Date: 20080125
ITA-12276-02
ITA-8992-04
ITA-13404-04
ITA-13163-04
GST-4304-04
Citation: 2008
FC 104
In the matter of the Income Tax Act,
and
In
the matter of an assessment or assessments by the Minister of National Revenue
under one or more of the Income Tax Act, Canada Pension Plan, Employment
Insurance Act, against
HUMBY
ENTERPRISES LIMITED
Box 342, 325 Garrett Drive, Gander, NL A1V 1W7
(Court
File No. ITA-12276-02)
A
& E PRECISION FABRICATING AND MACHINE SHOP INC.
Post
Office Box
342, Gander, Newfoundland and Labrador, A1V 1W7
(Court
File No. ITA-8992-04)
A
& E PRECISION FABRICATING AND MACHINE SHOP INC.
Post
Office Box
342, Gander,
Newfoundland and Labrador, A1V 1W7
(Court
File No. ITA-1340404)
CENTRAL
SPRINGS LIMITED
P. O.
Box 342325 Garrett Drive, Gander, Newfoundland & Labrador, A1V 1W7
(Court
File No. ITA-13163-04)
In
the matter of the Excise Tax Act, R.S.C., 1985, c. E-15,
and
In
the matter of an assessment or assessments by the Minister of National Revenue
under the Excise Tax Act, against:
A
& E PRECISION FABRICATING AND MACHINE SHOP INC.
Post
Office Box
342, Gander, Newfoundland and Labrador, A1V 1W7
(Court
File No. GST-4304-04)
ASSESSMENT OF COSTS – REASONS
Willa Doyle
Assessment
Officer
[1] There was an individual motion filed by the Applicant
(Canada Revenue Agency) in each of the five above noted cases. The matters
were collectively and originally set down for hearing on February 23, 2007 in
St. John’s Newfoundland and Labrador at the
regular monthly motions day. However, by Direction of Prothonotary Morneau issued
on March 3, 2007, the Prothonotary (considering the remedies sought by the
Applicant were “in the nature of an injunction and mandamus against a
provincial board”) re-scheduled the matters to April 18, 2007 to be adjudicated
before a Judge of this Court.
[2] Subsequently, on April 18, 2007 the matters
were heard collectively by personal appearance before the Honourable Madam
Justice Heneghan in St. John’s, Newfoundland and Labrador with each party presenting their respective positions. On October 22, 2007 the Honourable
Madam Justice Heneghan issued an Order which stated: “The motions are dismissed
with taxed costs to the Respondents”.
[3] On October 31, 2007 the Respondent filed their
Bill of Costs encompassing all five matters (as they were heard) and asking
that the Bill of Costs be dealt with in writing without personal appearance. I
issued a timetable for reply and rebuttal materials to be served and filed. Following
this I received a request for an extension of time for the Applicant to serve
and file all reply materials, this was granted and a new time table was issued
for both parties. I received the Applicant’s written reply, the Respondent’s
response and a further letter from the Applicant. I am now prepared to proceed
with the assessment of costs.
[4] In regard to assessable services the
Respondent is seeking the following; item 2 – preparation and filing of
Respondent’s Response to the Motion record filed by the Applicant and
subsequent Memorandum of Fact and Law and related materials including, bit not
limited to; legal research, meeting with the client, extensive review of this
large file involving multiple parties; and preparation memorandum of Fact and
Law - six units, item 13(a) preparation for hearing on March 22, 2007 including
review of Applicant’s material, supplemental material and material filed by the
solicitor for the High Sheriff of Newfoundland , that was postponed until April
18, 2007, including correspondence to/from the opposing solicitors – three
units, item 13(b) preparation and filing of written argument including four
copies of the Respondents’ Memorandum and written representations, extensive
Affidavit of Eli Humby; further Supplemental Affidavit of Eli Humby; legal
research and correspondence– three units, item 14 – counsel fee to first
counsel per hour in Court on April 18, 2007 - three and three-quarters hour,
item 25 – services after judgment not otherwise specified; following up with
client - one unit, item 26 – assessment of costs - four units, item 27-
consultations with client - three and one-half units.
[5] The Respondent’s position is that “…This
was a complex claim with three Respondents, three parties with solicitors and
considerable documentation filed by each party that dealt with an ongoing
dispute that was ongoing for two and one have (sic) years.” The Applicant’s
position is “ … that the proceedings before the Court were with respect to a
motion. Costs, therefore, should be awarded under the Tariff accordingly.”
[6] In my respectful opinion, based on the
reading and application of Federal Court Rules Part 11 – Costs,
the Applicant is correct. The matter before the Court in the above was the
hearing of a motion. Consequently, and in the absence of any further
direction from the Court, it is only the items 4, 5 and 6 listed under Federal
Courts Rules Tariff B, Assessable services, B. Motions, column III
that may be subject to costs in this matter.
[7] In reference to my paragraph [6] and coupled
with the fact that the Applicant in their submission also noted that item 2 is
not available on motion and have instead made reference to item 5 – preparation
and filing of a contested motion, including materials and responses thereto, I agree
and allow five units for the preparation and filing of a contested motion,
including materials and responses thereto. As referenced in paragraph [6] neither
claim under item 13 (a) nor 13(b) can be allowed, both are reduced to zero
units.
[8] Item 14 is claimed at three and
three-quarter hours, this amount confirmed by a review of the recorded entries
in the Registry’s data base and uncontested by the Applicant , is allowed at
three and three-quarter hours not under item 14 as requested but allowed under
item 6 – appearance on a motion, per hour.
[9] Item 25 – services after judgment not
otherwise specified, claimed at one unit, this item is allowed at one unit as
claimed.
[10] Item 26 – assessment of costs is claimed at
four units. In my respectful opinion, this assessment was not complex additionally
it was done in writing without the need for personal appearance, I have
therefore reduced the claim from four units and I allow two units for the
assessment of costs.
[11] Item 27 – such other services as may be
allowed by the assessment officer or ordered by the Court is reduced to zero
units. Respectfully in my opinion, as I have stated in previous assessment of
costs reasons, item 27 is meant to indemnify counsel for extraordinary items
not covered elsewhere in the tariff.
[12] Based on the forgoing paragraphs, the numbers
of disbursement units are reduced from the claimed twenty-four and one-quarter units
for a dollar figure of $2,910.00 to an allowed eleven and three-quarters units producing
a dollar figure of $1,410.00.
[13] The disbursements, uncontested and supported
by the affidavit of Bernadette Melvin, are allowed as requested at $393.10. The
Respondents’ Bill of Costs presented at $3,303.10 is assessed and allowed in
the amount of $1,803.10. A certificate is issued in this Federal Court
proceeding in the amount of $1,801.10.
____________________
Willa Doyle
Assessment Officer
Fredericton, New
Brunswick
January 25, 2008
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: ITA-12276-02.
ITA-8992-04, ITA-13404-04,
ITA-13163-04,
GST-4304-04
STYLE OF CAUSE: CRA
v. Humby Enterprises Limited, A & E Precision Fabricating and Machine Shop
Inc., and
Central
Springs Limited
ASSESSMENT OF
COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
ASSESSMENT OF COSTS
REASONS BY:
Willa Doyle,
Assessment Officer
DATED: January
25, 2008
WRITTEN
REPRESENTATIONS BY:
Gregory A.
MacIntosh FOR THE APPLICANT
Robert B.
Anstey FOR THE RESPONDENT
SOLICITORS
OF RECORD:
Justice Canada
Halifax, Nova Scotia FOR
THE APPLICANT
Robert B. Anstey Law
St. John’s, NL FOR
THE RESPONDENT
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