Attending TCC Hearings

The TCC regularly sits in 59 locations across Canada and, on application, may sit in other locations. Hearings are generally open to the public and listed on the TCC website, unless the hearing has been designated by the court as confidential. Thus, a tax practitioner could plan to attend a hearing out of general curiosity or an interest in a specific case; however, there is a significant risk that the hearing may be cancelled at the last minute. There can be a great variety of cases to choose from, depending on the city; for example, as of early January 2019, 43 different hearings were scheduled for Toronto during the week of February 4, 2019.

The TCC is a superior court that has exclusive original jurisdiction to hear appeals and references pursuant to 14 acts of Parliament, ranging from the Income Tax Act to the War Veterans Allowance Act. Most appeals relate to income tax, goods and services tax, and employment insurance.

The TCC provides information about upcoming hearings. On the TCC's hearings schedule page, select the hearing location (city) and the week of interest, then click to generate a "set down list report." The exact location is noted under "facility"; however, the locations may vary within any given city from hearing to hearing, although they will generally all be in the same building in the largest cities. The report also lists the date, time, hearing type (for example, appeal or status hearing), style of cause (which shows the taxpayer's name), the representatives in court of the taxpayer (who could be self-represented) and the Crown, the nature of the appeal, the tax year(s) in dispute, and the language of the hearing. The style of cause also indicates both the type of tax at issue—income tax (IT) and GST being the most common—and the hearing procedure. A hearing to be held under the general procedure is listed with a "G" at the end; "I" indicates a hearing under the informal procedure. A single judge of the TCC presides over each hearing. The name of that judge is not normally listed in the report, but it can usually be obtained by calling the registrar (whose phone number is listed in the report) within two weeks of the hearing date.

Unfortunately, the "nature of appeal" column provides only very general information about the types of issues that will be raised. Typical entries include capital expenditures, unreported income, penalties, business expenses, employment or self-employment, employment expenses, time extensions, appeals, and directors' liability. If a case is of special interest, one can contact the TCC in advance at any of its 18 registry offices for a copy of the written pleadings.

No statistics are available about the typical length of a hearing. In 2017-18, TCC judges spent 2,247 days in court (which likely includes procedural hearings, such as status hearings or motions, which can take place prior to the final hearing of an appeal), and 774 files were prepared for hearing and heard in court. This suggests that an average hearing lasts just under three days, but this average might be skewed by some very long hearings. It is likely that a typical hearing might be a half day or one full day.

It would be prudent to check the latest set down list report before attending a hearing because the party that instituted the appeal may discontinue it at any time by written notice (perhaps because of a settlement between the parties); this can happen just minutes before the hearing is scheduled to begin. In 2017-18, only a minority of cases that were scheduled for a hearing were prepared and heard in court (774 of 1,818), although there are no data available on the length of time between the cancellation and the hearing's scheduled time.

Sameer Nurmohamed
Osler, Hoskin & Harcourt LLP, Toronto
[email protected]

Canadian Tax Focus
Volume 9, Number 1, February 2019
©2019, Canadian Tax Foundation