The Rules – In Person Attendance as Default Procedure
The default procedure under the Tax Court of Canada Rules (General Procedure) requires that witnesses be physically present in Court for an oral examination at a hearing.[1] However, the Court possesses the discretion to direct that any step in an appeal may be conducted by videoconference,[2] and may further dispense with compliance with any rule at any time, where and as necessary in the interests of justice.[3]
The Court permits parties to jointly apply for a virtual or hybrid proceeding.[4] The application form requires counsel to provide the location and time zone (during the virtual proceeding) for each of the counsel, parties, witnesses, and other participants. The Court’s Virtual and Hybrid Proceeding Guide provides that, on the instruction of the presiding Court Registrar, witnesses will take an oath or make a solemn affirmation.
Outside of providing the location of a witness, the application form does not address whether the local laws applicable to a witness located in a foreign country may present an obstacle to the giving of that testimony at trial, even where a witness is prepared to do so voluntarily.
While some jurisdictions have permissive domestic legislation (for example, in the United States, subsection 1782(b) of Title 28 of the United States Code permits any individual in the United States to voluntarily provide testimony for use in a foreign proceeding by “any manner acceptable to [them]”[5] with respect to depositions) some jurisdictions may have blocking legislation in force which prohibits the taking of testimony by video link, or requires advance permission to do so. Accordingly, a party seeking to introduce virtual testimony from a witness located in a foreign jurisdiction should raise the issue in advance and on direction from the Court. Counsel should determine whether the law of the state where the witness is located permits virtual participation, and if any additional permissions from a foreign authority are required, for example, a Letter of Request seeking the direct taking of evidence using videoconferencing. A helpful starting point in the analysis of potential foreign requirements are the international treaties and commentary discussed below.