Date: 20010227
Docket: 2000-198-IT-I
BETWEEN:
CONNIE KEW,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for order
(Delivered orally at Ottawa, Ontario, on January 11, 2001)
Bowie J.
[1]
The matter before me is a review of a taxation of costs. The
Appellant in this matter was successful at trial in an informal
appeal, and obtained judgment allowing the appeal with costs.
[2]
The costs were taxed by Mr. R.D. Reeve, taxing officer, who taxed
off almost all of the items included in the bill of costs. The
ones that were not taxed off were certain amounts for parking,
that were allowed as disbursements, together with a telephone
call. In the result, a bill of costs which had been delivered in
the amount of $992.01, was taxed down to $11.15, and the
certificate was issued in that amount.
[3]
It is beyond dispute that on a review of taxation my function is
to determine whether the taxing officer has made any error in
principle, and not simply to review the exercise by him of his
discretion.
[4]
The matters which were objected to by Mr. Kew, acting as agent
for Connie Kew, include the claim in the original bill of
costs for a counsel fee, and the claim for a disbursement of
$250, plus goods and services tax (GST), which was an amount paid
by the Appellant to a law firm for services apparently in
connection with the appeal, although the exact nature of the
services seems to have been left in some doubt, at least before
the taxing officer, who had no material before him on which he
could assess either the nature or the value of the services.
Disbursements were also disallowed for courier fees, apparently
at least one of them related to the services of that law firm,
and for a courier delivery to the Department of Justice, and for
a long distance telephone call to the Court.
[5]
The first matter that I will deal with is the question of the
Appellant's entitlement to recover a counsel fee. It is
abundantly clear from the decision of the Federal Court of Appeal
in McLean v. Munro, 98 DTC 6443, that a counsel fee may
not be allowed for services of somebody other than a person who
is entitled to practise as a barrister, advocate, attorney, or
solicitor in one of the provinces, which is the manner in which
the Rules define "counsel" in section 2. Mr. Kew
argues that he, as agent for his wife, and permitted by the
Tax Court of Canada Act to act as agent for his wife, was
on the occasion of the appeal an advocate, and therefore comes
within that definition of "counsel", and that his wife
is therefore entitled to recover a counsel fee in respect of his
services. The Federal Court of Appeal's decision in
Munro leaves no opening for doubt that only persons who
have qualified and been admitted to the bar of one of the
provinces of Canada can qualify as "counsel" and
therefore perform services for which a counsel fee may be
awarded. Therefore I have no alternative but to confirm the
taxing officer's decision on that point.
[6]
The next matter of substance that comes before me on this review
is Mr. Kew's claim that the Appellant is entitled to
recover as a disbursement the fee of $250 plus GST that was paid
to a legal firm. I am prepared to assume for the purposes of this
review that the services provided by that firm were, in fact,
legal services in the nature of an opinion or advice relating
directly to the conduct of the appeal. The question then becomes
whether that can be considered a necessary disbursement for the
purpose of its inclusion within a bill of costs under the
Rules. In my view, to permit such a fee to be recovered as
a disbursement would, as Mr. Christidis put it, be
permitting indirectly the recovery of an amount that cannot be
recovered directly.
[7]
The informal procedure Rules of the Court provide in
section 11 that party and party costs may be recovered for the
services of counsel under four different heads: an amount of $150
for preparation of a Notice of Appeal, $200 for preparation for
hearing, $300 per half day for the conduct of the hearing, and
$50 for the taxation costs. To permit a disbursement to a law
firm for legal services in connection with an appeal to be
recovered by way of a disbursement would necessarily involve one
of two things. Either it would become an open-ended route by
which the Appellant could recover whatever amount was reasonably
charged by the legal firm for its services, which would then
amount to a complete indemnity, or to put it in terms of the
technical vocabulary, solicitor and client costs, where no such
scale of costs is contemplated by the Rules.
Alternatively, it would require that the taxing officer allow a
disbursement for some part of the fee charged by the law firm on
the theory that the services provided and being remunerated on
taxation, are analogous to those set out in Rule
11, and the taxing officer would in effect allow a counsel
fee for either preparation of the Notice of Appeal, or preparing
for the hearing, or both, depending on the exact nature of the
legal services provided. In my view, either of these alternatives
is not only contrary to the obvious object of the provisions of
the Act and of Rule 11, but moreover cannot be
brought within the wording of the Rule.
[8] I
therefore confirm the taxing officer's decision in respect of
the disbursement for legal services.
[9]
Insofar as the other disbursements are concerned, Mr. Kew
addressed them in his written materials, and he takes issue with
Mr. Reeve's decision in respect of the disbursements
disallowed. With respect to the courier charges, as I understand
Mr. Reeve's decision, there was no explanation before him in
respect of the courier charge related to the firm Felesky Flynn.
The courier charge in respect of the other law firm in my
submission must stand or fall with the fees of that firm, and
having decided that the fees may not be allowed, I confirm Mr.
Reeve's decision to disallow these courier charges.
[10] The other
courier charge, as I understand it, was for a delivery to the
Department of Justice. It, like the second of two telephone
calls, was disallowed by Mr. Reeve, on the basis that these
events took place after the hearing of the appeal. Inasmuch as
they took place between the hearing of the appeal and the
taxation of the costs, it seems to me reasonable to conclude that
these disbursements, which would be otherwise unexceptional, were
disbursements in connection with the delivery of the bill of
costs and the taxation of it. I am going to direct that those
amounts be allowed in addition to the $11.15 allowed by
Mr. Reeve's certificate.
[11] Those two
items come to $8.56 for a courier charge and $1.65 for a
telephone call, a total of $10.21. I therefore direct that the
certificate be amended to provide that the amount allowed on
taxation is $21.36.
Signed at Ottawa, Canada, this 27th day of February, 2001.
"E.A. Bowie"
J.T.C.C.
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