Application heard on March 6, 2014
at Toronto, Ontario
Before:
The Honourable Mr. Justice Randall S. Bocock
Appearances:
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Counsel for the Applicant:
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Dale Barrett
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Counsel for the Respondent:
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Roxanne Wong
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COST
ORDER
WHEREAS an Order
issued on April 24, 2014, allowing the Applicant’s applications to extend the
time for filing an appeal with this Court;
AND WHEREAS the
Court requested submissions on the issue of the sum of costs to be awarded
against the Applicant’s counsel personally;
NOW THEREFORE
THIS COURT ORDERS THAT:
1.
In accordance with the reasons attached, the Respondent
shall be entitled to costs thrown away in these successful applications before
the Tax Court of Canada in the amount of $743.34, payable within 30 days by the
Applicant’s counsel personally.
Signed at Ottawa, Ontario, this 19th day of June 2014.
“R.S. Bocock”
Citation:
2014 TCC 201
Date: 20140619
Docket: 2014-18(EI)APP
2014-17(CPP)APP
BETWEEN:
BREATHE
E-Z HOMES LTD.,
Applicant,
and
THE
MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS
FOR COST ORDER
Bocock J.
[1]
By Order dated April 25, 2014, this Court
allowed two applications for extensions of time to file notices of appeal under
the Employment Insurance Act, SC 1996, c 23 and the Canada Pension
Plan, RSC 1985 c C-8.
[2]
A cursory review of the Reasons for Order of the
same date reveals a litany of errors committed and/or steps omitted by the Applicant’s
counsel. In summary, the following mistakes were made:
a.
failing to notice that the June 13, 2013,
confirmation letter of the Minister responded to a previously filed notice of
objection;
b.
missing the “as of right” deadline of September
11, 2014, to file a Notice of Appeal (or for that matter even a notice of
objection);
c.
erroneously filing a request for extension to
file an objection with the CRA received on October 24, 2013, rather than filing
an extension and notice of appeal with the Tax Court of Canada.
d.
failing to heed the gratuitous phone call to
legal counsel’s office from the CRA employee on October 30, 2013, and the
previous reminders of legal counsel’s own client;
e.
missing the “discretionary extension” deadline
of December 10, 2013; and lastly,
f.
failing to report to the Applicant the various
actions, filings and, regrettably, omissions committed along the way which
reporting may have led to additional warnings by the Applicant regarding the
above-noted mistakes.
[3]
These errors gave rise to the need for these
applications. The Respondent rightfully opposed the applications. Applicant’s
counsel had no choice, but to bring the applications to attempt to seek the
Court’s discretion to rectify the manifest and multi-faceted errors and
omissions committed by him and his staff.
[4]
The Respondent requests costs in accordance with
the tariff, plus a nominal sum for these submissions on the issue of costs. In
submissions, Applicant’s counsel has focused almost entirely on the erroneous
assumption and mistake of fact related to the superfluous Notice of Objection
and Request to Extend erroneously filed with the CRA on October 24, 2013
(paragraph 2(c) above). The submissions ignore the more telling,
negligent and good practice omissions: failure to heed the client’s prior
warnings in early September, missing the original “as of right” appeal period,
failure to heed the gratuitous and collegial warning of the CRA of October 31,
2014 and the failure to properly inform his client of the omissions and
remedial action needed until only two weeks before the applications were heard.
[5]
By simply focusing on the single October 24th
error and omission he committed, Applicant’s counsel contends that rectification
of this “technical defect” ought to have been agreed to in advance by the
Respondent, thereby obviating the need for the application hearing.
[6]
Re-examination of the original order of this
Court reveals broader reasons than those narrowly defined by Applicant’s
counsel. The aggregate “technical” defaults committed required this Court to
reserve its judgment, review all authorities and provide the highest and best
value to the Applicant’s facts in the applications. Such a process was not
related to correcting a single technical default; in the absence of such detailed
and nuanced factual findings, there would have been no jurisdiction to issue
the extension order. Jurisdiction is not technical or nuanced. It is a fundamental
and elemental principle of natural justice. In the Court’s view, the
Respondent could not have consented in this matter prior to the Court’s hearing
and its findings of fact. Applicant counsel’s litany of omissions were not
“technical”. Factually, they lacked due diligence, proper following of systems and
best practices and, most importantly, communications with the Applicant (now
Appellant).
[7]
Simplistically, one might have difficulty with
ordering costs against Applicant’s counsel, preferring to believe such cost
awards relating to errors, omissions and conduct are more fittingly and fairly
assessed against the Respondent where warranted, given the Crown’s enhanced
authority and resources. This Court does not ascribe to that small and
unbalanced view. Applicant’s counsel, in his own application notice, referenced
and willingly admitted his office’s multiple omissions and during his argument
before the Court pleaded that the Applicant should not be penalized for errors
and omission not of his own choosing or making and which the Applicant himself did
his best to avoid, despite his counsel. This Court agrees. Just as Respondent’s
counsel owes a duty to the Court and taxpayers to review matters thoroughly and
be wary of easy traps, lazy habits and avoidable errors, so to does Applicant’s
counsel albeit in reserve. The awarding of costs in these applications is
designed to address the unnecessary and avoidable deployment of resources all
round in what ought to have been a simple filing by Applicant’s counsel.
[8]
This Court has jurisdiction to make this order
for the costs in favour of the Respondent: De Costa v R, 2008 TCC 136.
It likely could have been convinced to depart from the Tariff and to award
enhanced costs. Given the Respondent’s more constrained submissions, it will
not do so. In breaching the objective standard of care in the review of the file,
non-use of proper office systems and the pasture of open client communications,
Applicant’s counsel is required to pay such reasonable costs. The errors and
omissions giving rise to the necessity of the applications were exclusively and
unequivocally those of Applicant’s counsel or of those in law for whose actions
Applicant’s counsel is responsible. On that basis, costs are payable
personally by Applicant’s counsel to the Respondent in the amount of $743.43.
Signed at Ottawa, Ontario, this 19th day of June 2014.
“R.S. Bocock”
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