Tax litigation in Canada: overview
A Q&A guide to civil and criminal tax litigation in Canada.
This Q&A provides a high level overview of the key practical issues in civil and criminal tax litigation, including: pre-court/pre-tribunal process, trial process, documentary evidence, witness evidence, expert evidence, closing the case in civil and criminal trials, decision, judgment or order, costs, appeals, and recent developments and proposals for reform.
To compare answers across multiple jurisdictions, visit the Tax Litigation: Country Q&A tool.
The Q&A is part of the global guide to tax litigation. For a full list of jurisdictional Q&As visit www.practicallaw.com/taxlitigation-guide.
Overview of tax litigation
Issues subject to tax litigation
There are a number of subjects that continue to populate the caseload before the Tax Court of Canada. The same cannot be said in respect of tax prosecutions and related offences. The majority of cases in both the criminal and civil arenas continue to be resolved before the actual commencement of a trial. This said, there are certain subjects that continue to generate more tax litigation than others. Tax disputes involving transfer pricing, the General Anti Avoidance Rules (GAAR), third-party penalties, tax treaty issues involving permanent establishment, trust issues and particularly the issue of residency appear to have taken centre stage before the Tax Court and appellate levels of courts in Canada. In terms of criminal matters, stiffer penalties for convicted tax evaders and schemers appear to be on the rise, and conviction rates remain very high.
Civil tax litigation
All Canadian provinces and territories, with the exception of Québec, follow the common law system. The common law system is a legal system based on court decisions, which establish a foundation of principles and rules of conduct. The doctrine of stare decisis applies, and obliges judges to respect precedents that have been established by prior decisions.
The Province of Québec follows a civil code. The civil code is a legislative enactment that governs civil rights and contains provisions and regulations with respect to the private law.
The main legislation governing civil and criminal tax litigation is as follows:
Tax Court of Canada Act, R.S.C. 1985, c. T-2.
Tax Court of Canada Rules.
Income Tax Act, R.S.C. 1985, c. 1 (5th Supp).
Excise Tax Act, R.S.C. 1985, c. E.15.
Criminal Code, R.S.C. 1985, c. C-46.
Criminal tax litigation
There are numerous penalty provisions in the Income Tax Act R.S.C. 1985 (5th Supp) (as amended) (Income Tax Act) that deal with various types of civil offences, such as the late filing of a tax return. In the criminal realm, there are three main types of offence provisions in the Income Tax Act.
The first, and most serious, types of criminal offences are those set out in section 239(1) of the Act, commonly known as "tax evasion offences". The offences under section 239(1) include:
Making false or deceptive statements.
Destroying/altering/mutilating/secreting/disposing of the records or books of account of a taxpayer.
Making false or deceptive entries or omitting material particulars in records or books of account.
Evasion of, or attempts to evade, compliance with the Income Tax Act or payment of taxes imposed by the Act.
Conspiring to commit any of the above offences.
These offences require both the actus reus (the "guilty act") and mens rea (the "guilty mind") on the part of the offender. If found guilty of one of these offences, in addition to any other civil penalty imposed, the offender may be liable to a fine and/or imprisonment.
The second types of offences are those set out under section 239(1.1), dealing with evasion with respect to tax refunds or tax credits. The offences and punishment under section 239(1.1) largely mirror those under section 239(1).
The third types of offences are regulatory in nature, and are set out in section 238(1) of the Income Tax Act. The offences under section 238(1) pertain to persons who fail to file or make annual tax returns, or who fail to comply with certain provisions of the Income Tax Act. These are strict liability offences with no mens rea requirement. Offenders can be liable to a fine and imprisonment.
The Excise Tax Act contains offence provisions that are similarly modelled and based on the offence provisions of the Income Tax Act. Further, many provincial tax statutes contain similar, if not identical, provisions as those contained in the Income Tax Act.
Tax evasion and other criminal tax offences
There are three main types of criminal offence under the provisions of the Income Tax Act (see Question 2, Criminal tax litigation):
Tax evasion offences.
Offences that deal with evasion relating to tax refunds or tax credits.
Offences that pertain to persons who fail to file, or who fail to comply with certain provisions of the Income Tax Act.
Assessment, re-assessments and administrative determinations in civil law
The Minister of National Revenue (MNR) is the Minister in the Canadian Cabinet responsible for the administration of tax law and tax collection in Canada. The Canada Revenue Agency (CRA) is the federal agency that exercises the MNR's powers. The CRA administers and collects taxes both federally and provincially at both the personal and corporate tax level.
Canada has a self-reporting tax system. It is a voluntary system, but taxpayers must file an income tax return, which estimates the amount of tax payable in that taxation year. The CRA will then make an "assessment" of the amount of tax payable by the taxpayer. The CRA can also make "determinations" with respect to the amount of losses, refunds, refundable credits or, where avoidance transactions are implicated, the amounts required to be included in income, applicable to a taxpayer.
The CRA will mail a Notice of Assessment to the taxpayer indicating the amount of tax payable by the taxpayer. There is the potential for the CRA to reassess its determination of the amount payable. Reassessments most commonly occur either after initial assessments, or after an audit has occurred. The CRA can request more information or perform an audit (either before or after sending a Notice of Assessment) in order to gather greater information for the purposes of assessing taxes.
The procedure is largely the same for assessments and reassessments under the Excise Tax Act with respect to goods and services tax (GST) and harmonised sales tax (HST).
Resolving disputes before commencing court proceedings
When a taxpayer does not agree with the amount assessed as payable by the Canada Revenue Agency (CRA), the taxpayer can begin an administrative appeal from the assessment or re-assessment by filing a Notice of Objection (Objection). The Objection must be filed within 90 days from the date the Notice of Assessment or Re-assessment is received. The Appeals Branch of the CRA will then consider the Objection. The provincial regimes are largely similar to the Income Tax Act's system of administrative objections.
At both the audit and appeals stage, a taxpayer has the opportunity to resolve disputes prior to formal litigation through discussion and negotiation with the CRA. When considering this option, the taxpayer should assess the costs associated with bringing the tax dispute to court in proportion to the potential benefit to be received from doing so.
Where a taxpayer opts to enter into settlement with the CRA, the taxpayer will generally be bound by the terms of the settlement, and as such cannot appeal an assessment. However, a settlement agreement cannot bind the CRA, as the Minister of National Revenue has a statutory duty to assess the amount of tax payable on the facts as he finds them in accordance with the law as he understands it. The CRA does not have the power to make assessments based on compromise settlements with the taxpayer. Rather, the CRA must make assessments according to the law. Valid settlements are therefore limited to cases in which the parties agree on the application of the law to the facts. The same considerations prevent taxpayers and the CRA from entering into the private arbitration dispute resolution process.
While the CRA endorses the use of mediation of tax disputes, its use is usually limited to the settlement of factual matters, and does not involve matters of legal interpretation. It should be noted that the vast majority of taxpayer disputes are resolved at the CRA's audit or appeals stages.
Elements of the offence in criminal law
To commence criminal tax prosecutions, the Canada Revenue Agency (CRA) must formally lay charges under a federal statute. In situations where the CRA finds sufficient evidence to justify the laying of a criminal charge, a Crown Prosecutor from the Public Prosecution Service of Canada (PPSC) will act as counsel for the Crown in the prosecution of the offence.
An important element of tax evasion is the requirement of mens rea or "guilty mind". Conversely, the offences contained within section 238 of the Income Tax Act are strict liability offences, and as such, a taxpayer will be held legally liable regardless of culpability or the presence of mens rea (see Question 2, Criminal tax litigation).
Where a taxpayer is charged with a criminal tax offence and does not wish to go through a lengthy litigation process, the taxpayer can attempt to seek an early resolution of the criminal charges. In some other jurisdictions this is referred to as a plea bargain. The early resolution of criminal charges involves an agreement between the Crown Prosecutor and the taxpayer in which the taxpayer agrees to plead guilty to the offence (or offences) in exchange for a particular proposal on sentencing. In some instances, the taxpayer may plead guilty to a less serious charge, or to only one of several charges (in exchange for the dismissal of the other charges), or alternatively, the taxpayer may plead guilty to the original charge in exchange for a more lenient sentence. The agreement will then be put before a judge as a sentence jointly recommended by the Crown and the taxpayer. The judge can agree with the joint proposal or reject it. More often than not, if it is a reasonable proposal, a judge will accept a joint sentencing proposal.
Format of the hearing/trial
The Tax Court of Canada (Tax Court) has exclusive original jurisdiction to hear and determine appeals from assessments under the Income Tax Act and the Excise Tax Act. These hearings are normally open to the public.
Appeals are heard by a single judge. The role of the Tax Court judge is limited to the making of judgments with respect to whether or not the amount of tax in issue was properly assessed in accordance with the relevant Act. In order to expedite the litigation process, the parties can agree to certain facts in advance of trial, therefore displacing the need to adduce evidence on every point.
It has consistently been held that actions of the Canada Revenue Agency (CRA) cannot be taken into account in an appeal, and that judges cannot consider whether the CRA officials exercised their powers properly. The validity of the assessment is what is at issue, and not the process by which it is established.
Role of the judge/arbitrator/tribunal members
Civil tax litigation
The role of the Tax Court judge in a civil proceeding is to establish, on a balance of probabilities, whether the disputed taxes are correctly owing. The judge oversees the pre-trial and trial proceedings. Ultimately, the judge issues an oral or written judgment (the latter being typical) in which the judge resolves the facts that are in dispute and any questions of law which are necessary to resolve the case.
Criminal tax litigation
In a criminal setting, the judge must determine, beyond a reasonable doubt, the guilt of the accused. This evidentiary standard has been equated to a "near certainty", rather than a "reasonable probability". This means that there is a significantly higher burden of proof on the tax authority than in a civil trial.
Commencement of proceedings: civil law
A taxpayer can appeal an assessment to the Tax Court of Canada. The taxpayer must appeal the decision within 90 days from the date of Notice of Confirmation of the assessment or re-assessment.
An appeal is commenced by filing a Notice of Appeal with the Tax Court of Canada. The taxpayer has the option of filing an appeal under either the:
For appeals concerning the Income Tax Act, the Informal Procedure is available where the amount of money in dispute is equal to or less than CAD25,000, or in the case of determinations of losses, the losses determined by the CRA are equal to or less than CAD50,000. For appeals concerning the Excise Tax Act, the Informal Procedure is available where the amount of money in dispute is equal to or less than CAD50,000.
Where the amount of money in dispute exceeds the thresholds above for the Informal Procedure, the General Procedure must be adopted.
The Informal Procedure is a faster process and does not involve examinations for discovery or technical rules of evidence. The General Procedure is more formal, requiring the exchange of documents and examinations for discovery, and involving the law of evidence.
A taxpayer generally does not have to pay disputed taxes prior to appealing to the Tax Court. However, because interest accrues on any unpaid amounts, typically at a high rate, it is usually rational to pay the amounts in dispute. If the taxpayer is ultimately successful, the money will be repaid to the taxpayer, with interest.
Commencement of proceedings: criminal law
A criminal tax proceeding commences with the laying of an information at an inferior (that is, provincial) court. If the Canada Revenue Agency decides to proceed on a criminal basis, the Office of the Public Prosecutor acts on its behalf in respect of court proceedings. In such cases, an accused taxpayer's constitutional rights are engaged.
A relatively recent change at the Tax Court, as of 2014, has been to increase the number of cases that can be heard by the Informal Procedure. While the former dollar limit in respect of a given taxation year was previously CAD12,000, it is now increased to CAD25,000 (see Question 10). This change means that many disputes can be heard on a streamlined basis.
In 2012, the Canada Revenue Agency (CRA) reconfigured its tax evasion programme by consolidating offices. The CRA reports a conviction rate of 98% in cases of criminal tax evasion. There have been no substantive changes to criminal procedure in the tax context.
Burden of proof
In civil tax disputes, the burden of proof is on the taxpayer to show the assumptions underpinning the Canada Revenue Agency's (CRA's) assessment or reassessment are incorrect. This is known as "demolishing" the CRA's assumptions. The rationale behind the placement of the burden of proof on the taxpayer is that, in Canada's self-reporting system, the taxpayer is in control of the information required to properly determine the appropriate tax liability.
If the taxpayer is able to demolish the CRA's assumptions, the burden of proof will shift to the CRA to prove the assumptions and provide the base or foundation for its assumptions. The judge will then be required to decide on a balance of probabilities which party is correct.
In criminal tax prosecutions, the taxpayer is innocent until proven guilty and the burden of proving all elements of the tax offence lies with the Crown. The standard of proof is beyond a reasonable doubt. The heightened burden of proof relates rationally to the seriousness of the offences and punishments.
Informal Procedure. The basic steps, time requirements and relevant legislation for a tax appeal in the Tax Court of Canada using the Informal Procedure are as follows:
Taxpayer must file notice of appeal. Within 90 days from the date of notice of confirmation of assessment or re-assessment (section 169(1) Income Tax Act and Rule 4, Informal Procedure Rules).
Canada Revenue Agency (CRA) must file and serve a reply. File within 60 days of service of the notice of appeal, and serve within five days after reply filed (section 18.16, TaxCourtof Canada Act and Rule 6(2) Informal Procedure Rules).
Court must serve notice of hearing on all parties. At least 30 days before date fixed for hearing (section 18.19, TaxCourt of Canada Act).
Hearing. Hearing must be set for a date within 180 days of the last day for filing a reply (section 18.17, Tax Court of Canada Act).
Judgment. Not later than 90 days after the day on which hearing concluded (section 18.22(1), Tax Court of Canada Act).
Taxpayer must file bill of costs. No time limit (Rule 13(2), Informal Procedure Rules).
Taxation of costs. No time limit (Rule 13(1), Informal Procedure Rules).
Certificate of taxation mailed by the court to the parties. Immediately following taxation (Rule 13(4), Informal Procedure Rules).
General Procedure. The basic steps, time requirements and relevant legislation for a tax appeal in the Tax Court of Canada using the General Procedure are as follows:
Taxpayer must file notice of appeal. Within 90 days from the date of notice of confirmation of assessment or reassessment (section 169(1) Income Tax Act and Rule 21, General Procedure Rules).
CRA must file and serve a reply. File within 60 days of service of the notice of appeal, and serve within five days after the 60-day period for service of reply (Rule 44, General Procedure Rules).
Taxpayer can file an answer. Within 30 days after service of the reply (Rule 45, General Procedure Rules).
Taxpayer and CRA must file and serve list of documents. Within 30 days from the close of pleadings (Rules 81 and 82, General Procedure Rules).
Inspection of documents listed. Any time after the list of documents has been served (Rule 85, General Procedure Rules).
Examination for discovery. Taxpayer and CRA can serve notice to attend oral examination. Taxpayer and CRA can serve list of written questions. After reply filed and served (Rules 92, 94, 103 and 113, General Procedure Rules).
Set appeal down for trial. After close of pleadings (Rule 123, General Procedure Rules).
Court can serve notice of status hearing (where appeal not set down for hearing or terminated within four months after filing reply or time to do so). At least 30 days before the date fixed for that hearing (Rule 125, General Procedure Rules).
Pre-hearing conference. After close of pleadings (Rule 126, General Procedure Rules).
Taxpayer and CRA can serve subpoena on witnesses. Must be served at least five days before the day on which the person is required to appear (Rule 141, General Procedure Rules).
Hearing of appeal. No time limit or applicable legislation.
Judgment. No time limit (Rule 167, General Procedure Rules).
Order as to costs. No time limit (Rule 147, General Procedure Rules).
Bill of costs and direction/document establishing entitlement to costs. Serve at least seven days before the date fixed for taxation (Rule 155, General Procedure Rules).
Taxation of costs. No time limit (Rules 153-159, General Procedure Rules).
Criminal prosecutions are conducted in the provincial court system following the Criminal Code rules of criminal procedure. In order to commence a criminal tax prosecution, the CRA must formally lay charges against the taxpayer.
The criminal offences contained under sections 238 and 239 of the Income Tax Act are summary conviction offences. However, the Crown can elect to prosecute on indictment, rather than on summary conviction, for offences under section 239. Charges can be set out in written form through an "information", in the case of summary conviction offences, or an "indictment", for indictable offences. The information or indictment constitutes a formal accusation that the taxpayer committed a crime.
Disclosure of documents in civil proceedings
Under the Informal Procedure, there is no formal discovery process, but the parties can informally request the documents of the other party in advance of the hearing.
Under the General Procedure, the parties have a right to a list of documents that the opposing counsel may use as evidence in the hearing, as well as to the production of these documents. While there are two types of lists that may be required (a partial disclosure list or a full disclosure list), in the absence of agreement between the parties or a court order, a partial disclosure list will be required in most circumstances.
A partial disclosure list requires that all documents be disclosed that a party has knowledge of and intends to use in evidence to establish an allegation of fact pled by a party, or to rebut an allegation of fact pled by a party. However, there is no requirement to disclose documents that the party does not intend to use in evidence. In contrast, where the parties agree to, or where the Tax Court orders, full disclosure, a full disclosure list requires that all documents be disclosed that are, or have been, in the possession, control or power of the parties, and that are relevant to any matter in question in the appeal. The list of documents required under full disclosure must be verified by affidavit.
After the lists of documents have been exchanged, the parties are required to allow the opposing parties adequate time to inspect and copy the documents listed.
After lists of documents have been exchanged, the parties will have an opportunity to examine the opposing parties during examinations for discovery. Examinations for discovery serve multiple purposes, including allowing the parties to:
Learn more about the facts in issue.
Learn the other party's case.
Obtain admissions from the other party (to encourage settlement).
Narrow the issues in dispute.
Examinations for discovery can occur in either oral or written form.
However, parties will be restricted from conducting oral examinations for discovery where the aggregate of all amounts in issue is CAD25,000 or less, or where the amount of loss in issue is CAD50,000 or less, unless the parties consent to oral examinations or the Tax Court orders that oral examinations are required.
The General Procedure Rules of the Tax Court of Canada should be referred to for detailed guidance as to who may be examined, when they may be examined, the scope of the examination, the manner of requiring attendance and much more.
Disclosure in criminal proceedings
In the context of criminal tax prosecutions, the accused taxpayer has a constitutional right to disclosure under section 7 of the Canadian Charter of Rights and Freedoms, which provides for the right to full answer and defence. The information collected through investigation is not the property of the Crown for use in securing a conviction, but rather, is the property of the public in ensuring that justice is done. As such, the accused has an entitlement to disclosure at an early stage after charges have been laid. The Crown's disclosure obligation is ongoing in nature, and exists throughout the entire criminal prosecution (and even exists after conviction).
The Crown's disclosure obligation covers all information in the Crown's possession or control that was created in the course of the investigation. In the interests of justice, the Crown must disclose information that is both inculpatory or exculpatory towards the accused. The Crown's disclosure obligation is very broad in order to ensure that the accused receives all information required to understand the case against them, and information that may assist the accused in preparing their defence. However, the Crown is not required to disclose information where the information is privileged or irrelevant.
Unlike in the civil context, in criminal tax prosecutions, the accused has no reciprocal obligation to disclose any of its defence. However, there are some exceptions to this rule. Also, in certain circumstances, the accused may opt to disclose its defence in order to convince the Crown to withdraw, or stay, the charges.
Notably, counsel for the accused taxpayer cannot conceal physical evidence of a crime, as they have a professional obligation to turn over such evidence to the police.
In virtually all tax appeals, witness testimony will be used as a source of evidence. Witnesses are generally limited to testimony relating to occurrences or experiences that they have been directly involved in, or have observed. They are prohibited from providing testimony based on opinion (with the exception of expert witnesses, discussed further below). In addition to providing oral testimony, a witness may be called to authenticate documents so that the document(s) can be admitted as evidence.
Witnesses will not only be subject to direct examination in court, but can also be subject to cross-examination and re-examination. During the examination of witnesses, a judge must exercise "reasonable control" over the interrogation so as to prevent undue harassment or embarrassment of the witness, and to prevent vexatious or irrelevant questions. The judge also has authority to direct that a witness be recalled for further examination at any time during the hearing. In the Tax Court, this is an infrequent occurrence. Moreover, while leading questions are generally not permitted, the judge can permit the party that called the witness to use leading questions where the witness appears unwilling or unable to give responsive answers. Specifically, in this circumstance, counsel that called the witness can ask the presiding judge to declare the witness "hostile" so that counsel can cross-examine the witness instead of carrying out a direct examination.
The laws of evidence in Canada are generally analogous in criminal and civil proceedings. As in the civil context, in a criminal trial, most evidence will be adduced by witnesses and through documentary evidence.
It is crucial that counsel prepare witnesses thoroughly in advance of a tax appeal hearing. One of the key elements of witness preparation is explaining to the witness the role that they will be playing, as well as the general process that will be followed in the hearing (that is, direct examination followed by cross-examination, and re-examination), so that the witness knows what to expect on the day of the hearing. If the witness is testifying as to the authenticity of a document, the document should be reviewed in advance with the witness.
In a criminal proceeding, there is no obligation on the accused to appear as a witness. However, if the accused does not testify, the judge can draw a negative inference about the testimony which the accused would have given. As such, if the witness is to appear, diligent preparation is necessary.
Hearsay evidence in civil and criminal trials
Hearsay is defined as an out-of-court statement that is adduced to prove the truth of its contents, where there is limited or no opportunity for a contemporaneous cross-examination of the individual who made the statement.
While the basic rule of evidence is that all relevant evidence is admissible, a caveat to this rule is that hearsay evidence is inadmissible unless found to be admissible under a traditional exception or the principled exception.
The rationale behind the inadmissibility of hearsay evidence is based on the general inability to test the reliability of such evidence. For example, the statement may have been inaccurately recorded, such that mistakes, exaggerations or deliberate falsehoods could lead to unjust verdicts if relied upon. Moreover, where the maker of the statement cannot be brought to court, it is difficult, if not impossible, to inquire into the person's perception, memory, narration or sincerity.
The rules pertaining to hearsay evidence in civil trials apply equally to a criminal proceeding (see above, Civil trials).
Expert reports in civil trials
Under the Informal Procedure in the Tax Court, any party calling an expert witness must file and serve a report at least ten days before the commencement of the hearing, setting out:
The expert's name, address and qualifications.
The substance of the expert's testimony.
Where parties do not comply with this requirement, the expert witness will not be allowed to testify, unless the Tax Court grants leave.
It is not possible for an expert witness to only provide a written report and not be available to appear at the trial in the Tax Court.
Under the General Procedure in the Tax Court, any party that is calling an expert witness in order to examine them in chief must file and serve an affidavit containing the proposed evidence-in-chief of the expert at least 30 days before the hearing.
Moreover, the expert is required to be available for cross-examination at the hearing. Where the other party wishes to bring forward an expert witness in rebuttal, the party must file and serve an expert affidavit at least 15 days before the hearing.
Expert evidence in civil trials
Expert witnesses, as opposed to lay witnesses, are persons who possess specialised knowledge through skill, experience, training or education. Where an individual is found to be qualified as an expert, they will be permitted to testify as to their opinions in court. In contrast, lay witnesses are only permitted to testify in court with respect to facts. Notably, both in the civil and criminal context, where a party intends to call more than five expert witnesses, they must seek leave of the court.
It is important to note that the expert affidavit itself will not become evidence at the hearing unless the information contained within the affidavit is given as evidence, either by being read into evidence by the witness or through the witness' verbal testimony providing an explanation or demonstration of what is contained in the affidavit.
Expert evidence in criminal trials
An expert in the criminal context is a witness who possesses special knowledge and experience going beyond that of the trier of fact. They are witnesses who have "acquired special or peculiar knowledge through study or experience" in respect of the matters on which they undertake to testify. This threshold must be met for expert evidence to be admissible.
Where either party wishes to call an expert witness, the party must give notice of the party's intention to do so at least 30 days before the commencement of trial. In the notice, the party must provide:
The name of the expert.
A description of the area of expertise.
A statement of the qualifications of the expert.
The Crown is required to disclose a copy of the expert report, or a summary of the anticipated opinion and the grounds on which the opinion is based, within a reasonable period before trial. The taxpayer can disclose it at any point before the close of the case.
Depending on the expert evidence that is being provided, there may be a requirement for it to be elicited in a particular manner by counsel. For example, where an expert is giving an opinion that is based on their own observations of facts that are not in dispute, the witness can simply state their opinion. However, if the expert's opinion is based on facts that are in dispute, or that have not been proven, the expert must give the opinion in the form of a hypothetical. The rationale behind this is to ensure that the Tax Court first determines the validity of the predicate facts before ascribing weight to the opinion.
Furthermore, where an expert has stated contradictory opinions that have been cited in academic journals, texts or other written works, counsel will only be entitled to cross-examine the expert on such contradictory opinion if the expert first acknowledges that the source in issue is authoritative.
Lastly, it is worth noting that the Criminal Code, R.S.C. 1985, c.C-46 permits expert testimony to be tendered by affidavit or solemn declaration where the court recognises the person as an expert.
The rules pertaining to experts in a criminal context are the same as those discussed in the civil context (see above, Civil trials).
Closing the case in civil trials
After the parties have set out their cases both in terms of oral and documentary evidence, the parties present their respective final arguments.
During presentation of the final arguments, the parties are heard in the order that they adduced evidence (that is, the appellant, followed by the respondent, who is then followed by the appellant in respect of rebuttal evidence).
From a practical standpoint when preparing arguments, each party should keep in mind that it is the final opportunity for the parties to make an impression and sway the judge in their favour. Parties may wish to provide the judge with a written outline of the arguments to be heard, as a helpful tool for the judge to follow. However, the oral arguments should be prepared well in advance, such that counsel is not dependent on the written outline. Moreover, unduly lengthy arguments should be avoided, with arguments kept as brief as possible, in order to maintain the judge's full attention.
Closing the case in criminal trials
As in the civil context (see Question 27), the closing arguments in criminal tax prosecutions are the last opportunity, after all evidence has been heard, for counsel to present arguments as to why the court should decide in their favour. The Crown Prosecutor will put forward its final arguments to support the position that the evidence demonstrates beyond a reasonable doubt that the taxpayer is guilty. The taxpayer will establish final arguments supporting the position that the Crown has not established its case beyond a reasonable doubt, and that the case should be dismissed.
Decision, judgment or order
Civil law cases
Where a judgment is made in the Tax Court under the Informal Procedure, the judge must render his judgment no later than 90 days after the day on which the hearing concludes. An exception to this time requirement is where "exceptional circumstances" exist (such as where the Tax Court requires written material to render its judgment and the materials were not received in time).
Furthermore, a copy of the decision and written reasons must be forwarded to the Minister of National Revenue and each party to the appeal. While the judge is required to give reasons for the judgment, there is no requirement for the reasons to be in writing. Rather, the reasons can be provided orally.
The Informal Procedure rules provide that judgments cannot be treated as precedents for other cases. However, this latter point has been challenged and "good law" can be considered in any case.
Where a judgment is made in the Tax Court under the General Procedure, the judgment and the reasons must be deposited in the Registry at Ottawa. A copy of the judgment and written reasons must be sent to each party. However, there is no time limit applicable to the rendering of the judgment. Notably, the judge has the power to direct one of the parties to prepare a draft of an appropriate judgment to implement the judge's decision.
Criminal law cases
In the context of criminal tax prosecutions, the Tax Court will provide a verdict of guilty or innocent to the taxpayer. Where the taxpayer is found guilty of the offence, the Tax Court will implement the purpose and principles of sentencing set out in the Criminal Code R.S.C., 1985, c.C-46 in determining the appropriate punishment for the offender. The fundamental principle in sentencing is to ensure that the sentence allotted is proportionate to the gravity of the offence and the degree of responsibility of the offender for the offence.
Sections 238 and 239 of the Income Tax Act provide for criminal penalties in the form of fines and imprisonment. Where there are civil penalties imposed on the taxpayer by the Canada Revenue Agency as part of the assessment process, when criminal charges are laid and when punishment is being imparted for a criminal conviction, the Tax Court will often take into account the civil penalties already imposed when imposing punishment. However, if no civil penalty has been imposed at the time the criminal charge is laid, then no civil penalty can be imposed for the same conduct that resulted in the criminal punishment.
The Tax Court is a superior court and as such has inherent jurisdiction to award costs, even in circumstances that are not explicitly enumerated in the Tax Court of Canada Act. Nevertheless, specific guidance with respect to costs can be attained from the legislation.
Under the Informal and General Procedures, the judge is provided with broad discretion with respect to the awarding of costs. This permits the judge to determine:
The amount of costs of all parties.
The allocation of costs.
The persons required to pay the costs.
It is common for the judges to order an unsuccessful party to pay some of the other party's legal costs. The judge is also provided with the specific power to award costs against vexatious litigants.
Specific to the Informal Procedure, the judge can award costs to the taxpayer where the judgment reduces the aggregate of all amounts, or the amount of interest in issue, or increases the amount of loss, as the case may be, by more than one half. Moreover, the judge's ability to order the taxpayer to pay the Canada Revenue Authority's (CRA's) costs under the Informal Procedure is limited to circumstances in which the taxpayer has unduly delayed the prompt and effective resolution of the appeal.
Under the General Procedure, the factors that the judge can consider in exercising the discretion to award costs are explicitly enumerated. While these factors are not enumerated for the Informal Procedure, they are likely factors that a judge will also consider when awarding costs under the Informal Procedure.
With respect to appeals relating to the Excise Tax Act, under the Informal Procedure, the judge can order the CRA to compensate the taxpayer for costs if all the following apply:
The taxpayer is more than 50% successful in their appeal.
The amount in dispute does not exceed CAD7,000.
The total value of all of the taxpayer's supplies for the prior fiscal year did not exceed CAD1,000,000.
In the criminal context, the power to award costs is exercised only rarely, and is generally only used "where there was serious misconduct on the part of the prosecution". However, costs are, increasingly being awarded in cases involving the infringement or denial of an individual's rights.
Right to appeal in civil law
Where a taxpayer or the Canada Revenue Agency is dissatisfied with the decision of the Tax Court, the decision can be appealed, as of right, to the Federal Court of Appeal. The grounds on which decisions under the Informal Procedure can be appealed are more limited than the grounds on which decisions can be appealed under the General Procedure. The grounds for appeal are primarily based on issues of fact, or matters of law.
A decision of the Federal Court of Appeal can be further appealed to the Supreme Court of Canada, with leave. Leave can be granted by either the Federal Court of Appeal or the Supreme Court of Canada. A decision of the Supreme Court of Canada is final and conclusive, with no further right to appeal. Typically, appeals to the Supreme Court involve both matters of fact and matters of law.
Where an assessment relating to provincial taxes is being appealed from the provincial court of general jurisdiction, it will proceed to the applicable Provincial Court of Appeal. If a decision of the Provincial Court of Appeal is appealed, it will then proceed to the Supreme Court of Canada where leave is granted.
Procedure to appeal in civil law
In order to appeal the Tax Court decision to the Federal Court of Appeal, the appellant party must file a Notice of Appeal with the Registry of the Federal Court of Appeal. Where an interlocutory judgment is being appealed, the Notice of Appeal must be filed within ten days after the pronouncement of the judgment. In all other cases, the Notice of Appeal must be filed within 30 days after the pronouncement of the judgment or determination appealed from. The Notice of Appeal must be served on all respondents to the appeal, and other persons directly affected by the appeal, within ten days after issuance. Proof of service of the Notice of Appeal must then be filed with the Registry within ten days after service.
Right to appeal in criminal law
Where a criminal tax prosecution is being appealed from the provincial court of general jurisdiction, the next level of court that the appeal is directed to will depend on the venue of the original proceedings and the type of offence being considered at the first level of court. Where the offence being considered is an indictable offence, the decision will be appealed to the applicable Provincial Court of Appeal. Where the offence being considered is a summary conviction offence, the decision will be appealed to the applicable Provincial Superior Court. Any further appeals will proceed to the Supreme Court of Canada, if leave is granted. Appeals are typically launched where issues of fact and matters of law are raised.
Procedure to appeal in criminal law
Where summary conviction offences are appealed, the appellant must file and serve a Notice of Appeal in compliance with the rules of the applicable Provincial Superior Court. The applicable rules will vary depending on the original court venue.
Where indictable offences are appealed, the appellant must file and serve a Notice of Appeal or Notice of Application for Leave to Appeal in compliance with the rules of the applicable Provincial Court of Appeal. The applicable rules will vary depending on the original court venue.
Recent civil law developments and proposals for reform
Transfer pricing has become a hotly litigated tax matter. Transfer pricing involves the prices charged by corporations for any goods, services or assets traded with commonly controlled entities, such as subsidiaries. The Income Tax Act stipulates that the proper transfer price between such entities is a price that two parties dealing at arm's length would agree to for such a transaction. In other words, the Income Tax Act requires related companies to sell goods, services and assets to each other at fair market value for tax purposes.
The case of Canada v GlaxoSmithKline Inc was the first transfer pricing decision to be heard by the Supreme Court of Canada. The Court held that the totality of the "economic and business realities" must be considered. In applying the arm's length principle, courts must have regard to the "economically relevant characteristics" of both the arm's length and non-arm's length corporations' circumstances in order to ensure they are sufficiently comparable. Based on this consideration, a transaction-by- transaction approach may or may not be appropriate.
General Anti-Avoidance Rule (GAAR)
The Income Tax Act contains a General Anti-Avoidance Rule (GAAR) in section 245. There are three requirements to uphold an application of the GAAR:
First, a tax benefit must have been gained from the transaction or transactions.
Second, it must be shown that the primary purpose of the transaction or transactions was to obtain a tax benefit.
Third, the benefit obtained from such transaction or transactions must be shown to be inconsistent with the purpose, object or intent of the provision(s) of the Income Tax Act used by the taxpayer in order to receive the tax benefit.
The GAAR is another hotly litigated matter. There is often disagreement as to the "primary" purpose of the relevant transactions, as well as whether the benefit received is inconsistent with the spirit or intent of the applicable provisions of the Income Tax Act. Furthermore, courts inconsistently apply the GAAR, which further propagates litigation in this area.
Recent criminal law developments and proposals for reform
On 8 May 2013, the Canada Revenue Agency (CRA) announced a new aggressive campaign to combat international tax evasion. The campaign involves the addition of significant information gathering powers, including an increased ability on the part of the CRA to audit, investigate and pursue cases of international tax evasion. The new measures involve:
A Stop International Tax Evasion Programme, that allows the CRA to pay whistleblowers a percentage of federal tax collected as a result of the information provided.
A requirement for financial institutions and others who have reporting obligations relating to international electronic funds transfers (greater than CAD10,000) to the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) to also report the transactions to the CRA.
Streamlining the judicial process which provides the CRA authorisation to obtain information from third parties (that is, banks).
Additional requirements imposed on Canadian taxpayers with foreign income/properties, requiring them to report more detailed information and extending the amount of time that the CRA has to reassess such taxpayers that have not properly reported income.
The implementation of these new measures increases the enforcement of tax evasion and as a result further increases tax litigation in this area.
Canada Revenue Agency (CRA)
Description. The Canada Revenue Agency (CRA) administers tax laws for the Government of Canada and for most provinces and territories. The CRA website contains extensive regulatory and administrative documentation including forms, information circulars, interpretation bulletins, income tax technical news, tax guides, pamphlets, and news releases.
Description. The Justice Laws Website provides official consolidations and updated versions of the federal Acts and regulations maintained by the Department of Justice. Each Act and regulation supplies its own consolidation date. The "current-to" date is displayed in the header area of every document. The website contains English and French versions of the following legislation:
Income Tax Act (RSC, 1985, c. 1 (5th Supp)).
Excise Tax Act (RSC, 1985, c. E-15).
Tax Court of Canada Act (RSC, 1985, c. T-2).
Tax Court of Canada Rules.
Tax Court of Canada
Description. The Tax Court of Canada (TCC), established in 1983 by the Tax Court of Canada Act, is a federal superior court which deals with matters involving companies or individuals and tax issues with the Government of Canada. The website provides access to the English and French versions of all Tax Court of Canada Rules (note: users are re-directed to Justice Laws website).
Alberta Courts (encompassing the Provincial Court of Alberta, the Court of Queen's Bench, and the Court of Appeal of Alberta)
Description. The Provincial Court of Alberta is primarily the point of first entry into the Alberta justice system. The Court hears proceedings, applications and trials, subject to any statutory limitations. The Court of Queen's Bench is the superior trial court for the province, hearing trials in civil and criminal matters and appeals from the decisions of the Provincial Court. The Court of Appeal hears appeals from the Court of Queen's Bench, the Provincial Court and administrative tribunals. The website provides access to court rules, forms and procedural materials.
Alberta Queen's Printer
Description. Alberta Queen's Printer is the official publisher of Alberta's laws and provides up-to-date access to Alberta legislation (Acts, regulations, codes).
British Columbia Courts (encompassing the Provincial Court, the Supreme Court of British Columbia, and the Court of Appeal)
Description. The Provincial Court of British Columbia (BC Provincial Court) is a trial level court in British Columbia that hears cases in criminal, civil and family matters. The Supreme Court of British Columbia is the province's superior trial court. The Supreme Court can hear any type of case, civil or criminal. It hears most appeals from the Provincial Court in civil and criminal cases and appeals from arbitrations. The Court of Appeal is the highest court in the province. It hears appeals from the BC Supreme Court, from the BC Provincial Court on certain criminal matters, and reviews and appeals from select administrative boards and tribunals. The website provides access to court rules, forms and procedural materials.
Description. BC Laws maintains access to the laws of British Columbia. BC Laws is hosted by the Queen's Printer of British Columbia and published in partnership with the Ministry of Justice and the Law Clerk of the Legislative Assembly. BC Laws is updated continually as new laws and provisions come into force.
Manitoba Courts (comprised of the Provincial Court and the Court of Queen's Bench and the Court of Appeal)
Description. The Provincial Court of Manitoba hears cases relating to criminal and family law and other statutes. The Court of Queen's Bench is the superior court of Manitoba and is divided into the General Division and the Family Division. The General Division deals with all non-family matters, including civil trials, probate law, indictable offences and applications for the review of decisions from certain administrative tribunals. The Court of Appeal is the senior and final court in the province of Manitoba. The Court hears appeals from the Manitoba Court of Queen's Bench and the Provincial Court. In addition, the Appeal Court may hear appeals from professional bodies and some government boards and tribunals. The website provides access to court rules, forms and procedural materials.
Laws of Manitoba
Description. Manitoba Laws provides official and unofficial versions of provincial Acts. Each Act and regulation supplies its own consolidation date. The "current-to" date is displayed in the header area of every document.
New Brunswick Courts (comprised of the Provincial Court, the Court of Queen's Bench and the Court of Appeal)
Description. The Provincial Court of New Brunswick is the entry point for persons charged with offences under the Criminal Code or other federal or provincial legislation. The Court of the Queen's Bench has jurisdiction over major civil and criminal matters. In addition, it hears appeals of decisions on summary conviction matters made in the Provincial Court. The Court is divided into two divisions: Trial Division and Family Division. The Court of Appeal is the highest court and hears appeals from the Court of Queen's Bench, Probate Court, Provincial Court (indictable offences) on criminal and civil matters. It also hears appeals from various administrative tribunals. The website provides access to court rules, forms and procedural materials.
New Brunswick Acts and Regulations (posted on the website of the New Brunswick Office of the Attorney General)
Description. New Brunswick Acts and Regulations are officially published on-line under the authority of the Queen's Printer Act. Each Act and regulation supplies its own consolidation date. The "current-to" date is displayed in the header area of every document.
Newfoundland and Labrador
Newfoundland and Labrador Courts (comprised of the Provincial Court, the Supreme Court of Newfoundland and Labrador (Trial Division) and the Court of Appeal Division)
Description. The Provincial Court is the court of first instance for criminal and regulatory offences. The Supreme Court of Newfoundland and Labrador is the province's superior court, with civil and criminal jurisdiction. The Supreme Court has two divisions: Trial and Court of Appeal. The Trial Division is comprised of the General Division and Family Division, and deals with civil claims, probate, administration and guardianship, and family and criminal matters. It is also the appeal court for summary conviction and small claims matters heard in the Provincial Court. The Court of Appeal Division has jurisdiction to hear appeals in criminal, civil and family law matters from General Division and Family Division, Provincial Court (indictable offenses) and designated boards and administrative tribunals. The website provides access to court rules, forms and procedural materials
Newfoundland and Labrador House of Assembly
Description. The Legislative Assembly website contains official copies of consolidated statutes and regulations. The "current-to" date is displayed in the header area of each document.
Nova Scotia Courts (comprised of the Provincial Court, the Supreme Court and the Court of Appeal)
Description. The Provincial Court of Nova Scotia has jurisdiction to try almost all indictable offence charges under the Criminal Code. It also has exclusive jurisdiction over all summary offence charges under provincial and federal statutes and regulations. The Supreme Court is the highest trial court in the Province. It has broad authority to try a wide range of civil and criminal matters. It hears appeals from the Provincial Court and the Small Claims Court. The Court of Appeal hears appeals in both civil and criminal matters from the Supreme Court, and in criminal matters from the Provincial Court. It also hears appeals of decisions by administrative tribunals. All court rules, forms and procedural materials are available on the court website.
Office of the Legislative Counsel
Description. Provides unofficial copies of statutes and regulations. The currency date for consolidated acts is posted on the website.
Prince Edward Island
PEI Courts (comprised of the Provincial Court, the Supreme Court and the Court of Appeal)
Description. The Provincial Court of Prince Edward Island has jurisdiction to hear criminal offences and cases contrary to provincial legislation. The Supreme Court of Prince Edward Island is the superior trial court of the province. It deals with pre-trial matters and hears trials dealing with family, estate, probate matters, and indictable criminal matters. The court also hears applications for judicial reviews of tribunals' decisions. The Prince Edward Island Court of Appeal hears appeals from the Supreme Court of PEI in all matters, and the Provincial Court in certain criminal matters. It also hears appeals and reviews from provincial administrative boards and tribunals. Court rules, forms and procedural materials are available on the court website.
Legislative Counsel Office
Description. Provides access to unofficial consolidated copies to statutes and regulations. The "current-to" date is included in each consolidated document.
Québec Courts (comprised of the Court of Québec, Superior Court of Québec, and the Court of Appeal Québec)
Description. The Court of Québec has jurisdiction over civil, criminal and penal matters. The Court also sits in administrative matters, and in appeal, on cases provided for by law. The Superior Court of Québec hears all cases not expressly assigned to the jurisdiction of another court or administrative body. In civil matters, the Court of Appeal Québec hears appeals from any final judgment of the Superior Court or the Court of Québec. Its jurisdiction is very broad as it hears appeals from any judgment from which an appeal lies throughout Québec and in all matters, unless the appeal is expressly assigned to the jurisdiction of another court. Court rules, forms and procedural materials are available on the court website.
Publications du Québec
Description. Provides access to official consolidated copies to statutes and regulations. The currency date for consolidated legislation is posted on the website.
Saskatchewan Courts (encompassing the Provincial Court of Saskatchewan, the Court of Queen's Bench and the Court of Appeal for Saskatchewan)
Description. The Provincial Court of Saskatchewan hears matters relating to criminal law, youth law, civil law, family law, traffic law and municipal bye-laws. The Court of Queen's Bench is the superior trial court. The Court hears civil and criminal law cases. It has supervisory jurisdiction over administrative tribunals and some appellate jurisdiction, hearing appeals from the Provincial Court of Saskatchewan and select administrative bodies. The Court of Appeal for Saskatchewan reviews trials conducted in the Court of Queen's Bench, Provincial Court and certain tribunals in both civil and criminal matters. Court rules, forms and procedural materials are available on the court website.
Description. Provides access to unofficial consolidated copies of statutes and regulations. Statute consolidations are updated within ten business days of assignment of chapter numbers or proclamation. The "current-to" date is included in each consolidated document.
Ontario Courts (encompassing the Ontario Court of Justice, the Superior Court of Justice and the Court of Appeal for Ontario)
Description. The Ontario Court of Justice deals with criminal charges, family proceedings, and provincial offences. The Superior Court of Justice hears all civil cases, more serious cases under the Criminal Code of Canada, as well as appeals and judicial review of government action. The Court of Appeal for Ontario rules on the "correctness" of judgments from the Ontario Court of Justice and the Superior Court of Justice. The website provides access to court rules, forms and procedural materials.
Description. E-Laws provides access to official copies of Ontario's statutes and regulations. The "current-to" date is displayed in the header area of every act.
David W Chodikoff, National Tax Litigation Lead, Partner
Miller Thomson LLP
Professional qualifications. Barrister, Solicitor and Notary Public, Canada
Areas of practice. Tax litigation; dispute resolution; white collar criminal and regulatory enforcement defence
Non-professional qualifications. B.A. Spec. Hons. International Politics and Economics, York University; M.A. Dalhousie University
Transfer pricing cases for multinational enterprises.
General anti-avoidance cases for large corporations and international businesses.
Trust cases, such as residence of a trust for tax purposes.
Tax treaty cases.
International Bar Association.
Canadian Bar Association.
Ontario Bar Association.
American Bar Association, Senior Lawyers Division, Section on Taxation.
International Fiscal Association.
Canadian Tax Foundation.
The Advocates' Society.
Association for Corporate Growth.
Toronto Lawyers Association.
General Editor, Transfer Pricing and Tax Avoidance, first edition, Sweet & Maxwell, 2014.
General Editor, Tax Litigation, first edition, Sweet & Maxwell, 2013.
Co-editor, Taxation, Valuation and Investment Strategies in Volatile Markets, Carswell, 2010.
Co-editor, Taxation and Valuation of Technology, Irwin Law, 2008.
Co-editor, Advocacy & Taxation in Canada, 2004.
Co-editor, The Tax Advisor's Guide to the Canada-U.S. Tax Treaty, Carswell, 2008.
Graham Purse, Associate
Miller Thomson LLP
Professional qualifications. Lawyer, Canada
Areas of practice. Corporate tax; tax litigation