Date: 20020122
Docket: ITA-11043-00
Neutral Citation: 2002 FCT 70
BETWEEN:
IN THE MATTER OF THE INCOME TAX ACT,
- and -
IN THE MATTER OF AN ASSESSMENT OR ASSESSMENTS ESTABLISHED BY THE MINISTER OF NATIONAL REVENUE UNDER ONE OR MORE OF THE FOLLOWING ACTS: THE INCOME TAX ACT, THE CANADA PENSION PLAN, THE EMPLOYMENT INSURANCE ACT
Judgment Creditor
- and -
ANNE DUCHESNAY
Judgment Debtor
ASSESSMENT OF COSTS - REASONS
FRANÇOIS PILON
Assessment Officer
[1] This case began with the filing on December 1, 2000 of a certificate under section 223 of the Income Tax Act. On March 6, 2001, the judgment debtor filed a notice of motion in opposition to the seizure in execution of movables. On June 15, 2001, the Court dismissed this motion by the adverse claimant, with costs. She filed a notice of appeal of this decision on July 5, 2001.
[2] Mr. Louis Sébastien, counsel for the judgment creditor, filed his bill of costs on September 4, 2001 and asked that it be assessed without the personal appearance of the parties. Mr. William Noonan, counsel for the judgment debtor, has not filed any written submissions in opposition to this bill.
[3] Although the adverse claimant has not disputed the bill of costs, I would like to make a few preliminary remarks since the decision of Mr. Justice Lemieux is before the Court of Appeal. I wondered whether it was premature to assess costs at this stage of the proceedings. While there are many divergent opinions on the matter, the point must be decided taking into account the particular circumstances of the case at bar.
[4] In Inverhuron & District Ratepayers' Association v. Canada, [2001] F.C.J. no. 666, Assessment Officer J. Parent analyzes a number of judgments and correctly summarizes the principles governing this question. In her opinion, the final decision rendered at the trial level is authority for the recovery of costs by the winning party. I agree with this principle. If I were to decide to adjourn the assessment of the bill of costs pending the decision of the Court of Appeal, I would effectively stay the execution of the Court's judgment, and thereby exercise a discretionary authority that has not been given to me.
[5] I will add that in this case the adverse claimant had presented a motion to stay the trial order in order to stay the sale of her property. This motion was dismissed with costs on August 1, 2001. In the circumstances, I am of the opinion that the judgment creditor's costs should be assessed upon filing of the bill of costs.
[6] Mr. Sébastien is claiming the following items as assessable services:
item 5 4 units
item 6 2 units
item 25 1 unit
item 26 3 units
These claims are reasonable and will be allowed as submitted.
[7] The assessable disbursements are proved in the affidavit in support of the bill of costs and are allowed in the amount of $1,015.16. The judgment creditor's costs are assessed and allowed in the amount of $2,035.16.
Halifax, Nova Scotia
January 22, 2002
François Pilon
Assessment Officer
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE NO: ITA-11043-00
BETWEEN:
IN THE MATTER OF THE INCOME TAX ACT
Judgment creditor
- and -
ANNE DUCHESNAY
Judgment debtor
ASSESSMENT IN WRITING WITHOUT PERSONAL APPEARANCE
REASONS OF: François Pilon, Assessment Officer
PLACE OF ASSESSMENT:Halifax, Nova Scotia
DATE OF REASONS: January 22, 2002
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario for the Judgment Creditor
Hickson Noonan
Sillery, Quebec for the Judgment Debtor
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