Citation: 2011 TCC 471
Date: 20111006
Docket: 2007-3798(IT)G
BETWEEN:
EDWARD PALONEK,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR TAXATION
Barbara Tanasychuk, Taxing Officer, T.C.C.
[1] This matter was heard by way of telephone conference
call on Wednesday, September 28, 2011. Following the dismissal of the appeals
in these matters, the Honourable Madam Justice Campbell issued Reasons
respecting costs on December 1, 2010, wherein the Respondent was awarded costs
and disbursements. The Appellant represented himself and Mr. John Grant represented
the Respondent.
[2] The counsel fees claimed on the
Respondent’s Revised Amended Bill of Costs totalled $6,625.00 which included
$525.00 for this taxation of costs and disbursements of $1,191.98.
[3] Mr. Palonek agreed to the
counsel fees claimed under items 1(1)(a), 1(1)(b) and 1(1)(g) in the total
amount of $1,300.00. Mr. Palonek agreed to the amount claimed for photocopies
totalling $500.98. Mr. Grant withdrew the $71.00 claimed for process server
fees.
[4] The counsel fees in dispute between
the parties are Items 1(1)(h), conduct of the hearing, 1(1)(i) services after
judgment and 1(1)(d), taxation of costs. The only disbursement in dispute is the
amount of $620.00 representing the cost of transcripts of the hearing,
incorrectly identified as discovery transcripts on the Bill of Costs.
Item No. 1(1)(h)
[5] Mr. Palonek submitted that the
hearing in this matter took place over three days, but could have been
completed in two. He stated that on the second day of the hearing, one of his witnesses
brought several documents which needed to be copied. Copies of the documents
could not be made, as the photocopy machine in the court house was not
functioning, necessitating the adjournment of the hearing.
[6] Mr. Grant stated that the transcript
of the hearing of the second day of hearing did not contain any indication that
the hearing was adjourned, due to the unavailability of a photocopy machine. According
to his review of the transcript, the hearing was adjourned, due to the
unavailability of one of Mr. Palonek’s witnesses.
[7] Mr. Grant argued that the amount
claimed for conduct of the hearing was in accordance with the Tariff. He
further submitted that the hearing took place over a period of three days and
the Respondent was entitled to recover a counsel fee for each day of the
hearing or part thereof in the amount of $4,500.00.
[8] I reviewed the transcript of the
second day of the hearing and found no reference to the Court granting an
adjournment, due to the unavailability of a photocopy machine. My review was
consistent with Mr. Grant’s submission, that the hearing was adjourned due to
the unavailability of Mr. Palonek’s witness. The Tariff permits the allowance
of $1,500.00 per day or part thereof for conduct of the hearing and I will
allow $4,500.00 under Item No. 1(1)(h).
Item No. 1(1)(i)
[9] Mr. Palonek’s dispute of the
$300.00 claimed for services rendered after judgment was on the basis that the
amount was excessive.
[10] Mr. Grant stated the counsel fee
for services after judgment related to services associated with client
reporting, closing of the file and preparing materials for storage. He further
stated that the amount claimed was in accordance with the Tariff, which amount
should be allowed.
[11] The $300.00 claimed under Item no.
1(1)(i) is a Tariff item which the Respondent is entitled to recover. I will
accordingly allow the $300.00 claimed.
Item No. 1(1)(c)
[12] Mr. Palonek stated that he
attempted to make arrangements to pay the Respondent’s costs, without success.
He further submitted that he was not aware that this taxation would take place
and that the scheduling of it came as a surprise. As a result, he argued
that the $525.00 claimed for this taxation should be disallowed.
[13] Mr. Grant referred to the Affidavit
of Charlene Cho, sworn August 18, 2011, filed for use on this taxation, and in
particular to Exhibits “G” and “H” to that Affidavit. Mr. Grant stated that
these two exhibits were copies of letters forwarded to Mr. Palonek dated July
12 and August 3, 2011, enclosing the Respondent’s Bill of Costs. The last
paragraph of each letter requested payment of the costs, failing which the
matter would be scheduled for taxation.
[14] As payment of the Respondent’s
costs was not received, the only means by which to settle the outstanding costs
was to request the issuance of a Notice of Appointment to Tax Costs. As a
result, I will allow the $525.00 claimed under Item 1(1)(c).
Item 1(2) – Transcripts
[15] Mr. Palonek submitted that the
$620.00 claimed for the transcripts of the first two days of the hearing should
be disallowed. He argued that a new lawyer assumed carriage of the file on
behalf of the Respondent after the first two days of hearing, which was the
reason why the transcripts were ordered. He further stated that he did not have
the benefit of receiving copies of the transcript and should not be required to
pay for them.
[16] Mr. Grant submitted that he
referred to the transcripts during the last day of the hearing. Mr. Grant’s
position was that the transcripts were essential for the conduct of the
proceeding, the cost of which should be allowed.
[17] There was a four month delay
between the commencement and conclusion of the hearing of Mr. Palonek’s
appeals. While there was a change in counsel representing the Respondent during
that four month interval, I am not convinced that was the only reason why
transcripts of the first two days of the hearing were ordered. I do not find it
unreasonable for counsel to have ordered transcripts of the first two days of
the hearing, given the length of time between the adjournment and resumption of
the hearing. In addition, my review of the transcript of the last day of the
hearing revealed that the transcripts were referred to. I will accordingly
allow the $620.00 claimed for transcripts under Item 1(2).
[18] The Bill of Costs of the Respondent
is taxed and I allow the sum of $7,745.98.
Signed at Toronto, Ontario, this 6th day of October 2011.
“B.G. Tanasychuk”
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