Accessible Justice in Tax Matters


The COVID-19 Pandemic and the institutional responses to it by governments and their instrumentalities offer opportunities to accelerate change and novelty in the way in which citizens and business enterprises interact with authorities including tax authorities.  An outcome may be to streamline the legal system in ways that were only "ideas" until recently and in any event faced the substantial hurdles about how to make them operational and effective and those affected by them welcoming of the change.

Recently, I participated as co-counsel in a proceeding before one of Canada's Courts that hears tax and tax-related matters, conducted in a "Zoom courtroom".  The experience was pioneering and offers insight into a revolution in the delivery of justice that is within our grasp, even beyond the immediate demands of exigent health circumstances.  Why might this be important?  The Courts in Canada who hear tax matters, notably the Federal Courts, are "circuit" courts; their justices travel to the locations in which taxpayers have their "day(s) in court".  Those Court do well, and they also do good.  But the organizational demands of such a "physical" justice system are obvious, as are the "transactions costs" incurred by the Courts, the government represented by the tax authorities and counsel from the Department of Justice,  and taxpayers and their counsel to convene physically to engage the resolution of their disagreements.  Without reforming the centricity or circuitry of the Federal Court system, is there another way?

The proceeding in which I recently participated convened in the usual way, though via screens.  The Registrar organized the assembled counsel and observers virtually, beginning approximately thirty minutes before the commencement of the proceeding.  The Justice "entered" and the proceedings ensued seamlessly in the usual fashion, including spontaneous interventions by the Justice and  consideration of and discussions about relevant evidence by all concerned.  The proceedings were less formal; the Court did not require court dress, so counsel and the Justice were not required to robe.  And, given the novel physical setting(s), the Court dispensed with the usual gestures of respect, including rising for the Justice's (virtual) entry and exit from the "virtual" proceeding.  That said, however, the rest of the proceeding was as it otherwise would have been in a typical physical location where all concerned would have assembled in the usual way.

Why recount this?  It seems to me that there are profound lessons about the essence of serving justice, which may not require important proceedings to be limited or defined by physical settings, and the accessibility of justice if all concerned can dispense with physical limitations,  can readily participate and observe more conveniently without derogating from the force, effect or indeed discipline and solemnity of the proceedings.  One wonders whether this enforced model could even be of general application apart from tax matters, where there often are vast distances between the institutions of justice and those whom justice serves.

I wonder if holding on to traditional ways of doing things may be inevitably altered by temporary measures such as that that I just experienced.  I wonder if the pandemic has accelerated change that might in any event ultimately met us, by making it clear in many ways what we can do without and by forcing even the most anxious among us to learn and embrace available technology if for no other reason than to keep pace with our lives while respecting public health strictures and our interests in each other in that vein.

It's certainly something to think about.

Scott Wilkie