Dockets: 2007-1137(IT)G
2007-1138(GST)G
BETWEEN:
SHELLEY ROBERT DEKOCK,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Motion
heard by conference call
on February 3, 2011 at Ottawa, Canada
Before: The Honourable
Justice Wyman W. Webb
Participants:
|
For the Appellant:
|
The
Appellant himself
|
|
Counsel for the Respondent:
|
Johanna Russell
|
____________________________________________________________________
ORDER
The Appellant’s motion to overturn the
Order of this Court dated July 4, 2007 that had quashed the Appellant’s
purported appeal under the Excise Tax Act from the assessment (or
reassessment) of his liability under that Act for the period from
January 1, 1999 to December 31, 2001, is dismissed. Since this Motion is
dismissed, there is no appeal under the Excise Tax Act to consolidate
with the Appellant’s appeal under the Income Tax Act.
Signed at Ottawa, Canada,
this 14th day of March
2011.
“Wyman W. Webb”
Citation: 2011TCC159
Date: 20110314
Dockets: 2007-1137(IT)G
2007-1138(GST)G
BETWEEN:
SHELLEY ROBERT DEKOCK,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Webb J.
[1]
The Respondent had
brought a Motion on June 5, 2007 to quash the Appellant’s purported appeal
under the Excise Tax Act from the assessment (or reassessment) of his
liability under that Act for the period from January 1, 1999 to December
31, 2001. The Motion was granted and the purported appeal was quashed on the
basis that the Appellant had not filed a Notice of Objection to the assessment
(or reassessment) within the time specified in the Excise Tax Act for
filing such Notice. An Order of this Court quashing the purported appeal was
issued on July 4, 2007.
[2]
The Appellant brought a
Motion dated August 17, 2010 to set aside this Order. By Order of this Court
dated August 27, 2010, this Motion was dismissed. Undaunted, the Appellant
filed yet another Motion to set aside this Order on September 27, 2010.
[3]
The Appellant argued
that the Order dated July 4, 2007 should be set aside on the basis that the GST
registration number referred to in the Order is not his GST registration
number. The GST registration number identified in the Order is 8899521890. The
Appellant’s actual GST registration number is 889952180. An additional digit (a
“9”) was inserted in the number that was in the Order. The number that was in
the Order is the same number that was in the documents submitted by the
Respondent in relation to the Respondent’s motion to quash the Appellant’s
purported appeals. The Appellant himself did not include this number in his
Notice of Appeal. It seems to me that the incorrect GST registration number in
the Order was a minor typographical error and does not affect the validity of the
Order. The reference to the incorrect number does not affect the determination
that the Appellant had failed to file a Notice of Objection.
[4]
In Chandler
v. Alberta Association of
Architects, [1989] 2 S.C.R. 848
Justice Sopinka, writing on behalf of a majority of the Justices of the
Supreme Court of Canada stated that:
Functus Officio
19 The
general rule that a final decision of a court cannot be reopened derives from
the decision of the English Court of Appeal in In re St. Nazaire Co.
(1879), 12 Ch. D. 88. The basis for it was that the power to rehear was
transferred by the Judicature Acts to the appellate division. The rule applied
only after the formal judgment had been drawn up, issued and entered, and was
subject to two exceptions:
1.
where there had been a slip in drawing it up, and,
2.
where there was an error in expressing the manifest intention of the
court. See Paper Machinery Ltd. v. J. O. Ross Engineering Corp.,
[1934] S.C.R. 186.
[5]
In Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, Justice Iacobucci and Justice Arbour
writing on behalf of a majority of the Justices of the Supreme Court of Canada
stated that:
79 It
is clear that the principle of functus officio exists to allow finality
of judgments from courts which are subject to appeal (see also Reekie v.
Messervey, [1990] 1 S.C.R. 219, at pp. 222-23). This makes sense: if a
court could continually hear applications to vary its decisions, it would
assume the function of an appellate court and deny litigants a stable base from
which to launch an appeal.
[6]
The decision made by
Justice Beaubier and reflected in the Order dated July 4, 2007 was a final
decision in the matter of whether the Appellant’s appeal under the Excise
Tax Act from the assessment (or reassessment) of his liability under that Act
for the period from January 1, 1999 to December 31, 2001 should be quashed. To
open the matter to correct the slip identified by the Appellant in the GST
registration number, would not provide the remedy that the Appellant is
seeking. It would only correct the GST registration number; it would not result
in a new hearing on the question of whether his purported appeal under the Excise
Tax Act should be quashed. The Court cannot hear applications to vary its
decisions. As noted by the Supreme Court of Canada this is the function of
appellate courts. Justice Beaubier at the hearing of the Motion had indicated
to the Appellant that he had the right to appeal his decision to the Federal
Court of Appeal. The Appellant did not do so.
[7]
The Appellant’s motion
to overturn the Order of this Court dated July 4, 2007 that had quashed the
Appellant’s purported appeal under the Excise Tax Act from the
assessment (or reassessment) of his liability under that Act for the
period from January 1, 1999 to December 31, 2001, is dismissed. Since this
Motion is dismissed, there is no appeal under the Excise Tax Act to
consolidate with the Appellant’s appeal under the Income Tax Act.
[8]
The Respondent did not
ask for costs and therefore no costs will be awarded.
Signed
at Ottawa, Canada, this 14th day of March 2011.
“Wyman W. Webb”
CITATION: 2011TCC159
COURT FILE NOS.: 2007-1137(IT)G; 2007-1138(GST)G
STYLE OF CAUSE: SHELLEY ROBERT DEKOCK AND THE QUEEN
PLACE OF MOTION: Ottawa, Canada
DATE OF MOTION: February 3, 2011
REASONS FOR ORDER
BY: The Honourable Justice Wyman W. Webb
DATE OF ORDER: March 14, 2011
PARTICIPANTS:
|
For the
Appellant:
|
The Appellant himself
|
|
Counsel for the
Respondent:
|
Johanna Russell
|
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the
Respondent: Myles J. Kirvan
Deputy
Attorney General of Canada
Ottawa,
Canada
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