Docket: 2000-4481(IT)G

BETWEEN:

WILLIAM QUIGLEY,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

____________________________________________________________________

Motion heard on October 22, 2003 at Toronto, Ontario

By: The Honourable Justice J.M. Woods
Appearances:
Counsel for the Appellant:	Frederick S. Wang
Counsel for the Respondent:	Eleanor H. Thorn

____________________________________________________________________

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.M. Woods J.

Citation: 2003TCC778

Date: 20031107

Docket: 2000-4481(IT)G

BETWEEN:

WILLIAM QUIGLEY,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

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.M. Woods J.

CITATION:

2003TCC778

COURT FILE NO.:

2000-4481(IT)G

STYLE OF CAUSE:

William Quigley v. The Queen

PLACE OF HEARING:

Toronto, Ontario

DATE OF HEARING:

October 22, 2003

REASONS FOR ORDER BY:

The Honourable Justice J.M. Woods

DATE OF ORDER:

November 7, 2003

APPEARANCES:

Counsel for the Appellant:

Frederick S. Wang

Counsel for the Respondent:

Eleanor H. Thorn

COUNSEL OF RECORD:

For the Appellant:

Name:

Frederick S. Wang

Firm:

Bay Street Immigration Lawyers, P.C. Toronto, Ontario

For the Respondent:

Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada