Docket: 2007-4015(IT)G
BETWEEN:
H.B. BARTON TRUCKING LTD.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Motion
heard by telephone conference call on September 17, 2009 at Ottawa, Canada
Before: The Honourable
Justice Valerie Miller
|
Counsel for the Appellant:
|
D.
Andrew Rouse
|
|
Counsel for the Respondent:
|
John Bodurtha
Devon
Peavoy
Jan Jensen
|
____________________________________________________________________
ORDER
Upon a Motion
by the Appellant for an Order for costs in excess of the amounts provided in
the Tariff to the Tax Court of Canada Rules (General Procedure);
And upon
hearing the representations of the Appellant and the Respondent;
The Motion is dismissed and each party should bear its own costs in respect of
this Motion.
Signed at Ottawa, Canada, this 18th
day of September 2009.
“V.A. Miller”
Citation: 2009TCC472
Date: 20090918
Docket: 2007-4015(IT)G
BETWEEN:
H.B. BARTON TRUCKING LTD.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
V.A. Miller, J.
[1]
The Appellant has
brought a motion for an order for costs in excess of the amounts provided in
the Tariff to the Tax Court of Canada Rules (General Procedure).
[2]
The grounds for the
motion are that:
a) On September 19, 2008, the
Appellant made an offer to settle the appeal which was rejected by the
Respondent. The appeal was allowed on the same basis as the Appellant’s offer
to settle.
b) The amount in issue at the trial
was in excess of $138,000 which amount is extremely important to the Appellant.
c) The issue at trial was very
important to the Appellant and to the logging industry in Canada.
d) If the settlement offer had been
accepted, a trial would not have been necessary.
e) The
Appellant withdrew its appeal on all other issues that had been raised in its
Notice of Appeal thereby shortening the trial.
[3]
An award of costs is
governed by Rule 147 of the Tax Court of Canada Rules (General Procedure).
Rule 147(1) gives the Court the discretion to determine the amount of the costs
of the parties and Rule 147(3) provides some factors that the Court can
consider when exercising its discretionary power. The relevant portions of that
Rule read as follows:
147. General Principles -- (1) The Court may determine the
amount of the costs of all parties involved in any proceeding, the allocation
of those costs and the persons required to pay them.
(2) Costs may be awarded to or against the Crown.
(3) In exercising its discretionary power pursuant
to subsection (1) the Court may consider,
(a) the result of the proceeding,
(b) the amounts in issue,
(c) the importance of the issues,
(d) any offer of settlement made in
writing,
(e) the volume of work,
(f) the complexity of the issues,
(g) the conduct of any party that
tended to shorten or to lengthen unnecessarily the duration of the proceeding,
(h) the denial or the neglect or
refusal of any party to admit anything that should have been admitted,
(i) whether any stage in the
proceedings was,
(i) improper, vexatious, or
unnecessary, or
(ii) taken through negligence,
mistake or excessive caution,
(j) any other matter relevant to
the question of costs.
(4) The Court may fix all or part of the costs with
or without reference to Schedule II, Tariff B and, further, it may award a lump
sum in lieu of or in addition to any taxed costs.
(5) Notwithstanding any other provision in these
rules, the Court has the discretionary power,
(a) to award or refuse costs in
respect of a particular issue or part of a proceeding,
(b) to award a percentage of taxed
costs or award taxed costs up to and for a particular stage of a proceeding, or
(c) to award all or part of the
costs on a solicitor and client basis.
[4]
In my Reasons for Judgment, I had
considered the result of the proceeding and awarded costs to the Appellant.
[5]
In awarding costs, the Court must
exercise its discretion on proper principles and not capriciously. The fact
that a case is novel, unique, complex or difficult, or that it involves a great
deal of money is not necessarily a reason for departing from the Tariff[1].
[6]
I daresay that in all tax appeals
the amount in issue is important to the taxpayer. In this appeal, the amount at
issue, although important to the Appellant, is not considered a large amount of
money.
[7]
The issue which was heard in this
appeal may have been novel but it was neither complex nor difficult. The
hearing of this appeal lasted one-half day with most of the time being spent on
oral submissions.
[8]
The issue in this appeal was
novel. The rejection of the settlement offer, in the circumstances of this
case, does not warrant an award of costs in excess of the Tariff.
[9]
The motion is dismissed. Each
party should bear its own costs in respect of this motion.
Signed at Ottawa, Canada, this 18th day of September
2009.
“V.A. Miller”
CITATION: 2009TCC472
COURT FILE NO.: 2007-4015(IT)G
STYLE OF CAUSE: H.B. BARTON TRUCKING LTD. AND HER MAJESTY THE QUEEN
PLACE OF HEARING: Ottawa, Canada
DATE OF HEARING: September 17, 2009
REASONS FOR ORDER
BY: The Honourable Justice Valerie Miller
DATE OF ORDER: September 18, 2009
APPEARANCES:
|
Counsel for the
Appellant:
|
D. Andrew Rouse
|
|
Counsel for the
Respondent:
|
John Bodurtha
Devon
Peavoy
Jan Jensen
|
COUNSEL OF RECORD:
For the Appellant:
Name: D. Andrew Rouse
Firm: Mockler,
Peters, Oley, Rouse
For the
Respondent: John H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa,
Canada
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