The Lawyers Weekly - August 26, 2011

Tax
Continued From Page 1
away all tax-related matters
from the Federal Court and
Federal Court of Appeal.

The longstanding issue has sparked another rift at the top echelons of the Federal and Tax Courts — two courts now served by a single Courts Administration Service but which have butted heads many times in the past. Indeed, when the most recent proposal from the Bar to expand the Tax Court’s exclusive jurisdiction first came to the Federal Court’s attention last month after the CBA publicly posted the proposed resolution on its website, acting Federal Court Chief Justice Noel fired off a letter to federal Justice Minister Rob Nicholson.

In the July 15 letter obtained by The Lawyers Weekly, the Federal Court’s acting Chief Justice protests that the Tax Court’s leaders have apparently recently asked the government to consider giving all tax jurisdiction to the Tax Court exclu-sivel—without informing or consulting the Federal Court (or Federal Court of Appeal) whose tax jurisdiction would consequently be eliminated.

“I have unofficially been
informed that the Chief Justice
and/or the Associate Chief Jus-
tice of the Tax Court of Canada
have recently written to you
requesting that you consider the
transfer of jurisdiction of all tax
matters from the Federal Court
to their court,” acting Federal
Court Chief Justice Noel writes.
“Such a request involves the
jurisdiction of the Federal Court
and must call for the participa-
tion of all Federal Courts and its
Chief Justices.”
He suggests that “through
proper discussion, the request
made by the Tax Court of Can-
ada representatives can be
assessed in a transparent and
full manner, having regard to
the interests of all institutions
and stakeholders and the
broader jurisdictional context
within which this isolated
request is situated. It may be
that other avenues may be con-
sidered which would serve our
common objective of ensuring
that the administration of jus-
tice is both effective and finan-
cially and administratively situ-
ated.”
When asked by The Lawyers
Weekly whether the Tax Court
did in fact ask the government
to consider transferring all tax
matters solely to the Tax Court,
the acting Chief Justice of the
Tax Court, Associate Chief Jus-
tice Rossiter, responded “the
Tax Court of Canada has no
comment, and will not have any
comment, on what, if any, com-
munications it has with anyone
on the jurisdiction of the Tax
Court of Canada.”
Notwithstanding any juris-
dictional wrangles between
courts, giving exclusive original
tax jurisdiction to the special-
ized Tax Court is a move which
most tax practitioners support
for the sake of their clients, says

Ailing Federal Chief Justice steps down

FEDERAL COURT CHIEF
Justice Allan Lutfy announced
Aug. 16 that he will step down
Sept. 30, after eight years as the
court’s leader. At that time the
67-year-old judge, who has been
on a medical leave for an
undisclosed illness since May 17,
will take on supernumerary status.
Meanwhile, Tax Court Chief
Justice Gerald Rip is recuperating
from Aug. 10 back surgery,
Associate Chief Justice Eugene
Rossiter told The Lawyers Weekly.
“He is recovering quickly and will
be entering rehab shortly. He’s
getting along great,” said Justice
Rossiter, who is the acting Chief
Justice. He estimated that Chief
Justice Rip will return to work
some time in late October or early
November. – By Cristin Schmitz

Pont argued passionately that consolidating all tax matters within a specialized and expert court will improve cost, efficiency and service to taxpayers.

However, in an exclusive interview, Federal Court acting Chief Justice Noel challenged the contention of Du Pont and other tax lawyers that unifying all tax jurisdiction within the Tax Court will improve taxpayers’ access to justice.

“It’s a hypothesis. It’s their
own opinion,” he told The Law-
yers Weekly. “They pass their
value judgment on a situation
that has not been tested.”
He said he has not heard any
complaints about his court’s
handling of tax matters.

carving out part of this jurisdic-
tion is a major substantive
change and there has not been
an opportunity for full
and transparent consul-
tation to take place with
interested stakehold-
ers.”
When he responded
three years ago to then-
CBA president Amyot’s
brief requesting that the
Tax Court’s exclusive
jurisdiction be
expanded, Justice Minis-
ter Nicholson wrote that such
reforms “would best be con-
sidered in the context of an
overall policy review.”
Nicholson’s July 4, 2008 let-
ter obtained by The Lawyers
Weekly says, “In addition to the
broad range of substantive legal
policy issues raised by
your proposal, con-
sideration would also
need to be given to the
potential impact of such
expanded jurisdiction
on the workload of the
Tax Court and to the
implications of the
additional administra-
tive and judicial resour-
ces that might be required
to undertake a greater case
load.” n

Click here
to see our video
of the CBA Tax
Court debate
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