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Citation: 2004TCC488
Date: 20040723
Docket: 2002-2058(IT)G
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BETWEEN:
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JOANNE DUCHARME,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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____________________________________________________________________
Application heard by telephone conference call on
June 23, 2004
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Before: The Honourable Justice D.W. Beaubier
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Appearances:
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Counsel for the Appellant:
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Glen Nicholson
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Counsel for the Respondent:
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Karen Truscott
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____________________________________________________________________
ORDER AND REASONS FOR ORDER
[1] Pursuant to the application of the
Appellant argument respecting costs of this appeal was heard by
telephone conference call on June 23, 2004 after judgment on the
issue was rendered on May 28, 2004.
[2] The Appellant argued that this
case falls within the criteria set out in Rule 147 and hence
costs should be awarded on other than the Tariff basis. The
Appellant's counsel submitted two draft Bill of Costs. The
first bill, amounting to $8,859.75 is calculated under Schedule
II of Tariff B of the Rules of Court. The second bill is
calculated on a solicitor-client basis and amounts to $27,675.61.
Appellant's counsel stated that he is not seeking costs on
the basis of solicitor-client but rather a lump sum in lieu of
taxed costs. Counsel is asking this Court to grant the highest
amount it is inclined to accept.
[3] The Respondent submitted that
costs should be awarded to the Appellant on the basis of the
Tariff. Any other costs awarded are not consistent with the
circumstances of the appeal. The Respondent submitted that
there are no exceptional circumstances within the criteria in
Rule 147 which would require costs to be awarded on other than
the normal "party and party" basis.
[4] Section 147 of the Rules
provides:
147. (1) Subject to the
provisions of the Act, the Court shall have full discretionary
power over the payment of the costs of all parties involved in
any proceeding, the amount and allocation of those costs and
determining the persons by whom they are to be paid.
(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] The awarding of costs under rule
147 is highly discretionary. However, this discretion must be
exercised on a principled basis and factors such as those
provided by subsection 147(3) of the Rules should be taken
into consideration. Respecting Rule 147(3) and its application to
the case at bar:
(a)
the result of the proceeding
The Appellant won her appeal.
(b) the amounts in issue
The amount at issue was $61,878.94, plus interest and
penalties. This was a large and significant amount to the
Appellant.
(c) the importance of the issues
The issue of whether the Appellant was liable for the amount
in respect of transfers of property to the Appellant by her
common-law partner, pursuant to section 160, was an important
issue. The result of the appeal was significant to the
Appellant.
(d) any offer of settlement made in
writing
The evidence established that the Appellant made a written
offer to settle. The offer of settlement was rejected by the
Respondent. This Court granted the appeal and as such the result
was more beneficial to the Appellant than the written offer.
(g) the conduct of any party that tended to
shorten or lengthen unnecessarily the duration of the
proceeding
The conduct of the Respondent has lengthened the duration of
the proceedings. However, Appellant's counsel could also have
sped up the process by proceeding immediately to the Tax Court of
Canada instead of waiting for the Notification of Confirmation.
Although this would not have severely decreased the costs
involved. The Respondent did delay the proceeding.
[6] The Appellant's offer to
settle was made in writing on March 29, 2004 after which date the
Appellant incurred over $9,000 in solicitor-client costs and
disbursements out of a total of $27,675.65. The offer was
specifically made pursuant to Rule 147(3)(d) and was for a
total amount of less than the amount awarded in the actual
judgment rendered. The hearing occurred in Prince George, British
Columbia on May 5, 2004.
[7] In light of the foregoing, and
upon reviewing the law relating to this matter it is ordered:
1. The Appellant is
awarded a lump sum of $7,000 pursuant to her application, over
and above the Tariff.
2. The Appellant is
awarded her party-and-party costs and disbursements throughout as
calculated by Appellant's counsel in the amount of
$8,859.75
Signed at Saskatoon, Saskatchewan, this 23rd day of July
2004.
Beaubier, J.
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