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

Regulations are current to 2020-09-09 and last amended on 2014-02-07. Previous Versions

Motions (continued)

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.

Discovery of Documents

Interpretation

  •  (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

 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

  •  (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)

  •  (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.

  • SOR/95-113, s. 4
  • SOR/96-503, s. 1

List of Documents (Full Disclosure)

  •  (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.

  • SOR/93-96, s. 12
  • SOR/2008-303, s. 11
 
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