Hinz v. M.N.R.

Hinz v. M.N.R.

Rule 140 of the Tax Court General Procedure Rules does not apply by analogy to informal procedure appeals or to EIA/CPP appeals; however, the Court possesses inherent jurisdiction to set aside ex parte judgments obtained in the Crown's absence where non-appearance was unavoidable (here counsel's sudden illness), and accordingly the judgments obtained in the Crown's absence must be set aside and new hearings ordered as of right for the Crown.

Citation
2003 TCC 727
Parties
Appellant (respondent on the Motion): Gunter Hinz; Respondent (applicant on the Motion): The Minister of National Revenue; Appellant (respondent on the Motion): Henry Togeretz; Respondent (applicant on the Motion): Her Majesty the Queen
Court
Tax Court of Canada
Jurisdiction
Canada
Judgment Date
15 October 2003
Procedural Posture
Tax Court Appeals Under Eia, CPP and Ita; Motions to Set Aside Judgments / Motion Hearing for Setting Aside Ex Parte Judgments; Order Granting Motion and Remitting for New Hearings
Outcome
Motions granted; the ex parte judgments are set aside and new hearings shall be scheduled.
Legal Topics
Setting Aside Ex Parte Judgments, Default Judgment, Inherent Jurisdiction, Court Rules Applicability, Motions to Re Open Hearings
Source Language
English
Employment Insurance Act Canada Pension Plan Income Tax Act Tax Court Procedure Administrative Law Setting Aside Ex Parte Judgments Default Judgment Inherent Jurisdiction +2 more

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Parties

Gunter Hinz

Appellant (respondent on the Motion)

The Minister of National Revenue

Respondent (applicant on the Motion)

Henry Togeretz

Appellant (respondent on the Motion)

Her Majesty the Queen

Respondent (applicant on the Motion)

Procedural Posture

Tax Court Appeals Under Eia, CPP and Ita; Motions to Set Aside Judgments / Motion Hearing for Setting Aside Ex Parte Judgments; Order Granting Motion and Remitting for New Hearings

Legal Issues

  1. 1 Whether Rule 140 of the Tax Court General Procedure Rules applies by analogy to informal procedure appeals and to EIA and CPP appeals
  2. 2 Whether the Court has jurisdiction to set aside judgments obtained in the absence of Crown counsel where non-appearance was due to sudden illness
  3. 3 Whether the Crown is entitled as of right to have ex parte judgments set aside

Ratio Decidendi

Rule 140 of the Tax Court General Procedure Rules does not apply by analogy to informal procedure appeals or to EIA/CPP appeals; however, the Court possesses inherent jurisdiction to set aside ex parte judgments obtained in the Crown's absence where non-appearance was unavoidable (here counsel's sudden illness), and accordingly the judgments obtained in the Crown's absence must be set aside and new hearings ordered as of right for the Crown.

Court Disposition

Motions granted; the ex parte judgments are set aside and new hearings shall be scheduled.

Orders

  • The judgments entered in the appellants' favour on the dates in May 2003 are set aside.
  • New hearing dates shall be scheduled for the matters.