Bowman T.C.J.:
This is an application by Dr. Watts for an order extending the time by which he can appeal to the Federal Court of Appeal from a judgment dated February 4, 1997 issued by His Honour Judge Rip of this Court.
The background of this application is as follows: Dr. Watts along with a large number of other people became involved in a scheme, and I do not use the word in any pejorative sense, became involved in a scheme concocted by Maguire & Associates. A test case was heard, Schultz versus Her Majesty the Queen, and partial success was achieved in the Tax Court before Judge Beaubier but I would say substantially the Schultz’ case was dismissed. The matter went before the Federal Court of Appeal who dismissed Schultz’s appeal and allowed the Crown’s cross appeal. The Crown appealed from that portion of the judgment of Judge Beaubier which had allowed Mr. Schultz’ appeal. An application for leave to appeal to the Supreme Court of Canada was dismissed.
At pre-trial conferences held in respect of all of these other cases, the parties evidently agreed that the disposition of all these other cases, including Dr. Watts’ case, would abide the result in Schultz once it was definitively disposed of. The matter came on before Judge Rip who dismissed Dr. Watts’ appeal, substantially I presume on the basis of the agreements reached by counsel; that was on February 4, 1997.
Dr. Watts today, which is July 17, 1998, seeks leave to appeal the matter to the Federal Court of Appeal and asks for an extension of time. In fairness, he brought his motion in April. His grounds are substantially that he had serious medical problems that would not permit him to move with dispatch.
I have no difficulty in accepting that he has serious medical problems. He put in some evidence to that effect, although I did not study it in detail, but I accept what he tells me, and indeed I have observed him and he is not in good shape physically; and if that were the only issue, I would have granted him an extension of time to appeal.
It is not however the only issue. The fact of the matter is, his lawyer in essence agreed to this judgment issued by Judge Rip. Ostensibly he had authority and I should think that if he consented to judgment or went along with an arrangement whereby Dr. Watts’ appeal would abide the result in Schultz, if he did that without his client’s instructions, then I should think that Dr. Watts would have a cause of action against Mr. Zaldin, his lawyer, and perhaps against Maguire & Associates as well who propounded a scheme that in the result was found to be without merit.
One of the factors that I have to take into account in exercising my discretion is whether there is merit in the appeal. I am not persuaded that there is any merit or that the Schultz’ case is distinguishable. As I said to Dr. Watts during the course of his argument, I do not think I would be doing him any particular favour by granting him leave. What would happen would be that he would appeal to the Federal Court of Appeal. There is no record in this Court of any evidence by Dr. Watts. The Court of Appeal would then be faced with having to send it back to this Court for a hearing before a judge. The matter would then end up in the Court of Appeal again and they would probably just follow Schultz. The result would be substantial costs against Dr. Watts, costs which I dare say he will have difficulty in paying.
He tells me that there is about $16,000 involved in tax in this year and roughly $30,000 in interest. He also informs me that for other years there is upwards of a million dollars of tax involved. He can, if he sees fit, appeal those cases to this Court. I will not presume to comment on what the result might be. It would seem to me that perhaps he should be pursuing some remedy against his lawyer Mr. Zaldin or against Maguire but that is not something upon which I will make any comment.
I am giving these reasons in case Dr. Watts wishes to appeal my order in the Federal Court of Appeal. If he feels I have exercised my discretion improperly in not granting that, he does have a remedy. However as I see the situation, this is not a case in which I should exercise my discretion in favour of giving him an extension of time and the application is therefore dismissed. I make no order as to costs.
Application dismissed.
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