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

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.