Tax Court of Canada Rules of Procedure Respecting the Excise Tax Act (Informal Procedure) (SOR/92-42)

Costs Vexatious Proceedings

13.1 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.

Removal of an Appeal from the Informal Procedure to the General Procedure or from the General Procedure to the Informal Procedure

14 An application by the Attorney General of Canada to remove an appeal from the informal procedure to the general procedure shall be by motion and the Court may give such directions as are necessary for the subsequent conduct of the appeal. There shall be no additional filing fee for proceeding in the general procedure, unless the Court so directs.

• 15 (1) Where a person who has appealed under Part IX of the Excise Tax Act has not elected in the notice of appeal that section 18.3001 and sections 18.3003 to 18.302 (Informal Procedure) of the Act shall apply, that person may, within 90 days from the date on which the reply is served or within such additional time as the Court may, on motion for special reasons, allow, make such an election.

• (2) An election under subsection (1) may be in the form set out in Schedule 15.

Application for Extension of Time

• 16 (1) A person who has made an application to the Minister to extend the time for the filing of a notice of objection or the making of a request in writing to the Minister for an assessment in respect of an avoidance transaction may apply to the Court to have the application granted after either

  • (a) the Minister has refused the application, or

  • (b) 90 days have elapsed after service of the application and the Minister has not notified the person of the Minister’s decision,

  but no application under this section may be made after the expiration of 30 days after the day on which notification of the Minister’s decision was mailed to the person.

• (2) An application made under subsection (1) may be in the form set out in Schedule 16(1) — OBJECTION or 16(2) — REQUEST, as the case may be.

• (3) An application under subsection (1) shall be made by filing with the Registrar, in the manner provided in section 4.1, three copies of the application made to the Minister accompanied by three copies of the notice of objection or the request, as the case may be, and three copies of the Minister’s decision, if any.

• (4) The Court may dispose of an application made under subsection (1) by

  • (a) dismissing it, or

  • (b) granting it,

  and, in granting it, may impose such terms as it deems just or order that the notice of objection or the request be deemed to be a valid objection or request as of the date of the order.

• (5) No application shall be granted under this section to a person unless

  • (a) the application is made within one year after

    • (i) the expiration of the time specified by the Excise Tax Act for filing a notice of objection*, or

    • (ii) the lapse of 180 days after the day of mailing of a notice under subsection 274(6) of the Excise Tax Act; and

  • (b) the person demonstrates that

    • (i) within the applicable time specified in subparagraph (a)(i) or (ii), the person

      • (A) was unable to act or instruct another to act in the person’s name, or

      • (B) had a bona fide intention to object to the assessment or make the request,

    • (ii) given the reasons set out in the application and the circumstances of the case, it would be just and equitable to grant the application, and

    • (iii) the application to extend time was made to the Minister as soon as circumstances permitted it to be made.

  •  * Subsection 301(1.1) of the Excise Tax Act provides:

    • “(1.1) Any person who has been assessed and who objects to the assessment may, within ninety days after the day notice of the assessment is sent to the person, file with the Minister a notice of objection in the prescribed form and manner setting out the reasons for the objection and all relevant facts.”

• (6) The application pursuant to subsection (1) is deemed to have been filed on the date of its receipt by the Registry, even if the application is not accompanied by all of the documents listed in subsection (3), provided that those documents are filed within 30 days after that date or within any reasonable time that the Court establishes.

• 16.1 (1) An application for an order extending the time within which an appeal may be instituted may be in the form set out in Schedule 16.1.

• (2) An application under subsection (1) shall be made by filing with the Registrar, in the manner provided in section 4.1, three copies of the application accompanied by three copies of the notice of appeal.

• (3) No application shall be granted under this section to a person unless

  • (a) the application is made within one year after the expiration of 90 days after the day on which the notice was sent to the person informing the person that the Minister has confirmed the assessment or has reassessed; and

  • (b) the person demonstrates that

    • (i) within the 90-day period specified in paragraph (a), the person

      • (A) was unable to act or to instruct another to act in the person’s name, or

      • (B) had a bona fide intention to appeal,

    • (ii) given the reasons set out in the application and the circumstances of the case, it would be just and equitable to grant the application,

    • (iii) the application was made as soon as circumstances permitted it to be made, and

    • (iv) there are reasonable grounds for appealing from the assessment.

• (4) The application pursuant to subsection (1) is deemed to have been filed on the date of its receipt by the Registry, even if the application is not accompanied by the notice of appeal referred to in subsection (2), provided that the notice of appeal is filed within 30 days after that date or within any reasonable time that the Court establishes.

Judgments on Admissions or Certain Documentary Evidence

16.2 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 such documents,

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

Subpoena

• 17 (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 section 11 shall be paid or tendered to the witness.

General

18 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.

• 19 (1) Failure to comply with these rules shall not render any proceedings void unless the Court so directs, but such proceedings may be set aside either in whole or in part as irregular and may be amended or otherwise dealt with in such manner and on such terms as, in the opinion of the Court, the circumstances of the case require.

• (2) Where a person makes an application to set aside a proceeding for irregularity, the objections intended to be put forward shall be stated clearly in the application.

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

• (4) 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.

Contempt of Court

• 20 (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.