1. Title of Resolution:

Eliminating Residency Requirement for Federal Court and Tax Court Judges

2. Estimated cost of implementation to CBA:

(Including the amount of any increase in budget requirements, any potential savings, and the amount of staff time to implement the resolution) Note: National Office staff can assist in calculating implementation cost.

CBA staff time to support advocacy efforts can be implemented in current budgetary allocation.

3. Contact person who can assist the Board of Directors to implement the Resolution:

Name: David Douglas Robertson
Firm name: EY Law LLP, Calgary
Telephone: (403) 206-5474 or (403) 991-5570 (cell) 
E-mail: David.D.Robertson@ca.ey.com

4. Implementation Calendar

(List steps to be taken by the CBA to implement the Resolution and suggested dates for completion of each step)

March 2024: Letter from CBA to Minister of Justice requesting amendment.

Spring 2024: Follow-up conversations with Parliamentarians drawing their attention to the issue and requesting their support

Ongoing advocacy.

5. Indicator of Success

(The practical result which, if achieved, will show that the Resolution has been successfully implemented by the CBA.)

Parliament amending the Federal Court Act and Tax Court of Canada Act to repeal the NCR residency requirements.

6. Any information not appearing on the face of the Resolution to inform the deliberations:

(Attach or link to any background papers or other documentation in addition to this form which should be submitted to the Annual Meeting with the Resolution. Attach or link to documentation in both French and English, where it exists in both official languages.)

March and May 2021, Research conducted by the CBA Intellectual Property Section showed that the majority of Federal Court judges were male (61%), Caucasian (87%) and from Ontario (54%): research conducted at Goodman's (March 2021) and Borden, Ladner, Gervais (May 2021).

Of the current 23 Tax Court Judges, only five are women.

In March 2023, the CBA conducted a ThoughtExchange on perceived barriers to applying for judicial appointment. Residency requirements were identified as one top theme.

The Tax Court of Canada Act came into effect in 1983, replacing the Tax Review Board (TRB). Subsection 6(2) provided that TRB members who became Tax Court judges at that time and who did not reside in the National Capital Region were exempt from the residency requirement imposed by subsection 6(1). This is precedent for Tax Court judges to effectively adjudicate cases while residing outside the National Capital Region – at a time when technology wasn't as good as today.

7. (i) Person moving Resolution:

Will be present at Annual Meeting: Yes ☒ | No ☐

Name: David Douglas Robertson, Chair, Commodity Tax, Customs and Trade Section
Firm name: EY Law LLP, Calgary
Telephone: (403) 206-5474 or (403) 991-5570 (cell)
E-mail: David.D.Robertson@ca.ey.com​

7. (ii) Person seconding Resolution:

Will be present at Annual Meeting: Yes ☒ | No ☐

Name: Carrie Smit, Chair, Taxation Law Section
Firm name: Goodmans LLP, Toronto
Telephone: (416) 418-2181
E-mail: csmit@goodmans.ca

7. (iii) Branch, Section, Committee or Subcommittee sponsoring resolution, if any:

Commodity Tax, Customs and Trade, Taxation Law, Intellectual Property Sections, Federal Court Bench and Bar Liaison Committee and the Judicial Issues Subcommittee

8. Branches, Sections, Committees or Subcommittees directly affected by implementation of this resolution:

All Sections with areas of practice before the Federal Court of Canada and Tax Court of Canada.