Could judicial reviews in the Federal Court move faster?
My submission to the 2024 Global Review of the Federal Courts Rules
The Federal Courts are completing a global review of their rules. The rules committee has invited comments from the public (the deadline is today, July 2, 2024). Among other topics, the committee seeks comments on whether the rules should be streamlined or simplified in any particular way.
The Federal Courts rules are relevant to taxpayers in disputes with CRA. Although many tax disputes are resolved by the Tax Court of Canada, many others are within the jurisdiction of the Federal Court of Canada. Most notably, a taxpayer who disputes a discretionary decision by the CRA (for example, whether to grant interest or penalty relief) must generally ask for relief from the Federal Court.
Many people have criticized the lack of a one-stop shop for tax disputes.1 The Supreme Court of Canada’s decision last Friday in Dow Chemical Canada ULC v. Canada likely disappointed those who hope for more simplicity.2 In a 4-3 decision, the Supreme Court declined to accept a greater role for the Tax Court in reviewing the CRA’s discretionary decisions. For now, many tax disputes will continue to be resolved by judicial reviews in the Federal Court.
Below are the comments I submitted to the global review of the Federal Courts rules. My comments address one particular way in which judicial reviews might be streamlined or simplified.
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I am a tax litigation lawyer who practices before the Federal Courts. I am grateful for the opportunity to provide input in the 2024 Global Review of the Federal Courts Rules.
My comments concern simplifying and streamlining certain aspects of judicial reviews.
Applications for judicial review use the same procedure as other applications before the Federal Court, with limited adaptations. This procedure contemplates that the parties will exchange affidavits and will carry out cross-examinations, following which the parties will file their records and request a hearing.
In my experience, these procedures work well for applications involving contested facts. However, I have observed two particular challenges with the rules as they apply to judicial reviews.
First, the rules may give parties the impression that affidavit evidence is routine or expected on a judicial review. However, other than the record of the decision under review (for which an affidavit is not necessary), evidence is not generally admissible on judicial review with limited exceptions (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, paras 18-20). In my experience, the issue still frequently comes up although this law is well settled.
Second, where a judicial review does not require affidavits or cross-examinations, the rules can add unnecessary delay. Rules 306, 307, and 308 provide a total of 80 days for the parties to serve affidavits and conduct cross-examinations. Given the limited role of affidavit evidence in a judicial review, this time is often not required. Short of seeking direction from the court, parties have limited ways to move forward more quickly. For example, where an applicant does not deliver an affidavit, the deadline for the respondent to deliver his own affidavit remains 30 days from the applicant's deadline, and 60 days from the issuance of the notice of application.
One solution would be for a distinct set of rules for judicial reviews. Under such rules, the default steps could be reduced to the delivery of the certified tribunal record, the applicant’s record, and the respondent's record. Parties who wished to deliver affidavits or cross-examine could do so (for example, by requesting a case conference to establish a timetable for such steps). Affidavits and cross-examinations would not, however, be the default.
A second, less comprehensive solution would be to allow a party, as an alternative to delivering an affidavit, to inform the other party that they do not intend to rely on affidavit evidence. This notice could trigger the other party’s deadline to take the next step in the application. Providing such an option in the rules would remind parties that affidavits may not always be required for a judicial review. It would also allow an applicant or the respondent to move the application along when they determine that they do not need affidavit evidence. To illustrate this proposed solution, I include potential text for Rules 306 to 309 at the end of these comments.
Thank you again for the opportunity to provide input and I look forward to the results of the Global Review.
Ben Grant
Guelph, Ontario
Draft text
Applicant’s affidavits
306 Within 30 days after issuance of a notice of application, an applicant shall serve its supporting affidavits and documentary exhibits and file proof of service or shall inform the respondent in writing that the applicant does not intend to rely on supporting affidavits or documentary exhibits. The Any affidavits and exhibits are deemed to be filed when the proof of service is filed in the Registry.
Respondent’s affidavits
307 Within 30 days after service of the applicant’s affidavits or after being informed in writing that the applicant does not intend to rely on affidavits or documentary exhibits, a respondent shall serve its supporting affidavits and documentary exhibits and shall file proof of service or shall inform the applicant in writing that the respondent does not intend to rely on supporting affidavits or documentary exhibits. The Any affidavits and exhibits are deemed to be filed when the proof of service is filed in the Registry.
Cross-examinations
308 Cross-examination on affidavits must be completed by all parties within 20 days after the filing of the respondent’s affidavits or the expiration of the time for doing so written notice that the respondent does not intend to rely on supporting affidavits or documentary exhibits, whichever is earlier.
Applicant’s record
309 (1) An applicant shall serve and file the applicant’s record:
if the applicant or the respondent has filed affidavits or documentary exhibits, within 20 days after the day on which the parties’ cross-examinations are completed or within 20 days after the day on which the time for those cross-examinations is expired, whichever day is earlier;
if neither the applicant or the respondent has filed affidavits or documentary exhibits, within 20 days of the respondent informing the applicant in writing that the respondent does not intend to rely on supporting affidavits or documentary exhibits.
Update, August 29, 2024: A reader pointed out, correctly, that an applicant may sometimes need an affidavit to prove parts of the record of the decision under review. Although Rule 317 requires decision-makers to produce the record of their decision, and an applicant does not need an affidavit to prove documents produced under that rule, Rule 317 does not require a decision-maker to produce documents already in the possession of the applicant. An applicant may therefore need to file an affidavit to ensure the Federal Court has all of the relevant parts of the record.
Notwithstanding the above, I still believe that the rules could be improved to reflect the fact that many judicial reviews center on the record of the decision under review, and don’t require much if any additional evidence by affidavit or cross-examination.
See e.g. Michael H. Lubetsky, "The Fractured Jurisdiction of the Courts in Income Tax Disputes," in Pooja Mihailovich and John Sorensen, eds., Tax Disputes in Canada: The Path Forward (Toronto: Canadian Tax Foundation, 2022), 3: 63-115.
Dow Chemical Canada ULC v. Canada, 2024 SCC 23.