The judge who presides at a settlement conference shall not preside at the hearing of the appeal. The parties will exchange settlement conference briefs at least 14 days prior to the settlement conference. A settlement conference brief shall:
     
  • Explain the party's theory of the case, the material facts the party expects to establish at the hearing and how they will be established;
  • Contain a statement of the issues to be determined at the hearing; and
  • Contain a statement of the law and authorities that the party will rely on at the hearing of the appeal.
                 
• Expert Evidence. Under Proposed Rule 145(9), the following matters relating to experts may be addressed at any Litigation Process Conference except a settlement conference:
     
  • Any objection to the evidence of an expert;
  • Whether to order an expert conference;
  • The need for additional or rebuttal expert evidence;
  • The number of proposed experts and the manner of presentation of their evidence; and
  • Any other issue arising from the expert reports of proposed experts.

Fixing the Time and Place of a Hearing. The Proposed Rules will modify Rule 123 to allow the Tax Court to fix the time and place of a hearing on its own initiative. Proposed Rule 123 will also allow the Tax Court to make directions regarding fixing a hearing. Currently, only the Chief Justice may make directions regarding fixing a hearing.

Rule 123 will also provide that a hearing fixed by joint application of the parties should not be adjourned except in special circumstances.

Encouraging Settlement with Awards of Costs. The Proposed Rules 147(3.1) to (3.8) will allow either party to make written offers of settlement that may affect costs. Unless the Tax Court orders otherwise, a party will be entitled to "substantial indemnity costs" after the date of an offer of settlement if the offer of settlement is more favourable or as favourable as the result obtained at trial. Substantial indemnity costs will be defined as 80% of solicitor and client costs.

To qualify, a settlement offer:

• Must be in writing;
• Must be served no earlier than 30 days after the close of the pleadings and at least 90 days before the start of the hearing;
• Must not be withdrawn; and
• Must not expire earlier than 30 days before the commencement of the hearing.

In determining whether the judgment is more favourable than the settlement offer, the Tax Court shall not consider costs awarded in the judgment or that would otherwise be awarded, if the settlement offer does not provide for the settlement of costs.

If a settlement offer does not provide for the settlement of costs, a party to the offer may apply to the Tax Court for an order determining the amount of costs.

Consolidation of Motions to Strike and Determinations of Questions of Law, Fact or Mixed Fact and Law. The Proposed Rules will consolidate all matters where the Tax Court may strike out or expunge all or part of a pleading or document under Rule 53. The Proposed Rules will also consolidate all matters relating to the determination of questions of law, fact or mixed law and fact under Rule 58.

Currently, Rule 53 provides that the Tax Court may strike out or expunge all or part of a document or pleading on the ground that the pleading or document:

• May prejudice or delay the fair hearing of the action;
• Is scandalous, frivolous or vexatious; or
• Is an abuse of the process of the Court.

Rule 58(1)(b) currently provides that the Tax Court may strike out a pleading because it discloses no reasonable grounds for appeal or for opposing an appeal. Rule 58(3) currently allows the CRA to apply to have an appeal dismissed where:

• The Court has no jurisdiction over the subject matter of an appeal;
• A condition precedent to instituting a valid appeal has not been met; or
• The Appellant is without legal capacity to commence or continue the proceeding.

Proposed Rule 53 will consolidate existing Rule 53 with Rule 58(1)(b) and 58(3). Proposed Rule 53 will include a caveat that no evidence may be admitted on an application to strike a pleading where the basis for the application is that the pleading discloses no reasonable grounds for appeal or for opposing an appeal. The caveat is currently part of Rule 58.

Existing Rule 58 allows parties to apply for a determination of a question of law, fact or mixed fact and law raised by the pleadings. If the parties consent, existing Rules 59 to 61 allow the parties to state a question of law for the Tax Court's determination as a special case.

The Proposed Rules will repeal existing Rules 59 to 61 regarding special cases and Rule 62 regarding the filing of factums for questions determined under existing Rules 58 and 59.

Although the Tax Court has held that current Rule 58 is a two-step process, some have argued that the Rule is equivocal. Proposed Rule 58 makes the two-step process explicit. In the first step under Proposed Rule 58, a party can apply to the Tax Court for an order that a question of law, fact or mixed fact and law raised in a pleading or a question as to the admissibility of any evidence be determined before the hearing of the appeal. The Tax Court may grant the order if it appears that the determination may dispose of all or part of the proceeding or result in a substantially shorter hearing or a substantial saving in costs. If the order is granted, the Tax Court, as a second step, will give directions regarding the time for the hearing of the question, the filing of factums, and the evidence to be given.

Video Conferences. The Proposed Rules will modify Rule 6 to allow, at the direction of the Tax Court, any step in a proceeding to be conducted by teleconference or videoconference. The Proposed Rules will also modify Rule 153 to allow that a taxing officer may direct that a taxation of a bill of costs be conducted by teleconference or videoconference.

Witnesses Attending in Court. The Proposed Rules will modify Rule 146. Rule 146 allows a party to secure the attendance of an adverse party, or an officer, director or employee of an adverse party, as a witness by, among other things, serving a notice of intention on the adverse party or the counsel of record for the adverse party. Currently, Rule 146 requires that the notice of intention be served 10 days before the start of a hearing. The Proposed Rules will shorten the time period to five days.

Demands for Particulars. Proposed Rule 52(2) will require parties to make a demand for particulars using Proposed Form 52. Demands for particulars in Form 52 must be filed and served in accordance with the Tax Court of Canada Rules (General Procedure).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

We wish to acknowledge the contribution of Ed Kroft to this publication.