Tax Court of Canada Rules of Procedure respecting the Employment Insurance Act (SOR/90-690)

Consolidation of Appeals

• 10 (1) Where there are two or more appeals commenced in accordance with these rules, the Court may, upon application by the Minister or an appellant or by an intervener, direct that the appeals be

  • (a) consolidated on such terms as it may direct,

  • (b) heard at the same time,

  • (c) heard consecutively, or

  • (d) stayed until the determination of any other appeal,

  if there is a common question of law or fact in both or all of the appeals, or it is desirable in the interests of justice.

• (2) An application referred to in subsection (1) shall be filed in or mailed to the Registry in which the notices of appeal were filed or to which they were mailed and shall be served on the other parties to the appeals.

Consolidation of Interventions

11 Where there are two or more notices of intervention served under these rules, the Court may direct that one notice of intervention be filed and served on behalf of all interveners if

• (a) there is a common question of law or fact in both or all notices of intervention, or

• (b) it is desirable in the interests of justice.

Reply

• 12 (1) The Minister shall reply in writing to every notice of appeal or notice of intervention filed in or mailed to a Registry under subsection 5(4) or 9(1).

• (2) (a) The Minister shall file the reply at the Registry and serve it on the appellant or intervener, or both, as the case may be, within 60 days from the day on which the notice of appeal or notice of intervention was served on the Minister, or within such longer time as the Court, on application made to it within those 60 days, may allow.

  • (b) The reply shall be filed in the Registry in which the notice of appeal or notice of intervention was filed or to which it was mailed, and it may be served on the appellant or intervener personally or by mail.

  • (b.1) A reply may be filed under paragraph (b) by mailing it to the appropriate Registry described in that paragraph.

  • (c) If the reply is served by mail the date of service is the date it is mailed and, in the absence of evidence to the contrary, the date of mailing is that date appearing on the communication from the Minister accompanying the reply.

• (3) The reply referred to in subsection (1) shall

  • (a) admit or deny the facts alleged in the notice of appeal or notice of intervention, and

  • (b) contain a statement of any further allegations of fact on which the Minister intends to rely.

• (4) An application for an extension of time under paragraph (2)(a) shall be made by serving at the Registry an application setting out

  • (a) the date on which the notice of appeal or notice of intervention was served on the Minister,

  • (b) the additional time required, and

  • (c) the reasons therefor.

• (5) The application to extend time may be served by filing it in the Registry in which the notice of appeal or notice of intervention was filed or to which it was mailed, or by sending a letter, telegram, telex or fax to that Registry.

• (6) If the application to extend time is served by telegram, telex or fax, the date of service is the date that the telegram, telex or fax is transmitted and, if the application is served by mail, the date of service is the date stamped on the envelope at the post office and, if there is more than one such date, the date of service shall be deemed to be the earliest date.

• (7) The Court shall dispose of the application on the basis of the representations contained in it and such additional information, if any, as the Court may require and after having given the appellant or intervener an opportunity to make representations.

• (8) The Registrar, on being informed of the decision of the Court in respect of the application, shall inform the Minister and the appellant or intervener.

Judgment by Consent

13 When all parties have consented in writing to a judgment disposing of an appeal in whole or in part and filed it with the Registry, the Court may

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

• (b) direct a hearing; or

• (c) direct that written representations be filed.

Disposition of Appeals

14 After the time for filing a reply under subsection 12(1) has expired, the matter shall, unless the Court otherwise directs, be deemed to be ready for hearing.

• 15 (1) Where a reply to a notice of appeal has not been served within the 60 days prescribed under paragraph 12(2)(a) or within such longer time as the Court may allow, the appellant may apply on motion to the Court 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) [Repealed, SOR/2007-146, s. 7]

  • (b) direct that the appeal proceed to hearing on the basis that facts alleged in the notice of appeal are presumed to be true,

  • (c) allow the appeal if the facts alleged in the notice of appeal entitle the appellant to the judgment sought, or

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

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

• 16 (1) An appeal may at any time be withdrawn in whole or in part by the appellant by serving notice in writing on the Registrar and thereupon the appeal is deemed to be dismissed in whole or in part.

• (2) The Registrar shall forthwith serve any intervener or other person who may be directly affected by a notice of withdrawal served under subsection (1) with a copy of the notice of withdrawal.

17 As is provided in subsection 103(3) of the Act, on an appeal, the Court

• (a) may vacate, confirm or vary a decision on an appeal under section 91 of the Act or an assessment that is the subject of an appeal under section 92 of the Act;

• (b) in the case of an appeal under section 92 of the Act, may refer the matter back to the Minister for reconsideration and reassessment;

• (c) shall notify in writing the parties to the appeal of its decision; and

• (d) shall give reasons for its decision but, except where the Court deems it advisable in a particular case to give reasons in writing, the reasons given by it need not be in writing.

Pronouncing and Entering of Judgments

• 17.1 (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 rendering 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 to it, if any, shall be deposited with the Registry without delay.

Discovery

• 18 (1) After the time limited for replying under section 12 has expired the Court may, on application by any party to an appeal, direct

  • (a) any other party to the appeal to make discovery on oath of 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,

  • (b) that the applicant is authorized to examine on oath, for the purposes of discovery, any other party to the appeal, or

  • (c) that there shall be both discovery of documents and examination for discovery.

• (2) The Court may specify the form of affidavit to be used for the purpose of discovery of documents.

• (3) The person to be examined for discovery shall be

  • (a) if the other party is an individual, that individual,

  • (b) subject to paragraph (d), if the other 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 thereof or any other person, any member or officer of such corporation, body or group,

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

  • (d) if the other party is the Commission, any officer thereof nominated by the Deputy Attorney General of Canada, or

  • (e) a person who has been agreed upon by the examining party and the party to be examined with the consent of such person.

• (4) The Court may designate the person before whom the examination for discovery is to be conducted and direct the manner in which it shall be conducted.

• (5) All evidence given at an examination for discovery shall be recorded by a court reporter.

• (6) Any party may, at the hearing of an appeal, use in evidence against another party any part of the examination for discovery of that other party, but, on the application of an adverse party, the Court may direct that any other part of the examination, that in the opinion of the Court, is so connected with the part to be used that the last-mentioned part ought not to be used without such other part, be put in evidence by the party seeking to use such examinations.

Hearing of Appeals

19 The Court may, on application by the Minister or an appellant or by an intervener or of its own motion, fix the date, time and place for the hearing of an appeal.

20 When the Court has fixed the date for a hearing, the Registrar shall, no later than 30 days before that date, send by registered mail to all parties, or have served on all parties to the appeal, a notice of hearing.

21 The Court may, on application by the Minister or an appellant or by an intervener or of its own motion, adjourn an appeal on such terms as in its opinion the circumstances of the case require.

22 The Court, upon the application of a party to an appeal or of its own motion and after giving every party an opportunity to be heard, may, at any stage of the appeal, give directions for the further conduct of the appeal.

23 All parties to an appeal may appear in person or may be represented by counsel or an agent.

Subpoena

• 24 (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 relating to the matters in question in the appeal that are specified in the subpoena.

• (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) A subpoena shall be served on a witness personally and, at the same time, witness fees and expenses in accordance with subsection (4) shall be paid or tendered to the witness.

• (4) A witness, other than a witness who appears to give evidence as an expert, is entitled to be paid by the party who arranged for his or her attendance $75 per day, plus reasonable and proper transportation and living expenses.

• (5) An amount is not payable under subsection (4) in respect of an appellant, a respondent or a person who has intervened under section 9 unless the appellant, respondent or person has been called upon to testify by another party to the appeal.

Evidence

• 25 (1) A party to an appeal may, prior to the hearing thereof or at any time during the hearing, apply to the Court for a direction permitting all facts or any particular fact or facts to be proved by other than oral evidence and the Court may give such direction as in its opinion the circumstances of the case require.

• (2) All evidence given at the hearing of an appeal shall be recorded in a manner approved by the Registrar.

• (3) Any person who swears an affidavit to be used in an appeal may be required to appear before a person appointed by the Court for that purpose to be cross-examined thereon.

• (4) Where a party intends to call an expert witness at the hearing of an appeal, that party shall, as soon as practicable and not later than 20 days before the date of the hearing of the appeal, serve at the Registry and on every other party a copy of the report signed by that expert containing the expert’s name, address and qualifications and a statement of the substance of that expert’s proposed testimony.

• (5) A copy of a report by an expert witness shall be served

  • (a) by filing it in the Registry in which the notice of appeal was filed or to which it was mailed or by sending the report by mail or fax to that Registry, and

  • (b) on every other party to an appeal by personal service or by sending the report to that party by mail or fax

  and, if a copy of the report is served by fax, the date of service is the date of the transmission of the fax, or if it is served by mail, the date of service is the date stamped on the envelope at the post office and, if there is more than one such date, the date of service shall be deemed to be the earliest date.

• (6) A party who has failed to comply with subsection (4) is not permitted to call an expert witness without leave of the Court.

• (7) Subsections (4) and (6) do not apply to evidence in rebuttal.

• (8) The Court may, with the consent of all parties, receive in evidence at the hearing of the appeal a report served under subsection (4) without requiring the expert to attend and give oral evidence.

• (9) Where it is impracticable or inconvenient for an expert witness to attend at the hearing of an appeal, the party intending to call the witness may, with leave of the Court or the consent of the parties, examine the witness under oath prior to the hearing of the appeal before a court reporter appointed by the Registrar for the purpose of having the evidence of that expert available for use at the hearing of the appeal.

• (10) An expert witness who is examined under subsection (9) may be examined, cross-examined by a party adverse in interest, or re-examined in the same manner as a witness at the hearing of an appeal and, if any dispute arises during the course of the examination, any party to the appeal may make application to the Court to resolve the dispute.

• (11) Where the evidence of an expert witness has been taken under subsections (9) and (10), that witness shall not be called to give evidence at the hearing of the appeal, except with leave of the Court or unless the Court requires the attendance of that witness at the hearing of the appeal.