Effective Conduct of Commercial Litigation: A Judge's Perspective

• Author: Hon. Ian H. Pitfield
• Pages: 41-54

41

Chapter 3

Effective Conduct of Commercial

Litigation: A Judge’s Perspective

hon. ian h. pitf‌ield

A. INTRODUCTION

Why would a superior court judge’s observations regarding the conduct of

complex and lengthy commercial litigation be relevant to issues of tax ation

and the valuation of technology that are matters for the Tax Court of Canada

and the Federal Court of Appeal? There is an answer to t he question.

Some say tax litigation is so distinctive that counsel with general com-

mercial experience wi ll be deterred from entering the f‌ield, just as individ-

uals who are desc ribed as tax counsel will avoid straying into the f‌ield of

general commercial litigat ion. As one who conf‌ined his practice to tax l iti-

gation but now judges general commercial cases and no income tax cases,

I believe t hat the perceived differences between tax and ot her commercial

litigation are more imaginary than real.

The role of counsel in tax cases and general commercial cases is similar.

In both kinds of cases, counsel is concerned with the wrong or harm that

has been done to the client, the cause of action that arises out of the w rong

or harm, the facts required to prove the cause of action, the evidence t hat

will be adduced to support the required f‌indings of fact, and the application

of the law to the facts. T he principal difference is that income tax cases a re

framed by assertions of non-compliance with statutory rules, while com-

mercial litigation results from relationships between parties.

In the course of a lmost ten years on the bench, I have often ref‌lected

on t he fact that commercial litigators could benef‌it by takin g some prac-

tice cues from tax litigators, particu larly their practice of open discussion