Shaw Industries Ltd. v. The Queen, docket 98-616-IT-G

Date: 20000626

Dockets: 98-616-IT-G; 98-618-IT-G

BETWEEN:

SHAW INDUSTRIES LTD.,

Applicant,

and

HER MAJESTY THE QUEEN,

Respondent,

And

BETWEEN:

AVTAR SINGH GILL,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Order

Beaubier, J.T.C.C.

[1] These Appellants' motions to reopen consent judgments were heard together at Vancouver, British Columbia on June 13, 2000. No affidavits or evidence were filed in support of either motion. The Rules are clear that affidavits should be filed and that is one reason for the dismissal of each motion.

[2] The more fundamental reason for dismissing each motion comes from two sources: First, each consent was executed by counsel for both parties. In particular, counsel for each of the Appellants is a well recognized competent tax counsel in not just Vancouver but in the Tax Court of Canada throughout the country. He is not a counsel who would sign a consent that did not contain the substance of the judgment consented to in respect to each appeal.

[3] The second source is even more substantive and I take it from the Federal Court of Appeal case, William Lehner v. M.N.R., 97 DTC 5270. The second last paragraph of that judgment says:

In effect, the applicant, in making these motions before the Tax Court, did not intend to re-open the two appeals. His purpose was to challenge the correctness of the reassessments made by the Minister following the two consent judgments. However, the only proper way to do that was to object to and appeal from those reassessments.

To some extent the paragraph quoted does not describe the problems that have been raised by each of the parties in these two cases but the gist is the same and that is Mr. Gill, in submitting the arguments for each of the Appellants, has said that the consequences or the matters derived from these consents were not what was expected and, in his view, were not what each of the Appellants intended.

[4] In the Court's view, the way that this should be resolved is to wait for the reassessments and appeal the reassessments in each case if they do not prove suitable. That is particularly so where, as here, competent counsel for each party has executed a consent.

[5] As a final conclusion, Mr. Gill, in each of his submissions, both in chief and in rebuttal, raised the concept of "settlement" in these cases. Each of these cases was apparently settled by the consents to judgment. Perhaps, if the Appellants again see fit to appeal, the best course is to litigate the matters through the courts without any settlements or misunderstandings that may arise from concepts that occur in the settlements.

[6] For these reasons, the motions are dismissed.

Signed at Saskatoon, Saskatchewan this 26^th day of June 2000.

"D.W. Beaubier"

J.T.C.C.