The Tax Court disapproves of taking questions “under advisement” in examinations for discovery

Published by Jennifer Flood

In Burlington Resources Finance Company v. The Queen, 2017 TCC 144, Madam Justice D’Auray considered a motion brought by the Crown to compel the Appellant to answer certain questions that were refused during an examination for discovery. In the judgement, D’Auray J. denounced the practice of taking questions “under advisement” during examinations for discovery and warned that there may be cost consequences to doing so.

Taking questions under advisement is a common practice in examinations for discovery in tax disputes, and indicates that counsel has not decided whether the question will be answered or refused and will advise at a later date. Used sparingly, it can be a useful tool, but when counsel takes an excessive number of questions under advisement, the discovery process can be frustrated. In Burlington Resources, out of 4122 questions posed, 1700 were taken under advisement and 1200 of these were later refused.

D’Auray J. made a strong statement against the practice of taking questions under advisement, which is not contemplated by the Tax Court of Canada Rules:

[80]     In my view, the practice of using the quasi-objection “under advisement” needs to stop. It is not a response contemplated by section 107 of the Rules. According to the Rules, a nominee either answers the question, refuses to answer and explains the basis for such refusal, or takes an undertaking if he or she does not know the answer. The “under advisement” quasi-objection is often a tactic used to gain time to reflect on which basis the question will be refused, without the party having to explain, at the time of discovery, why such question was refused. It deprives the party asking the question of the opportunity to rephrase the question. In my view, taking a question under advisement amounts to a “refusal”.

She further noted that where the tactic of taking questions under advisement without explanation hinders the examination, there may be cost consequences, as in the case of Glaxo Group Ltd. v. Novopharm Ltd. (1999), 3 C.P.R. (4th) 333 (Fed. T.D.).

Many tax counsel have noticed that the practice of taking questions under advisement has substantially increased in recent years. In the absence of reform to the Tax Court Rules, it remains to be seen whether the Court’s comments will be enough to curb the practice.