Monday, August 22, 2011

The dueling courts!

Original version arranged and played by Eric Weissberg (Steve Mandel on guitar) from the Movie Deliverance starring Jon Voight, Burt Reynolds, Ronny Cox and Ned Beatty. Remember?

And the winner is ..... The Harper government!

Good Day Readers:

When Ronald Reagan was President a couple of his senior Cabinet Ministers began feuding in public. When asked by a reporter who would win his response, "I will." Will the Harper government do the same?

Ever notice we rarely hear of this happening between/among judges in Canada? Office politics being what it is one would think surely it must occur from time to time. Our Manitoba judges must be one big happy family.

Clare L. Pieuk

Tax and Federal Courts’ turf war goes public

By Cristin Schmitz
August 26 2011 Issue
Guy Du Pont speaks at the CBA Conference in Halifax. [Photo by Cristin Schmitz / The Lawyers Weekly].

The Federal Court is accusing the Tax Court of Canada of attempting a power grab behind the Federal Court’s back.

The long-simmering rivalry between the two national trial courts erupted into public view at the annual meeting of the Canadian Bar Association (CBA)’s governing council in Halifax on August 13.

After a sometimes heated debate between CBA council members respectively representing the Tax Court’s Bench and Bar Liaison Committee and the Federal Courts’ Bench and Bar Liaison Committee — and at which the Federal Court’s Associate Chief Justice Simon Noel sat silently in the front row of the audience — a divided CBA Council backed off renewing its call for the expansion of the Tax Court’s exclusive jurisdiction.

The influential 37,000-member organization first called for expansion of the Tax Court’s exclusive jurisdiction in 2008.

However, the council decided to postpone voting until its meeting next February on a new resolution sponsored by the Tax Court’s Bench and Bar Liaison Committee and the CBA’s tax and charities sections.

The resolution was tabled following complaints from the Federal Courts’ Bench and Bar Liaison Committee that the liaison committee, the Federal Court and the Federal Court of Appeal were not informed of nor consulted in advance about the proposal that the CBA renew its efforts to persuade the federal government to take 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 exclusively  —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 Justice 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 participation of all Federal Courts and its Chief Justices.”

He suggests that “through proper discussion, the request made by the Tax Court of Canada 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 considered which would serve our common objective of ensuring that the administration of justice is both effective and financially and administratively situated.”

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 Justice Rossiter, responded “the Tax Court of Canada has no comment, and will not have any comment, on what, if any, communications it has with anyone on the jurisdiction of the Tax Court of Canada.”

Notwithstanding any jurisdictional wrangles between courts, giving exclusive original tax jurisdiction to the specialized Tax Court is a move which most tax practitioners support for the sake of their clients, says Montreal’s Guy Du Pont, who moved the resolution. “I am a little disappointed, to say the least,” Du Pont told The Lawyers Weekly after the resolution was shelved for six months.

During the CBA’s council meeting, Du 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 Lawyers 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.

The Federal Court’s judges were “surprised and puzzled” to learn that the CBA’s Tax Court Bench and Bar Liaison Committee did not consult with its counterpart Federal Courts Liaison Committee before seeking the support of the CBA’s Council for its resolution. Such internal consultations are normally routine. Moreover, there was “absolutely no consultation” with the Federal Court or the Federal Court of Appeal, Justice Noel said. He said this was the second time that consultation with the Federal Court has been overlooked — alluding to 2008 when the CBA’s then-president, Bernard Amyot, wrote to Nicholson requesting that all original tax jurisdiction be transferred to the Tax Court.

Justice Noel emphasized, however, that the issue of the courts’ jurisdictions is one for the government and Parliament to decide.

That sentiment was forcefully echoed during The Lawyers Weekly interviews with acting Tax Court Chief Justice Rossiter and Federal Court of Appeal Chief Justice Pierre Blais, who participated in CBA events in Halifax but did not attend the council meeting.

“We could have many opinions, but the opinion that prevails is the opinion of government.” Chief Justice Blais told The Lawyers Weekly.

At the same time, consultation with the courts and other key players is useful, he suggested. Chief Justice Blais said his court’s aim is to provide the best service to citizens and taxpayers. “And I think we do it,” he noted. “We’re on time. We provide services across the country everywhere. We do fine right now…so if other people believe that we should make some changes, the onus is on them to demonstrate that something should be changed.”

In successfully persuading the CBA’s council to table the resolution, Ottawa lawyer Susan Beaubien, a member of the Federal Court’s Bench and Bar Liaison Committee, noted that “judicial review, in fact, is what the Federal Court does every day. To make this change by carving out part of this jurisdiction is a major substantive change and there has not been an opportunity for full and transparent consultation to take place with interested stakeholders.”

When he responded three years ago to then-CBA president Amyot’s brief requesting that the Tax Court’s exclusive jurisdiction be expanded, Justice Minister Nicholson wrote that such reforms “would best be considered in the context of an overall policy review.”

Nicholson’s July 4, 2008 letter obtained by The Lawyers Weekly says, “In addition to the broad range of substantive legal policy issues raised by your proposal, consideration 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 administrative and judicial resources that might be required to undertake a greater case load.”


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