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

22 [Repealed, SOR/2008-303, s. 5]

23 [Repealed, SOR/2008-303, s. 5]

Service on Taxpayer

24 The Deputy Attorney General of Canada shall, on behalf of the Minister of National Revenue, cause a copy of an application under section 174 of the Income Tax Act, section 311 of the Excise Tax Act, section 52 of the Air Travellers Security Charge Act, section 205 of the Excise Act, 2001 or section 63 of the Softwood Lumber Products Export Charge Act, 2006 to be served personally or by registered mail on each of the taxpayers named in the application and on any other persons who, in the opinion of the Court, are likely to be affected by the determination of the question.

Joinder, Consolidation, Intervention and Transfer or Transmission of Interest

Joinder of Claims

25 A party may join in a notice of appeal all assessments under appeal unless otherwise directed.

When Proceedings May be Consolidated

26 Where two or more proceedings are pending in the Court and

• (a) they have in common a question of law or fact or mixed law and fact arising out of one and the same transaction or occurrence or series of transactions or occurrences, or

• (b) for any other reason, a direction ought to be made under this section,

the Court may direct that,

• (c) the proceedings be consolidated or heard at the same time or one immediately after the other, or

• (d) any of the proceedings be stayed until the determination of any other of them.

Discretion of Presiding Judge

27 Where a direction has been made that proceedings be heard either at the same time or one immediately after the other, the judge presiding at the hearing nevertheless has the discretion to direct otherwise.

Leave to Intervene

• 28 (1) Where it is claimed by a person who is not a party to a proceeding

  • (a) that such person has an interest in the subject matter of the proceeding,

  • (b) that such person may be adversely affected by a judgment in the proceeding, or

  • (c) that there exists between such person and any one or more parties to the proceeding a question of law or fact or mixed law and fact in common with one or more of the questions in issue in the proceeding,

  such person may move for leave to intervene.

• (2) On the motion, the Court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding, and the Court may,

  • (a) allow the person to intervene as a friend of the Court and without being a party to the proceeding, for the purpose of rendering assistance to the Court by way of evidence or argument, and

  • (b) give such direction for pleadings, discovery or costs as is just.

Transfer or Transmission of Interest

• 29 (1) Where at any stage of a proceeding the interest or liability of a person who is a party to a proceeding in the Court is transferred or transmitted to another person by assignment, bankruptcy, death or other means, no other proceedings shall be instituted until the Registrar is notified of the transfer or transmission and the particulars of it.

• (2) On receipt of the notice and particulars referred to in subsection (1) the Registrar shall consult with the parties regarding the circumstances under which the proceeding shall continue and he shall report on these consultations to the Chief Justice.

• (3) The Chief Justice or a judge designated by him to deal with the matter may direct the continuation of the proceeding or give such other direction as is just.

Proceeding on Behalf of Party Under Legal Disability

29.1 Unless the Court orders otherwise, the representative of a party under a legal disability shall institute or continue a proceeding on behalf of that party.

Representation

Representation by Counsel

• 30 (1) Subject to subsection (3), a party to a proceeding who is an individual may act in person or be represented by counsel.

• (2) Where a party to a proceeding is not an individual, that party shall be represented by counsel except with leave of the Court and on any conditions that it may determine.

• (3) Unless the Court orders otherwise, a person who is the representative of a party under a legal disability in a proceeding shall be represented by counsel, except where that person is also counsel acting in such a capacity.

Counsel of Record

• 31 (1) Subject to the other provisions of this section where a party has taken any step in a proceeding by a document signed by counsel, that person shall be the counsel of record for that party until a change is effected in a manner provided for by this section.

• (2) A counsel of record shall act as and remain the counsel of record until,

  • (a) the client delivers a notice under section 32,

  • (b) such counsel has served a notice of intention to cease to act as counsel and the provisions of subsection 33(1) have been complied with, or

  • (c) a direction removing the counsel from the record has been entered, served on the client and every other party and filed with proof of service.

Change in Representation by a Party

• 32 (1) A party who has a counsel of record may change the counsel of record by serving on the counsel and every other party and filing, with proof of service, a notice giving the name, address for service and telephone number of the new counsel.

• (2) A party acting in person may appoint a counsel of record by serving on every other party and filing, with proof of service, a notice giving the name, address for service and telephone number of the counsel of record.

• (3) A party who has a counsel of record may elect to act in person by serving on the counsel and every other party and filing with proof of service, a notice of intention to act in person giving the party’s address for service and telephone number.

Removal of Counsel of Record — By Notice

• 33 (1) A counsel of record may at any time before

  • (a) a joint application has been made to fix the time and place of hearing, or

  • (b) a proceeding has been listed for hearing,

  whichever is earlier, serve on a party who is the client and upon all other parties, a written notice of intention to cease to act as counsel of record which notice shall state the last known address of the client.

• (2) Service of the notice shall be made on the client personally or by mailing a copy to the last known address of the client.

• (3) Upon filing the notice with proof of service, and upon the expiry of ten days after service upon the client, the counsel shall cease to be counsel of record and his or her address shall cease to be the address for service of the client.

• (4) The address for service of the client shall thereafter be the address contained in the notice, until the client has filed a document that sets out another address for service.

Removal of Counsel of Record — By Application

• 34 (1) At any time after,

  • (a) a joint application has been made to fix the time and place of hearing, or

  • (b) a proceeding has been listed for hearing,

  whichever is earlier, a counsel may move, on notice to his or her client, for a direction to remove him or her as counsel of record.

• (2) A notice of motion for the removal of a counsel from the record and a direction under subsection (1) shall be served on the client personally or by sending a copy by mail to the last known address of the client.

• (3) The direction to remove a counsel from the record shall set out the last known address of the client.

• (4) The address for service of the client shall thereafter be the address contained in the direction, until the client has filed a document that sets out another address for service.

Service of Documents

Service of Documents

• 35 (1) No document need be served personally, unless these rules or a direction require personal service.

• (2) Any document that is not required to be served personally, may be served at the address for service of the party.

Personal Service

• 36 (1) Where a document is to be served personally, the service shall be made,

  • (a) by leaving a copy of the document with the person unless the person is under a legal disability;

  • (b) on a corporation by leaving a copy of the document with an officer, director or agent of the corporation, or with a person at any place of business of the corporation who appears to be in control or management of the place of business, and

  • (c) in any other case in such manner as the Court may, on a motion without notice, direct.

• (2) A person effecting personal service of a document need not produce the original document or have it in his or her possession.

Substituted Service

• 37 (1) Where it appears to the Court that it is impractical for any reason to effect service of a document required to be served personally, the Court may make a direction for substituted service.

• (2) In a direction for substituted service, the Court shall specify when service in accordance with the direction is effective.

Service at Address for Service

• 38 (1) The address for service of a party shall be,

  • (a) where there is a counsel of record for a party, the business address of the counsel as shown by the last document filed by the counsel that shows his or her business address,

  • (b) in the case of the Crown, or a Minister or Deputy Minister of the Crown, where there is no counsel of record, the office of the Deputy Attorney General of Canada in Ottawa,

  • (c) in the case of any other party, where there is no counsel of record, the address of the party as shown on the last document filed by the party that shows his or her address, being a place within Canada, or

  • (d) where a document (which may be entitled “Change of Address for Service”) has been filed in which some other address, being a place within Canada, has been designated as an address for service, the address so designated.

• (2) Service of a document at an address for service may be made,

  • (a) by mailing the document to the address for service, or

  • (b) by leaving the document at the address for service.

Service by Mail or Fax

• 39 (1) Where a document is to be served by mail under these rules, the document shall be sent by registered mail.

• (2) Where a document may be served by mail under these rules, the document may be sent by fax.

• (3) In the absence of proof to the contrary, the date of service of a document sent by fax is the date of transmission.

• (4) In the absence of proof to the contrary, the date of service of a document other than an originating document served by mail, is the date five days after the earliest postal date appearing on the envelope or, if that date is illegible or unavailable, the date of service is the date five days after the date on the customer receipt issued by the Canada Post Corporation at the time of mailing.

Validating Service

40 Where a document has been served in a manner other than one authorized by these rules or a direction, the Court may make a direction validating the service where the Court is satisfied that,

• (a) the document came to the notice of the person to be served, or

• (b) the document was served in such a manner that it would have come to the notice of the person to be served except for the person’s own attempts to evade service.

Proof of Service

• 41 (1) Service of a document may be proved by the affidavit of the person who served it.

• (2) Where by an enactment in force in a province, service of a document in a civil proceeding by a sheriff or bailiff may be proved otherwise than by affidavit, proof of service may be given in accordance with the enactment of the province in which the service was effected.

• (3) The written admission or acceptance of service of counsel of record is sufficient proof of service and need not be verified by affidavit.

Service ex juris

• 42 (1) Unless the person to be served has stated in writing that he or she consents to accepting service, service out of Canada shall be made in accordance with subsections (4) and (5).

• (2) The written statement shall be signed and dated on that day by the person consenting or, in the case of a corporation, by one of its officers or directors.

• (3) The written statement shall be filed in the Registry without delay after service has been effected together with an affidavit by the party effecting service regarding the manner in which service was made.

• (4) Subject to subsection (5), any document to be served out of Canada may be served in the manner prescribed by the law of the jurisdiction in which service is to be effected, in the manner prescribed by these Rules or in the manner prescribed in an order of the Court.

• (5) Where service is to be made in a contracting State to the Hague Convention on Service Abroad, and where the Convention applies in that State to matters heard by the Court, service shall be as provided by the Convention.

• (6) Where service is effected out of Canada, it may be proven

  • (a) in the manner set out in section 41;

  • (b) in the manner provided by the law of the jurisdiction in which service was effected; or

  • (c) in accordance with the Hague Convention on Service Abroad if service is effected in a contracting State.

Pleadings

Pleadings Required or Permitted

• 43 (1) In an appeal, the pleadings shall consist of the notice of appeal, the reply to the notice of appeal called “the reply” and the answer to the reply to the notice of appeal, if any, called “the answer”.

• (2) [Repealed, SOR/2007-142, s. 9]

• (3) No pleading subsequent to an answer shall be filed without the consent in writing of the opposite party or leave of the Court.

Time for Delivery of Reply to Notice of Appeal

• 44 (1) A reply shall be filed in the Registry within 60 days after service of the notice of appeal unless

  • (a) the appellant consents, before or after the expiration of the 60-day period, to the filing of that reply after the 60-day period within a specified time; or

  • (b) the Court allows, on application made before or after the expiration of the 60-day period, the filing of that reply after the 60-day period within a specified time.

• (2) If a reply is not filed within an applicable period specified under subsection (1), the allegations of fact contained in the notice of appeal are presumed to be true for purposes of the appeal.

• (3) A reply shall be served

  • (a) within five days after the 60-day period prescribed under subsection (1);

  • (b) within the time specified in a consent given by the appellant under subsection (1); or

  • (c) within the time specified in an extension of time granted by the Court under subsection (1).

• (4) Subsection 12(3) has no application to this section and the presumption in subsection (2) is a rebuttable presumption.