Citation: 2013 TCC 355
Date: 20131104
Docket: 2011-1396(IT)G
BETWEEN:
OM P. MITTAL,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR TAXATION
Barbara Tanasychuk, T.O., T.C.C.
[1] The taxation of
costs of the Appellant’s Bills of Costs was held on July 24, 2013, by
conference call. It followed a Judgment of the Honourable Justice C. Miller
dated November 28, 2012, in which appeals of reassessments made under the Income
Tax Act for the 2006 and 2007 taxation years were allowed, with costs. The
Appellant represented himself and Mr. Ernesto Caceres represented the
Respondent.
[2] Prior to the parties
making their submissions, Mr. Caceres stated that he was not disputing the
Appellant’s claim for $250.00 at item 2 of the Bill of Costs on account of the
fee for filing the notice of appeal and the amount of $180.00 at item 11 on
account of miscellaneous costs. While Mr. Caceres initially consented to Mr.
Mittal’s claim for $220.00 for travelling costs at item 10 of the Bill of Costs,
he later stated that he was not consenting to the entire amount.
Appellant’s Submissions
[3] Mr. Mittal stated
that he spent many more hours dealing with his appeal than he has claimed on the
Bill of Costs. He further stated that he had a similar appeal before the Court
for the 2004 and 2005 taxation years which was settled, but that there was no
similar settlement with respect to this appeal for the 2006 and 2007 taxation
years.
[4] Mr. Mittal stated
that he was an engineer and he claimed fees for his time at the rate of $110.00
per hour, which is the hourly rate he charges clients for his engineering
services. Mr. Mittal further submitted that he was entitled to compensation for
the amount of time he spent on this matter over a period of two years and that
the costs would have been higher had he retained counsel to represent him.
Respondent’s
Submissions
[5] Mr. Caceres
clarified his position with respect to the $220.00 claimed at item 10 of the
Bill of Costs on account of travelling costs. Mr. Caceres stated that he was consenting
to the amount of $150.00 for mileage, $35.00 for parking, but not the amount of
$35.00 claimed for meals.
[6] With respect to
the fees claimed by Mr. Mittal, Mr. Caceres stated that the Judgment of the
Court of November 28, 2012 awarded costs to the Appellant, but did not include
specific directions to the Taxing Officer pursuant to Rule 147(6) Tax Court
of Canada Rules (General Procedure) (the “Rules”). Mr. Caceres further
stated that Rule 147(7) allows a party to make an application for directions to
be given to the Taxing Officer, but Mr. Mittal made no such application.
[7] Mr. Cacares submitted
that Mr. Mittal was a self-represented party and not “counsel”as defined in
Section 2 of the Rules and subsection 17.1(2) of the Tax Court of Canada Act
(the “Act”). As a result, Mr. Caceres stated that a self-represented party was
not entitled to recover any amount for fees pursuant to Schedule II, Tariff B
of the Rules.
Appellant’s Reply
[8] In response to
Mr. Cacares’ submissions, Mr. Mittal admitted that he did not make an
application to the Court for directions to the Taxing Officer pursuant to Rule
147(7), but that consideration should be given to the amount of time he spent
on this matter.
Decision
[9] The Bill of Costs
before me in the amount of $12,530.00 includes a claim for fees in the amount
of $11,880.00 for 34 hours of Mr. Mittal’s time calculated at the rate of
$110.00 per hour, plus disbursements in the amount of $650.00. The parties
disagree as to whether Mr. Mittal is entitled to recover any amount for his
time.
[10] In determining whether
Mr. Mittal is entitled to recover any amount for his time, I have reviewed the
Rules with respect to costs. Pursuant to Rule 147(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.
The Judgment in this
matter did not fix an amount of costs.
[11] Pursuant to Rule
147(6):
The Court
may give directions to the taxing officer and, without limiting the generality
of the foregoing, the Court in any particular proceeding may give directions:
(a) respecting
increases over the amounts specified for the items in Schedule II, Tariff B,
(b) respecting
services rendered or disbursements incurred that are not included in Schedule
II, Tariff B, and
(c) to permit
the taxing officer to consider factors other than those specified in section
154 when the costs are taxed.
The Judgment in this
matter did not include any directions to the Taxing Officer.
[12] In the absence of
a direction from the Court to the Taxing Officer, the costs must be taxed
pursuant to Rule 154 which states:
Where party
and party costs are to be taxed, the taxing officer shall tax and allow the
costs in accordance with Schedule II, Tariff B and the officer shall consider,
(a) the amounts
in issue,
(b) the
importance of the issues,
(c) the
complexity of the issues,
(d) the volume
of work, and
(e) any other
matter that the Court has directed the taxing officer to consider.
[13] Schedule II,
Tariff B sets out the amounts which may be allowed for the services of counsel.
“Counsel” is defined in section 2 of the Rules as:
Every person
who by virtue of subsection 17.1(2) of the Act, may practise in the Court.
Subsection 17.1(2) of
the Act states:
Every person
who may practise as a barrister, advocate, attorney or solicitor in any of the
provinces may so practise in the Court and is an officer of the Court.
[14] Mr. Mittal does
not fall within the definition of “counsel” as set out above. Mr. Mittal represented
himself in this proceeding and he is not entitled to recover fees for his time.
While I have no doubt that Mr. Mittal spent many hours pursuing his appeal, the
Rules of the Court do not permit me, as a Taxing Officer, to allow any amount
for his time. As a result, the amount claimed for fees in the amount of
$11,880.00 is disallowed.
[15] While I have found
that I cannot allow Mr. Mittal fees for his time, he is entitled to recover
disbursements. The Bill of Costs included a claim for disbursements in the
amount of $650.00, which amount included $250.00 for the fee paid to file the
notice of appeal, $220.00 for travel expenses, which included $35.00 for meals and
$180.00 for other miscellaneous costs. Mr. Caceres consented to the disbursements
claimed, with the exception of $35.00 for meals. I do not find the $35.00
claimed for meals to be unreasonable. Mr. Mittal made several trips from his
home to the Court and to Mr. Caceres’ office, which are both in downtown Toronto. I have no doubt that Mr. Mittal would have incurred expenses for meals on some of
these trips downtown and I will allow the amount claimed for meals. The full
amount claimed for disbursements of $650.00 is allowed.
[16] The Bill of Costs
of the Appellant is taxed and $650.00 is allowed.
Signed at Toronto, Canada, this 4th day of November 2013.
"Barbara
Tanasychuk"
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