Citation: 2014 TCC 42
Date: 20140206
Docket: 2009-3121(IT)G
BETWEEN:
SPRUCE CREDIT UNION,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Boyle J.
[1]
These Reasons are in
respect of a costs award regarding the decision in Spruce Credit Union v.
The Queen, 2012 TCC 357, decided wholly in favour of the taxpayer by
judgment dated October 15, 2012. The Respondent’s appeal to the Federal Court
of Appeal has not yet been decided.
[2]
The appeal involved a
four day hearing with each side represented by three or four counsel, and two
rounds of further written submissions, including one in respect of the
intervening decision of the Supreme Court of Canada in Copthorne Holdings
Ltd. v. The Queen, 2011 SCC 63. Prior to the hearing there had been two
contested motions. One was to have the Appellant’s case proceed as lead case
for all of the credit unions in British Columbia that chose to pursue their
objection and appeal rights (the “Bound Credit Unions”). The other was to permit
the Appellant to file an Amended Answer thereby effectively withdrawing an
admission. Both were granted and the second led to three further examinations
for discovery. In the Order dealing with the Amended Answer, Associate Chief
Justice Rossiter expressly dealt with the costs of the motion and the
additional discoveries.
[3]
The appeal involved two
distinct alternative issues. The first was whether the dividend received by the
Appellant from Stabilization Central Credit Union of British Columbia (“STAB”),
a British Columbia deposit insurance corporation, was a deductible intercorporate
dividend under the substantive provisions of the Income Tax Act (the “Act”),
including the Act’s régime applicable to deposit insurance corporations.
This required a determination of whether the dividend amount was paid as an
allocation in proportion to past deposit insurance assessments, as well as a
consideration of the interplay between the Act’s generally
applicable provisions and the specific deposit insurance corporation régime
provisions of the Act. The second, alternative issue was whether the Act’s
General Anti-Avoidance Rule (“GAAR”) applied to the receipt of the
dividend to recharacterize it as other than a deductible dividend received.
[4]
Written submissions
were received by the Court on costs in April and May 2013.
[5]
The Appellant has asked
for a lump sum costs award in the range of 75% of its actual legal costs in
respect of the litigation from the date the Notice of Appeal was filed to the
date judgment was rendered, together with all of its disbursements. In the
alternative, the Appellant asks that, if the Court decides to defer to the
costs Tariff, that costs be awarded by reference to Class C of the Tariff
because of the lead case nature of this appeal notwithstanding that looked at
alone the amount of tax in dispute in this particular appeal would characterize
it as a Class A appeal.
[6]
The Respondent opposes
the Appellant’s request for a lump sum costs award. It is the Respondent’s
position that there must be unusual and exceptional circumstances to warrant an
award of costs not based upon the Tariff. The Respondent agrees with the
Appellant’s alternative request to have a costs award based upon Class C of the
counsel fee Tariff given the aggregate amount involved in all of the Bound
Credit Unions’ appeals.
[7]
The amount of federal
tax in issue in this particular appeal was less than $50,000. The amount of
federal tax in issue in this appeal together with all of the Bound Credit
Unions’ appeals is approximately $7 million.
[8]
The actual costs
incurred by the Appellant in respect of the pursuit of this appeal from the
date of filing the Notice of Appeal to the date of judgment therein was
approximately $860,000. Seventy-five per cent of this is approximately
$645,000. The disbursements incurred in that time period were approximately
$19,500. Thus, the Appellant has requested a lump sum award of approximately
$665,000 in the aggregate.
[9]
It is not clear why the
Appellant is not seeking any costs in respect of preparing and filing the
Notice of Appeal.
[10]
The $860,000 amount is
the amount that was billed by Blake, Cassels & Graydon LLP (“Blakes”) to
the client. The accrued time at posted, hourly docket rates was in fact in
excess of $1.1 million dollars. That is, Blakes billed its client at an
effective average time of billing ‘discount’ or write down of approximately
23%, being more than $250,000. Appellant’s counsel says this “already provided
discount” is a relevant factor to be considered. I do not accept that position.
There was no suggestion that Blakes’ actual billings to the client did not
represent what that firm believed at the time of billing to be the full value
of the services provided, nor that that there was any retainer agreement
providing for a deferred or success fee in respect of this difference. Considering
this discount would be the equivalent of awarding disbursements for out-of-town
witnesses using hotel rack rates.
[11]
The $860,000 total
includes the work relating to the Amended Answer Motion, the preparation and
filing of that Amended Answer, and the conduct of the three resulting
discoveries. The Appellant has not provided any breakdown whatsoever to the
Court for those particular costs. I will not be interfering with or
supplementing the costs already ordered by the Associate Chief Justice in
respect of the Amended Answer and related discoveries.
[12]
The $860,000 aggregate
amount also includes Blakes’ fees regarding advising the other Bound Credit Unions
and preparing their Notices of Appeal and agreements to be bound. Subsequent to
the hearing of this Costs Motion, Blakes has conservatively estimated the
amount billed for its services to the other Bound Credit Unions to be
approximately $40,000. This estimate was based upon identifying from the firm’s
docket entries all timekeepers’ services for each day that referenced any of
the other Bound Credit Unions, and treating all of that timekeepers’ accrued
time for that day as relating to the Bound Credit Unions and not the Appellant,
even if it was clear from the entry that time was also spent on the Appellant’s
appeal that day.
[13]
The disbursements claimed
by the Appellant include $2,200 for filing the appeals of related Bound Credit
Unions. I will not consider those disbursements in this appeal as they are
properly to be dealt with (or not, depending upon the ultimate outcome) in the judgment or order disposing
of each particular bound appeal.
[14]
The Respondent does not
take issue with any of the other disbursements claimed by the Appellant, except
to the extent they relate to the Amended Answer and resulting discoveries.
[15]
According to the
Appellant’s calculations, the counsel fee computed by reference to the Class A
Tariff is $10,600 (including $700 in respect of “motion”). The counsel fee
computed by reference to the Class C Tariff is $21,250 (including the $1,400
amount in respect of “motion”).
1. The Law
[16]
The relevant cost rules
of this Court provide as follows:
147. (1) The Court may
determine the amount of the costs of all parties involved in any proceeding,
the allocation of those costs and the persons required to pay them.
[…]
(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.
[17]
The Federal Court of
Appeal in Lau v. The Queen, 2004 FCA 10, heard an appeal from a 2003
costs award of then Associate Chief Justice Bowman of this Court. In its
reasons, the Court said:
3 An award of costs is governed
by rule 147 of the Court's General Procedure Rules. That rule vests the Tax
Court would “full discretionary power” over payment of costs. Criteria for the exercise at
that discretion are set forth in subsection 147(3). Subsection (4) confers an
additional power which includes the awarding of costs by way of lump sum. It
reads:
(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.
4 Bowman A.C.J. rejected the
awarding of costs on a solicitor and client basis. He said so explicitly.
Instead, he took into account certain of the criteria set out in subsection
147(3) of the Rules as well as his discretionary power to award a lump sum
pursuant to subsection 147(4). He noted that at the request of the Crown the
appeals were “bumped up” from the informal to the General Procedure. The
effect, in his view, was to “put a considerable burden on both appellants”. He
also intimated that the case against Agatha Lau was utterly without merit, and
that the Crown should have been “a little more ready to accept” an offer to
settle before trial. He compared the amount of party and party costs under the
Court's Tariff with solicitor and client costs of more than $103,000.00 which
he regarded as “rather high”. In the end, he found that “a fair disposition of
this matter and one that partially compensates the appellants for their ordeal
of having to come to court and justify their position is $52,000.00”.
5 It can be seen that the
awarding of costs under rule 147 is highly discretionary although, of course,
that discretion must be exercised on a principled basis. We are all of the
view that it was so exercised by the Tax Court and that no basis has been shown
for interfering with the judgment below.
[Emphasis added.]
[18]
In its later decision
in Landry v. The Queen, 2010 FCA 135, the Court commented on its earlier
comments in Lau and emphasized again that the Tax Court of Canada’s
highly discretionary power to fix costs “must be exercised on a principled
basis” (at paragraph 22). In my view, the changed wording of Rule 147(1) since
the Lau and Landry decisions does not in any way affect the
nature, breadth, or scope of this Court’s power to fix costs provided always it
is exercised on a principled basis.
[19]
In the Federal Court of
Appeal’s decision in Consorzio Del Prosciutto Di Parma v. Maple Leaf Meats
Inc., 2002 FCA 417, Justice Rothstein wrote:
6 I am satisfied in the
circumstances of this case, that the respondent should be awarded increased
costs. This is an intellectual property matter involving sophisticated clients.
Where, as here, numerous issues are raised on appeal and the issues involve
complex facts and expert evidence, the amount of work required of respondents'
counsel justifies increased costs. To the argument that the complexity of
this case was no greater than that of most intellectual property cases that
come before this Court, I would say that such cases frequently present complex
facts and give rise to difficult issues.
7 The increased costs to be
awarded are party-party costs. They do not indemnify the successful party
for its solicitor-client costs and they are not intended to punish the
unsuccessful party for inappropriate conduct.
8 An award of party-party
costs is not an exercise in exact science. It is only an estimate of the amount
the Court considers appropriate as a contribution towards the successful
party's solicitor-client costs (or, in unusual circumstances, the
unsuccessful party's solicitor-client costs). Under rule 407, where the parties
do not seek increased costs, costs will be assessed in accordance with Column
III of the table to Tariff B. Even where increased costs are sought, the Court,
in its discretion, may find that costs according to Column III provide
appropriate party-party compensation.
9 However, the objective is
to award an appropriate contribution towards solicitor-client costs, not rigid
adherence to Column III of the table to Tariff B which is, itself, arbitrary.
Rule 400(1) makes it clear that the first principle in the adjudication of
costs is that the Court has "full discretionary power" as to the
amount of costs. In exercising its discretion, the Court may fix the costs by
reference to Tariff B or may depart from it. Column III of Tariff B is a default
provision. It is only when the Court does not make a specific order
otherwise that costs will be assessed in accordance with Column III of Tariff B.
10 The Court, therefore, does
have discretion to depart from the Tariff, especially where it considers an
award of costs according to the Tariff to be unsatisfactory. Further, the
amount of solicitor-client costs, while not determinative of an appropriate
party-party contribution, may be taken into account when the Court considers it
appropriate to do so. Discretion should be prudently exercised. However, it
must be borne in mind that the award of costs is a matter of judgment as to
what is appropriate and not an accounting exercise.
11 I think this approach is
consistent in today's context with the observations of Nadon J. (as he then
was) in Hamilton Marine and Engineering Ltd. v. CSC Group Inc. (1995), 99
F.T.R. 285 at paragraph 22:
I indicated to counsel during the
hearing that there was no doubt that, in most cases, the fees provided in
Tariff B were not sufficient to fully compensate a successful party. I also
indicated to counsel during the hearing that, in my view, the Tariff
necessarily had to remain the rule and that an increase of tariff fee was the
exception. By that I mean that the discretion given to the Court to increase
the tariff amounts pursuant to rule 344(1) and (6) of the Federal Court
Rules was not to be exercised lightly. Put another way, the fact that the
successful party's legal costs were far superior to the amounts to which that
party was entitled under the Tariff, was not in itself a factor for
allowing an increase in those fees.
[Emphasis added.]
[20]
The Tax Court of Canada
has also had numerous occasions in recent years to address in detail the
particular costs rules of the Court, including its principled approach to the
costs considerations in Rule 147(3) and the role of the Tariff.
[21]
In Velcro Canada
Inc. v. The Queen, 2012 TCC 273, Associate Chief Justice Rossiter of this
Court wrote as follows:
3 In recent years, costs have played a more significant
role in tax litigation. Tax cases are becoming more complex, taking longer to
prepare with detailed case management and larger amounts in dispute—all
contributing to what appears to be more resources being used to litigate
appeals. One issue that arises constantly is the application of the Tariff
versus awards in excess of the Tariff, lump sum awards, the circumstances where
the Tariff is not applied, and the analytical process in awarding and fixing
costs.
4 There seems to be some confusion with respect to the
Respondent's understanding of the authority of the Tax Court of Canada to award
costs under the Rules. The Respondent appears to be of the view that former
Chief Justice Bowman's comments in Continental Bank of Canada were meant to express that the Court is unable to award costs above Tariff barring
exceptional circumstances such as misconduct or undue delay. In Continental
Bank of Canada , the Appellant sought an Order for costs on a party-and-party
scale, as well as for costs in excess of the amounts in Tariff B of Schedule II
for services and disbursements reasonably incurred. In evaluating the
Appellant's request for amounts above Tariff, former Chief Justice Bowman
considered the role of the Tariff and the amounts listed there, stating in
part:
[9] It is obvious that the amounts provided in the tariff
were never intended to compensate a litigant fully for the legal expenses
incurred in prosecuting an appeal. The fact that the amounts set out in the
tariff appear to be inordinately low in relation to a party's actual costs is
not a reason for increasing the costs awarded beyond those provided in the
tariff. I do not think it is appropriate that every time a large and complex
tax case comes before this court we should exercise our discretion to increase
the costs awarded to an amount that is more commensurate with what the
taxpayers' lawyers are likely to charge. It must have been obvious to the
members of the Rules Committee who prepared the tariff that the party and party
costs recoverable are small in relation to a litigant's actual costs. Many
cases that come before this court are large and complex. Tax litigation is a
complex and specialized area of the law and the drafters of our Rules must be
taken to have known that.
[10] In the normal course the tariff is to be respected unless
exceptional circumstances dictate a departure from it. Such circumstances could
be misconduct by one of the parties, undue delay, inappropriate prolongation of
the proceedings, unnecessary procedural wrangling, to mention only a few. None
of these elements exists here.
5 This statement was referred to by Justice Hogan in
General Electric Capital Canada Inc. v. R., 2010 TCC 490 (T.C.C. [General
Procedure]) (“General Electric”). Justice Hogan also referred to the fact that
lump sum costs were awarded by Associate Chief Justice Bowman, as he then was,
in Lau v. R., 2003 TCC 74 (T.C.C. [General Procedure]) which was affirmed by
the Federal Court of Appeal at 2004 FCA 10 (F.C.A.) . He noted that
Respondent's counsel in General Electric was arguing strenuously that he should
adhere to the principle that the Court should not depart from the Tariff absent
special circumstances justifying solicitor-client costs relating to the conduct
of the parties during the litigation. Justice Hogan again quoted Bowman, J., as
he then was, in Alemu v. R. (1999), 99 D.T.C. 591 (T.C.C.) at paras. 13-14 (“
McGorman ”) as follows:
[23] Counsel for the Respondent argued strenuously that I
should adhere to the principle enunciated previously in some of the judgments
of my current and former colleagues, namely that this Court should respect the
principle that there should be no departure from the tariff, absent special
circumstances justifying solicitor-client costs relating to the conduct of the
parties or their counsel during the litigation. [9] As stated by Bowman J., as
he then was, in McGorman et al. v. The Queen, 99 D.T.C. 591 (TCC) :
13 I shall endeavour to set out briefly my views on how the
costs should be awarded in these cases. Obviously, the court has a fairly broad
discretion with respect to costs, but that discretion must be exercised on
proper principles and not capriciously. For example, the mere fact that a
case is novel, unique, complex or difficult, or that it involves a great deal
of money is not a reason for departing from the tariff, which, generally
speaking, should be respected in the absence of exceptional circumstances. I
shall not repeat what I said about awarding solicitor and client costs in
Continental Bank of Canada et al. v. The Queen, 94 D.T.C. 1858 at page 1874.
14 Do exceptional circumstances exist here that would justify
an award of solicitor and client costs? It is true the cases were important and
difficult and they raised a wide variety of legal and ecclesiastical questions
requiring the assistance of experts. This in itself does not warrant
solicitor and client costs
6 I note, as Justice Hogan did, that former Chief Justice
Bowman in McGorman appears to have been dealing with solicitor-client costs, as
was the Supreme Court of Canada in Young v. Young, [1993] 4 S.C.R. 3 (S.C.C.) ,
where Justice McLachlin (as she then was) held that there must be evidence of
reprehensible, scandalous, or outrageous conduct before an award of costs could
be made on a solicitor-client basis. If former Chief Justice Bowman was
suggesting that the Tax Court of Canada can only deviate from the Tariff in
exceptional circumstances, then I would beg to differ. The exceptional
circumstances I believe he referred to in Continental Bank of Canada include circumstances that might justify solicitor-client costs which is most
certainly outside the Tariff. To my mind, it does not take exceptional
circumstances to justify a deviation from the Tariff—far from it. The authority
of the Tax Court of Canada is quite clear.
7 The Rules are made by the Tax Court of Canada Rules
Committee which is statutory in nature pursuant to section 22 of the Tax Court
of Canada Act , R.S.C. 1985, c. T-2. The Rules are subject to the approval of
the Governor in Council.
8 The Tariff annexed to the Rules is a reference point
only should the Court wish to rely upon it. It is interesting to note that
the first of two references to the Tariff in Rule 147 is subsection 147(4)
which in and of itself gives extremely broad authority to the Court in the
awarding of costs.
9 Notwithstanding former Chief Justice Bowman's comments in
Continental Bank of Canada, supra at paragraph [9], it is my view that:
1. The Tariff was never intended
to compensate a litigant fully for legal expenses incurred in an appeal;
2. The Tariff was also never
intended to be so paltry as to be insignificant and play a trivial role for
litigants in dealing with their litigation. The Court's discretionary power is
always available to fix amounts as appropriate;
3. Costs should be awarded by the
Court in its sole and absolute discretion after considering the factors of
subsection 147(3);
4. The discretion of the Court must
be exercised on a principled basis;
5. The factors in Rule 147(3) are
the key considerations in the Court's determination of costs awards as well as
the quantum and in determining if the Court should move away from the Tariff;
6. In the normal course the Court
should apply the factors of Rule 147(3) on a principled basis, with submissions
from the parties as to costs, and only reference the Tariff at its discretion;
and
7. The manner that the Tariff is
referenced in Rule 147 indicates the insignificance of the Tariff in costs
considerations.
10 A close examination of the structure and wording of Rule
147 reveals why the Tariff is an item for referral only if the Court so
chooses. It would appear that the Rules Committee knew exactly what it was
doing in structuring the Rules the way it did.
11 Rule 147(1) provides the following:
The Court may determine the amount of costs of all parties involved
in any proceeding, the allocation of the costs and the persons required to pay
them.
The discretion in 147(1) is extremely broad—it gives the Court total
discretion in terms of (1) the amount of costs; (2) the allocation of costs;
and (3) who must pay them.
12 Rule 147(3) provides the factors to be considered in
exercising the Court's discretionary power. After enumerating a list of
factors, it specifies that the Court may consider “any other matter relevant to
the question of costs”, thereby providing the Court with even broader
discretion to consider other factors it thinks relevant on a case by case
basis. Such other factors that may be relevant could include, but are not
limited to:
1. the actual costs incurred by a
litigant and their breakdown including the experience of counsel, rates
charged, and time spent on the appeal;
2. the amount of costs an
unsuccessful party could reasonably expect to pay in relation to the proceeding
for which costs are being fixed; and
3. whether the expense incurred
for an expert witness to give evidence was justified.
13 The factors to be considered by the Court in exercising
its discretionary power to award costs are extremely broad, they are specific
to every appeal before the Court and as noted, the Court may consider any other
matter relevant to the question of costs.
14 There is no mention of the Tariff until Rule 147(4) which
provides:
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.
15 Rule 147(5) goes even further saying:
Notwithstanding any other provision in these rules, the Court has
the discretionary power,
(a) to award or refuse costs in respect of a particular issue or
part of a proceeding,
(b) to award a percentage of taxed costs or award taxed costs up to
and for a particular stage of a proceeding, or
c) to award all or part of the costs on a solicitor and client
basis.
Note that there is no reference to the Tariff in Rule 147(5).
16 Under the Rules, the Tax Court of Canada does not even have
to make any reference to Schedule II, Tariff B in awarding costs. The Court may
fix all or part of the costs, with or without reference to Schedule II of
Tariff B and it can award a lump sum in lieu of or in addition to taxed costs.
The Rules do not state or even suggest that the Court follow or make reference
to the Tariff. If the Tax Court of Canada Rules Committee had felt the Tariff
was so significant, the Rules could easily have said that the Tariff shall be
applied in all circumstances unless the Court is of the view otherwise. The
Rules Committee did not do this, not even close. In fact, it is hard to imagine
how the Tax Court of Canada's discretionary power could be broader for awarding
costs given the wording in Rules 147(1), (3), (4) and (5). These particular
provisions of Rule 147 really make reference to Schedule II, Tariff B a totally
discretionary matter.
17 It is my view that in every case the Judge should consider
costs in light of the factors in Rule 147(3) and only after he or she considers
those factors on a principled basis should the Court look to Tariff B of
Schedule II if the Court chooses to do so. The Rules Committee in their wisdom
made brief mention of the Tariff but only after giving the Tax Court of Canada
very broad and significant discretion in all matters on costs. As stated by my
colleague Justice Hogan in General Electric:
[26] ... I believe that the Rules Committee was well aware of the
fact that there are numerous factors which can warrant a move away from the
Tariff towards a different basis for an award of party and party costs,
including lump sum awards. Subsection 147(3) of the Rules confirms this by
listing specific factors and adding the catch-all paragraph ( j ), which refers
to “any other matter relevant to the question of costs”. If misconduct or
malfeasance was the only case in which the Court could move away from the
Tariff, subsection 147(3) would be redundant. Words found in legislation are
not generally considered redundant. As stated by the Supreme Court in Hills v.
Canada (AG), [1988] 1 S.C.R. 513:
[106] ... In reading a statute it must be “assumed that each term,
each sentence and each paragraph have been deliberately drafted with a specific
result in mind. Parliament chooses its words carefully: it does not speak
gratuitously” (P.-A. Côté, The Interpretation of Legislation in Canada, (1984), at p. 210). 10
[27] It has been repeatedly affirmed that McLachlin J.'s comment
requiring misconduct or malfeasance in Young v. Young, above, was specifically
and only made in reference to the availability of solicitor-client costs. It is
true that “[t]he general rule is that a successful litigant is entitled to
party and party costs,” in accordance with the Tariff.11 It is also true that a
measure of reprehensibility is required for either party to be ordered to pay
costs to the other party on a solicitor-client basis. The two rules must not be
conflated, as to do so would remove all middle ground.
[28] The Interpretation Act applies to the ITA and to this Court's Rules.
Section 12 of the Interpretation Act provides that every enactment “is
deemed remedial, and shall be given such fair, large and liberal construction
and interpretation as best ensures the attainment of its objects”. It is
reasonable to conclude that the purpose of section 147 of the Rules was
to give a judge the discretion to move away from the Tariff in order to provide
fair and reasonable relief in the circumstances—with or without reference to
Schedule II, Tariff B. A restrictive interpretation of that section that would
require a taxpayer to meet the same burden in order to move from the Tariff to
any level of partial indemnity or to a lump sum award in lieu of or in addition
to any costs as it would have to meet to obtain solicitor-client costs would
defeat at least one of the purposes of the section.
18 A comparison of the discretionary power in Rule 147 of the
Rules and Rule 400(4) of the Federal Court Rules, SOR/98-106 (“Federal Court
Rules”) provide an example of how a Rules Committee may take a different
approach.
19 The Tax Court of Canada's Rule 147(4) says:
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.
[emphasis
added]
The Federal Court's Rule 400(4) says:
The Court may fix all or part of any costs by reference to Tariff B
and may award a lump sum in lieu of, or in addition to, any assessed costs.
[emphasis added]
There is a significant difference in my view in the wording and the
emphasis put on the Tariff in the Federal Court Rules compared to the Tax Court
of Canada's Rule 147(4). Despite this distinction, the Federal Court of Appeal,
when reviewing the Federal Court Rules in Consorzio del Prosciutto di Parma v.
Maple Leaf Meats Inc., 2002 FCA 417 (Fed. C.A.) , concluded that those Rules
nonetheless allow the Court discretion in awarding costs. As stated by the
Federal Court of Appeal:
[8] An award of party-party costs is not an exercise in exact
science. It is only an estimate of the amount the Court considers appropriate
as a contribution towards the successful party's solicitor-client costs (or, in
unusual circumstances, the unsuccessful party's solicitor-client costs). Under
rule 407, where the parties do not seek increased costs, costs will be assessed
in accordance with Column III of the table to Tariff B. Even where increased
costs are sought, the Court, in its discretion, may find that costs according
to Column III provide appropriate party-party compensation.
[9] However, the objective is to award an appropriate
contribution towards solicitor-client costs, not rigid adherence to Column III
of the table to Tariff B which is, itself, arbitrary. Rule 400(1) makes it
clear that the first principle in the adjudication of costs is that the Court
has “full discretionary power” as to the amount of costs. In exercising its
discretion, the Court may fix the costs by reference to Tariff B or may depart
from it. Column III of Tariff B is a default provision. It is only when the
Court does not make a specific order otherwise that costs will be assessed in
accordance with Column III of Tariff B.
[10] The Court, therefore, does have discretion to depart from
the Tariff, especially where it considers an award of costs according to the
Tariff to be unsatisfactory. Further, the amount of solicitor-client costs,
while not determinative of an appropriate party-party contribution, may be
taken into account when the Court considers it appropriate to do so. Discretion
should be prudently exercised. However, it must be borne in mind that the award
of costs is a matter of judgment as to what is appropriate and not an
accounting exercise.
[Emphasis added.]
[22]
In General Electric
Capital Canada Inc. v. The Queen, 2010 TCC 490, Justice Hogan of this Court
wrote (in addition to the paragraphs already quoted above by the Associate
Chief Justice in Velcro):
17 Generally, as stated by the Federal Court of Canada in
Apotex Inc. v. Wellcome Foundation Ltd. (1998), 84 C.P.R. (3d) 303 (Fed. T.D.)
, affirmed by the Federal Court of Appeal (2001), 199 F.T.R. 320 (Fed. C.A.) , the following principle is to be noted when awarding costs:
7 ... costs should neither be punitive nor extravagant and ... [a]n
important principle underlying costs is that an award of costs represents a
compromise between compensating a successful party and not unduly burdening an
unsuccessful party.
[…]
19 In awarding lump sum costs, Rothstein J.—speaking for the
majority of the Federal Court of Appeal—noted the following in Consorzio del
Prosciutto di Parma v. Maple Leaf Meats Inc., 2002 FCA 417 (Fed. C.A.) :
10 The Court, therefore, does have discretion to depart from
the Tariff, especially where it considers an award of costs according to the
Tariff to be unsatisfactory....
…
12 One advantage of a lump sum award of costs is the saving
in costs to the parties that would otherwise be incurred in the assessment
process. However, a lump sum award of costs may not be appropriate in all
cases...
[23]
In the reasons on the
costs motion in Sommerer v. The Queen 2007-2583(IT)G (July 14, 2011,
unreported) Mr. Justice Miller of this Court addressed the exceptional
circumstances issue as follows:
19 Certainly
the wording of Rule 147 suggests no threshold test but provides wide discretion
to the judge to consider the factors identified in subsection (3) of Rule 147
in coming to a reasoned, balanced decision.
20 I agree with the appellant.
21 Recent
cases, such as General Electric with Justice Hogan, the Campbell case with,
oddly enough Justice Campbell, the Jolly Farmer case, Justice Boyle suggest
there is no threshold, but that is open to the judge to take into account the
147(3) factors.
22 Clearly,
cases have suggested this is an exercise that cannot be undertaken
capriciously.
23 Further,
cases have supported the proposition that full solicitor-client costs should
only be considered in circumstances that might be found to be egregious. But
for award of costs above tariff and below solicitor-client costs, it’s for the
parties to satisfy a judge a consideration of the Rule 147(3) factors should or
should not result in costs beyond tariff.
24 This
may well represent a departure from Chief Justice Bowman’s comment in
Continental Bank that, quote:
In
the normal course, tariff is to be respected unless exceptional circumstances
dictate departure from it. Such circumstances could be misconduct by one of the
parties, undue delay, inappropriate prolongation of the proceedings,
unnecessary procedural wrangling, to mention only a few.
25 Interestingly,
I find that these examples given by the former Chief Justice are examples of
some of the very factors listed in Rule 147(3), such as: first, conduct of a
party to unnecessarily lengthen the duration of the proceeding – sub (g) of
147(3); or whether any stage was improper or vexatious – sub (i) of 147(3); or
refusal of a party to admit anything that should have been admitted – sub (h)
of 147(3).
26 In
effect, I find support, even in Continental Bank, for the proposition that the
judge, in awarding costs beyond tariff, though not solicitor-client costs,
simply reviews the Rule 147(3) factors to determine an appropriate award of
costs beyond tariff.
27 This
approach is not, as the respondent might suggest, centred on any principle of
punishment. Nor do I agree that it necessarily leads to any litigation or
assessment chill.
[…]
31 In
summary, I find Justice Boyle’s concluding comment in Jolly Farmer a propos.
I
am confident that our court’s judges can exercise their discretion
appropriately, and their discretion will not be fettered by my decision in this
case. Indeed, it may be that any risk that the threat of costs deters
individual Canadians from pursuing tax appeals where they perceive injustice
can be addressed by judges taking a separate approach to awards of costs in
excess of tariff in appropriate circumstances where the parties are all well
represented.
32 As
pointed out by Mr. Sandler, award of costs is more art than science. And judges
of this court are entrusted by the rules to practice their craft diligently,
fairly and responsibly, guided by suggested considerations, but unburdened by
rigid formulaic guidelines.
33 I
share Justice Boyle’s confidence that judges of this court are up to the task.
[24]
In Teelucksingh v.
The Queen, 2011 TCC 253, Mr. Justice Miller wrote succinctly:
2 The
Respondent argues that there are no special circumstances, including any
misconduct on the part of the Respondent, that would justify special costs
beyond the Tariff. This Court has moved away from a position of limiting costs
beyond Tariff to situations of malfeasance or misconduct (see for example
recent decisions of Justice Hogan in General Electric Capital Canada Inc. v.
Her Majesty the Queen, and Justice Campbell in Campbell v. Her
Majesty the Queen).
[25]
In Jolly Farmer
Products Inc. v. The Queen, 2008 TCC 693, I heard the costs motion on an
appeal heard and decided by former Chief Justice Bowman in one of his last
decisions before his retirement. In Jolly Farmer I wrote:
8 The
Court need not slavishly adhere to the tariff. However, the Court must exercise
its discretion on proper principles, such as the considerations enumerated in
Rule 147(3), and not capriciously. The mere fact that a case is
novel, unique, complex, difficult, or involves a large sum of money is
not reason for departing from the tariff: see McGorman et al. v. HMQ,
99 DTC 591, at paragraph 13 per Bowman J. as he then was. Nor is
the mere fact that the party’s actual legal fees greatly exceed the
tariff amount reason to award costs in excess of tariff. In Continental Bank
of Canada et al. v. HMQ, 94 DTC 1858, Bowman ACJ wrote:
It
is obvious that the amounts provided in the tariff were never intended to
compensate a litigant fully for the legal expenses incurred in prosecuting an
appeal. The fact that the amounts set out in the tariff appear to be
inordinately low in relation to a party's actual costs is not a reason for
increasing the costs awarded beyond those provided in the tariff. I do not
think it is appropriate that every time a large and complex tax case comes
before this court we should exercise our discretion to increase the costs
awarded to an amount that is more commensurate with what the taxpayers' lawyers
are likely to charge. It must have been obvious to the members of the Rules
Committee who prepared the tariff that the party and party costs recoverable
are small in relation to a litigant's actual costs. Many cases that come before
this court are large and complex. Tax litigation is a complex and specialized
area of the law and the drafters of our Rules must be taken to have known that.
Similarly, as stated
by Justice Layden-Stevenson in Aird v. Country Park Village Property
(Mainland) Ltd., [2004] F.C.J. No. 1153 (QL):
Costs should be
neither punitive nor extravagant. It is a fundamental principle that an award
of costs represents a compromise between compensating a successful party and
not unduly burdening an unsuccessful party. . .
[…]
27 I am
mindful of the fact that one of the reasons advanced for this Court’s
relatively modest tariff is the prospect that individual Canadians pursuing
their tax appeal who find themselves unsuccessful should not in the ordinary
course find themselves subject to large costs awards as well at the same time.
There is concern that if I fix costs in excess of tariff in this case, symmetry
may require that in other cases where the Crown is successful, losing taxpayers
should be similarly exposed to risks of increased costs awards beyond the
tariff. I am confident that our Court’s judges can exercise their discretion
appropriately and their discretion will not be fettered by my decision in this
case. Indeed, it may be that any risk that the threat of costs deters
individual Canadians from pursuing tax appeals where they perceive injustice
can be addressed by judges taking a separate approach to awards of costs in
excess of tariff in appropriate circumstances where the parties are all well
represented.
[26]
In Blackburn Radio
Inc. v. The Queen, 2013 TCC 98, Justice Woods of this Court wrote:
14 The
work involved in tax litigation has increasingly become a factor in awarding
costs. It has also been considered in intellectual property litigation: Consorzio
Del Prosciutto Di Parma v Maple Leaf Meats Inc., 2002 FCA 417 (Maple
Leaf Meats).
15 The Crown submits that complexity should not be a factor and relies
on the traditionally-accepted approach set out by Bowman J. (as he then was) in
Continental Bank of Canada v The Queen, [1994] TCJ No. 863. The problem
is that the case law has evolved since Continental Bank was decided. The
decision of the Federal Court of Appeal in Maple Leaf Meats is one
example of this.
[27]
Most recently in Daishowa-Marubeni
International Ltd. v. The Queen, 2013 TCC 275, Mr. Justice Miller wrote
(after reproducing parts of G.E. Capital and Blackburn Radio):
4 A
year before the Associate Chief Justice’s comments in Velcro, I awarded
costs in the case of Peter Sommerer v Her Majesty the Queen
and indicated that in my view the Court has moved away from the position of
limiting costs beyond Tariff to situations of malfeasance or misconduct. As I
indicated at that time, the appropriate course in the determination of costs
beyond Tariff is to consider those relevant factors found in Rule 147(3) and
reach a reasoned, balanced and just result.
5 The
Respondent recognizes this recent jurisprudence but argues that the law of
costs is more accurately reflected in a recent decision of the Federal Court of
Appeal, The Queen v Canadian Imperial Bank of Commerce, confirming, in
the Respondent’s view, the basic tenet that there must be exceptional
circumstances to justify costs beyond Tariff, and that actual costs far greater
than Tariff is not such a circumstance. The Respondent also raises the caution
raised by the Federal Court of Appeal that fluctuation in cost awards would
jeopardize the degree of uniformity and foreseeability litigants are entitled to
expect.
6 With
respect, litigants should not be entitled to expect uniformly low costs at
the Tax Court of Canada, not appropriate when taking a principled, balanced
view of the Rule 147(3) factors. It is clear the Tax Court of Canada has
serious concerns about the inadequacy of its Tariff as evidenced from recent
rule changes, as well as the recent jurisprudence. Consistency will follow
from a principled approach of the enumerated factors, which I now turn to.
[Emphasis
added.]
[28]
On a careful review of
what former Chief Justice Bowman actually said in Continental Bank, it
becomes clear that his comments did not ignore the way this Court’s Rules are
written, nor did he even suggest that the circumstances in which the Court
should not defer to the Tariff were those that might justify an award of
solicitor-client costs. The examples he gave included some of the Rule 147(3)
considerations. Further, the former Chief Justice post Continental Bank regularly
continued in appropriate cases to award costs fixed otherwise than by
application of the Tariff after reviewing Rule 147(3) considerations; see for
example his decision as trial judge in Lau, and his decision in McGorman
v. Canada, 99 DTC 591 (Alemu) and in Scavuzzo v. The Queen,
2006 DTC 2311. It should be noted that in Scavuzzo Chief Justice
Bowman fixed lump sum costs of approximately 50% of actual costs incurred, as
he had in Lau.
[29]
In Zeller Estate v.
The Queen, 2009 TCC 135, Mr. Justice Miller of this Court referred to Orkin’s The Law of Costs and continued:
9 Traditionally,
the degree of indemnification represented by partial indemnity costs has varied
between 50% and 75% of solicitor-and-client or substantial indemnity costs (Mark
Orkin, The Law of Costs, 2nd ed., vol 1 (Aurora: Canada Law Book, 2008)
at 2-3).
[30]
In Dickie v. The
Queen, 2012 TCC 327, Justice Pizzitelli of the Court wrote:
26 In
my view, having regard to the clear victory of the Appellant in this matter,
the sizeable amount of taxes in dispute including for other years for which
this case served as a test case, the importance of the commercial mainstream
issue in particular and the complexity of the issue in light of the
Respondent’s position notwithstanding the Supreme Court of Canada’s decisions
in Bastien Estate and Dubé and the amount of work generated for
the Appellant as a result of the Respondent’s position on that issue and the
importance it continued to give to the commercial mainstream factor as above
discussed, which in my view should have been conceded before trial to shorten
the trial and narrow the issues, there clearly exist special circumstances
justified by the application of factors listed in Rule 147(3) to merit
awarding the Appellant costs in excess of the Tariff.
27 The Appellant asked for between 50 and 75% of solicitor and client
costs plus disbursements, consistent with the range of traditional awards cited
by author Mark Orkin in the Law of Costs, 2nd ed., Vol. 1
(Aurora: Canada Law Book, 2008) at 2-3 as quoted by Campbell J. in Re Zeller
Estate above at paragraph 9. The Appellant’s costs on a solicitor
and client basis claimed are $133,000 plus $10,000 in disbursements. In my
opinion, the Appellant is deserving of 60% of such claim, amounting to $80,000
plus $10,000 in disbursements, for a total award of $90,000.
[31]
The Dickie
decision has been appealed to the Federal Court of Appeal but has not yet been
heard.
[32]
I agree with all of the
principles described in the case law above. I would add to the discussion of
this issue that the creation of a single tariff, even one with three classes of
cases based on quantum in dispute, creates real challenges given the reality of
a national court, having both Informal and General Procedures wherein even
modest amounts can become subject to the General Procedure, with jurisdiction
extending even to treasured Canadian social assistance programs like the Child
Tax Benefit, open and accessible to all Canadians subject to tax or receiving
tax benefits, regularly seeing self-represented, under-represented and
well-represented appellants in all regions of the country, where the appellant
regardless of the amount in dispute or their choice of representation always
faces a respondent employing well-trained, experienced and well-paid lawyers
from Canada’s largest law firm - the Department of Justice, where the
reasonable going rates for lawyers is such that a market rate in a major centre
for the expertise needed in some appeals may be two or three times more than
the market rate in a smaller centre for the expertise needed in other appeals,
where respondent’s counsel’s recording, accounting and billing practices
necessarily differ from those of private sector lawyers, and all before a Court
that regularly sits in approximately 70 Canadian cities and towns. These
realities may also give rise to legitimate principled considerations for this
Court in appropriate cases when fixing costs on a principled basis in
accordance with Rule 147(3) instead of by reference to the Tariff.
2. Rule 147(3) Considerations
a) The Result of the
Proceeding
[33]
The Appellant was
entirely successful in its appeal to this Court. Both the Respondent’s
principal position on the substantive deposit insurance corporation provisions,
and its secondary position relying upon the GAAR, were clear and decisive
failures by virtue of the Respondent wanting to quickly slide past clear
requirements set out in the provisions. The deposit insurance corporation
provisions expressly required a particular proportionate distribution. The GAAR
expressly requires an avoidance transaction before focusing on abuse. The
Respondent’s case was quite weak on each of these points. The Respondent was
not unaware of its weaknesses. Indeed, a long-serving and well regarded senior Ottawa
CRA official advised in writing that it would likely require a legislative
amendment for either position to be capable of success.
b) The Amounts in Issue
[34]
The amount of federal
tax in issue that was to be determined in this appeal was approximately
$7,000,000. The corresponding provincial tax and assessed interest would
increase that amount materially. These are significant amounts when looked at
in the aggregate. While the amount would not likely have bankrupted any
particular credit union, including the Appellant, it certainly required a
thorough and well prepared defence be mounted by the BC Credit Unions in
response to the reassessments.
[35]
It is appropriate in a
lead case appeal such as this to consider the aggregate amount being contested
by all bound taxpayers when fixing costs. It is equally appropriate to consider
that each taxpayer generally has the right to pursue its own appeal to the
Court, and that if each other taxpayer pursued an appeal and were successful,
they would generally expect to be entitled to a costs award. The prudent and
efficient use of public resources through lead cases or otherwise in resolving
tax disputes is to be generally encouraged, not discouraged in any way.
c) The Importance of the Issues
[36]
The issues involved in
this appeal were of considerable importance to many interests. The government
of British Columbia and its provincial financial regulators needed to be able
to enforce the province’s statutory deposit insurance protection for BC depositors,
including changing its interpretation and the application of those provisions.
The BC Credit Unions needed to be able to ensure that, insofar as possible,
they would not be subject to any additional or unnecessary tax as a result of
any such provincial regulatory change. The Federal Government in the form of
the Department of Finance appeared to share the BC Credit Unions’ concern of
important unintended possible adverse tax consequences and proposed a
legislative amendment to the Act to permit transfers of deposit insurance
funds tax- free between deposit insurance companies, thereby removing the clear
risk of double tax.
The Department of Finance is not known for proposing unimportant amendments to
the Act, rightly and wisely so.
[37]
The position of the
Respondent in the litigation that the deposit insurance corporation provisions
constituted a complete code for financial transactions between insured
financial institutions, their deposit insurance corporations and, by extension,
their insured depositors, further increased the importance of this case and
would affect the retail financial institutions sector across the country.
[38]
The position of the
Respondent on its secondary GAAR basis for supporting the reassessments is also
very important as the proper interpretation and identification of an avoidance
transaction is a statutory prerequisite, emphasized by the Supreme Court of Canada. It is particularly important in trying to weigh, balance and reconcile the Supreme
Court of Canada’s oft-stated position that the Duke of Westminster principle, that
a Canadian is entitled to arrange his or her affairs to pay less tax, remains a
basic principal of Canadian tax subject only to the GAAR.
d) Any Offer of Settlement Made in Writing
[39]
No written settlement
offers were made.
e) The Volume of Work
[40]
Blakes recorded
approximately 2400 hours of work on this file (which included the time for the
Bound Credit Unions and included the Amended Answer work, each described above)
between the filing of the Notice of Appeal and the commencement of the hearing.
Another 335 hours was recorded between the commencement of trial and the date
of judgment. Substantially, all of the time recorded (89%) was recorded by the
four lawyers substantially involved with the presentation of the Appellant’s case.
Substantially all of the fees billed (94%) were billed by these same four
lawyers.
[41]
This appears to be a
significant volume of expensive work for a four day hearing. However, in the
circumstances of this case it appears to have been reasonably required to
respond to the assessments and to be able to present the Appellant’s case to
the Court.
[42]
The Court is
appreciative that both parties were able to agree to a Partial Agreed Statement
of Facts for the Court. While it undoubtedly may have added significantly to
their preparation for trial, it certainly helped to keep the actual hearing
more focused and more efficient.
[43]
The proper and
professional presentation of a lead case, particularly within a particular
sector, can be expected to create additional work for counsel as they must
maintain communications with, and consider the interests of, the other bound
parties.
[44]
The written submissions
of both parties were both helpful and necessary. There were hundreds of pages
of written submissions altogether, including the two rounds of post-hearing
written submissions.
f) The Complexity of the Issues
[45]
Before turning to the
complexity of the issues, I will begin by saying that I consider the complexity
of the facts to be significant in this case. The facts required that counsel be
able to inform the Court on the evolution of the statutory oversight and
regulation by a province of its major retail financial institutions starting
more than 15 years before the year in issue, and more than 20 years before the
hearing. The Tax Court of Canada being a national court, Appellant’s counsel
could not assume the judge would be at all familiar with the operating or
regulatory approaches to credit unions in British Columbia. It is not that what
the parties did was significantly more complex than other commercial
transactions. In this case, the key background facts and pre-existing
situation, and their evolution by the provincial Crown and its agencies, were
complex and both reasonably and necessarily added significantly to proper trial
preparation.
[46]
The GAAR issue was very
important but was not of its own particularly complex.
[47]
The substantive issue
involving the deductibility of the dividend received as a dividend was, in
contrast, quite complex. This is because the Respondent’s position on this
point necessitated answering the question: When, if ever, is an amount legally
declared and paid as a dividend, not a dividend for the purposes of the Act
absent express language to that effect and absent GAAR? Since the Respondent’s answer
to this question was that this dividend was not a dividend because the series
of special rules in the Act applicable to deposit insurance corporations
constituted a complete code for the taxation of all corporate distributions,
this added significant further complexities for counsel and the Court as the Act
contains many such series of special rules applicable to certain sectors, ranging
from communal organizations to banks, and agricultural corporations to mutual
funds, each with tax régimes particular to them set out in Division F of Part I
of the Act along with those applicable to deposit insurance
corporations.
[48]
It can be noted that on
discovery the CRA official refers to the issues in this appeal as follows:
These
are very complex issues and the answer to them does not appear to you immediately.
A lot of research has to be done.
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 Proceeding
was Improper, Vexatious or Unnecessary or was Taken Through Negligence, Mistake
or Excessive Caution
[49]
The Respondent did not
consent to the motion to make the Spruce Credit Union appeal the lead appeal
for the Bound Credit Union dispute. While the contested motion was decided in
favour of the Appellant, the Respondent’s opposition to it, and its position
that their should be more than one lead appeal heard together, were reasonable
and wise approaches in the circumstances of this litigation.
[50]
It may be that the
Appellant’s effective withdrawal of an admission via the Amended Answer is a
relevant consideration that contributed to unnecessary delay or lengthening of
the proceeding. However, the costs consequences of the Amended Answer Motion
have already been addressed by the Associate Chief Justice on that motion.
3. Conclusion
[51]
Based upon this Court’s
principled approach to generally following Rule 147 concerning costs, I am
satisfied that the tariff amounts are inappropriate, insufficient, and
unsatisfactory.
[52]
Given the particular
combination of the broad importance of the issues, the particular complexity of
the facts relating to the regulatory aspects, the complexity of the
Respondent’s unsuccessful assertion that the specific statutory régime negated
generally applicable provisions of the Act, and the considerable
additional preparation time necessarily and reasonably entailed by this, and
given the fact that the Appellant was entirely successful on both points, and
given that the Respondent’s case was quite weak on key points of both its
primary and secondary position, I would place the appropriate counsel fee cost
contribution for the Respondent to pay to the Appellant at approximately 50% of
the $820,000 incurred by the Appellant (which is net of the estimated $40,000
that related to the Bound Credit Unions), that is $410,000.
[53]
This award is at the
lower end of the traditional range described by Orkin and others. This is
appropriate. There were no particular inefficiencies, delays, inappropriate
conduct or settlement offers to be considered each of which might have moved
this further up the range.
[54]
In recognition of the
fact that this is not intended to extend to the costs relating to the Amended
Answer and the three related discoveries, this award is to be reduced by 50% of
all of the fees relating to that work, to be computed on the same basis as
Blakes accounted for the fees relating to the Bound Credit Unions, as described
above and in greater detail and in Blakes’ letter to the Court dated May 7,
2013.
[55]
The Appellant is also
entitled to its disbursements in this appeal. This is not to include any filing
fees for the appeals of the Bound Credit Unions. This is also not to include
any disbursements relating to the Amended Answer and the three related
discoveries. Further, only the travel and meal expenses of witnesses (not
counsel) are to be accounted for as the Court was not given an itemized
breakdown or other detail of this expense category.
[56]
Fixed costs of $2,500
are awarded to the Appellant in respect of the submissions and hearing on
costs. The Court is disappointed with the Respondent continuing to advance its
position that this Court can not, or should not, depart from Tariff except in
the most limited of circumstances, and this undoubtedly contributed to
lengthening the time required for the costs hearing and submissions. However,
as described above, cost awards are intended to be compensatory and contributory,
not punitive. The Court is satisfied that $2,500 reflects the appropriate
contribution on a principled basis.
[57]
If there is any
disagreement between the parties as to the computation of any of these amounts,
the Court may be addressed in writing within 30 days hereof.
Signed at Ottawa, Canada this 6th day of February 2014.
"Patrick Boyle"
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