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Docket: 95-1651(IT)G
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BETWEEN:
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LORE G. SCHMIDT,
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Applicant,
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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 common evidence with the motion of
Gunther W. Schmidt (95-3609(IT)G) on December 17 and
18, 2002 at Vancouver, British Columbia
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Before: The Honourable Judge L.M. Little
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Appearances:
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Agent for the Applicant:
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Gunther W. Schmidt
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Counsel for the Respondent:
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David Jacyk
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____________________________________________________________________
ORDER
Upon
Motion file by the Agent for the Applicant for an Order setting
aside the Judgments of the Honourable Judge Gerald J. Rip, dated
January 27, 1999 and April 7, 1999 in accordance with section
172(2) and costs;
And
upon hearing what was alleged by the parties;
The
application is dismissed in accordance with the attached Reasons
for Order.
Signed at Ottawa, Canada, this 20th day of May 2003.
J.T.C.C.
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Docket: 95-3609(IT)G
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BETWEEN:
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GUNTHER W. SCHMIDT,
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Applicant,
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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 common evidence with the motion of
Lore G. Schmidt (95-1651(IT)G) on December 17 and
18, 2002 at Vancouver, British Columbia
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Before: The Honourable Judge L.M. Little
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Appearances:
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For the Applicant:
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The Appellant himself
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Counsel for the Respondent:
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David Jacyk
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____________________________________________________________________
ORDER
Upon
application for an Order setting aside the Judgments of the
Honourable Judge Gerald J. Rip, dated January 27, 1999 and April
7, 1999 in accordance with section 172(2) and costs;
And
upon hearing what was alleged by the parties;
The
application is dismissed in accordance with the attached Reasons
for Order.
Signed at Ottawa, Canada, this 20th day of May 2003.
J.T.C.C.
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Citation:
2003TCC352
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Date:20030520
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Dockets: 95-1651(IT)G
95-3609(IT)G
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BETWEEN:
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LORE G. SCHMIDT,
GUNTHER W. SCHMIDT,
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Applicants,
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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
Little, J.
A. FACTS:
[1] On the 11th day of December 2002
the Applicant, Gunther W. Schmidt, filed a Notice of Motion
with the Court.
[2] The Notice of Motion is for an
Order to set aside the Judgments of the Honourable Judge Rip
dated January 27, 1999 and April 7, 1999.
[3] In the Notice of Motion the
Applicant, Gunther W. Schmidt, maintained as follows:
a) the Crown
failed to make full and proper disclosure of all documents and
information as required by the Charter; and
b) the Crown
acted in concert with other parties in the criminal trial to
obstruct justice to obtain perjurious evidence.
[4] Paragraph 2 of the Notice of
Motion states:
That the Judgment in the Tax Court flowed from the same fact
on which the Crown obtained convictions in the Provincial
Court.
[5] Paragraph 3 of the Notice of
Motion states:
Material documents were withheld which were relevant and would
have changed the outcome of the Tax Court (Massive
Non-Disclosure). The Tax Court relied on the Provincial
Court Judgment.
[6] The Notice of Motion was filed
under Rule 172(2)(a) of the Tax Court of Canada
Rules (General Procedure).
[7] Rule 172(2) of the Tax Court of
Canada Rules (General Procedure) reads as follows:
(2) A party who seeks
to,
(a) have a
judgment set aside or varied on the ground of fraud or of facts
arising or discovered after it was made,
(b) suspend the
operation of a judgment, or
(c) obtain other
relief than that originally directed,
and make a motion for the relief claimed.
B. ISSUE:
[8] Should the Court issue an Order to
have the Judgments of Rip J., Schmidt v. Canada, [1999]
T.C.J. No. 66, Court File Nos. 95-3609(IT)G, 95-1651(IT)G, dated
January 27, 1999 and April 7, 1999 set aside?
C. ANALYSIS:
[9] It will be noted that the Notice
of Motion filed by the Applicant, Gunther W. Schmidt, contains
several references to the Judgments of the Provincial Court where
the Applicant, Gunther W. Schmidt, was convicted of tax evasion.
At the hearing of the appeals the Applicant, Gunther W. Schmidt,
stated that the Notice of Motion has nothing to do with his
criminal trials. He said that he is pursuing the civil trials,
i.e. the Judgments of Judge Rip.
[10] The Judgment of Judge Rip, Schmidt
et al. v. The Queen, 2001 DTC 5218, was appealed to the
Federal Court of Appeal. In giving judgment for the Court
Décary, J.A. made the following comment at page 5220:
...I am more than satisfied that Judge Rip, and the Judges who
had been involved in this file before him, did everything they
could to enable Mr. Schmidt to have access to the documents prior
to the hearing and eventually to file at the hearing and even
thereafter whatever document he thought was
relevant. Mr. Schmidt is obviously of the view that
there was some unfairness in the criminal trial that eventually
led to his conviction and his imprisonment, but this is not a
matter that can be decided in the Tax Court or in this Court.
On the facts that were before him, it was open to Judge Rip to
dismiss the taxpayer's appeal. This appeal should also be
dismissed.
[11] In determining whether the Tax Court
can entertain the Notice of Motion filed by the Applicant,
Gunther W. Schmidt, I have referred to the decision of Etienne
v. Canada et al. (1994), 164 N.R. 318, 76 F.T.R. 43. In the
Etienne case it was held by the Federal Court of Appeal
that it is inappropriate for a trial judge to deal with an
application to amend a judgment on the ground of facts arising or
discovered after the judgment was made if the judgment has
already been appealed.
[12] In this situation, as noted above, the
Judgments of Rip, J. were appealed to the Federal Court of Appeal
and the appeals were dismissed.
[13] I have considered the Applicant's,
Gunther W. Schmidt, motion very carefully and I have concluded on
the basis outlined above in the Etienne decision that the
Tax Court of Canada has no jurisdiction to hear this matter.
[14] The applications are dismissed.
Signed at Ottawa, Canada, this 20th day of May 2003.
J.T.C.C.
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