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Docket: 2002-1584(IT)I
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BETWEEN:
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PAUL MARSHALL,
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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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____________________________________________________________________
Appeal heard on May 9, 2003 at Toronto, Ontario
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Before: The Honourable Justice L.M. Little
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Appearances:
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Counsel for the Appellant:
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Richard G. Fitzsimmons and
Leigh Taylor (Student-at-Law)
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Counsel for the Respondent:
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Suzanne M. Bruce
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____________________________________________________________________
ORDER
Whereas the above appeal was heard in Toronto, Ontario on the
9th day of May 2003;
Whereas by Reasons for Judgment dated the 8th day of July 2003
the Appellant's appeal was allowed without costs;
Whereas by Notice of Motion dated the 18th day of August 2003
Counsel for the Appellant requested that the Court grant the
Appellant his costs of the appeal in the fixed sum of
$7,368.00;
Whereas by a Submission dated the 10th day of September 2003
Counsel for the Respondent submitted that the Appellant is not
entitled to costs;
Now therefore this Court has reconsidered its position and now
orders that the Appellant be paid costs in the amount of
$2,720.00.
Signed at Vancouver, British Columbia, this 1st day of
December 2003.
Little, J.
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Citation: 2003TCC877
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Date: 20031201
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Docket: 2002-1584(IT)I
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BETWEEN:
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PAUL MARSHALL,
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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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REASONS FOR ORDER
Little, J.
A. FACTS
[1] The Appellant's appeal was
heard by the Court in Toronto on the 9th day of May 2003.
[2] By Reasons for Judgment dated the
8th day of July 2003 the Appellant's appeal was allowed
without costs.
[3] By Notice of Motion dated the 18th
day of August 2003 Counsel for the Appellant requested that the
Court grant the Appellant his costs in the fixed sum of
$7,368.00.
[4] In a Submission dated the 10th day
of September 2003 Counsel for the Respondent submitted that the
Appellant is not entitled to costs.
B. ISSUE
[5] Should costs be awarded to the
Appellant?
C. ANALYSIS
[6] Rules 10.(1) and 10.(2) of the
Tax Court of Canada Rules (Informal Procedure) read
as follows:
10.(1) Costs on an appeal shall be at the discretion of
the judge by whom the appeal is disposed of in the circumstances
set out in subsection 18.26(1) of the Act which reads as
follows:
"18.26(1) Where an appeal referred to in
section 18 is allowed and the judgment reduces the aggregate of
all amounts in issue or the amount of interest in issue, or
increases the amount of loss in issue, as the case may be, by
more than one half, the Court may award costs to the appellant in
accordance with the rules of Court."
10.(2) A judge may direct the payment of costs in a
fixed sum, in lieu of any taxed costs.
[7] Rule 11 reads as follows:
11. On the taxation of party and party costs the following
fees may be allowed for the services of counsel
(a) for the
preparation of a notice of appeal, $150,
(b) for
preparing for a hearing, $200,
(c) for the
conduct of a hearing, $300 per half day or part thereof, and
(d) for the
taxation of costs, $50.
[8] As will be noted Rule 10.(1)
indicates that costs on an appeal shall be at the discretion of
the judge by whom the appeal is disposed of.
[9] Counsel for the Appellant prepared
a Memorandum of Points of Argument and Authorities (See Tab C of
the Appellant's Motion Record).
[10] Paragraph 10 of the memorandum reads as
follows:
10. The Appellant
respectfully requests that this Honourable Court grant the
Appellant his costs incurred for the production of witnesses at
the hearing of his appeal and one and a half the tariff amounts
for the services of counsel, as follows:
For expert witness fees
Anthony Laws,
M.D.
$1,620.00
Prenick Langer,
LLP
$4,173.00
For witness fees
Karen
Marshall
$50.00
James
Marshall
$50.00
Capt. Kip
Campbell
$50.00
For the services of counsel
For preparation of the Notice of
Appeal
$225.00
For preparation of
hearing
$300.00
For conducting the
hearing
$900.00 (2 half days)
$7,368.00
[11] I have carefully reviewed and
considered the Appellant's Motion Record and the
Respondent's Motion Record and I have concluded that the
Appellant should be awarded costs determined as follows:
For Expert Witness Fees:
Anthony Laws,
M.D.
$1,620.00
I have determined
that Dr. Laws provided useful evidence to the Court and I believe
the fee should be recognized as a cost of the Appellant.
Counsel for the
Appellant claimed that the Appellant's cost should include
the fee of $4,173.00 submitted by Prenick Langer, LLP (an
accounting firm). I have determined that the accounting fees
claimed by the Appellant should not be allowed since the
accountant was not called as a witness. Furthermore no Expert
Report from the accountant was filed with the Court.
For Witness Fees:
Karen
Marshall
$50.00
James
Marshall
$50.00
Capt. Kip
Campbell
$50.00
$150.00
I am prepared to
accept these amounts.
For the Services of Counsel:
For Preparation of
the Notice of Appeal
$150.00
For Preparation for
a
Hearing
$200.00
For Conducting the
Hearing
$600.00
$950.00
Total allowed as
Costs
$2,720.00
[12] The Appellant requested costs at the
rate of one and one half times the tariff set by Rule 11 of the
Tax Court of Canada Rules. Under the circumstances as
outlined in the Motion Records I am not prepared to increase the
costs above the regular tariff.
Signed at Vancouver, British Columbia, this 1st day of
December 2003.
Little, J.
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