Whereas, pursuant to subsection 22(3)Footnote ^* of the Tax Court of Canada Act, the rules committee of the Tax Court of Canada published a notice of the proposed revocation of the Tax Review Board Rules, C.R.C., c. 1513, and the Tax Court of Canada Rules of Practice and Procedure for the Award of Costs (Income Tax Act)Footnote ^**, except in respect of any appeals or proceedings instituted before January 1, 1991, and a copy of the proposed Tax Court of Canada Rules (General Procedure) and the proposed Tax Court of Canada Rules (Informal Procedure), substantially in the form annexed hereto, in the Canada Gazette Part I on April 21, 1990, and invited any interested person to make representations to the rules committee with respect thereto;

• Return to footnote ^*R.S., c. 51 (4th Supp.), s. 7

• Return to footnote ^**SOR/85-119, 1985 Canada Gazette Part II, p. 1021

Therefore, the rules committee of the Tax Court of Canada, pursuant to section 20Footnote ^*** of the Tax Court of Canada Act and subject to the approval of the Governor in Council, hereby

• Return to footnote ^***R.S., c. 51 (4th Supp.), s. 6

• (a) revokes, effective January 1, 1991, the Tax Review Board Rules, C.R.C., c. 1513, and the Tax Court of Canada Rules of Practice and Procedure for the Award of Costs (Income Tax Act), approved by Order in Council P.C. 1985-183 on January 24, 1985Footnote ^**, except in respect of any appeals or proceedings instituted before January 1, 1991; and

• (b) makes, effective January 1, 1991, the annexed Tax Court of Canada Rules (General Procedure) and Tax Court of Canada Rules (Informal Procedure), in substitution therefor.

Dated this 7th day of September 1990

J.-C. Couture, Chief Judge	D. H. Christie, Associate Chief Judge
M. J. Bonner	A. Garon
Helen C. Turner	Maurice Regnier, Q.C.

His Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to subsection 20(1)Footnote ^* of the Tax Court of Canada Act, is pleased hereby to approve

• (a) the revocation, by the rules committee of the Tax Court of Canada, effective January 1, 1991, of the Tax Review Board Rules, C.R.C., c. l5l3, and the Tax Court of Canada Rules of Practice and Procedure for the Award of Costs (Income Tax Act), approved by Order in Council P.C. 1985-183 on January 24, 1985Footnote ^**, except in respect of any appeals or proceedings instituted before January 1, 1991; and

• (b) the making, by the rules committee of the Tax Court of Canada, effective January 1, 1991, of the Tax Court of Canada Rules (General Procedure) and the Tax Court of Canada Rules (Informal Procedure), in substitution therefor.

• Return to footnote ^*R.S., c. 51 (4th Supp.), s. 6

• Return to footnote ^**SOR/85-119, 1985 Canada Gazette Part II, p. 1021

Citation, Definitions, Application, Interpretation, Forms and Conference Calls

Short Title

1 These rules may be cited as the Tax Court of Canada Rules (General Procedure).

Definitions

2 In these rules,

Act

Act means the Tax Court of Canada Act; (Loi)

assessment

assessment includes a determination, a redetermination, a reassessment, and an additional assessment; (cotisation)

counsel

counsel means every person who by virtue of subsection 17.1(2) of the Act, may practise in the Court; (avocat)

counsel of record

counsel of record means the person who by virtue of sections 30 to 34 is the counsel of record for a party; (avocat inscrit au dossier)

Court

Court means the Tax Court of Canada; (Cour)

electronic filing

electronic filing means the act of filing, by electronic means, through the Court’s website (www.tcc-cci.gc.ca) or any other website referred to in a direction issued by the Court, any document listed on those sites; (dépôt électronique)

fax

fax means to transmit a facsimile of printed matter electronically or a document so transmitted; (télécopie)

Hague Convention on Service Abroad

Hague Convention on Service Abroad means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters signed at the Hague on November 15, 1965; (Convention de La Haye relative à la signification et à la notification à l’étranger)

interlocutory application

interlocutory application includes an application to extend time under these rules or to dismiss an appeal for want of prosecution or for failure to comply with a statutory condition precedent to instituting a valid appeal or on the ground that the Court has no jurisdiction to entertain an appeal for some other reason; (requête interlocutoire)

judgment

judgment includes an order; (jugement)

notice of objection

notice of objection means a notice of objection referred to in the Income Tax Act or the Petroleum and Gas Revenue Tax Act; (avis d’opposition)

originating document

originating document means a document that is filed under section 21; (acte introductif d’instance)

proceeding

proceeding means an appeal or reference; (instance)

Registrar

Registrar means the person appointed as Registrar of the Court by the Chief Administrator of the Courts Administration Service in consultation with the Chief Justice; (greffier)

Registry

Registry means the Registry established by the Chief Administrator of the Courts Administration Service at the principal office of the Court at 200 Kent Street, 2nd Floor, Ottawa, Ontario   K1A 0M1 (telephone: (613) 992-0901 or 1-800-927-5499; fax: (613) 957-9034; website: www.tcc-cci.gc.ca) or at any other local office of the Court specified in notices published by the Court. (greffe)

Application

3 These rules apply to all proceedings in the Court to which the general procedure in the Act applies.

Interpretation

• 4 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every proceeding on its merits.

• (2) Where matters are not provided for in these rules, the practice shall be determined by the Court, either on a motion for directions or after the event if no such motion has been made.

Forms

5 The forms in Schedule I shall be used where applicable and with such variations as the circumstances require.

Hearings by Conference Telephone

6 Where the Court and all parties entitled to be heard on a motion or to attend a status hearing or pre-hearing conference or upon taxation of costs, consent, or where the Court so directs, the Court or the taxing officer may conduct the hearing by means of a conference telephone call.

Non-Compliance with the Rules

Effect of Non-compliance

7 A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or direction in a proceeding a nullity, and the Court,

• (a) may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute, or

• (b) only where and as necessary in the interests of justice, may set aside the proceeding or a step, document or direction in the proceeding in whole or in part.

Attacking Irregularity

8 A motion to attack a proceeding or a step, document or direction in a proceeding for irregularity shall not be made,

• (a) after the expiry of a reasonable time after the moving party knows or ought reasonably to have known of the irregularity, or

• (b) if the moving party has taken any further step in the proceeding after obtaining knowledge of the irregularity,

except with leave of the Court.

Court may Dispense with Compliance

9 The Court may, where and as necessary in the interests of justice, dispense with compliance with any rule at any time.

Remedying Default

10 When a notice of motion for a direction under section 91 or section 110 has been filed and served, the person or party against whom the motion is made may not, without the consent of the other party or leave of the Court, remedy any default on the basis of which relief is sought by such proposed motion.

Time

Computation

11 In the computation of time under these rules or a direction, except where a contrary intention appears,

• (a) where the time limited for the doing of a thing expires or falls on a holiday or a Saturday, the thing may be done on the day next following that is not a holiday or Saturday, and

• (b) the period beginning on December 21 in any year and ending on January 7 of the next year shall be excluded.

Extension or Abridgement

• 12 (1) The Court may extend or abridge any time prescribed by these rules or a direction, on such terms as are just.

• (2) A motion for a direction extending time may be made before or after the expiration of the time prescribed.

• (3) A time prescribed by these rules for filing, serving or delivering a document may be extended or abridged by consent in writing.

Hearing in Absence of Opposite Party

13 No motion, examination, taxation of costs or other matter except a motion made without notice, shall proceed before a judge or an officer in the absence of the opposite party until thirty minutes after the time fixed for it.

Court Office Hours

14 Unless otherwise directed by the Chief Justice, every office of the Court shall be open for the transaction of business each day except holidays and Saturdays, from 9 in the forenoon until 5 o’clock in the afternoon, and at such other times as the Court may, for special reason, direct.

Court Documents

Format

15 A document prepared for use in a proceeding shall be of good quality paper, 215 mm in width and not exceeding 279 mm in length and the text shall be printed, typewritten, written or reproduced legibly on one side only, with double spaces between the lines and a margin of approximately 40 mm on the left-hand side.

Photocopies of Court Documents

16 Subject to any order that the Court, in special circumstances, may make restricting access to a particular file by persons other than the parties to a matter before the Court, any person may, subject to appropriate supervision, and when the facilities of the Court permit without interfering with the ordinary work of the Court,

• (a) inspect any Court file relating to a matter before the Court; and

• (b) on payment of $0.40 per page, obtain a photocopy of any document on a Court file.

Confidentiality Order

• 16.1 (1) On motion, the Court may order that a document or part of a document shall be treated as confidential at the time of filing of the document or part of the document and determines the conditions in relation to its reproduction, destruction and non-disclosure.

• (2) Where the Court makes an order pursuant to subsection (1), a party or solicitor of record may have access to the confidential document or part of the confidential document only on conditions determined by the Court in relation to its reproduction, destruction and non-disclosure.

• (3) The order remains in effect until the Court orders otherwise.

Notice to be in Writing

17 Where these rules require notice to be given, it shall be given in writing.

Filing of Documents

• 18 (1) Except as otherwise provided in these rules and unless otherwise directed by the Court, a document other than a notice of appeal may be filed using one of the following methods:

  • (a) depositing it with the Registry;

  • (b) sending it by mail to the Registry; or

  • (c) sending it by fax or by electronic filing to the Registry.

• (2) Except as otherwise provided in these rules and unless otherwise directed by the Court, the date of filing of a document is deemed to be

  • (a) in the case of a document filed with the Registry or sent by mail or by fax, the date shown by the date received stamp placed on the document by the Registry at the time of filing; or

  • (b) in the case of a document filed by electronic filing, the date shown on the acknowledgment of receipt issued by the Court.

• (3) Except as otherwise provided in these rules and unless otherwise directed by the Court, where a document is filed by electronic filing, the copy of the document that is printed by the Registry and placed in the Court file is deemed to be the original version of the document.

• (4) A party who files a document by electronic filing shall, if required by these rules or at the request of a party or the Court, provide a paper copy of the document and file it with the Registry.

• (5) Where the Registry has no record of the receipt of a document, it is deemed not to have been filed, unless the Court directs otherwise.

Affidavits

• 19 (1) An affidavit used in a proceeding shall be in Form 19.

• (2) An affidavit shall be confined to a statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in Court, except where these rules provide otherwise.

• (3) Where there is a reference in an affidavit to an exhibit, that reference shall be made by words identifying the exhibit, as, for example, “Exhibit A to this my affidavit”.

• (4) Where there is a reference in an affidavit to an exhibit, there shall be endorsed on or attached to the exhibit a certificate identifying the exhibit and signed by the person before whom the affidavit is sworn or affirmed, as, for example, “This is Exhibit A to the affidavit of , sworn before me the day of 20”.

• (5) Where an exhibit is referred to in an affidavit and the exhibit,

  • (a) is referred to as being attached to the affidavit, it shall be attached to and files with the affidavit,

  • (b) is referred to as being produced and shown to the deponent, it shall not be attached to the affidavit or filed with it, but shall be left with the Registrar for the use of the Court, and on the disposition of the matter in respect of which the affidavit was filed, the exhibit shall be returned to the counsel or party who filed the affidavit, unless the Court directs otherwise, and

  • (c) is a document, a copy shall be served with the affidavit, unless it is not practical to do so.

• (6) Where it appears to a person taking an affidavit that the deponent is illiterate or blind, the person shall certify in the jurat that the affidavit was read in his or her presence to the deponent, that the deponent appeared to understand it, and that the deponent signed the affidavit or placed his or her mark on it in the presence of the person taking the affidavit.

• (7) Where it appears to a person taking an affidavit that the deponent does not understand the language used in the affidavit, the person shall certify in the jurat that the affidavit was interpreted to the deponent in the person’s presence by a named interpreter who took an oath or made an affirmation before him or her to interpret the affidavit correctly.

• (8) Any interlineation, erasure or other alteration in an affidavit shall be initialed by the person taking the affidavit and, unless so initialed, the affidavit shall not be used without leave of the presiding judge or officer.

Requisitions

20 Where a party is entitled to require the Registrar to carry out a duty under these rules the party may do so by filing a requisition and paying the prescribed fee, if any. (Form 20)

Institution of Proceedings

Filing

• 21 (1) Every proceeding to which the general procedure in the Act applies shall be instituted by filing an originating document in the Registry

  • (a) in Form 21(1)(a) in the case of an appeal from an assessment under the Income Tax Act, the Petroleum and Gas Revenue Tax Act, the Excise Tax Act, the Customs Act, the Air Travellers Security Charge Act, the Excise Act, 2001 or the Softwood Lumber Products Export Charge Act, 2006;

  • (b) in Form 21(1)(b) in the case of an agreement for the determination of a question under section 173 of the Income Tax Act, section 310 of the Excise Tax Act, section 97.58 of the Customs Act, section 51 of the Air Travellers Security Charge Act, section 204 of the Excise Act, 2001 or section 62 of the Softwood Lumber Products Export Charge Act, 2006;

  • (c) in Form 21(1)(c) in the case of an application for the determination of a question 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;

  • (d) in Form 21(1)(d) in the case of an appeal from a determination or redetermination of the fair market value of an object by the Canadian Cultural Property Export Review Board established under the Cultural Property Export and Import Act,

  • (e) in Form 21(1)(e) in the case of an appeal from a confirmation or redetermination by the Minister of the Environment of the fair market value of an ecological gift under subsection 118.1(10.4) of the Income Tax Act or

  • (f) in Form 21(1)(f) in the case of an appeal from a suspension, pursuant to subsection 188.2(1) or (2) of the Income Tax Act, of the authority of a registered charity to issue an official receipt referred to in Part XXXV of the Income Tax Regulations.

• (2) A notice of appeal shall be filed using one of the following methods:

  • (a) by depositing the original and two copies of the notice of appeal with the Registry;

  • (b) by mailing the original and two copies of the notice of appeal to the Registry; or

  • (c) by sending a copy of the notice of appeal by fax or by electronic filing to the Registry.

• (3) An agreement or an application for the determination of a question shall be filed using one of the following methods:

  • (a) by depositing the original and two copies of the document with the Registry;

  • (b) by mailing the original and two copies of the document to the Registry; or

  • (c) by sending a copy of the document by fax or by electronic filing to the Registry.

• (4) The filing fee with respect to a document referred to in subsection (2) or (3) shall be paid within five days after the receipt of the document by the Registry.

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.

Time for Delivery of Answer

45 An answer, if any, shall be filed and served within thirty days after service of the reply. (Form 45)

Close of Pleadings

46 Pleadings are closed when an appellant has filed and served an answer to the reply or the time for the filing and serving of an answer has expired.

Form of Pleadings

• 47 (1) Pleadings shall be divided into paragraphs, numbered consecutively, and each allegation shall, so far as is practical, be contained in a separate paragraph.

• (2) Where it is convenient to do so, particulars may be set out in a separate document attached as a schedule to the pleading.

Rules of Pleadings — Applicable to Notice of Appeal

48 Every notice of appeal shall be in Form 21(1)(a), (d), (e) or (f).

Rules of Pleadings — Applicable to Reply

• 49 (1) Subject to subsection (1.1), every reply shall state

  • (a) the facts that are admitted,

  • (b) the facts that are denied,

  • (c) the facts of which the respondent has no knowledge and puts in issue,

  • (d) the findings or assumptions of fact made by the Minister when making the assessment,

  • (e) any other material fact,

  • (f) the issues to be decided,

  • (g) the statutory provisions relied on,

  • (h) the reasons the respondent intends to rely on, and

  • (i) the relief sought.

• (1.1) A reply to a notice of appeal referred to in paragraph 21(1)(d) shall state

  • (a) the facts that are admitted,

  • (b) the facts that are denied,

  • (c) the facts of which the respondent has no knowledge and puts in issue,

  • (d) any other material fact,

  • (e) the issues to be decided,

  • (f) the reasons which the respondent intends to rely on, and

  • (g) the relief sought.

• (2) All allegations of fact contained in a notice of appeal that are not denied in the reply shall be deemed to be admitted unless it is pleaded that the respondent has no knowledge of the fact.

Rules of Pleadings — Applicable to Answer

• 50 (1) Every answer shall state,

  • (a) the new facts raised in the reply that are admitted,

  • (b) the new facts raised in the reply that are denied,

  • (c) the new facts raised in the reply of which the appellant has no knowledge and puts in issue,

  • (d) any facts material to the facts pleaded in the reply which have not already been pleaded in the notice of appeal,

  • (e) any further statutory provisions relied on, and

  • (f) any other reasons the appellant intends to rely on.

• (2) An appellant shall be deemed to deny the allegations of fact made in the reply if an answer is not delivered.

Rules of Pleadings — Applicable to all Pleadings

• 51 (1) The effect of a document or the purport of a conversation, if material, shall be pleaded as briefly as possible, but the precise words of the document or conversation need not be pleaded unless those words are themselves material.

• (2) A party may make inconsistent allegations in a pleading where the pleading makes it clear that they are being pleaded in the alternative.

• (3) An allegation that is inconsistent with an allegation made in a party’s previous pleading or that raises a new ground of claim shall not be made in a subsequent pleading but by way of amendment to the previous pleading.

Demand for Particulars

52 Where a party demands particulars of an allegation in the pleading of an opposite party, and the opposite party fails to supply them within thirty days, the Court may order particulars to be delivered within a specified time.

Striking out a Pleading or other Document

53 The Court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

• (a) may prejudice or delay the fair hearing of the action,

• (b) is scandalous, frivolous or vexatious, or

• (c) is an abuse of the process of the Court.

Amendments

When Amendments to Pleadings May be Made

54 A pleading may be amended by the party filing it, at any time before the close of pleadings, and thereafter either on filing the consent of all other parties, or with leave of the Court, and the Court in granting leave may impose such terms as are just.

How Amendments Made

• 55 (1) An amendment to a pleading shall be made by filing a fresh copy of the original pleading as amended, bearing the date of the amendment and of the original pleading, and the title of the pleading, preceded by the word “amended”.

• (2) An amendment to a pleading shall be underlined so as to distinguish the amended wording from the original.

Service of Amended Pleading

56 An amended pleading shall be served forthwith upon every person who is, at the time of service, a party to the proceeding unless the Court orders otherwise.

Responding to Amended Pleading

• 57 (1) A party may respond to an amended pleading within the time remaining for responding to the original pleading, or within ten days after service of the amended pleading, whichever is the longer period, or, may within such time file an amended pleading in response.

• (2) Where a party has responded to a pleading that is subsequently amended, the party shall be deemed to rely on his or her original pleading in answer to the amended pleading, unless the party responds to it within the prescribed time.

Determination of Questions of Law, Fact or Mixed Law and Fact

Question of Law, Fact or Mixed Law and Fact

• 58 (1) A party may apply to the Court,

  • (a) for the determination, before hearing, of a question of law, a question of fact or a question of mixed law and fact raised by a pleading in a proceeding where the determination of the question may dispose of all or part of the proceeding, substantially shorten the hearing or result in a substantial saving of costs, or

  • (b) to strike out a pleading because it discloses no reasonable grounds for appeal or for opposing the appeal,

  and the Court may grant judgment accordingly.

• (2) No evidence is admissible on an application,

  • (a) under paragraph (1)(a), except with leave of the Court or on consent of the parties, or

  • (b) under paragraph (1)(b).

• (3) The respondent may apply to the Court to have an appeal dismissed on the ground that,

  • (a) the Court has no jurisdiction over the subject matter of an appeal,

  • (b) a condition precedent to instituting a valid appeal has not been met, or

  • (c) the appellant is without legal capacity to commence or continue the proceeding,

  and the Court may grant judgment accordingly.

Special Case

• 59 (1) Where the parties to an appeal concur in stating a question of law in the form of a special case for the opinion of the Court, any party may apply to the Court to have the special case determined.

• (2) Where the Court is satisfied that the determination of the question may dispose of all or part of the appeal, substantially shorten the hearing or result in a substantial saving of costs, the judge may hear and determine the special case.

Form of Special Case

60 A special case shall,

• (a) set out concisely the material facts, as agreed to by the parties, that are necessary to enable the Court to determine the question stated,

• (b) refer to and include a copy of any documents that are necessary to determine the question, and

• (c) set out the relief sought, as agreed on by the parties, on the determination of the question of law.

Powers of Court

• 61 (1) On the hearing of a special case the Court may draw any reasonable inference from the facts agreed on by the parties and documents referred to in the special case.

• (2) On the determination of the question of law the Court may grant judgment accordingly.

Notice of Constitutional Question

61.1 A notice of constitutional question referred to in section 19.2 of the Act shall be in Form 61.1.

Factums

62 On a hearing of a question under sections 58 and 59, each party shall serve on every other party to the hearing a factum consisting of a concise statement, without argument, of the facts and law relied on by the party, and file it, with proof of service, in the Registry not later than seven days before the hearing.

Default Judgment and Dismissal for Delay

Application for Judgment in Default

• 63 (1) If a reply to a notice of appeal has not been filed and served within the applicable times specified under section 44, the appellant may apply on motion for judgment in respect of the relief sought in the notice of appeal.

• (2) On the return of the application for judgment, the Court may

  • (a) direct that the appeal proceed to hearing; or

  • (b) allow the appeal if the facts alleged in the notice of appeal entitle the appellant to the relief sought; and

  • (c) give such other direction as is just, including direction regarding the payment of costs.

• (3) The presumption in paragraph (2)(b) is a rebuttable presumption.

Application for Judgment for Delay

64 The respondent if not in default under these rules or a judgment of the Court, may move to have an appeal dismissed for delay where the appellant has failed to prosecute the appeal with due dispatch.

Motions

Notice of Motion

65 All interlocutory or other applications shall be made by a notice of motion. (Form 65)

Place and Date of Hearing

• 66 (1) The applicant shall name in the notice of motion as the place of hearing a place at which the Court will be sitting on the date of the hearing unless at the time of filing the notice of motion the applicant files a written request under subsection 69(1).

• (2) A date of hearing shall be obtained from the Registry before the notice of motion is filed.

Service of Notice

• 67 (1) The notice of motion together with the affidavits or other documentary material to be used at the hearing of the motion shall be served on any person or party who will be affected by the direction sought.

• (2) Where the nature of the motion or the circumstances render service of the notice of motion impractical or unnecessary, the Court may grant judgment without notice.

• (3) Where the delay necessary to effect service might entail serious consequences, the Court may grant interim judgment without notice.

• (4) Where a judgment is granted without notice to a person or party affected by the judgment, the judgment shall be served forthwith on the person or party unless the Court directs or these rules provide otherwise.

• (5) Where it appears to the Court that the notice of motion ought to have been served on a person who has not been served, the Court may,

  • (a) dismiss the motion, or dismiss it only against the person who was not served,

  • (b) adjourn the motion and direct that the notice of motion be served on the person, or

  • (c) direct that any judgment granted on the motion be served on the person.

• (6) Where a motion is made on notice, the notice of motion together with the affidavits or other documentary material to be used at the hearing of the motion shall be filed and served at least seven days before the date on which the motion is to be heard.

Affidavit in Opposition to Motion

• 68 (1) A respondent may file an affidavit or other documentary material to be used at the hearing of the motion.

• (2) All affidavits or other documentary material to be used at the hearing of the motion by a respondent shall be filed and served on the applicant at least two days before the date on which the motion is to be heard.

Written Representations

• 69 (1) A party filing a notice of motion may, at the same time, or subsequently, file a written request that the motion be disposed of upon consideration of written representations and without appearance by the parties.

• (2) A copy of the request and of the written representations shall be served on all parties served with the notice of motion.

• (3) A party served with a request shall within twenty days,

  • (a) file and serve written representations in opposition to the motion, or

  • (b) file and serve a written request for a hearing.

• (4) When all parties served with the request have replied to it or the time for doing so has expired, the Court may,

  • (a) grant judgment without a hearing,

  • (b) direct a hearing, or

  • (c) direct that written representations be filed.

Disposition of Motion

70 Upon a motion the Court may,

• (a) grant the relief sought or dismiss or adjourn the motion in whole or in part with or without terms, including payment of costs,

• (b) direct the hearing of an issue and give such further directions as are just, or

• (c) adjourn the motion to be disposed of by the judge presiding at the hearing.

Evidence on Motions

Evidence by Affidavit

71 Evidence on a motion may be given by affidavit.

Contents of Affidavit

72 An affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.

Full and Fair Disclosure

73 Where a motion is made without notice, the applicant shall make full and fair disclosure of all material facts, and failure to do so is, in itself, sufficient ground for setting aside any judgment obtained on the motion.

Evidence by Cross-Examination on Affidavit

74 A deponent whose affidavit has been filed may be cross-examined on it by a party who is adverse in interest on the motion, and the evidence adduced may be used at the hearing of the motion.

Evidence by Examination for Discovery

75 On the hearing of a motion an examination for discovery in the proceeding may be used in evidence and section 100 applies with necessary modifications.

Oral Evidence

76 With leave of the presiding judge, a person may be examined at the hearing of a motion in the same manner as at the hearing of an appeal.

Inspection of Property

Direction for Inspection

• 77 (1) The Court may, by direction, authorize the inspection of real or personal property where it appears to be necessary for the proper determination of an issue in a proceeding.

• (2) For the purpose of the inspection, the Court may,

  • (a) authorize entry on or into and the taking of temporary possession of any property in the possession of a party or of a person not a party,

  • (b) permit the measuring, surveying or photographing of the property or of any particular object or operation on the property, and

  • (c) permit the taking of samples, the making of observations or the conducting of tests or experiments.

• (3) The direction shall specify the time, place and manner of the inspection and may impose such other terms, including the payment of compensation, as are just.

• (4) A direction for inspection shall not be made without notice to the person in possession of the property unless,

  • (a) service of notice, or the delay necessary to serve notice, might entail serious consequences to the moving party, or

  • (b) the Court dispenses with service of notice for any other sufficient reason.

Discovery of Documents

Interpretation

• 78 (1) In sections 78 to 91, document includes a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account and information recorded or stored by means of any device.

• (2) A document shall be deemed to be in a party’s power if that party is entitled to obtain the original document or a copy of it and the party seeking it is not so entitled.

• (3) In section 83,

  • (a) a corporation is a subsidiary of another corporation where it is controlled directly or indirectly by the other corporation, and

  • (b) a corporation is affiliated with another corporation where,

    • (i) one corporation is the subsidiary of the other,

    • (ii) both corporations are subsidiaries of the same corporation, or

    • (iii) both corporations are controlled directly or indirectly by the same person or persons.

Agreement to Limit Discovery

79 Nothing in sections 78 to 91 shall be taken as preventing parties to an appeal from agreeing to dispense with or limit the discovery of documents that they would otherwise be required to make to each other.

Document in Pleading or Affidavit

• 80 (1) At any time a party may deliver a notice to any other party, in whose pleadings or affidavit reference is made to a document requiring that other party to produce that document.

• (2) The party receiving the notice shall deliver, within ten days, a notice stating a place where the document may be inspected and copied during normal business hours or stating that the party objects to produce the document and the grounds of the objection. (Form 80)

List of Documents (Partial Disclosure)

• 81 (1) A party shall, within thirty days following the closing of the pleadings, file and serve on every other party a list of the documents of which the party has knowledge at that time that might be used in evidence,

  • (a) to establish or to assist in establishing any allegation of fact in any pleading filed by that party, or

  • (b) to rebut or to assist in rebutting any allegation of fact in any pleading filed by any other party.

• (2) A list of documents to be filed under this section shall be in Form 81.

• (3) A party who has failed to file and serve a list of documents within the time fixed by subsection (1) may, without leave, file and serve it after that time unless,

  • (a) a notice of motion for a judgment under section 91 has been filed, or

  • (b) an application to fix the time and place of hearing under subsection 123(1) has been filed or a date for hearing the appeal has been fixed by the Court,

  in which case, the party may apply for leave to file and serve the list.

• (4) A party who has failed to file and serve a list of documents within the period set by a judge pursuant to subparagraph 125(5)(a)(i) may file and serve it only with leave of the Court.

List of Documents (Full Disclosure)

• 82 (1) The parties may agree or, in the absence of agreement, either party may apply to the Court for an order directing that each party shall file and serve on each other party a list of all the documents that are or have been in that party’s possession, control or power relevant to any matter in question between or among them in the appeal.

• (2) Where a list of documents is produced in compliance with this section, the list shall describe, in separate schedules, all documents relevant to any matter in issue in the appeal,

  • (a) that are in the party’s possession, control or power and that the party does not object to producing,

  • (b) that are or were in the party’s possession, control or power and for which the party claims privilege, and the grounds for the claim, and

  • (c) that were formerly in the party’s possession, control or power, but are no longer in the party’s possession, control or power, whether or not privilege is claimed for them, together with a statement of when and how the party lost possession or control of, or power over them and their present location.

• (3) A list of documents files and served under this section shall be in Form 82(3).

• (4) A list of documents made in compliance with this section shall be verified by affidavit (Forms 82(4)A and 82(4)(B),

  • (a) if the party is an individual, by the party unless that person is under a legal disability in which case the affidavit shall be made by that person’s representative;

  • (b) if the party is a corporation or any body or group of persons empowered by law to sue or to be sued, either in its own name or in the name of any officer or other person, by any member or officer of such corporation, body or group, and

  • (c) if the party is the Crown, by any departmental or other officer of the Crown nominated by the Deputy Attorney General of Canada.

• (5) The affidavit shall contain a statement that the party has never had possession, control or power of any document relevant to any matter in issue in the proceeding other than those included in the list.

• (6) The Court may direct a party to attend and be cross-examined on an affidavit delivered under this section.

Corporate Documents

• 83 (1) The Court may direct a party to disclose all relevant documents in the possession, control or power of the party’s subsidiary or affiliated corporation or of a corporation controlled directly or indirectly by the party and to produce for inspection all such documents that are not privileged.

• (2) The direction under this section may be limited to such documents or classes of documents, or to such of the matters in question as may be specified in it.

Description of Documents

84 A list of documents made in compliance with section 81 or 82 shall enumerate the documents in a convenient order as briefly as possible but describing each of them or, in the case of bundles of documents of the same nature, each bundle shall be described sufficiently to enable it to be identified.

Inspection

• 85 (1) A party who has delivered a list of documents to any other party shall allow the other party to inspect and copy the documents listed, except those which he objects to produce, and when he delivers the list he shall also deliver a notice stating a place where the documents may be inspected and copied during normal business hours.

• (2) Where a party is entitled to inspect the documents to which reference is made in the list of documents, the other party shall, on request and on payment in advance of the cost of reproduction and delivery, deliver copies of any of the documents.

• (3) All documents listed in a party’s list of documents under section 81 or under section 82 and that are not privileged, and all documents previously produced for inspection by the party shall, without notice, subpoena or direction, be taken to and produced at,

  • (a) the examination for discovery of the party or a person on behalf of, in place of, or in addition to the party, and

  • (b) the hearing of the appeal,

  unless the parties otherwise agree.

Document in Possession of Non-Party

• 86 (1) When a document is in the possession of a person not a party to the appeal and the production of such document at a hearing might be compelled, the Court may at the instance of any party, on notice to such person, direct the production of a certified copy which may be used for all purposes in lieu of the original.

• (2) Where an application under subsection (1) is in respect of a document in the possession of the Crown, the notice to the Crown shall be directed to, and served on, the Deputy Attorney General of Canada.

List Incomplete

87 Where, after the list of documents has been served under either section 81 or section 82, it comes to the attention of the party serving it that the list has for any reason become inaccurate or incomplete, that party shall serve forthwith a supplementary list specifying the inaccuracy or describing the document.

Where Affidavit Incomplete or Privilege Improperly Claimed

88 Where the Court is satisfied by any evidence that a relevant document in a party’s possession, control or power may have been omitted from the party’s affidavit of documents, or that a claim of privilege may have been improperly made, the Court may,

• (a) order cross-examination on the affidavit of documents,

• (b) order service of a further and better affidavit of documents,

• (c) order the disclosure or production for inspection of the document or a part of the document, if it is not privileged, and

• (d) inspect the document for the purpose of determining its relevance or the validity of a claim of privilege.

Use at Hearing

• 89 (1) Unless the Court otherwise directs, except with the consent in writing of the other party or where discovery of documents has been waived by the other party, no document shall be used in evidence by a party unless

  • (a) reference to it appears in the pleadings, or in a list or an affidavit filed and served by a party to the proceeding,

  • (b) it has been produced by one of the parties, or some person being examined on behalf of one of the parties, at the examination for discovery, or

  • (c) it has been produced by a witness who is not, in the opinion of the Court, under the control of the party.

• (2) Unless the Court otherwise directs, subsection (1) does not apply to a document that is used solely as a foundation for or as part of a question in cross-examination or re-examination.

Disclosure or Production not Admission of Relevance

90 The disclosure or production of a document for inspection shall not be taken as an admission of its relevance or admissibility.

Effect of Failure to Disclose or Produce for Inspection

91 Where a person or party who is required to make discovery of documents under sections 78 to 91 fails or refuses without reasonable excuse to make a list or affidavit of documents or to disclose a document in a list or affidavit of documents or to produce a document for inspection and copying, or to comply with a judgment of the Court in relation to the production or inspection of documents, the Court may,

• (a) direct or permit the person or party to make a list or affidavit of documents, or a further list or affidavit of documents,

• (b) direct the person or party to produce a document for inspection and copying,

• (c) except where the failure or refusal is by a person who is not a party, dismiss the appeal or allow the appeal as the case may be,

• (d) direct any party or any other person to pay personally and forthwith the costs of the motion, any costs thrown away and the costs of any continuation of the discovery necessitated by the failure to disclose or produce, and

• (e) give such other direction as is just.

Examination for Discovery

General

92 An examination for discovery may take the form of an oral examination or, at the option of the examining party, an examination by written questions and answers, but the examining party is not entitled to subject a person to both forms of examination except with leave of the Court.

Who May be Examined

• 93 (1) A party to a proceeding may examine for discovery an adverse party once, and may examine that party more than once only with leave of the Court.

• (2) A party to be examined, other than an individual or the Crown, shall select a knowledgeable current or former officer, director, member or employee, to be examined on behalf of that party, but, if the examining party is not satisfied with that person, the examining party may apply to the Court to name some other person.

• (3) The Crown, when it is the party to be examined, shall select a knowledgeable current or former officer, servant or employee, nominated by the Deputy Attorney General of Canada, to be examined on behalf of that party, but, if the examining party is not satisfied with that person, the examining party may apply to the Court to name some other person.

• (4) If a current or former officer, director or employee of a corporation or of the Crown has been examined, no other person may be examined without leave of the Court.

• (5) Where an appeal is brought by a party under a legal disability,

  • (a) the representative for that party may be examined in place of that party; or

  • (b) at the option of the examining party, the party under a legal disability may be examined if that party is competent to give evidence.

  If the representative referred to in paragraph (a) is a public official, that person may be examined only with leave of the Court.

• (6) Where an appeal is brought by an assignee, the assignor may be examined in addition to the assignee.

• (7) Where an appeal is brought by a trustee of the estate of a bankrupt, the bankrupt may be examined in addition to the trustee.

• (8) Where a party is entitled to examine for discovery,

  • (a) more than one person under this section, or

  • (b) multiple parties who are in the same interest,

  but the Court is satisfied that multiple examinations would be oppressive, vexatious or unnecessary, the Court may impose such limits on the right of discovery as are just.

When May Examination be Held

• 94 (1) A party who seeks to examine an appellant for discovery may serve a notice to attend under section 103 or a list of written questions under section 113 only after the reply has been filed and served and, unless the parties agree otherwise, a list of documents under section 81 or 82 has been filed and served.

• (2) However, where it appears to the Court that it would be just to allow a party to examine an appellant for discovery other than in accordance with subsection (1) it may so direct.

• (3) A party who seeks to examine a respondent for discovery may serve a notice to attend under section 103 or a list of written questions under section 113 only after the respondent has delivered a reply or where the time to do so has expired and, unless the parties agree otherwise, after the examining party has served a list of documents under section 81 or 82.

Scope of Examination

• 95 (1) A person examined for discovery shall answer, to the best of that person’s knowledge, information and belief, any proper question relevant to any matter in issue in the proceeding or to any matter made discoverable by subsection (3) and no question may be objected to on the ground that

  • (a) the information sought is evidence or hearsay,

  • (b) the question constitutes cross-examination, unless the question is directed solely to the credibility of the witness, or

  • (c) the question constitutes cross-examination on the affidavit of documents of the party being examined.

• (2) Prior to the examination for discovery, the person to be examined shall make all reasonable inquiries regarding the matters in issue from all of the party’s officers, servants, agents and employees, past or present, either within or outside Canada and, if necessary, the person being examined for discovery may be required to become better informed and for that purpose the examination may be adjourned.

• (3) A party may on an examination for discovery obtain disclosure of the findings, opinions and conclusions of an expert engaged by or on behalf of the party being examined that relate to a matter in issue in the proceeding including the expert’s name and address, but the party being examined need not disclose the information or the name and address of the expert where,

  • (a) the findings, opinions and conclusions of the expert relating to any matter in issue in the appeal were made or formed in preparation for contemplated or pending litigation and for no other purpose, and

  • (b) the party being examined undertakes not to call the expert as a witness at the hearing.

• (4) A party may on an examination for discovery obtain disclosure of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the proceeding, unless the Court orders otherwise.

Effect of Refusal

• 96 (1) Where a party, or a person examined for discovery on behalf or in place of a party, has refused to answer a proper question or to answer a question on the ground of privilege, and has failed to furnish the information in writing not later than ten days after the proceeding is set down for hearing, the party may not introduce at the hearing the information refused on discovery, except with leave of the judge.

• (2) The sanction provided by subsection (1) is in addition to the sanctions provided by section 110.

Effect of Counsel Answering

97 Questions on an oral examination for discovery shall be answered by the person being examined but, where there is no objection, the question may be answered by counsel and the answer shall be deemed to be the answer of the person being examined unless, before the conclusion of the examination, the person repudiates, contradicts or qualifies the answer.

Information Subsequently Obtained

• 98 (1) Where a party has been examined for discovery or a person has been examined for discovery on behalf or in place of, or in addition to the party, and the party subsequently discovers that the answer to a question on the examination,

  • (a) was incorrect or incomplete when made, or

  • (b) is no longer correct and complete,

  the party shall forthwith provide the information in writing to every other party.

• (2) Where a party provides information in writing under subsection (1),

  • (a) the adverse party may require that the information be verified by affidavit of the party or be the subject of further examination for discovery, and

  • (b) the writing may be treated at a hearing as if it formed part of the original examination of the person examined.

• (3) Where a party has failed to comply with subsection (1) or a requirement under paragraph (2)(a), and the information subsequently discovered is,

  • (a) favourable to that party’s case, the party may not introduce the information at the hearing, except with leave of the judge, or

  • (b) not favourable to that party’s case, the Court may give such direction as is just.

Discovery of Non-Parties with Leave

• 99 (1) The Court may grant leave, on such terms respecting costs and other matters as are just, to examine for discovery any person who there is reason to believe has information relevant to a material issue in the appeal, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation.

• (2) Leave under subsection (1) shall not be granted unless the Court is satisfied that,

  • (a) the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person sought to be examined,

  • (b) it would be unfair to require the moving party to proceed to hearing without having the opportunity of examining the person, and

  • (c) the examination will not,

    • (i) unduly delay the commencement of the hearing of the proceeding,

    • (ii) entail unreasonable expense for other parties, or

    • (iii) result in unfairness to the person the moving party seeks to examine.

• (3) A party who examines a person orally under this section shall, if requested, serve any party who attended or was represented on the examination with the transcript free of charge, unless the Court directs otherwise.

• (4) The examining party is not entitled to recover the costs of the examination from another party unless the Court expressly directs otherwise.

• (5) The evidence of a person examined under this section may not be read into evidence at the hearing under subsection 100(1).

Use of Examination for Discovery at Hearing

• 100 (1) At the hearing, a party may read into evidence as part of that party’s own case, after that party has adduced all of that party’s other evidence in chief, any part of the evidence given on the examination for discovery of

  • (a) the adverse party, or

  • (b) a person examined for discovery on behalf of or in place of, or in addition to the adverse party, unless the judge directs otherwise,

  if the evidence is otherwise admissible, whether the party or person has already given evidence or not.

• (1.1) The judge may, on request, allow the part of evidence referred to in subsection (1) to be read into evidence at a time other than that specified in that subsection.

• (2) Subject to the provisions of the Canada Evidence Act, the evidence given on an examination for discovery may be used for the purpose of impeaching the testimony of the deponent as a witness in the same manner as any previous inconsistent statement by that witness.

• (3) Where only part of the evidence given on an examination for discovery is read into or used in evidence, at the request of an adverse party the judge may direct the introduction of any other part of the evidence that qualifies or explains the part first introduced.

• (3.1) A party who seeks to read into evidence under subsection (1) or who requests the judge to direct the introduction of evidence under subsection (3) may, with leave of the judge, instead of reading into evidence, file with the Court a photocopy or other copy of the relevant extracts from the transcripts of the examination for discovery, and when the copy is filed such extracts shall form part of the record.

• (4) A party who reads into evidence as part of that party’s own case evidence given on an examination for discovery of an adverse party, or a person examined for discovery on behalf of or in place of or in addition to an adverse party, may rebut that evidence by introducing any other admissible evidence.

• (5) The evidence given on the examination for discovery of a party under legal disability may be read into or used in evidence at the hearing only with leave of the judge.

• (6) Where a person examined for discovery,

  • (a) has died,

  • (b) is unable to testify because of infirmity or illness,

  • (c) for any other sufficient reason cannot be compelled to attend at the hearing, or

  • (d) refuses to take an oath or make an affirmation or to answer any proper question,

  any party may, with leave of the judge, read into evidence all or part of the evidence given on the examination for discovery as the evidence of the person examined, to the extent that it would be admissible if the person were testifying in Court.

• (7) In deciding whether to grant leave under subsection (6), the judge shall consider,

  • (a) the extent to which the person was cross-examined on the examination for discovery,

  • (b) the importance of the evidence in the proceeding,

  • (c) the general principle that evidence should be presented orally in Court, and

  • (d) any other relevant factor.

• (8) Where an appeal has been discontinued or dismissed and another appeal involving the same subject matter is subsequently brought between the same parties or their representatives or successors in interest, the evidence given on an examination for discovery taken in the former appeal may be read into or used in evidence at the hearing of the subsequent appeal as if it had been taken in the subsequent appeal.

Examinations Out of Court

Application of Sections 102 to 112

101 Sections 102 to 112 apply to all oral examinations for which provision is made in these rules including,

• (a) an oral examination for discovery,

• (b) the taking of evidence before hearing,

• (c) the cross-examination on an affidavit, and

• (d) the examination out of Court of a witness before hearing of a pending motion.

Mode of Examination

• 102 (1) An oral examination shall be held before a person agreed upon by the parties, who may be the verbatim reporter, or some other person if directed by the Court.

• (2) Unless otherwise directed by the Court or the parties otherwise agree, an examination that takes place in Canada shall be under oath or upon affirmation as provided in the Canada Evidence Act.

• (3) Unless otherwise directed by the Court, or the parties otherwise agree, an examination shall be recorded by a verbatim reporter and arrangements for the attendance of a reporter shall be made by the party conducting the examination, who shall pay the reporter’s fees.

• (4) If the person being examined understands neither English nor French, or is deaf or mute, the examining party shall provide and pay the fees and disbursements of a competent and independent interpreter who shall take an oath or make an affirmation to interpret accurately the administration of the oath or affirmation, the questions to be put to the person being examined and the person’s answers.

• (5) Where the examination is to be conducted in one of the official languages and the person to be examined would prefer to be examined in the other official language, the examining party shall advise the Registrar, and the Registrar shall then appoint an interpreter, at no cost to the parties, who shall take an oath or make an affirmation to interpret accurately the administration of the oath or affirmation and the questions to be put to the person being examined and the person’s answers.

• (6) The transcript of the examination shall be certified as correct by the person who recorded the examination, but need not be read to or signed by the person examined.

Manner of Requiring Attendance

• 103 (1) Where the person to be examined is a party to the proceeding, a notice to attend shall be served (Form 103(1)),

  • (a) on the party’s counsel of record, or

  • (b) where the party acts in person, on the party, personally and not by an alternative to personal service.

• (2) Where a person is to be examined on behalf or in place of a party, a notice to attend shall be served,

  • (a) on the party’s counsel of record, or

  • (b) on the person to be examined, personally and not by an alternative to personal service.

• (3) Where a person is to be cross-examined on an affidavit, a notice to attend shall be served,

  • (a) on the counsel for the party who filed the affidavit, or

  • (b) where the party who filed the affidavit acts in person, on the person to be cross-examined, personally and not by an alternative to personal service.

• (4) Where the person to be examined,

  • (a) is neither a party nor a person referred to in subsection (2) or (3), and

  • (b) resides in Canada,

  the person shall be served with a subpoena personally and not by an alternative to personal service and the provisions of section 141 apply with such modifications as are necessary. (Form 103(4))

• (5) When a subpoena is served on a person, witness fees and expenses calculated in accordance with Schedule II, Tariff A shall be paid or tendered to the witness at the same time.

• (6) Section 142 (compelling attendance of witness in custody) applies to the securing of the attendance for examination of a person in custody.

Notice of Time and Place

104 The person to be examined shall be given not less than ten days notice of the time and place of the examination, unless the Court directs otherwise.

Production of Documents on Examination

• 105 (1) Unless the parties otherwise agree, or the Court otherwise directs, the person to be examined shall bring to the examination and produce for inspection,

  • (a) on an examination for discovery, all documents as required by subsection 85(3), and

  • (b) on all other examinations, such documents as may be required by subsection 105(3).

• (2) Where a person admits, on an examination, that he or she has possession or control of or power over any other document that relates to a matter in issue in the proceeding and that is not privileged, the person shall produce it for inspection by the examining party forthwith, if the person has the document at the examination, and if not, within ten days thereafter, unless the Court directs otherwise.

• (3) The notice to attend for examination or subpoena may require the person to be examined to bring to the examination and produce for inspection,

  • (a) all documents and things relevant to any matter in issue in the proceeding that are in that person’s possession, control or power and that are not privileged, or

  • (b) such documents or things described in paragraph (a) as are specified in the notice or subpoena,

  unless the Court directs otherwise.

Re-Examination

• 106 (1) A person being examined for discovery may be re-examined by his or her own counsel.

• (2) A person being cross-examined on his or her affidavit may be re-examined by his or her own counsel.

• (3) The re-examination shall take place immediately after the examination or cross-examination and shall not take the form of a cross-examination.

Objections and Rulings

• 107 (1) Where a question is objected to, the objector shall state briefly the reason for the objection, and the question and the brief statement shall be recorded.

• (2) A question that is objected to may be answered with the objector’s consent, and where the question is answered, a ruling shall be obtained from the Court before the evidence is used at a hearing.

• (3) A ruling on the propriety of a question that is objected to and not answered may be obtained on motion to the Court.

Improper Conduct of Examination

• 108 (1) An examination may be adjourned by the person being examined or by a party present or represented at the examination, for the purpose of moving for directions with respect to the continuation of the examination or for an order terminating the examination or limiting its scope, where,

  • (a) the right to examine is being abused by an excess of improper questions or interfered with by an excess of improper interruptions or objections,

  • (b) the examination is being conducted in bad faith, or in an unreasonable manner so as to annoy, embarrass or oppress the person being examined,

  • (c) many of the answers to the questions are evasive, unresponsive or unduly lengthy, or

  • (d) there has been a neglect or improper refusal to produce a relevant document on the examination.

• (2) Where the Court finds that,

  • (a) a person’s improper conduct necessitated a motion under subsection (1), or

  • (b) a person improperly adjourned an examination under subsection (1),

  the Court may direct the person to pay personally and forthwith the costs of the motion, any costs thrown away and the costs of any continuation of the examination and the Court may fix the costs and give such other direction as is just.

Videotaping or other Recording of Examination

• 109 (1) On consent of the parties or by direction of the Court, an examination may be recorded by videotape or other similar means and the tape or other recording may be filed for the use of the Court along with the transcript.

• (2) Section 111 applies, with necessary modifications, to a tape or other recording made under subsection (1).

Sanctions for Default or Misconduct by Person to be Examined

110 Where a person fails to attend at the time and place fixed for an examination in the notice to attend or subpoena, or at the time and place agreed on by the parties, or refuses to take an oath or make an affirmation, to answer any proper question, to produce a document or thing that that person is required to produce or to comply with a direction under section 108, the Court may,

• (a) where an objection to a question is held to be improper, direct or permit the person being examined to reattend at that person’s own expense and answer the question, in which case the person shall also answer any proper questions arising from the answer,

• (b) where the person is a party or, on an examination for discovery, a person examined on behalf of or in place of a party, dismiss the appeal or allow the appeal as the case may be,

• (c) strike out all or part of the person’s evidence, including any affidavit made by the person, and

• (d) direct any party or any other person to pay personally and forthwith costs of the motion, any costs thrown away and the costs of any continuation of the examination.

Filing of Transcript

• 111 (1) It is the responsibility of a party who intends to refer to evidence given on an examination to have a copy of the transcript of the examination available for filing with the Court.

• (2) A copy of a transcript for the use of the Court at hearing shall not be filed until a party refers to it at hearing, and the presiding judge may read only the portions to which a party refers.

Examination Where Person Outside Canada

• 112 (1) Where the person to be examined resides outside of Canada the Court may determine,

  • (a) whether the examination is to take place in or outside of Canada,

  • (b) the time and place of the examination,

  • (c) the minimum notice period,

  • (d) the amount of witness fees and expenses to be paid to the person to be examined, and

  • (e) any other matter respecting the holding of the examination.

• (2) Where the person is to be examined outside of Canada, the direction under subsection (1) shall, if the moving party requests it, provide for the issuing of,

  • (a) a commission (Form 112(2)(a)) authorizing the taking of evidence before a named commissioner, and

  • (b) a letter of request (Form 112(2)(b) — REQUEST) directed to the judicial authorities of the jurisdiction in which the person is to be found, requesting the issuing of such process as is necessary to compel the person to attend and be examined before the commissioner, and the direction shall be in Form 112(2)(b)A — DIRECTION.

• (3) The commission and letter of request shall be prepared and issued by the Registrar.

• (4) Where the person to be examined resides outside of Canada and is not a party or a person to be examined on behalf of or in place of a party, the examining party shall pay or tender to the person to be examined the amount of witness fees and expenses fixed under subsection (1).

• (5) A commissioner shall, to the extent that it is possible to do so, conduct the examination in the form of oral questions and answers in accordance with these rules, the laws of evidence of Canada and the terms of the commission, unless some other form of examination is required by the judgment or the law of the place where the examination is conducted.

• (6) As soon as the transcript of the examination is prepared the commissioner shall,

  • (a) return the commission, together with the original transcript and exhibits, to the Registrar who issued it,

  • (b) keep a copy of the transcript and, where practicable, the exhibits, and

  • (c) notify the parties who appeared at the examination that the transcript is complete and has been returned to the Registrar who issued the commission.

• (7) The Registrar shall send the transcript to the counsel for the examining party and the counsel shall, if requested, forthwith serve every other party with the transcript free of charge.

Procedure on Examination for Discovery by Written Questions

Questions

113 An examination for discovery by written questions and answers shall be conducted by serving a list of the questions to be answered on the person to be examined. (Form 113)

Answers

114 Written questions shall be answered by the affidavit of the person being examined, served on the examining party within thirty days after service of the list of questions. (Form 114)

Objections

115 An objection to answering a written question shall be made in the affidavit of the person being examined, with a brief statement of the reason for the objection.

Failure to Answer

• 116 (1) Where the examining party is not satisfied with an answer or where an answer suggests a new line of questioning, the examining party may, within fifteen days after receiving the answer, serve a further list of written questions which shall be answered within thirty days after service.

• (2) Where the person being examined refuses or fails to answer a proper question or where the answer to a question is insufficient, the Court may direct the person to answer or give a further answer to the question or to answer any other question either by affidavit or on oral examination.

• (3) Where the Court is satisfied, on reading all the answers to the written questions, that some or all of them are evasive, unresponsive or otherwise unsatisfactory, the Court may direct the person examined to submit to oral examination on such terms respecting costs and other matters as are just.

• (4) Where a person refuses or fails to answer a proper question on a written examination or to produce a document which that person is required to produce, the Court may, in addition to imposing the sanctions provided in subsections (2) and (3),

  • (a) if the person is a party or a person examined on behalf of or in place of a party, dismiss the appeal or allow the appeal as the case may be,

  • (b) strike out all or part of the person’s evidence, and

  • (c) give such other direction as is just.

Improper Conduct of Written Examination

117 On motion by the person being examined, or by any party, the Court may terminate the written examination or limit its scope where,

• (a) the right to examine is being abused by an excess of improper questions, or

• (b) the examination is being conducted in bad faith, or in an unreasonable manner so as to annoy, embarrass or oppress the person being examined.

Filing Questions and Answers

118 Section 111 applies, with necessary modifications, to the filing of written questions and answers for the use of the Court.

Taking Evidence Before Hearing

Where Available

• 119 (1) A party who intends to introduce the evidence of a person at a hearing may, with leave of the Court or the consent of the parties, examine the person on oath or affirmation before the hearing for the purpose of having the person’s testimony available to be tendered as evidence at the hearing.

• (2) In exercising its discretion to direct an examination under subsection (1), the Court shall take into account,

  • (a) the convenience of the person whom the party seeks to examine,

  • (b) the possibility that the person will be unavailable to testify at the hearing by reason of death, infirmity or sickness,

  • (c) the possibility that the person will be beyond the jurisdiction of the Court at the time of the hearing,

  • (d) the expense of bringing the person to the hearing,

  • (e) whether the witness ought to give evidence in person at the hearing, and

  • (f) any other relevant consideration.

• (3) Before moving for leave to examine an expert witness under subsection (1), the moving party shall serve on every other party the report of the expert witness referred to in subsection 145(2) unless the Court directs otherwise.

Procedure

• 120 (1) Subject to subsection (2), sections 101 to 112 apply to the examination of a witness under section 119, unless the Court directs otherwise.

• (2) A witness examined under section 119 may be examined, cross-examined and re-examined in the same manner as a witness at a hearing.

Examinations Outside Canada

121 Where a direction is given under section 119 for the examination of a witness outside of Canada, the direction shall, if the moving party requests it, provide for the issuing of a commission and letter of request under section 112 and for the taking of the evidence of the witness and, on consent of the parties, any other witness in the same jurisdiction, and the direction shall be in Form 112(2)(b)A — DIRECTION.

Use at Hearing

• 122 (1) Any party may use at the hearing the transcript and a videotape or other recording of an examination under sections 119 and 121 as the evidence of the witness, unless the Court directs otherwise for any sufficient reason.

• (2) A witness whose evidence has been taken under section 119 or 121 shall not be called to give evidence at the hearing, except with leave of the judge.

• (3) Use of evidence taken under section 119 or 121 is subject to any ruling by the judge respecting its admissibility.

• (4) The transcript and a videotape or other recording may be filed with the Court at the hearing and need not be read or played at the hearing unless a party or the judge requires it.

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 Chief Justice, the Registrar, or a person designated by the Registrar or the Chief Justice, may,

  • (a) upon receipt of a joint application,

  • (b) upon receipt of an application and of the separate memorandum of each party, or

  • (c) upon receipt of an application and after the time has expired for the filing of the separate memorandum of each party,

  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.

124 [Repealed, SOR/2004-100, s. 16]

Status Hearing

• 125 (1) Where an appeal has not been set down for hearing or terminated by any means within four months after filing the reply or after the last day for filing the reply, whichever is later, subject to any direction by the Chief Justice, the Registrar or a person designated by the Registrar or the Chief Justice may serve on the Deputy Attorney General of Canada and on the counsel of record for the appellant or, where 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) Where a party fails to comply with an order or direction made under subsection (5), the Court may, on application or of its own motion, allow the appeal, dismiss the appeal or make such other order as is just.

Pre-Hearing Conference

Where Available

• 126 (1) The Court may, on its own initiative or at the request of a party, direct counsel for the parties, either with or without the parties, and any party not represented by counsel to appear before a judge for a pre-hearing conference to consider

  • (a) the possibility of settlement of any or all of the issues in the appeal,

  • (b) appropriate means to simplify the issues and to shorten the hearing,

  • (c) the possibility of obtaining admission of fact or documents,

  • (d) the advisability of amending the pleadings or defining the questions in dispute, and

  • (e) any other relevant matter.

• (2) A judge who conducts a pre-hearing conference shall not preside at the hearing.

• (3) Subsection (2) does not prevent a judge before whom an appeal has been called for hearing from holding a conference, either before or during the hearing, to consider any matter that may assist in the disposition of the appeal, without the judge being disqualified from presiding at the hearing.

• (4) Where a party fails to appear at a pre-hearing conference at the time and place set for it, the Court may allow the appeal, dismiss the appeal or make such other order as is just.

Memorandum or Direction

• 127 (1) At the conclusion of the conference,

  • (a) counsel may sign a memorandum setting out the results of the conference, and

  • (b) the judge conducting the conference may give such direction as the judge considers necessary or advisable with respect to the conduct of the hearing,

  and the memorandum or direction binds the parties unless the judge presiding at the hearing of the appeal directs otherwise.

• (2) [Repealed, SOR/2007-142, s. 14]

No Disclosure to the Court

128 No communication shall be made to the judge presiding at the hearing of the appeal or at a motion in the appeal with respect to any statement made at a pre-hearing conference, except as disclosed in the memorandum or direction under section 127.

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.

Request to Admit Fact or Document

• 130 (1) A party may, at any time, by serving a request to admit, request any other party to admit, for the purposes of the appeal only, the truth of a fact or the authenticity of a document. (Form 130)

• (2) A copy of any document mentioned in the request to admit shall, where practical, be served with the request, unless a copy is already in the possession of the other party.

Effect of Request to Admit

• 131 (1) A party on whom a request to admit is served shall respond to it within fifteen days after it is served by serving on the requesting party, a response to request to admit. (Form 131)

• (2) Where the party on whom the request is served fails to serve a response as required by subsection (1), the party shall be deemed, for the purposes of the appeal only, to admit the truth of the facts or the authenticity of the documents mentioned in the request to admit.

• (3) A party shall also be deemed, for the purposes of the appeal only, to admit the truth of the facts or the authenticity of the documents mentioned in the request to admit, unless the party’s response

  • (a) specifically denies the truth of a fact or the authenticity of a document mentioned in the request, or

  • (b) refuses to admit the truth of a fact or the authenticity of a document and sets out the reason for the refusal.

Withdrawal of Admission

132 A party may withdraw an admission made in response to a request to admit, a deemed admission or an admission in the party’s pleading on consent or with leave of the Court.

Procedure at Hearing

Exclusion of Witnesses

• 133 (1) A judge may exclude from a courtroom,

  • (a) a witness until called to give evidence, and

  • (b) a person who is interfering with the proper conduct of a hearing.

• (2) A direction under subsection (1) may not be made in respect of a party to the appeal or a witness whose presence is essential to instruct counsel for the party calling the witness, but the presiding judge may require any such party or witness to give evidence before any other witnesses are called to give evidence on behalf of that party.

• (2.1) Where an order is made excluding a witness from the courtroom, there shall be no communication to the witness of any evidence given during the absence of the witness from the courtroom, except with leave of the presiding judge, until after the witness has been called and has given evidence.

• (3) Where an appeal is heard in camera under the authority of an enactment, disclosure of information relating to the appeal is not contempt of court unless the Court has expressly prohibited the disclosure of the information.

Return of Exhibits

134 Subject to any direction by the Chief Justice, at any time following the judgment, on requisition by the counsel or party who put an exhibit in evidence, or the person who produced it, the Registrar shall return the exhibit to the person making the requisition.

Order of Presentation at Hearing

• 135 (1) If at a hearing a party proposes to adduce evidence, the party or the party’s counsel shall, unless the judge directs otherwise, immediately before adducing the evidence, open his case by making a short statement giving a concise outline of the facts that the party proposes to prove and of the applicable law.

• (2) Unless the judge directs otherwise, the parties shall put in their respective cases by evidence or by putting before the Court the facts on which they rely, in the following order,

  • (a) the appellant,

  • (b) the respondent, and

  • (c) the appellant in respect of rebuttal evidence.

• (3) Unless the judge directs otherwise, after all parties have adduced their evidence, they shall be heard in argument in the order in which they adduced their evidence and the party who was first heard in argument may reply and an opposing party may answer a new point of law raised in the reply.

View by Judge

136 The judge may, in the presence of the parties or their counsel, inspect any place or thing concerning which any question may arise.

Adjournment of Hearing

137 A judge may postpone or adjourn a hearing to such time and place and on such terms as are just.

Reopening of Hearing

• 138 (1) The judge may reopen a hearing before judgment has been pronounced for such purposes and upon such terms as are just.

• (2) The judge may, at any time before judgment, draw the attention of the parties to any failure to prove some fact or document material to a party’s case, or to any defect in the proceeding, and permit a party to remedy the failure or defect for such purposes and upon such terms as are just.

Justifying Absence of Witness

• 139 (1) Where a party shows that through no lack of diligence, a witness whose evidence is material has failed to attend the hearing, the judge may adjourn the hearing.

• (2) Upon an application for an adjournment under subsection (1) another party may require the party applying, on oath or on the oath of some other person, to state the facts that it is believed the witness would have stated, and the other party may admit those facts, or admit that the witness would have stated those facts and the judge may refuse to adjourn the hearing.

Failure to Appear

• 140 (1) If at a hearing, either party fails to appear, the Court may allow the appeal, dismiss the appeal or give such other direction as is just.

• (2) The Court may set aside or vary, on such terms as are just, a judgment or order obtained against a party who failed to attend a hearing, a status hearing or a pre-hearing conference on the application of the party if the application is made within thirty days after the pronouncement of the judgment or order.

Compelling Attendance at Hearing

• 141 (1) A party who requires the attendance of a person as a witness at a hearing may serve the person with a subpoena requiring the person to attend the hearing at the time and place stated in the subpoena and the subpoena may also require the person to produce at the hearing the documents or other things in the person’s possession, control or power relevant to the matters in question in the appeal that are specified in the subpoena. (Form 141(1))

• (1.1) Unless otherwise directed by the Court, a subpoena must be served on a person whose attendance is required at the hearing, at least five days before the day on which that person is required to appear.

• (2) On the request of a party or of counsel, the Registrar, or some other person authorized by the Chief Justice, shall sign, seal and issue a blank subpoena and the party or counsel may complete the subpoena and insert the names of any number of witnesses.

• (3) No subpoena for the production or an original record or document that may be proved by a certified copy shall be served without leave of the Court.

• (4) No person is required to attend at a hearing unless the subpoena has been served on that person personally in accordance with subsection (1.1) and, at the same time, witness fees and expenses calculated in accordance with Schedule II, Tariff A have been paid or tendered to the person.

• (5) Service of a subpoena and the payment or tender of the witness fees and expenses may be proved by affidavit.

• (6) A subpoena continues to have effect until the attendance of the witness is no longer required.

• (7) Where a witness whose evidence is material to a proceeding is served with a subpoena and the proper witness fees and expenses are paid or tendered to the witness, and the witness fails to attend the hearing or to remain in attendance in accordance with the requirement of the subpoena, the judge may by a warrant for arrest cause the witness to be apprehended and forthwith brought before the Court. (Form 141(7))

• (8) On being apprehended, the witness may be detained in custody until the presence of the witness is no longer required, or the witness is released on such terms as are just, and the witness may be ordered to pay the costs arising out of the failure to attend or remain in attendance.

Compelling Attendance of Witness in Custody

142 The Court may direct the attendance as a witness of a person who is in the custody of any other person including the custodian of any of Her Majesty’s prisons. (Form 142)

Evidence at Hearing of an Appeal

Evidence of Particular Facts

• 143 (1) Before or at the hearing, the Court may direct that evidence of a particular fact shall be given in such manner and subject to such conditions as the Court may specify and in particular that the evidence shall be given,

  • (a) by affidavit,

  • (b) by statement on oath or affirmation of information and belief,

  • (c) by the production of documents or of entries in books or of copies thereof,

  • (d) where a fact is a matter of common knowledge, either generally or in a particular place, by the production of a newspaper which contains a statement of that fact.

• (2) A direction made before the hearing under subsection (1) may be set aside or varied by the judge when it appears necessary to do so in the interests of justice.

Evidence by Witnesses

• 144 (1) Unless these rules provide otherwise, witnesses at a hearing shall be examined orally in Court and the examination may consist of direct examination, cross-examination and re-examination.

• (2) The judge shall exercise reasonable control over the mode of interrogation of a witness so as to protect the witness from undue harassment or embarrassment and may disallow a question put to a witness that is vexatious or irrelevant to any matter that may properly be enquired into at the hearing.

• (3) The judge may, at any time, direct that a witness be recalled for further examination.

• (4) Where a witness appears unwilling or unable to give responsible answers, the judge may permit the party calling the witness to examine him or her by means of leading questions.

Expert Witnesses

• 145 (1) In this section, “affidavit” includes,

  • (a) a solemn declaration made under section 41 of the Canada Evidence Act,

  • (b) a statement in writing signed by the proposed witness and accompanied by a certificate of counsel that counsel is satisfied that it represents evidence that the proposed witness is prepared to give in the matter, or

  • (c) a statement in writing in any other form authorized by direction of the Court in a particular case and for special reasons.

• (2) 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) a full statement of the proposed evidence in chief of the witness has been set out in an affidavit, the original of which has been filed and a copy of which has been served on all other parties, not less than thirty days before the commencement of the hearing; and

  • (c) the witness is available at the hearing for cross-examination.

• (3) Unless otherwise directed by the Court, no evidence of an expert witness shall be led in rebuttal of any evidence tendered in writing under paragraph (2)(b) unless the rebuttal evidence has been reduced to writing in accordance with this section and the original filed and a copy served on all the other parties not less that fifteen days before the commencement of the hearing.

• (4) Subject to compliance with subsection (2), evidence in chief of an expert witness may be given at the hearing by,

  • (a) reading the whole or part of the affidavit into evidence 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, the verbal testimony of the witness,

    • (i) explaining or demonstrating what is in the affidavit or the part that has been given in evidence, and

    • (ii) in respect of other matters by special leave of the Court, upon such terms as may be just.

• (5) A witness shall not be cross-examined before the hearing on an affidavit filed under subsection (2) without leave of the Court, and if such leave is granted, the witness shall not be cross-examined at the hearing without leave of the Court but the witness may, with leave of the Court, be produced for re-examination and shall be produced for examination by the Court, if the Court so requires.

• (6) An affidavit filed under subsection (2) shall not become part of the evidence at the hearing unless given in evidence under subsection (4).

Calling Adverse Party as Witness

• 146 (1) A party may secure the attendance of a person who is,

  • (a) an adverse party, or

  • (b) an officer, director or employee of an adverse party,

  as a witness at a hearing by,

  • (c) serving the person with a subpoena, or

  • (d) serving on the adverse party or the counsel of record for the adverse party at least ten days before the commencement of the hearing, a notice of intention to call the person as a witness,

  and at the same time, paying or tendering witness fees and expenses calculated in accordance with Schedule II, Tariff A.

• (2) Where a person referred to in subsection (1) is in attendance at the hearing a party may call the person as a witness without previous notice or the payment of witness fees and expenses.

• (3) A party calling a witness referred to in subsection (1) may cross-examine the witness.

• (4) Where a person required to testify under this section,

  • (a) refuses or neglects to attend at the hearing or to remain in attendance at the hearing,

  • (b) refuses to be sworn, or

  • (c) refuses to answer any proper question put to that person or to produce any document or other thing which that person is required to produce,

  the Court may grant judgment in favour of the party calling the witness, adjourn the hearing or give such other direction as is just.

Costs

General Principles

• 147 (1) The Court may determine the amount of the costs of all parties involved in any proceeding, the allocation of those costs and the persons required to pay them.

• (2) Costs may be awarded to or against the Crown.

• (3) In exercising its discretionary power pursuant to subsection (1) the Court may consider,

  • (a) the result of the proceeding,

  • (b) the amounts in issue,

  • (c) the importance of the issues,

  • (d) any offer of settlement made in writing,

  • (e) the volume of work,

  • (f) the complexity of the issues,

  • (g) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding,

  • (h) the denial or the neglect or refusal of any party to admit anything that should have been admitted,

  • (i) whether any stage in the proceedings was,

    • (i) improper, vexatious, or unnecessary, or

    • (ii) taken through negligence, mistake or excessive caution,

  • (j) any other matter relevant to the question of costs.

• (4) The Court may fix all or part of the costs with or without reference to Schedule II, Tariff B and, further, it may award a lump sum in lieu of or in addition to any taxed costs.

• (5) Notwithstanding any other provision in these rules, the Court has the discretionary power,

  • (a) to award or refuse costs in respect of a particular issue or part of a proceeding,

  • (b) to award a percentage of taxed costs or award taxed costs up to and for a particular stage of a proceeding, or

  • (c) to award all or part of the costs on a solicitor and client basis.

• (6) The Court may give directions to the taxing officer and, without limiting the generality of the foregoing, the Court in any particular proceeding may give directions,

  • (a) respecting increases over the amounts specified for the items in Schedule II, Tariff B,

  • (b) respecting services rendered or disbursements incurred that are not included in Schedule II, Tariff B, and

  • (c) to permit the taxing officer to consider factors other than those specified in section 154 when the costs are taxed.

• (7) Any party may,

  • (a) within thirty days after the party has knowledge of the judgment, or

  • (b) after the Court has reached a conclusion as to the judgment to be pronounced, at the time of the return of the motion for judgment,

  whether or not the judgment included any direction concerning costs, apply to the Court to request that directions be given to the taxing officer respecting any matter referred to in this section or in sections 148 to 152 or that the Court reconsider its award of costs.

Costs on Discontinuance

148 Where under section 16.2 of the Act a party has discontinued a proceeding, the other party may tax the costs thereof and, if the taxed costs are not paid within four days after taxation, may enforce payment as if judgment therefor had been granted.

Costs on Settlement

149 Where a proceeding is settled on the basis that a party shall pay or recover costs and the amount of costs is not included in or determined by the settlement, the costs may be taxed under sections 153 to 159 on the filing of a copy of the minutes of settlement in the Registry.

Costs on Failure to Elect under Subsection 18(1) of the Act

149.1 On an appeal under the Income Tax Act, the Court may refuse or reduce costs otherwise payable to an appellant who, in circumstances in which the appellant could make an election under subsection 18(1) of the Act, does not make such an election.

Taxation of Costs

150 Subject to the directions of the Court costs shall be taxed under sections 153 to 159.

Special Provisions

• 151 (1) Unless the Court otherwise directs, and whatever the result of the proceeding,

  • (a) the costs of and occasioned by an amendment of a pleading made without leave shall be borne by the party making the amendment,

  • (b) the costs of or occasioned by an application to extend the time fixed by these rules or by a direction for doing an act, shall be borne by the party making the application,

  • (c) the costs of proving a document shall be borne by the party proving the document, if no request to admit the authenticity of the document was served under section 130,

  • (d) the costs of proving a document shall be allowed to the party proving the document if a request to admit the authenticity of the document was served under section 130 and the authenticity of the document was not admitted, and

  • (e) the costs of proving a fact shall be allowed to the party proving the fact, if a request to admit the fact was served under section 130 and the fact was not admitted, and the failure to do so has not been found by the Court to have been based on reasonable grounds.

• (2) Upon a taxation, such costs as may be allowed under subsection (1) shall be allowed, by way of set off or otherwise, without a special direction.

Liability of Counsel for Costs

• 152 (1) Where a counsel for a party has caused costs to be incurred improperly or without reasonable cause or to be wasted by undue delay, misconduct or other default, the Court may make a direction,

  • (a) disallowing some or all of the costs as between the counsel and the client,

  • (b) directing the counsel to reimburse the client for any costs that the client has been ordered to pay to any other party, and

  • (c) requiring the counsel to indemnify any other party against costs payable by that party.

• (2) A direction under subsection (1) may be made by the Court on its own initiative or on the motion of any party to the proceeding, but no such direction shall be made unless the counsel is given a reasonable opportunity to make representations to the Court.

• (3) The Court may direct that notice of a direction against a counsel under subsection (1) be given to the client in the manner specified in the direction.

Costs in Vexatious Proceedings

152.1 Where a judge has made an order under section 19.1 of the Act, costs may be awarded against the person in respect of whom the order has been made.

Taxation of Costs

General

• 153 (1) The taxing officer shall be the Registrar and any other officer of the Registry designated by the Chief Justice as a taxing officer.

• (2) Where for any reason there would otherwise be a delay in the taxation of a bill of costs, a judge may tax the bill of costs.

Taxation of Costs — Considerations

154 Where party and party costs are to be taxed, the taxing officer shall tax and allow the costs in accordance with Schedule II, Tariff B and the officer shall consider,

• (a) the amounts in issue,

• (b) the importance of the issues,

• (c) the complexity of the issues,

• (d) the volume of work, and

• (e) any other matter that the Court has directed the taxing officer to consider.

Taxation at Instance of Party Entitled

• 155 (1) A party entitled to costs may obtain a notice of appointment for taxation of costs from the appropriate taxing officer on filing with the taxing officer a bill of costs and a copy of the direction or other document giving rise to the party’s entitlement to costs. (Form 155)

• (2) The notice and the bill of costs shall be served on every party interested in the taxation at least seven days before the date fixed for the taxation.

Taxation at Instance of Party Liable

• 156 (1) Where a party entitled to costs fails or refuses to file or serve a bill of costs for taxation within a reasonable time, any party liable to pay the costs may obtain a notice to deliver a bill of costs for taxation from the appropriate taxing officer. (Form 156)

• (2) The notice shall be served on every party interested in the taxation, at least twenty-one days before the date fixed for the taxation.

• (3) On being served with the notice, the person required to deliver a bill of costs shall file and serve a copy of the bill on every party interested in the taxation, at least seven days before the date fixed for the taxation.

• (4) Where a party required to deliver a bill of costs for taxation fails to do so at the time set out in the notice, and thereby prejudices another party, the taxing officer may fix the costs of the defaulting party at an appropriate sum in order to prevent further prejudice to the other party.

Powers of Taxing Officer

• 157 (1) A taxing officer may direct production of books and documents and give directions for the conduct of a taxation.

• (2) The taxing officer may, in his or her discretion, award or refuse the costs of a taxation to either party, and fix those costs.

• (3) No disbursements other than fees paid to the Registry shall be taxed or allowed unless it is established that the disbursement was made or that the party is liable for it.

• (4) The taxing officer may allow all services, sales, use or consumption taxes and other like taxes paid or payable on any counsel fees and disbursements allowed if it is established that such taxes have been paid or are payable and are not otherwise reimbursed or reimbursable in any manner whatever, including, without restriction, by means of claims for input tax credits in respect of such taxes.

Certificate of Costs

158 On the taxation of costs, the taxing officer shall set out in a certificate of costs the amount of costs taxed and allowed. (Form 158)

Review of Taxation

159 Upon motion of a party who is dissatisfied with the taxation, made within thirty days of the date of a certificate of costs, the Court may review the taxation and give such direction as may be just.

Security for Costs

Where Available

160 Where it appears that the appellant is resident outside of Canada, the Court on application by the respondent may give such direction regarding security for costs as is just.

When to be Made

161 An application for security for costs may be made only after the respondent has delivered a reply to the notice of appeal.

Amount and Form of Security

162 The amount and form of security and the time for payment into Court or otherwise giving the required security shall be determined by the Court.

Effect of Direction

163 An appellant who has been directed to give security for costs may not, until the security has been given, take any step in the appeal unless the Court directs otherwise.

Default of Appellant

164 Where the appellant defaults in giving the security required, the Court on application may dismiss the appeal.

Amount May be Varied

165 The amount of security may be increased or decreased at any time.

Notice of Compliance

166 On giving the security required, the appellant shall forthwith give notice of compliance to the respondent.

Payment Into and Out of Court

• 166.1 (1) A person who pays money into Court shall do so by delivering to the Registry

  • (a) a bill of exchange drawn on a bank, trust company, credit union or caisse populaire, or such other bill of exchange as may be authorized by order of the Court, that is payable to the order of the Receiver General of Canada; and

  • (b) three copies of a tender of payment into Court. (Form 166.1)

• (2) A payment into Court is effective on the day the bill of exchange is paid after presentation for payment.

• (3) Where a payment is effective, the Registry shall return a copy of the tender of payment into Court to the person making the payment.

• 166.2 (1) Where an order has been made by the Court for payment out of court of money that is in the Consolidated Revenue Fund, or for payment out of any such money, together with any interest that may have accumulated on it, a requisition shall be made by the Registry to the Receiver General for such payment.

• (2) A requisition shall be for an instrument in the amount to be paid out and payable to the person to whom the money is to be paid pursuant to the order, to be sent to the Registry at Ottawa, or at such other place as may be specified, for delivery of the instrument to the payee’s counsel of record, if the payee has such a counsel, and otherwise for delivery to the payee.

Judgments Disposing of an Appeal or an Interlocutory Application

Pronouncing and Entering of Judgments

• 167 (1) The Court shall dispose of an appeal or an interlocutory or other application that determines in whole or in part any substantive right in dispute between or among the parties by issuing a judgment and shall dispose of any other interlocutory or other application by issuing an order.

• (2) A judgment shall be dated on the day it is signed and that day is the date of the pronouncement of the judgment.

• (3) A judgment and the reasons relating thereto, if any, shall be deposited in the Registry at Ottawa and it shall be entered and filed there whereupon section 17.4 of the Act shall be complied with.

Reconsideration of a Judgment on an Appeal

168 Where the Court has pronounced a judgment disposing of an appeal any party may within ten days after that party has knowledge of the judgment, move the Court to reconsider the terms of the judgment on the grounds only,

• (a) that the judgment does not accord with the reasons for judgment, if any, or

• (b) that some matter that should have been dealt with in the judgment has been overlooked or accidentally omitted.

Direction for and Approval of Draft Judgment

• 169 (1) The Court may direct that one of the parties prepares a draft of an appropriate judgment to implement the Court’s decision.

• (2) Where a party has been directed to prepare a draft of a judgment and all parties represented at the hearing have approved the form of the judgment by signing the original or a copy of it, the party who prepared the draft judgment shall,

  • (a) file the original or the copy or copies approved by the parties, and

  • (b) leave the original judgment with the Registrar for signing by the Court.

• (3) Where the party directed to draft the judgment is unable to obtain the approval of every other party represented at the hearing, any party may apply to the judge who presided at the hearing to settle the terms of the judgment and to give any necessary directions, and upon settlement the judge shall sign the judgment and deposit it in the Registry.

Judgments by Consent on an Appeal

170 When all parties have consented in writing to a judgment disposing of an appeal, the Court may,

• (a) grant the judgment sought without a hearing,

• (b) direct a hearing, or

• (c) direct that written representations be filed.

Judgments on Admissions or Certain Documentary Evidence

170.1 A party may, at any stage of a proceeding, apply for judgment in respect of any matter

• (a) upon any admission in the pleadings or other documents filed in the Court, or in the examination of another party, or

• (b) in respect of which the only evidence consists of documents and such affidavits as are necessary to prove the execution or identity of the documents,

without waiting for the determination of any other question between the parties.

Setting Aside, Varying or Amending Interlocutory Judgments

• 171 (1) A person who,

  • (a) is affected by a judgment obtained on motion without notice, or

  • (b) fails to appear on a motion through accident, mistake or insufficient notice,

  may move to set aside or vary the judgment by a notice of motion.

• (2) On a motion under subsection (1) the Court may set aside or vary the judgment on such terms as are just.

• (3) A motion under subsection (1) shall not be made,

  • (a) after the expiry of a reasonable time after the moving party knows or ought reasonably to have known of the judgment, or

  • (b) if the moving party has taken any further steps in the proceeding after obtaining knowledge of the judgment,

  except with leave of the Court.

Setting Aside, Varying or Amending Accidental Errors in Judgments — General

• 172 (1) A judgment that,

  • (a) contains an error arising from an accidental slip or omission, or

  • (b) requires amendment in any matter on which the Court did not adjudicate,

  may be amended by the Court on application or of its own motion.

• (2) A party who seeks to,

  • (a) have a judgment set aside or varied on the ground of fraud or of facts arising or discovered after it was made,

  • (b) suspend the operation of a judgment, or

  • (c) obtain other relief than that originally directed,

  may make a motion for the relief claimed.

Seizure, Sale and Garnishment

• 172.1 (1) In addition to any other method of enforcement available, a judgment directing the payment of money to Her Majesty in right of Canada may be enforced by a writ of seizure and sale of the real and personal property of the person required to make payment or by the garnishment of debts payable to such person by another person.

• (2) A writ of seizure and sale or a notice of garnishment may be issued by a judge of the Court on application by the Deputy Attorney General of Canada, which application may be made ex parte.

• (3) An application for one or more writs of seizure and sale may be made under subsection (2) and it shall be accompanied by an affidavit stating

  • (a) the date and amount of any payment received since the judgment was issued, and

  • (b) the amount owing, including interest and the rate of interest,

  and any other evidence necessary to establish the amount awarded and the amount owing.

• (4) An application for one or more notices of garnishment may be made under subsection (2) and it shall be accompanied by an affidavit stating,

  • (a) the date and amount of any payment received since the judgment was issued,

  • (b) the amount owing, including interest and the rate of interest,

  • (c) the name and address of each person to whom a notice of garnishment is to be directed,

  • (d) that the deponent believes that those persons are or will become indebted to the debtor and the grounds for the belief,

  • (e) such particulars of the debts as are known to the deponent, and

  • (f) where a person to whom a notice of garnishment is to be directed is not then indebted but will become indebted to the debtor, such particulars of the date on which and the circumstances under which the debt will arise as are known to the deponent, and

  any other evidence necessary to establish the amount awarded and the amount owing.

• (5) A writ of seizure and sale or a notice of garnishment shall be in a form approved by the judge who hears the application under subsection (2) and the judge may give such directions with respect to the matter as the judge considers just and necessary in the circumstances.

• (6) Where a judgment directs the payment of money by and to a person, neither of whom is Her Majesty in right of Canada, the person entitled to payment may make application to a judge of the Court for a writ of seizure and sale or a notice of garnishment, which application may be made ex parte.

• (7) Subsections (3) to (5) apply to an application made under subsection (6).

Examination of Judgment Debtor

• 172.2 (1) Where a judgment directs the payment of money to Her Majesty in right of Canada, the Deputy Attorney General of Canada may make application to the Court, which application may be made ex parte, for an order directing the examination of the judgment debtor.

• (2) The Court may order the judgment debtor or, if the judgment debtor is a body corporate, one of its officers, to attend before the Registrar or such other officer of the Court as the Registrar may appoint, and be orally examined on the questions

  • (a) as to all the property that the judgment debtor possesses or has possessed since incurring the obligation that was the basis of the judgment or order, and as to the judgment debtor’s sources of income, and

  • (b) without limiting the generality of paragraph (a), whether any and, if so, what debts are owing to the judgment debtor,

  and the Court may also order the judgment debtor or officer to produce any books or documents in the possession or control of the judgment debtor relevant to those questions at the time and place appointed for the examination.

• (3) An order under this section must be served personally on the judgment debtor and on any officer of a body corporate ordered to attend for examination.

• (4) Any difficulty arising in the course of an examination under this section before the Registrar or other officer, including any dispute with respect to the obligation of the person being examined to answer any question put to that person, may be referred to the Court, and the Court may determine it or give such directions for determining it as the Court thinks fit.

• 172.3 (1) Where a judgment directs the payment of money by and to a person, neither of whom is Her Majesty in right of Canada, the person entitled to payment may make application to the Court, which application may be made ex parte, for an order directing the examination of the judgment debtor.

• (2) Subsections 172.2(2) to (4) apply to an application made under subsection (1).

Contempt of Court

• 172.4 (1) A person is guilty of contempt of court who

  • (a) at a hearing of the Court fails to maintain a respectful attitude, remain silent or refrain from showing approval or disapproval of the proceeding;

  • (b) wilfully disobeys a process or order of the Court;

  • (c) acts in such a way as to interfere with the orderly administration of justice or to impair the authority or dignity of the Court;

  • (d) is an officer of the Court and fails to perform his or her duties;

  • (e) is a sheriff or bailiff and does not execute a writ forthwith or does not make a return thereof; or

  • (f) contrary to these rules and without lawful excuse,

    • (i) refuses or neglects to obey a subpoena or to attend at the time and place appointed for his or her examination for discovery,

    • (ii) refuses to be sworn or to affirm or to answer any question put to him or her,

    • (iii) refuses or neglects to produce or permit to be inspected any document or other property, or

    • (iv) refuses or neglects to answer interrogatories or to make discovery of documents.

• (2) Subject to subsection (6), before a person may be found in contempt of court, the person alleged to be in contempt shall be served with an order, made on the motion of a person who has an interest in the proceeding or at the Court’s own initiative, requiring the person alleged to be in contempt

  • (a) to appear before a judge at a time and place stipulated in the order;

  • (b) to be prepared to hear proof of the act with which the person is charged, which shall be described in the order with sufficient particularity to enable the person to know the nature of the case against the person; and

  • (c) to be prepared to present any defence that the person may have.

• (3) A motion for an order under subsection (2) may be made ex parte.

• (4) An order may be made under subsection (2) if the Court is satisfied that there is a prima facie case that contempt has been committed.

• (5) An order under subsection (2) shall be personally served, together with any supporting documents, unless otherwise ordered by the Court.

• (6) In a case of urgency, a person may be found in contempt of court for an act committed in the presence of a judge in the exercise of his or her functions and condemned at once, provided that the person has first been called on to justify his or her behaviour.

• (7) A finding of contempt shall be based on proof beyond a reasonable doubt.

• (8) A person alleged to be in contempt may not be compelled to testify.

• (9) Where the Court considers it necessary, it may request the assistance of the Attorney General of Canada or any other person in relation to any proceedings for contempt.

• (10) Where a person is found to be in contempt, a judge may order, in addition to any other order made in respect of the proceedings, any or all of the following:

  • (a) that the person be imprisoned for a period of less than two years;

  • (b) that the person pay a fine;

  • (c) that the person do or refrain from doing any act;

  • (d) that the person’s property be sequestered; and

  • (e) that the person pay costs.

Administration and Officers of the Court

Registrar

173 [Repealed, SOR/2004-100, s. 25]

Books and Records

174 There shall be kept at the office of the Court in Ottawa, all books and records necessary for recording and entering all proceedings of the Court.

Seal of the Court

• 175 (1) The seal of the Court shall be one that has been approved by the Court and shall be kept in the Registry at Ottawa.

• (2) If the Chief Justice so authorized there shall be made one or more facsimiles of the seal of the Court to be used as directed by the Chief Justice.

• (3) A failure to use the seal as directed shall not invalidate a document unless such failure has resulted in prejudice to the person attacking the validity of the document.

Fees and Expenses

• 176 (1) The Registry shall collect the fees prescribed in Schedule II, Tariff A.

• (2) Witnesses shall be entitled to be paid the fees and expenses prescribed in Schedule II, Tariff A.

• (3) Sheriffs, bailiffs and commissioners shall be entitled to be paid the fees and expenses prescribed in Schedule II, Tariff A.

• (4) The Registrar shall charge $0.40 per page for a photocopy of any document on a Court file supplied by the Registrar to a party or other interested person entitled thereto.

Other Offices of the Court

177 [Repealed, SOR/2004-100, s. 26]

Registered Mail Sent from Registry

178 In the absence of proof to the contrary, the date of serving or mailing a document sent from the Registry by registered mail is the date that appears on the relevant registration receipt that is kept as part of the records of the Registry.

SCHEDULE I

FORM NUMBER	TITLE	PAGE
19	Affidavit	4428
20	Requisition	4429
21(1)(a)	Notice of Appeal — General Procedure	4430
21(1)(b)	Reference under section 173 of the Income Tax Act, section 310 of the Excise Tax Act, section 97.58 of the Customs Act, section 51 of the Air Travellers Security Charge Act, section 204 of the Excise Act, 2001 or section 62 of the Softwood Lumber Products Export Charge Act, 2006, as the case may be	4431
21(1)(c)	Reference 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, as the case may be	4432
21(1)(d)	Notice of Appeal from a Determination or Redetermination of the Fair Market Value of a Cultural Object
21(1)(e)	Notice of Appeal from a Confirmation or Redetermination of the Fair Market Value of an Ecological Gift
21(1)(f)	Notice of Appeal of the Suspension of the Authority of a Registered Charity to Issue an Official Receipt
45	Answer	4433
61.1	Notice of Constitutional Question
65	Notice of Motion	4434
80	Notice to Inspect Documents	4435
81	List of Documents (Partial Disclosure)	4436
82(3)	List of Documents (Full Disclosure)	4437
82(4)A	Affidavit of Documents (Individual)	4438
82(4)B	Affidavit of Documents (Corporation or Canada Revenue Agency)	4439
103(1)	Notice to Attend	4440
103(4)	Subpoena to Witness (Examination out of Court)	4441
112(2)(a)	Commission	4442
112(2)(b) — REQUEST	Letter of Request	4445
112(2)(b)A — DIRECTION	Direction for Commission and Letter of Request	4446
113	Questions on Written Examination for Discovery	4447
114	Answers on Written Examination for Discovery	4448
123	Joint Application for Time and Place of Hearing	4449
130	Request to Admit	4451
131	Response to Request to Admit	4452
141(1)	Subpoena to Witness (at Hearing)	4453
141(7)	Warrant for Arrest (at Hearing)	4455
142	Direction for Attendance of Witness in Custody	4456
155	Notice of Appointment for Taxation of Costs	4457
156	Notice to Deliver a Bill of Costs for Taxation	4458
158	Certificate of Costs	4459
166.1	Tender of Payment Into Court.

FORM 19Affidavit

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

AFFIDAVIT

I, (full name of deponent), of the (City, Town, etc.) of , in the (Province, Territory, etc.) of , (where the deponent is a party or the counsel, officer, director, member or employee of a party, set out the deponent’s capacity), MAKE OATH AND SAY (or AFFIRM):

1. (Set out the statements of fact in consecutively numbered paragraphs, with each paragraph being confined as far as possible to a particular statement of fact.)

Sworn (or Affirmed) before me at the (City, Town, etc.)of in the(Province, Territory, etc.) of , on (date).

(Signature of deponent)

Commissioner for Taking Affidavits (or as may be)

FORM 20Requisition

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

REQUISITION

TO THE REGISTRAR at (place)

I REQUIRE (set out a concise statement of what is sought and include all particulars necessary for the Registrar to act. Where what is sought is authorized by a direction, refer to the direction in the requisition and attach a copy of the direction. Where an affidavit or other document must be filed with the requisition, refer to it in the requisition and attach it.)

Date:

(Name, address for service and telephone number of counsel or person filing requisition)

FORM 21(1)(a)Notice of Appeal — General Procedure

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

NOTICE OF APPEAL

• (a) In the case of an individual state home address in full and in the case of a corporation state address in full of principal place of business in the province in which the appeal is being instituted,

• (b) Identify the assessment(s) under appeal: include date of assessment(s) and, if the appeal is under the Income Tax Act, include taxation year(s) or, if the appeal is under the Excise Tax Act, the Customs Act, the Air Travellers Security Charge Act, the Excise Act, 2001 or the Softwood Lumber Products Export Charge Act, 2006, include the period to which the assessment(s) relate(s),

• (c) Relate the material facts relied on,

• (d) Specify the issues to be decided,

• (e) Refer to the statutory provisions relied on,

• (f) Set forth the reasons the appellant intends to rely on,

• (g) Indicate the relief sought, and

• (h) Date of notice.

(Name of appellant or appellant’s counsel)

(Address for service, telephone number, fax number, if any, of appellant’s counsel or, if appellant is appearing in person, state telephone number or fax number, if any)

FORM 21(1)(b)Reference Under Section 173 of the Income Tax Act, Section 310 of the Excise Tax Act, Section 97.58 of the Customs Act, Section 51 of the Air Travellers Security Charge Act, Section 204 of the Excise Act, 2001 or Section 62 of the Softwood Lumber Products Export Charge Act, 2006, as the Case May Be

TAX COURT OF CANADA

IN THE MATTER of an agreement that a question should be determined by the Court under section 173 of the Income Tax Act, section 310 of the Excise Tax Act, section 97.58 of the Customs Act, section 51 of the Air Travellers Security Charge Act, section 204 of the Excise Act, 2001 or section 62 of the Softwood Lumber Products Export Charge Act, 2006, as the case may be.

• (a) If the taxpayer is an individual state home address in full and in the case of a corporation state address in full of its principal place of business in the province or territory in which the reference is instituted,

• (b) Identify the assessment(s) to which the reference relates,

• (c) Relate the material facts that give rise to the reference,

• (d) Specify the question of law, fact or mixed law and fact that the parties agree should be determined by the Court,

• (e) Set forth in separate paragraphs the determination that Her Majesty and the taxpayer are seeking,

• (f) Refer in separate paragraphs to the statutory provisions relied on by Her Majesty and the taxpayer, and

• (g) Date of reference.

(Name of taxpayer or taxpayer’s counsel) (Address for service, telephone number, fax number, if any, of taxpayer’s counsel or, if taxpayer is appearing in person, state telephone number or fax number, if any)

(Name of counsel for Her Majesty) (Address and telephone number)

FORM 21(1)(c)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, as the Case May Be

TAX COURT OF CANADA

IN THE MATTER of an application by the Minister of National Revenue made 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, as the case may be, for the determination of a question.

• (a) The names and addresses of the taxpayers who it is intended shall be bound by the determination of the question. If a taxpayer is an individual state home address in full and if a taxpayer is a corporation state the address in full of its principal place of business in the province or territory in which the reference is instituted,

• (b) Identify the assessments or proposed assessments in respect of which the determination is sought,

• (c) Specify the question of law, fact or mixed law and fact in respect of which a determination is sought,

• (d) Relate the facts and reasons on which the Minister relies and has based or intends to base assessments of tax payable by each of the taxpayers named in the application,

• (e) Refer to the statutory provisions that the applicant relies on, and

• (f) Date of reference.

(Name of counsel for Her Majesty)

(Address and telephone number)

FORM 21(1)(d)Notice of Appeal from a Determination or Redetermination of the Fair Market Value of an Object by the Canadian Cultural Property Export Review Board Established Under the Cultural Property Export and Import Act

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

NOTICE OF APPEAL

• (a) In the case of an individual state home address in full and in the case of a corporation state address in full of principal place of business in the province in which the appeal is being instituted,

• (b) Quote the text of the certificate issued by the Canadian Cultural Property Export Review Board that includes the determination or redetermination of the fair market value of the object that is being appealed,

• (c) Specify what the appellant alleges is the fair market value of the object,

• (d) Relate the material facts relied on,

• (e) Specify the issues to be decided,

• (f) Set forth the reasons the appellant intends to rely on,

• (g) Indicate the relief sought, and

• (h) Date of notice.

(Name of appellant or appellant’s counsel)

(Address for service, telephone number, fax number, if any, of appellant’s counsel or, if appellant is appearing in person, state telephone number or fax number, if any)

FORM 21(1)(e)Notice of Appeal from a Confirmation or Redetermination of the Fair Market Value of an Ecological Gift

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

NOTICE OF APPEAL

• (a) In the case of an individual state home address in full and in the case of a corporation, state address in full of principal place of business in the province in which the appeal is being instituted,

• (b) Set out the date of the certificate issued by the Minister of the Environment and the fair market value of the property as confirmed or redetermined by the Minister,

• (c) Specify what the appellant alleges is the fair market value of the property,

• (d) Relate the material facts relied on,

• (e) Specify the issues to be decided,

• (f) Set forth the reasons the appellant intends to rely on,

• (g) Indicate the relief sought, and

• (h) Date of notice.

(Name of appellant or appellant’s counsel)

(Address for service, telephone number, fax number, if any, of appellant’s counsel or, if appellant is appearing in person, state telephone number or fax number, if any)

FORM 21(1)(f)Notice of Appeal from the Suspension of the Authority of a Registered Charity To Issue an Official Receipt

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

NOTICE OF APPEAL

• (a) State the address in full of the principal office of the registered charity,

• (b) Specify the date of the suspension of the authority to issue an official receipt,

• (c) Relate the material facts relied on,

• (d) Specify the issues to be decided,

• (e) Refer to the statutory provisions relied on,

• (f) Set forth the reasons the appellant intends to rely on,

• (g) Indicate the relief sought, and

• (h) Indicate the date of notice.

(Name of appellant or appellant’s counsel)

(Address for service, telephone number, fax number, if any, of appellant’s counsel or, if appellant is appearing in person, state telephone number or fax number, if any)

FORM 45Answer

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

ANSWER

• 1 The appellant admits the allegations contained in paragraphs of the reply to the notice of appeal.

• 2 The appellant denies the allegations contained in paragraphs of the reply to the notice of appeal.

• 3 The appellant has no knowledge in respect of the allegations contained in paragraphs of the reply to the notice of appeal.

• 4 (Set out in separate, consecutively numbered paragraphs each allegation of material fact relied on by way of answer to the reply to the notice of appeal.)

Date:	(Name, address and telephone number of appellant’s counsel or appellant)
TO: (Name and address of respondent’s counsel)

FORM 61.1Notice of Constitutional Question

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant or Applicant,

and

HER MAJESTY THE QUEEN,

Respondent.

NOTICE OF CONSTITUTIONAL QUESTION

The (identify party) intends to question the constitutional validity, applicability or effect (state which) of (identify the particular legislative provision).

The question is to be argued on (day), (date), at (time), at (place). (if known)

The following are the material facts giving rise to the constitutional question: (set out concisely the material facts that relate to the constitutional question and attach pleadings or other documentation underlying the proceedings before the Court).

The following is the legal basis for the constitutional question: (Set out concisely the legal basis for each constitutional question and identify the nature of the constitutional principles to be argued.)

Date:

(Signature)

(Name, address for service, telephone number, and fax number, if any, of moving party’s counsel or moving party)

TO: The Attorney General of Canada

The Attorney General of (each province)

FORM 65Notice of Motion

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

NOTICE OF MOTION

TAKE NOTICE THAT the (applicant or respondent as the case may be) will make a motion to the Court on (day), (date), at (time), or as soon after that time as the motion may be heard, at (address).

THE MOTION IS FOR (state here the precise relief sought).

THE GROUNDS FOR THE MOTION ARE (specify the grounds to be argued, including a reference to any statutory provision or rule to be relied on).

THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the motion: (list the affidavits or other documentary evidence to be relied on).

Date:

(Name, address for service, telephone number and fax number, if any, of moving party’s counsel or moving party)

TO: (Name and address of responding party’s counsel or responding party)

NOTE that if the proceeding in which the motion is made is a reference under section 173 or 174 of the Income Tax Act, section 310 or 311 of the Excise Tax Act, section 97.58 of the Customs Act, section 51 or 52 of the Air Travellers Security Charge Act, section 204 or 205 of the Excise Act, 2001 or section 62 or 63 of the Softwood Lumber Products Export Charge Act, 2006, the style of cause shall be the same as in the originating document and the body of the notice of motion shall be adjusted accordingly.

FORM 80Notice To Inspect Documents

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

NOTICE TO INSPECT DOCUMENTS

TAKE NOTICE THAT the document(s) referred to in the notice to produce may be inspected and copies taken at (place) on (date) between the hours of (starting time) and (end time).

Date:

(Name of party, or of an officer, director or employee of the party, or of the counsel of record of the party)

FORM 81List of Documents (Partial Disclosure)

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

LIST OF DOCUMENTS

(PARTIAL DISCLOSURE)

The following is a list of the documents of which the appellant (or respondent) has knowledge that might be used in evidence:

(a) to establish or to assist in establishing any allegation of fact in any pleading filed herein by the said party, or

(b) to rebut or assist in rebutting any allegation of fact in any pleading filed herein by any other party,

and which is filed and served in compliance with section 81.

• SCHEDULE A

  Documents in the possession, control or power of the party.(Number each document consecutively. Set out the nature and date of the document and other particulars sufficient to identify it.)

• SCHEDULE B

  Documents of which the party has knowledge but which are not in the party’s possession, control or power. (Number each document consecutively. Set out the nature and date of the document and other particulars sufficient to identify it. Give the present location of each document.)

Date:

(Signature)

(of party, or of an officer, director or employee of the party, or of the counsel of record of the party)

TAKE NOTICE that the documents referred to in Schedule A above may be inspected and copies taken at (place) on (date) between the hours of (time).

FORM 82(3)List of Documents (Full Disclosure)

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

LIST OF DOCUMENTS

(FULL DISCLOSURE)

The following is a list of all the documents which are or have been in the appellant’s (or respondent’s) possession, control or power relevant to any matter in question between or among them in the appeal and which is filed and served in compliance with section 82.

• SCHEDULE A

  Documents in the possession, control or power of the party that the party does not object to producing for inspection. (Number each document consecutively. Set out the nature and date of the document and other particulars sufficient to identify it.)

• SCHEDULE B

  Documents that are or were in the possession, control or power of the party that the party objects to producing on the grounds that

  (State ground of objection. Number each document consecutively. Set out the nature and date of the document and other particulars sufficient to identify it.)

• SCHEDULE C

  Documents that were formerly in the possession, control or power of the party, but are no longer in the party’s possession, control or power. (Number each document consecutively. Set out the nature and date of the document and other particulars sufficient to identify it. State when and how possession or control of or power over each document was lost, and give the present location of each document.)

Date:

(Signature)

(of party, or of an officer, director or employee of the party, or of the counsel of record of the party)

TAKE NOTICE that the documents referred to in Schedule A above may be inspected and copies taken at (place) on (date) between the hours of (time).

FORM 82(4)AAffidavit of Documents (Individual)

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

AFFIDAVIT OF DOCUMENTS

I, (full name of deponent), of the (City, Town, etc.) of , in the (Province, Territory, etc.) of , the appellant (or as may be) in this action, MAKE OATH AND SAY (or AFFIRM):

• 1 I have conducted a diligent search of my records and have made appropriate enquiries of others to inform myself in order to make this affidavit. This affidavit discloses, to the full extent of my knowledge, information and belief, all documents relevant to any matter in question in this proceeding that are or have been in my possession, control or power.

• 2 Now shown to me and marked Exhibit “A” to this affidavit is a list of documents.

• 3 I have listed in Schedule A those documents that are in my possession, control or power and that I do not object to producing for inspection.

• 4 I have listed in Schedule B those documents that are or were in my possession, control or power and that I object to producing because I claim they are privileged, and I have stated in Schedule B the grounds for each such claim.

• 5 I have listed in Schedule C those documents that were formerly in my possession, control or power but are no longer in my possession, control or power, and I have stated in Schedule C when and how I lost possession or control of or power over them and their present location.

• 6 I have never had in my possession, control or power any document relevant to any matter in question in this proceeding other than those listed in Schedules A, B and C.

SWORN (etc.)

(Signature of deponent)

FORM 82(4)BAffidavit of Documents (Corporation or Canada Revenue Agency)

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

AFFIDAVIT OF DOCUMENTS

I, (full name of deponent), of the (City, Town, etc.) of , in the (Province, Territory, etc.) of , MAKE OATH AND SAY (or AFFIRM):

• 1 I am the (state the position held by the deponent in the corporation or the Canada Revenue Agency) of the appellant (or as may be) in this action.

• 2 Now shown to me and marked Exhibit “A” to this affidavit is a list of documents.

• 3 I have conducted a diligent search of the corporation’s (or the Canada Revenue Agency’s) records and made appropriate enquiries of others to inform myself in order to make this affidavit. This affidavit discloses, to the full extent of my knowledge, information and belief, all documents relevant to any matter in question in this action that are or have been in the possession, control or power of the corporation (or the Canada Revenue Agency).

• 4 I have listed in Schedule A those documents that are in the possession, control or power of the corporation (or the Canada Revenue Agency) and that it (or the Minister) does not object to producing for inspection.

• 5 I have listed in Schedule B those documents that are or were in the possession, control or power of the corporation (or the Canada Revenue Agency) and that it (or the Minister) objects to producing because they are privileged, and I have stated in Schedule B the grounds for each such claim.

• 6 I have listed in Schedule C those documents that were formerly in the possession, control or power of the corporation (or the Canada Revenue Agency) but are no longer in its possession, control or power and I have stated in Schedule C when and how it lost possession or control of or power over them and their present location.

• 7 The corporation (or the Canada Revenue Agency) has never had in its possession, control or power any documents relevant to any matter in question in this proceeding other than those listed in Schedules A, B and C.

SWORN or AFFIRMED

(Signature of deponent)

FORM 103(1)Notice To Attend

(To be used only for a party to the proceeding, a person to be examined for discovery or on behalf or in place of a party or a person to be cross-examined on an affidavit. For the examination of any other person, use a subpoena (Form 103(4)).)

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

NOTICE TO ATTEND

TO: (Name of person to be examined)

YOU ARE REQUIRED TO ATTEND FOR AN EXAMINATION (on your affidavit dated (date), for discovery, on behalf (or in place) of (identify party), etc.) on (day), (date), at (time), at the office of (name, address and telephone number of examiner).

(And add, where applicable)

YOU ARE REQUIRED TO BRING WITH YOU and produce at the examination the documents mentioned in subsection 85(3) of Tax Court of Canada Rules (General Procedure) and the following documents and things: (set out the nature and date of each document and thing and give particulars sufficient to identify each document and thing.)

or,

YOU ARE REQUIRED TO BRING WITH YOU and produce at the examination the following documents and things: (set out the nature and date of each document and thing and give particulars sufficient to identify each document and thing.)

Date:	(Name, address for service and telephone number of examining party’s counsel or examining party)
TO: (Name and address of counsel for person to be examined or of person to be examined)

FORM 103(4)Subpoena to Witness (Examination Out of Court)

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

SUBPOENA

TO: (Name and address of person to be examined)

YOU ARE REQUIRED TO ATTEND FOR AN EXAMINATION (for discovery, etc.) on (day), (date), at (time), at (address).

YOU ARE REQUIRED TO BRING WITH YOU and produce at the examination the following documents and things: (Set out the nature and date of each document and thing and give particulars sufficient to identify each document and thing.)

WITNESS FEES AND EXPENSES for day(s) of attendance are served with this subpoena, calculated in accordance with Schedule II, Tariff A of the Tax Court of Canada Rules (General Procedure) as follows:

Attendance allowance of $ daily	$
Travel allowance	$
Overnight accommodation and meal allowance	$
TOTAL	$
If further attendance is required, you will be entitled to additional fees and expenses.
IF YOU FAIL TO ATTEND OR REMAIN UNTIL THE END OF THIS EXAMINATION, YOU MAY BE COMPELLED TO ATTEND AT YOUR OWN EXPENSE AND YOU MAY BE FOUND IN CONTEMPT OF COURT.
Date:	Issued by
	Registrar
	Address of Court Office
This subpoena was issued at the request of, and inquiries may be directed to:
(Name, address and telephone number of examining counsel or party)

FORM 112(2)(a)Commission

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

COMMISSION

TO: (Name and address of commissioner)

YOU HAVE BEEN APPOINTED A COMMISSIONER for the purpose of taking evidence in this proceeding now pending in this Court by direction of the Court made on (date), a copy of which is attached.

YOU ARE GIVEN FULL AUTHORITY to do all things necessary for taking the evidence mentioned in the direction authorizing this commission. You are also authorized, on consent of the parties, to take the evidence of any other witnesses who may be found in (name of Province, State or Country, etc.)

You are to send to this Court a transcript of the evidence taken, together with this commission, forthwith after the transcript is completed.

In carrying out this commission, you are to follow the terms of the attached direction and the instructions contained in this commission.

THIS COMMISSION is signed and sealed by direction of the Court.

Date:

Issued by Registrar

Address of Court Office

Instructions to Commissioner

• 1 This commission is to be conducted in accordance with sections 101 to 112 and sections 119 to 122 of the Tax Court of Canada Rules (General Procedure), a copy of which is attached.

• 2 Before acting on this commission, you must take the oath (or affirmation) set out below. You may do so before any person authorized by Part III of the Canada Evidence Act, a copy of which is attached, to take affidavits or administer oaths or affirmations outside Canada.

  I, , swear (or affirm) that I will, according to the best of my skill and knowledge, truly and faithfully and without partiality to any of the parties to this proceeding, take the evidence of every witness examined under this commission, and cause the evidence to be transcribed and forwarded to the Court. (In an oath, conclude: So help me God.)

  Sworn (or Affirmed) before me at the (City, Town, etc.) of , in the (Province, State, Country, etc.) of on (date).

  
  (Signature of Commissioner)

  (Signature and office of person before whom oath or affirmation is taken)

• 3 The examining party is required to give the person to be examined at least days notice of the examination and, where the order so provides, to pay attendance money to the person to be examined.

• 4 You must arrange to have the evidence before you recorded and transcribed. You are to administer the following oath (or affirmation) to the person who records and transcribes the evidence:

  You swear (or affirm) that you will truly and faithfully record and transcribe all questions put to all witnesses and their answers in accordance with the directions of the commissioner. (In an oath, conclude: So help you God.)

  On consent of the parties, or where the order for this commission provides for it, the examination may be recorded by videotape or other similar means.

• 5 You are to administer the following oath (or affirmation) to each witness whose evidence is to be taken:

  You swear (or affirm) that the evidence to be given by you touching the matters in question between the parties to this proceeding shall be the truth, the whole truth, and nothing but the truth. (In an oath, conclude: So help you God.)

• 6 Where a witness does not understand the language or is deaf or mute, the evidence of the witness must be given through an interpreter. You are to administer the following oath (or affirmation) to the interpreter:

  You swear (or affirm) that you understand the language and the language in which the examination is to be conducted and that you will truly interpret the oath (or affirmation) to the witness, all questions put to the witness and the answers of the witness, to the best of your skill and understanding. (In an oath, conclude: So help you God.)

• 7 You are to attach to this commission the transcript of the evidence and the exhibits, and any videotape or other recording of the examination. You are to complete the certificate set out below, and mail this commission, the transcript, the exhibits and any videotape or other recording of the examination to the Registry of the Court where the commission was issued. You are to keep a copy of the transcript and, where practical, a copy of the exhibits until the Court disposes of this proceeding. Forthwith after you mail this commission and the accompanying material to the Registry of the Court, you are to notify the parties who appeared at the examination that you have done so.

Certificate of the Commissioner

I, , certify that:

• 1.  I administered the proper oath (or affirmation) to the person who recorded and transcribed the evidence, to the witness the transcript of whose evidence is attached and to any interpreter through whom the evidence was given.

• 2.  The evidence of the witness was properly taken.

• 3.  The evidence of the witness was accurately transcribed.

Date:

(Signature of Commissioner)

FORM 112(2)(b) — REQUESTLetter of Request

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

LETTER OF REQUEST

TO THE JUDICIAL AUTHORITIES OF (name of Province, State or Country)

A PROCEEDING IS PENDING IN THIS COURT, between the appellant and the respondent.

IT HAS BEEN SHOWN TO THIS COURT that it appears necessary for the purpose of justice that a witness residing within your jurisdiction be examined there.

THIS COURT HAS ISSUED A COMMISSION to (name of commissioner) of (address of commissioner), providing for the examination of the witness (name of witness), of (address of witness).

YOU ARE REQUESTED, in furtherance of justice, to cause (name of witness) and, on consent of the parties, any other witnesses who may be found in your jurisdiction to appear before the commissioner by the means ordinarily used in your jurisdiction, if necessary to secure attendance, and to answer questions under oath or affirmation (where desired, add:) and to bring to and produce at the examination the following documents and things: (Set out the nature and date of each document and thing and give particulars sufficient to identify each document and thing).

YOU ARE ALSO REQUESTED to permit the commissioner to conduct the examination of the witness in accordance with the Tax Court of Canada Rules (General Procedure) and the commission issued by this Court.

THIS LETTER OF REQUEST is signed and sealed by direction of the Court made on (date).

Date:

Issued by Registrar

Address of Court Office

FORM 112(2)(b)A — DIRECTIONDirection for Commission and Letter of Request

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

(Name of Judge)(Day and date direction made)

(Court seal) (Title of proceeding)

DIRECTION 1.   THIS COURT DIRECTS (give particulars of any directions given by the Court under section 112).

2.   THIS COURT DIRECTS that the Registrar prepare and issue a commission naming (name), of (address), as commissioner to take the evidence of the witness (name of witness) in (name of Province, State or Country) (where the direction is made under sections 119 to 122, add and, on consent of the parties, any other witness who may be found there) for use at the hearing (or on examination for discovery, etc.).

3.   THIS COURT DIRECTS that the Registrar prepare and issue a letter of request addressed to the judicial authorities of (name of Province, State or Country), requesting the issuing of such process as is necessary to compel the witness (or witnesses) to attend and be examined before the commissioner.

(Signature of Judge)

FORM 113Questions on Written Examination for Discovery

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

QUESTIONS ON WRITTEN EXAMINATION FOR DISCOVERY

The (identify examining party) has chosen to examine the (identify person to be examined) for discovery (where the person is not a party, state whether the person is examined on behalf or in place of or in addition to a party or under a Court direction) by written questions and requires that the following questions be answered by affidavit in Form 114 prescribed by the Tax Court of Canada Rules (General Procedure), and served within thirty days after service of these questions.

(Where a further list of questions is served under section 116 substitute:)

The (identify examining party) requires that the (identify person to be examined) answer the following further questions by affidavit in Form 114 prescribed by such rules, and serve them within thirty days after service of these questions.

1. (Number each question. Where the questions are a further list under section 116, number the questions in sequence following the last question of the previous list.)

Date:	(Name, address and telephone number of examining party’s counsel or examining party)
TO: (Name and address of counsel for person to be examined or of person to be examined)

FORM 114Answers on Written Examination for Discovery

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

ANSWERS ON WRITTEN EXAMINATION FOR DISCOVERY

I, (full name of deponent), of the (City, Town, etc.) of , in the (Province, Territory, etc.) of (identify the capacity in which the deponent makes the affidavit), MAKE OATH AND SAY (or AFFIRM) that the following answers to the questions dated (date) and submitted by the (identify examining party) are true, to the best of my knowledge, information and belief:

1. (Number each answer to correspond with the question. Where the deponent objects to answering a questions, state: I object to answering this question on the ground that it is irrelevant to the matters in issue or that the information sought is privileged because (specify) or as may be.)

SWORN (etc.)

FORM 123Joint Application for Time and Place of Hearing

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

JOINT APPLICATION

The parties hereby represent that this appeal is ready for hearing and jointly apply to the Registrar to fix a time and place for the hearing.

The parties are in agreement that:

• (a) the hearing should be held at ,

• (b) the most convenient times for the hearing in order of preference are,

  • (i) 

  • (ii) 

  • (iii) 

• (c) the hearing will not last longer than days,

• (d) there will be approximately witnesses and documents for the appellant and witnesses and documents for the respondent,

• (e) the appellant will call expert witness(es) and the respondent will call expert witness(es),

• (f) the evidence and the argument will be,

  • (i) in the language, or

  • (ii) partly in French and partly in English.

  [Note: Delete subparagraph (i) or (ii).]

The person who can answer any inquiries about the convenience or acceptability of other dates or places for the hearing,

• (a) on behalf of the appellant is who can be reached by telephone at number in ,

• (b) on behalf of the respondent is who can be reached by telephone at number in

Dated at this day of 20

Counsel for appellant

Counsel for respondent

(Note: It is recommended that the Registrar be consulted regarding available dates before this application is submitted.)

FORM 125[Revoked, SOR/93-96, s. 18]

FORM 130Request To Admit

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

REQUEST TO ADMIT

YOU ARE REQUESTED TO ADMIT, for the purposes of this proceeding only, the truth of the following facts: (Set out facts in consecutively numbered paragraphs.)

YOU ARE REQUESTED TO ADMIT, for the purposes of this proceeding only, the authenticity of the following documents: (Number each document and give particulars sufficient to identify each. Specify whether the document is an original or a copy and, where the document is a copy of a letter, telegram or telecommunication, or a fax state the nature of the document.)

Attached to this request is a copy of each of the documents referred to above. (Where it is not practical to attach a copy or where the party already has a copy, state which documents are not attached and give the reason for not attaching them.)

YOU MUST RESPOND TO THIS REQUEST by serving a response to request to admit in Form 131 WITHIN FIFTEEN DAYS after this request is served on you. If you fail to do so, you will be deemed to admit, for the purposes of this proceeding only, the truth of the facts and the authenticity of the documents set out above.

Date:	(Name, address for service and telephone number of party serving request’s counsel or party serving request)
TO: (Name and address of counsel for party on whom request is served or of party on whom request is served)

FORM 131Response to Request To Admit

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

RESPONSE TO REQUEST TO ADMIT

In response to your request to admit dated (date), the (identify party responding to the request):

• 1 Admits the truth of facts numbers

• 2 Admits the authenticity of documents numbers

• 3 Denies the truth of facts numbers

• 4 Denies the authenticity of documents numbers

• 5 Refuses to admit the truth of facts numbers for the following reasons: (Set out reason for refusing to admit each fact.)

• 6 Refuses to admit the authenticity of documents numbers for the following reasons: (Set out reason for refusing to admit each document.)

Date:	(Name, address for service and telephone number of party serving response’s counsel or party serving response)
TO: (Name and address of counsel for party on whom response is served or of party on whom response is served)

FORM 141(1)Subpoena to Witness (at Hearing)

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

SUBPOENA

TO: (Name and address of witness)

YOU ARE REQUIRED TO ATTEND TO GIVE EVIDENCE IN COURT at the hearing of this proceeding on (day), (date), at (time), at (address), and to remain until your attendance is no longer required.

YOU ARE REQUIRED TO BRING WITH YOU and produce at the hearing the following documents and things: (Set out the nature and date of each document and thing and give particulars sufficient to identify each document and thing.)

WITNESS FEES AND EXPENSES for day(s) of attendance are served with this subpoena, calculated in accordance with Schedule II, Tariff A of the Tax Court of Canada Rules (General Procedure) as follows:

Attendance allowance of $daily	$
Travel allowance	$
Overnight accommodation and meal allowance	$
TOTAL	$

If further attendance is required, you will be entitled to additional fees and expenses.

IF YOU FAIL TO ATTEND OR TO REMAIN IN ATTENDANCE AS REQUIRED BY THIS SUBPOENA, A WARRANT MAY BE ISSUED FOR YOUR ARREST.

Date:

Issued by Registrar

Address of Court Office

This subpoena was issued at the request of,

and inquiries may be directed to:

(Name, address and telephone number of examining counsel or party serving subpoena)

FORM 141(7)Warrant for Arrest (Defaulting Witness)

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

(Name of Judge)

(Day and date)

WARRANT FOR ARREST

TO: (designated sheriff, peace officer or other officer of the Court)

WHEREAS the witness (name), of (address), was served with a subpoena to give evidence at the hearing of this proceeding, and the proper witness fees and expenses were paid or tendered,

AND WHEREAS the witness failed to obey the subpoena, and I am satisfied that the evidence of the witness is material to this proceeding,

YOU ARE DIRECTED TO ARREST and bring the witness (name of witness) before the Court to give evidence in this proceeding, and if the Court is not then sitting or if the witness cannot be brought forthwith before the Court, to deliver the witness to a correctional institution or other secure facility, to be admitted and detained there until the witness can be brought before the Court.

(Signature of Judge)

FORM 142Direction for Attendance of Witness in Custody

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

(Name of Judge)(Day and date)

DIRECTION FOR ATTENDANCE OF WITNESS IN CUSTODY

TO THE OFFICERS OF (name of correctional institution) AND TO ALL PEACE OFFICERS

WHEREAS it appears that the evidence of the witness (name) who is detained in custody, is material to this proceeding,

THIS COURT DIRECTS that the witness (name) be brought before this Court on (day), (date) at (time) at (address) to give evidence on behalf of the (identify party) and that the witness be returned and readmitted immediately thereafter to the correctional institution or other facility from which the witness was brought.

(Signature of Judge)

FORM 155Notice of Appointment for Taxation of Costs

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

NOTICE OF APPOINTMENT FOR TAXATION OF COSTS TO THE PARTIES

I HAVE MADE AN APPOINTMENT to tax the costs of (identify party), a copy of whose bill of costs is attached to this notice, on (day), (date), at (time), at (address).

Date:

Taxing Officer

TO:(Name and address of counsel or party on whom notice is served)

FORM 156Notice To Deliver a Bill of Costs for Taxation

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

NOTICE TO DELIVER A BILL OF COSTS FOR TAXATION

TO THE PARTIES

I HAVE MADE AN APPOINTMENT at the request of (identify party who obtained appointment) to tax the costs of (identify party entitled to costs and what costs are to be taxed) on (day), (date), at (time), at (address).

TO: (identify party entitled to costs)

YOU ARE REQUIRED to file your bill of costs with me and serve your bill of costs on every party interested in the taxation at least seven days before the above date.

Date:

Taxing Officer

TO:(Name and address of counsel or party on whom notice is served)

FORM 158Certificate of Costs

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

CERTIFICATE OF COSTS

I CERTIFY that I have taxed the party and party costs of (identify party) in this proceeding (or as may be) under the authority of (give particulars of direction or specify section or statutory provision), and I ALLOW THE SUM OF $

Date:

Taxing Officer

FORM 166.1Tender of Payment into Court

TAX COURT OF CANADA

BETWEEN:

(name)

Appellant,

and

HER MAJESTY THE QUEEN

Respondent.

TENDER OF PAYMENT INTO COURT

(To be presented to the Registry in triplicate with cheque or other instrument for money being paid in.) Pursuant to (here insert reference to Court order, statutory provision or rule authorizing or requiring payment into court), the undersigned hereby tenders the attached cheque (or other instrument) in the sum of $, Canadian currency, payable to the Receiver General of Canada as a payment into court for (here insert purpose or object of payment into court).

Dated atthis day of 20

(Name, address and telephone number of counsel or party tendering payment)

Receipt of the above cheque or other instrument acknowledged at the office of the Registry this day of , 20 (If the Registry is not satisfied that payment is in order it shall, if requested, give a separate receipt for instrument and tender document.)

• SOR/92-41, s. 4
• SOR/93-96, ss. 17, 18
• SOR/95-113, ss. 14, 15(E), 16
• SOR/96-144, ss. 3, 4
• SOR/2004-100, ss. 27 to 31, 32(F), 33, 34, 35(F), 36, 37, 38(F), 39 and 43
• SOR/2007-142, ss. 16 to 31
• SOR/2008-303, ss. 20 to 27