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Docket: 2000-4481(IT)G
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BETWEEN:
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WILLIAM QUIGLEY,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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____________________________________________________________________
Motion heard on October 22, 2003 at Toronto,
Ontario
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By: The Honourable Justice J.M. Woods
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Appearances:
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Counsel for the Appellant:
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Frederick S. Wang
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Counsel for the Respondent:
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Eleanor H. Thorn
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____________________________________________________________________
ORDER
UPON
MOTION by the Appellant for reconsideration of the terms of the
Judgment rendered in this matter on September 18, 2003;
AND
UPON hearing the parties and reviewing the material
submitted;
IT IS
ORDERED that the motion is dismissed and that the Respondent is
entitled to costs on the motion.
Signed at Ottawa, Canada this 7th day of November, 2003.
J.M. Woods J.
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Citation: 2003TCC778
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Date: 20031107
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Docket: 2000-4481(IT)G
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BETWEEN:
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WILLIAM QUIGLEY,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR ORDER
Woods J.
[1] This motion is brought by William
Quigley pursuant to section 168 of the Tax Court of Canada
Rules (General Procedure) (the "Rules") for the
Court to reconsider the terms of a judgment on the ground that
some matter that should have been dealt with in the judgment has
been overlooked. Mr. Quigley, who had represented himself at the
appeal, suggests that I should have provided greater assistance
to him at the hearing and that I should now provide an
opportunity for him to adduce new evidence.
[2] Mr. Quigley appealed income tax
assessments for the 1993, 1994, 1995, 1996 and 1997 taxation
years. I heard the appeal on Monday, September 8, 2003 in
Toronto. The appeal was under the General Procedure and lasted
one full day. Four days later, I delivered my decision and gave
reasons from the bench. The formal judgment was signed on
September 18, 2003. On October 7, 2003, a notice of motion was
filed under section 168 of the Rules for the Court to reconsider
the terms of the judgment. Section 168 provides:
168.
Where the Court has pronounced a judgment disposing of an appeal
any party may within ten days after that party has knowledge of
the judgment, move the Court to reconsider the terms of the
judgment on the grounds only,
(a) that the judgment does not accord with the reasons
for judgment, if any, or
(b) that some matter that should have been dealt with
in the judgment has been overlooked or accidentally omitted.
Preliminary Matter
[3] During the hearing of the motion,
counsel for Mr. Quigley objected when counsel for the Crown
presented written material containing legal argument and a copy
of cases to which she intended to refer. He submitted that any
written material to be used by a respondent at the hearing of a
motion is required to be filed and served on the applicant at
least two days before the hearing pursuant to section 68 of the
Rules. He suggested that section 68 prohibits not only the
submission of written legal argument but also prohibits counsel
from referring to such written material as assistance in oral
argument. Section 68 provides:
68. (1) A respondent may
file an affidavit or other documentary material to be used at the
hearing of the motion.
(2) All affidavits or other documentary material to be used at
the hearing of the motion by a respondent shall be filed and
served on the applicant at least two days before the date on
which the motion is to be heard.
[4] After hearing submissions by both
counsel, I ruled that section 68 did not prohibit the submission
of written legal representations at the hearing. The purpose of
section 68 is to require a respondent to disclose facts in
advance of the hearing. The companion section for disclosure by
an applicant is subsection 67(6). These provisions are not
intended to restrict the use of written legal representations.
Mr. Quigley was not prejudiced by this ruling. His counsel
responded to each of the Crown's arguments and cases and did not
request time to file written submissions after the hearing.
Issue
[5] The main question to be determined
is whether the terms of the judgment should be reconsidered on
the basis that some matter that should have been dealt with in
the judgment has been overlooked.
[6] Counsel for Mr. Quigley suggested
that this is an appropriate case for reconsideration under
section 168 because his client had been self-represented and did
not understand what was required to prove his case. It was
suggested that I should have provided Mr. Quigley with an
opportunity to address all the relevant facts and issues. It was
submitted that this Court has a long history of assisting
self-represented litigants and that my failure to provide
sufficient assistance was something overlooked that could be
rectified under section 168.
Counsel sought an opportunity for Mr. Quigley to present fresh
evidence, either orally or in writing.
Analysis
[7] Section 168 is a rule that
provides a limited basis for altering judgments after they have
been signed: Molinaro v. The Queen, [1998] 2 C.T.C.
3115 (T.C.C.). It is an exception to the common law doctrine of
functus officio that prohibits a court from reviewing its
own judgments. The correctness of a judgment, generally, can only
be dealt with on appeal: Curoe v. M.N.R., 91 DTC 782
(T.C.C.).
[8] I have concluded that section 168
does not permit me to reconsider my judgment in these
circumstances. Section 168 permits consideration of a judgment if
something has been overlooked in the judgment. Mr. Quigley
is not suggesting that anything presented at the hearing on
September 8, 2003 was overlooked in the judgment. Rather, it
is submitted that the manner in which the hearing was conducted
overlooked a judge's duty to provide opportunities to a
self-represented litigant. In my view, section 168 does not
permit judgments to be reviewed on this basis. However, they can
be reviewed on appeal: Ray v. The Queen, 2003 DTC 5596
(F.C.A.).
[9] Even if section 168 permitted me
to reconsider my judgment, I would not do so because I am
satisfied that Mr. Quigley was given a fair hearing on
September 8, 2003. First and foremost, Mr. Quigley chose to
represent himself at the hearing and must bear the consequences
of this decision. Secondly, Mr. Quigley made it clear during the
hearing of the appeal that he had decided what was to be
presented and he was not prepared to deviate from that.
[10] For example, at the outset of the
appeal, counsel for the Crown described various concessions that
the Crown was willing to make in Mr. Quigley's favour. I asked
counsel to put these concessions in writing so that I could
ensure they were taken into account. Counsel indicated that she
would request Mr. Quigley's consent and in due course counsel
informed me that Mr. Quigley would not give his permission.
Accordingly, I was required to embark on the difficult task of
trying to decipher the concessions based only on counsel's
oral presentation.
[11] Another example that illustrates Mr.
Quigley's insistence on directing his own appeal concerns
relevant facts in respect of which Mr. Quigley declined to
present evidence. The following statement by Mr. Quigley is taken
from a transcript of the proceedings:
So I have the receipts. I can bring them in but I don't want to -
we'll start bickering over the 14 or 15 expense claims I have,
say, this one we are going to allow, this one we are not. He's
[the CCRA auditor] made his decision. His decision was, you're an
employee; therefore all of the expenses are going to be
disallowed.
I would like that claim to be upheld in that the expenses are
going to be treated as a whole unit. Either we are going to allow
them or we are going to disallow them. I'm not going to allow the
court to slice and dice and bicker over them. He's had that
opportunity. He didn't want it. He wanted the whole ball of
wax.
(Transcript, at 200-201)
[12] Lastly, I allowed some of Mr. Quigley's
claims and in doing so gave Mr. Quigley the benefit of the doubt
on factual issues to the extent possible in light of his
self-representation. If Mr. Quigley could have achieved a better
result by being represented by competent counsel, his failure to
do so was caused by his own decision to represent himself.
[13] The motion is dismissed and the Crown
is entitled to costs on the motion.
Signed at Ottawa, Canada this 7th day of November, 2003.
J.M. Woods J.
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