Citation: 2010 TCC 303
Date: 20100603
Docket: 2002-2009(IT)G
BETWEEN:
ALBERT ROSS M.D. F.R.C.P.(C) DEEP,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR TAXATION
Bruce Preston, T.O., T.C.C.
[1] This matter came on for hearing by way of a telephone
conference call on Thursday, May 27, 2010. It follows a Judgment of the
Honourable Mr. Justice Miller of this Court issued on June 5, 2007, dismissing
the appeal, with costs to the Respondent.
[2] The Appellant was self-represented, and the Respondent
was represented by Ms. Annette Evans.
[3] At the outset of the hearing the Appellant requested an
adjournment of the hearing. The request was predicated on the existence of an
outstanding matter in the Court of Appeal for Ontario. It was proposed that the Taxation
of Costs be adjourned until the conclusion of the matter before the Court of
Appeal for Ontario. The Appellant
submitted that the matter before the Court of Appeal for Ontario was a proceeding to set
aside the decision of the Tax Court of Canada in this file and the subsequent
appeal to the Federal Court of Appeal. It was submitted that should the
decisions be set aside, the taxation of costs would become redundant.
[4] In response to the Appellant’s request for an
adjournment, counsel for the Respondent argued that the award of costs which is
the subject of this hearing results from a decision of the Tax Court of Canada.
Counsel submitted that the subsequent appeal of the Tax Court decision has been
dismissed by the Federal Court of Appeal and the Supreme Court of Canada has
denied leave to appeal. Counsel argued that the Court of Appeal for Ontario matter is separate from
the Tax Court of Canada matter. Counsel further argued that the Federal Court
of Appeal and the Supreme Court of Canada have already issued Certificates of
Assessment.
[5] In response, the Appellant reiterated that the Court of
Appeal for Ontario proceeding was to set
aside the decisions of the Tax Court of Canada and Federal Court of Appeal on
the grounds that the Tax Court matter was fraudulent and the Federal Court of
Appeal failed to recognized the fraudulent nature of the decision. It was
argued that once these decisions have been set aside any award of costs would
become redundant.
[6] The taxation of the Respondent’s cost was originally
scheduled for May 6, 2010. Prior to the hearing the Appellant requested an
adjournment in order to better prepare for the taxation. The Appellant agreed
that an adjournment to May 20, 2010 was sufficient. The taxation was
subsequently adjourned to May 27, 2010 at the request of the Respondent.
[7] This taxation of costs emanates from a decision of the Tax
Court of Canada rendered almost three years ago. The Appellant has exhausted
all avenues of appeal available to him. I find that his decision to pursue a
favourable decision in the Court of Appeal for Ontario is in no way related to the matter
before me. Furthermore, the Appellant’s request for an adjournment was not
predicated on a requirement for more time to prepare for the Taxation. For
these reasons the Appellant’s request for an adjournment is denied.
[8] Concerning the taxation of costs, counsel for the
Respondent submits that the judgment of this Court awarded costs to the Crown
and these costs have not been paid. It was further submitted that the fees are
consistent with the Tariff B and that the disbursements are reasonable. Counsel
also submits that the letter of May 26, 2010 from the Appellant does not
address the issue of costs but merely reargues the matter that was before The
Honourable Mr. Justice Miller.
[9] In response, the Appellant argues that the services under
1(1)(b) are not relevant as there was no inspection of property. The Appellant
indicated that there was some inspection of documents but no inspection of
property.
[10] In rebuttal, counsel for
the Respondent submits that there is no distinction between the discovery of
documents and the inspection of property.
[11] Concerning 1(1)(c), the Appellant submits that $500.00 per
day is adequate for the Examination for Discovery. The Appellant further
submits that $150.00 to $200.00 is adequate for preparation and attendance at a
pre-hearing conference under 1(1)(d).
[12] By way of rebuttal the Respondent argues that the claims
under 1(1)(c) and 1(1)(d) are consistent with the amounts allowed under Class
C of Tariff B.
[13] The Appellant argues that there is some duplication between
1(1)(a) and 1(1)(g) as counsel should not have to prepare the same material
twice for the discovery and the hearing.
[14] Respondent’s counsel submits that 1(1)(a) relates to
services rendered prior to discovery. Counsel argues that this is not the same
as the services rendered during the preparation for hearing allowed for under
1(1)(g).
[15] The Appellant contends that $1,200.00 per day is reasonable
for attendance at the hearing of the appeal.
[16] In rebuttal counsel for the Respondent submits that $2,000.00
per day is allowable under Class C of Tariff B.
[17] I have reviewed the Appellants written submissions filed
May 26, 2010 and I am in agreement with counsel for the Respondent. The
submissions appear to address the subject matter of the appeal, not the
taxation.
[18] The Appellant’s proceeding before the Tax Court of Canada
is a Class C proceeding. Pursuant to Rule 154 of the Tax Court of Canada
Rules (General Procedure), a taxing officer shall tax and allow the cost in
accordance with Schedule II, Tariff B. The Rule also states that the taxing
officer shall consider: the amounts in issue, the importance of the issues, the
complexity of the issues, the volume of work, and any other matter that the
Court has directed.
[19] Having reviewed the judgment of the Court and the
documentation filed by both parties, and having considered the factors set out
in Rule 154, I find that the amounts claimed by the Respondent are in line with
the amounts allowed under Tariff B for a Class C proceeding.
[20] The Appellant has argued that 1(1)(b) should not be
allowed as there was no inspection of property. A careful reading of section
1(1)(b) reveals that it is applicable to the discovery of documents or the
inspection of property. For the Appellant’s submission to be correct section
1(1)(b) would have to stipulate the discovery of documents and the
inspection of property. As the parties agree that there was some discovery of
documents the claim under 1(1)(b) is allowed.
[21] Further, I am in agreement with counsel for the
Respondent that the services under 1(1)(a) and 1(1)(g) are mutually exclusive
as they address separate services rendered at different stages of the
proceeding. Consequently, the claims under section 1(1)(a) and 1(1)(g) are both
allowed.
[22] Therefore, for the above reasons, all the amounts
claimed for services of counsel are allowed as submitted.
[23] Having regard to disbursements, the Appellant’s submissions
were limited to the Respondent’s expenditures for photocopies. Concerning
photocopies the appellant submits that in the provincial courts the photocopies
are produced in house and not claimed at the excessive rate the Respondent has
claimed.
[24] In rebuttal, the Respondent submits that the only
photocopies included in the Bill of Costs were those produced by an external
service provider. All copies produced in house were not included in the Bill.
Counsel further submits that the expenditures for photocopies are supported by
the Affidavit of Disbursements of Erin Kilmartin sworn December 22, 2009 and
that the expenditures are reasonable.
[25] Concerning photocopies, I find the disbursements claimed
to be reasonable and well supported by the Affidavit of Erin Kilmartin. I
inquired as to the necessity of copying the discovery transcripts as these were
claimed as a separate disbursement. Counsel for the Respondent submitted that
the photocopies claimed were for the use of the Court. Concerning the
photocopies of the transcripts the Appellant submitted that they were small
amounts.
[26] Having been satisfied by the explanation of the
Respondent concerning the copying of the discovery transcripts, the
disbursement for photocopies is allowed as claimed.
[27] As the Appellant did not object to the disbursements for
the Discovery Transcripts and Process Server, these are allowed as claimed.
[28] The Bill of Costs is taxed, and I allow
the sum of $16,318.51.
Signed at Toronto, Ontario, this 3rd day of June 2010.
“Bruce Preston”
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