On a procedural motion in 506913 N.B. Ltd. v. The Queen (2016 TCC 286), the Tax Court ordered the Respondent to answer all questions refused on discovery, reattend at a further discovery, and pay the Appellant's costs on the motion.

The Tax Court also referred to the fictional interminable estate case of Jarndyce v. Jarndyce from Charles Dickens' novel Bleak House in describing the slow progress of the litigation in 506913.

In 506913, the taxpayers filed their appeals in 2003 in respect of GST/HST for reporting periods in 1998 to 2000. The parties filed amended Notices of Appeal and Replies in 2010, and the Respondent was permitted to file further amended Replies in 2015.

The Tax Court judge's reasons address the scope of discovery under sections 95 and 107 of the Tax Court of Canada Rules (General Procedure) and the test to be applied on a refusals motion. The Court considered the leading cases on this issue (see Canada v. Lehigh Cement Limited (2011 FCA 120), Canadian Imperial Bank of Commerce v. The Queen  (2015 TCC 280), Baxter v. The Queen (2004 TCC 636) and Shell Canada Ltd. v. Canada, [1996] T.C.J. No. 1313), and included a comprehensive summary of the applicable principles (see para. 11 of 506913).

Additionally, regular observers of the Tax Court will be interested to see the Court's reference to Jarndyce:

[34]         These are appeals that, in Dickensian language, drag their weary length before the Court. There have been several case management and motions judges involved in the more than thirteen years these appeals have been before this Court. A previous case management judge ordered that no further motions or other proceedings could be brought before the Court in these appeals prior to the hearing of the appeals. The Respondent's motions to amend its replies were brought just before the deadline imposed on further motions. These appeals can be expected to proceed promptly to a hearing — and it would be best if the parties make that happen themselves.

The text of the first chapter of Bleak House states " ... but Jarndyce and Jarndyce still drags its weary length before the court, perennially hopeless."

The only other reference in a Tax Court decision to Jarndyce that we're aware of is found in the reasons of former Chief Justice Donald G.H. Bowman in Garber v. The Queen (2005 TCC 635) (see para. 6).

For more information, visit our Canadian Tax Litigation blog at www.canadiantaxlitigation.com

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