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

Regulations are current to 2022-07-13 and last amended on 2014-02-07. Previous Versions

Pleadings (continued)

Time for Delivery of Answer

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

Close of Pleadings

 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

  •  (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

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

  • SOR/2007-142, s. 10

Rules of Pleadings — Applicable to Reply

  •  (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.

  • SOR/96-144, s. 2

Rules of Pleadings — Applicable to Answer

  •  (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

  •  (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.

  • SOR/93-96, s. 9

Demand for Particulars

  •  (1) 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.

  • (2) The demand for particulars shall be in Form 52 and shall be filed and served in accordance with these rules.

  • SOR/2014-26, s. 4

Striking out a Pleading or other Document

  •  (1) The Court may, on its own initiative or on application by a party, 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 appeal;

    • (b) is scandalous, frivolous or vexatious;

    • (c) is an abuse of the process of the Court; or

    • (d) discloses no reasonable grounds for appeal or opposing the appeal.

  • (2) No evidence is admissible on an application under paragraph (1)(d).

  • (3) On application by the respondent, the Court may quash an appeal if

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

    • (b) a condition precedent to instituting an appeal has not been met; or

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

  • SOR/2014-26, s. 5

Amendments

When Amendments to Pleadings May be Made

 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.

  • SOR/93-96, s. 10(F)

How Amendments Made

  •  (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

 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

  •  (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

[
  •  SOR/2004-100, s. 8
]

Question of Law, Fact or Mixed Law and Fact

[
  •  SOR/2004-100, s. 8
]
  •  (1) On application by a party, the Court may grant an order that a question of law, fact or mixed law and fact raised in a pleading or a question as to the admissibility of any evidence be determined before the hearing.

  • (2) On the application, the Court may grant an order if it appears that the determination of the question before the hearing may dispose of all or part of the proceeding or result in a substantially shorter hearing or a substantial saving of costs.

  • (3) An order that is granted under subsection (1) shall

    • (a) state the question to be determined before the hearing;

    • (b) give directions relating to the determination of the question, including directions as to the evidence to be given — orally or otherwise — and as to the service and filing of documents;

    • (c) fix time limits for the service and filing of a factum consisting of a concise statement of facts and law;

    • (d) fix the time and place for the hearing of the question; and

    • (e) give any other direction that the Court considers appropriate.

  • SOR/2004-100, s. 9
  • SOR/2014-26, s. 6

 [Repealed, SOR/2014-26, s. 7]

 [Repealed, SOR/2014-26, s. 7]

 [Repealed, SOR/2014-26, s. 7]

Notice of Constitutional Question

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

  • SOR/2004-100, s. 10

 [Repealed, SOR/2014-26, s. 8]

Default Judgment and Dismissal for Delay

Application for Judgment in Default

  •  (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.

  • SOR/92-41, s. 3
  • SOR/99-209, s. 5

Application for Judgment for Delay

 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

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

  • SOR/95-113, s. 3
  • SOR/2004-100, s. 12

Place and Date of Hearing

  •  (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.

  • SOR/93-96, s. 11

Service of Notice

  •  (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.

  • (7) Proof of service of the notice of motion shall be filed with the Court at least three days before the date on which the motion is to be heard.

  • SOR/2014-26, s. 9

Affidavit in Opposition to Motion

  •  (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

  •  (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

 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

 Evidence on a motion may be given by affidavit.

Contents of Affidavit

 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

 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

 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

 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

 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

  •  (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.

 
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