Spillman v. R., [1998] 1 CTC 2726, 98 DTC 1213

Sarchuk T.C.J.:

This matter came before the Court on September 22, 1997 in Toronto, Ontario by way of motion by the Respondent for an Order dismissing the Appellant’s appeals pursuant to Rule 64 of the Rules of Practice and Procedure of the Tax Court of Canada (General Procedure) on the grounds that the Appellant has failed to prosecute his appeals with due dispatch.

The facts relied upon by the Respondent are essentially those contained in the Affidavit of Joanne Jaworsky and were not disputed by the Appellant.

Submissions were made by both Counsel. Although the explanations for the delays given by Appellant’s Counsel were not entirely convincing, I concluded that granting the motion and dismissing the appeals was not an appropriate remedy at this stage. Rather, pursuant to Rule 82(1) of the Rules, the Appellant was directed to file and serve a list of all of the documents in his possession, control or power relating to any matter in question between or among the parties in the appeals on or before October 15, 1997. In addition, the Appellant agreed to provide copies of the documents to the Respondent by that date. The Court further directed that the motion be adjourned until October 16, 1997 to determine whether the Appellant’s undertakings to file and serve and to produce the documents for examination had been carried out.

On October 16, the Court again heard Counsel for both parties by way of conference call. At that time, the Court was advised that the Appellant had served a list of documents (partial disclosure - Rule 81) on Counsel for the Respondent. The requisite filing with the Court was not made. It was correctly observed on behalf of the Respondent that this was not in compliance with the specific directions of this Court and Counsel renewed the request for relief by way of dismissal of the appeals.

Counsel for the Appellant submitted that there was compliance with the direction and that in any event, the Court had not specified full disclosure. This “recollection” is incorrect.

Given that the Appellant did not totally ignore the Court’s direction, a further extension of time to 5:00 p.m. on Monday, October 20, 1997 was granted. The Court has been informed that the Appellant complied with the Court’s direction and a list of documents (full disclosure - Rule 82(1)) has been filed with the Court and served on the Respondent. Accordingly, the Respondent’s motion to dismiss the appeals is denied.

However, the facts before me suggest that to this point the Appellant has not been particularly diligent in prosecuting his appeals. I note by way of example that the Appellant filed his own Notice of Appeal. Although Mr. Karnin has been involved in this matter for some time, and in fact was present with his client at a meeting with Counsel for the Respondent on December 2, 1996, a Notice of Appointment as Solicitor was not served on the Respondent until September 21, 1997 when it was faxed to her (after working hours). This, notwithstanding several requests to do so by Counsel.

In my view, the Appellant’s conduct made necessary the Respondent’s motion which unnecessarily took up the time of its Counsel and staff, as well as that of the Court. The Appellant’s failure to comply with the Tax Court of Canada Rules has afflicted the Respondent with needless costs and delay. For that reason, I award costs to the Respondent in the amount of $800 to be paid forthwith.

Motion dismissed.