Date: 20001019
Docket: 2000-198-IT-I
BETWEEN:
CONNIE KEW,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for taxation
Reeve, R. D., T.O., T.C.C.
[1]
This taxation of costs was heard via conference call at 9:00 a.m.
(PST) on Thursday October 5, 2000. It follows a judgment of
the Honourable Judge Bowie dated May 15, 2000, allowing the
appeals for the 1995 and 1996 taxation years with costs.
Mr. James Kew represented the Appellant, and the Respondent's
counsel was Mr. George Christidis.
[2]
The Appellant submitted a Bill of Costs for the services of
counsel in the amount of $650.00 and disbursements in an amount
of $342.01 for a total of $992.01. The only portion of the Bill
of Costs that Mr. Christidis did not take issue with was in
respect to parking costs totalling $11.00.
Submissions - Mr. Kew for the Appellant
[3]
The amount claimed for the services of counsel was made on the
basis that he acted as counsel for his wife. He obtained a copy
of the Informal Procedure Rules and Rule 11 was applied
for the Bill of Costs.
[4]
With respect to witness fees and the costs claimed for himself as
a witness, he did not have a problem with the position taken by
the Respondent if she was not willing to pay the amount
claimed.
[5]
The invoice from Mr. Beck’s office, follows an attempt to
retain his firm a week to ten days before Court, but there would
have been considerable costs involved. The appeal file was
reviewed and an opinion was supplied as to what they would charge
and the main issues that should be dealt with in Court. The
disbursement was very applicable.
[6]
With respect to the courier expenses for Felesky Flynn, this firm
was contacted to see if they could handle the appeal. They were
not able to provide the services because of time constraints, so
Felesky Flynn referred him to Mr. Beck. Mr. Christidis spoke to a
lawyer from Felesky Flynn, so he should have been aware that
there were some expenses involved in forwarding the material.
Submissions - Mr. Christitis for the Respondent
[7]
Mr. Kew represented his wife and is not a member of a bar or
counsel as required by the rules; therefore amounts claimed for
the services of counsel are not allowable expenses.
[8]
Mr. Kew testified on behalf of his wife, he was not subpoenaed
therefore no expense was incurred as a witness.
[9]
An invoice provided from Matsura Beck does not indicate what
activity Mr. Beck performed, and he was not retained as a lawyer.
This was not a necessary disbursement as the Appellant chose not
to retain counsel.
[10] Courier
charges for $4.95 were not necessary for Felesky Flynn as this
firm was not active on this file. Courier charges in the amount
of $8.56 to Mr. Beck and $8.56 to the Department of Justice were
not necessary expenses for the conduct of the appeal.
[11] In
respect to telephone calls to Ottawa, the one eight-hundred
number could have been used and no expense would have been
incurred.
Decision
[12] This
taxation of costs flows from an appeal filed by the Appellant on
October 29, 1999, concerning the taxation years of 1995 and 1996.
The appeal was instituted under the Tax Court of Canada Rules
(Informal Procedure). The provisions in respect to Costs
commence at section 10 of these Rules. Having considered both
submissions my decision is as follows:
[13] Section
11 of these Rules, provide amounts allowable for the services of
counsel. In these Rules, counsel is defined in section 2 as
“...every person who may practice as a barrister, advocate,
attorney or solicitor in any of the provinces;”. In the
case of The Queen v. Munro, 98 D.T.C. 6443 (F.C.A.), at
paragraph 21, the Appellant claimed fees for an agent as being
“for services of counsel”. The Federal Court of
Appeal held that those costs could not be allowed under the
Rules. Mr. Kew was an agent of the Appellant but is not a lawyer
and does not meet the definition of “counsel”;
therefore he is not entitled to the amounts claimed for the
services of counsel. The amount of $650 is not allowed and is
taxed off.
[14
The Appellant agreed to waive the witness fee since the
Respondent objected. The amount of $50.00 is taxed off.
[15] In
appeals before the Tax Court, there are instances where tax
lawyers or accountants might be retained for their skills,
knowledge and expertise. An amount paid in order to acquire and
use this expertise might be considered as an allowable
disbursement provided it is established that it was essential for
the conduct of the appeal. To properly evaluate the relevancy,
necessity, and reasonableness of disbursements, there must be
supporting documentation, not simply reliance upon an
invoice. With respect to the invoice from Mr. Beck, there
is nothing to indicate that the amount claimed was reasonable and
necessary or essential for the conduct of the appeal. In fact,
counsel was not retained for the appeal and if there was an
analysis and an opinion provided, there is no evidence to
indicate that any use was made of that service, making it
essential for the conduct of the appeal, if that was what the
invoice addressed. The amount of $267.50 is not allowed and is
taxed off.
[16] Other
disbursements involved courier fees in the amount of $13.15 and
three receipts were attached. One receipt was for Felesky Flynn
in the amount of $4.95, one for Mr. Beck in an amount of $8.56
and another for the Department of Justice in the amount of $8.56.
The Respondent took issue with these expenses. The transaction
relating to Mr. Beck has been determined not to be an allowable
expense and there has been no evidence that any connection with
the firm of Felesky Flynn was essential to the appeal process.
Courier charges in relation to both of these firms have not been
justified as reasonable expenses as there is no evidence as to
the relevance and necessity of these courier charges in relation
to the conduct of the appeal. The invoice showing an address for
the Department of Justice in the amount of $8.56 is dated June 7,
2000, which was subsequent to the hearing of the appeal. Costs
claimed for courier services in the amount of $13.15 are not
allowed and are taxed off.
[17] A long
distance telephone summary shows that two telephone calls were
made to the Tax Court in Ottawa. One call for an amount of $.15
transpired on May 5, 2000 and a second call for an amount of
$1.65 transpired on May 30, 2000. The Respondent submits that a
toll free number could have been used thereby avoiding this
expense. The toll free number is a fairly recent acquisition by
the Court and some individuals may still not realize that such a
number exists. Contact with the Tax Court in respect to a pending
appeal is necessary and the amount claimed for the first call is
a reasonable amount. The appeal was heard on May 12, 2000 and the
written decision distributed on May 23, 2000. Since the second
call is shown as transpiring on May 30, 2000, subsequent to the
appeal, it is not an expense essential for the conduct of the
appeal as provided for under Rule 12.(3). For telephone calls, an
amount of $.15 is allowed.
[18] The Bill
of Costs in the amount of $992.01 is taxed, and the total amount
allowed is $11.15. A certificate will be issued in this
amount.
Dated at Vancouver, British Columbia this 19th day of October
2000.
________________________
Taxing Officer
Date: 20001019
Docket:2000-198(IT)I
BETWEEN:
CONNIE
KEW
Appellant,
- and -
HER MAJESTY THE
QUEEN
Respondent
CERTIFICATE OF COSTS
I CERTIFY that I have taxed the party and party costs of the
Appellant in this proceeding under the authority of subsection
13(1) of the Tax Court of Canada Rules (Informal
Procedure), and I allow the sum of $11.15.
Dated at Vancouver, in the Province of British Columbia, this
19th day of October 2000.
____________________________________
Taxing Officer
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