Date: 20080912
Docket: T-473-06
Citation: 2008
FC 1030
Ottawa, Ontario, September 12, 2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ALLAN
JAY GORDON
Plaintiff
and
HER
MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
Docket: T-474-06
BETWEEN:
JAMES A. DEACUR & ASSOCIATES LTD. and
JAMES ALLAN DEACUR
Plaintiffs
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
REASONS FOR ORDER AND ORDER
O’KEEFE J.
[1]
This is a
submission by the plaintiffs with respect to costs in my decision on these
Court files. The plaintiffs are seeking an order for costs on a solicitor and
client basis payable forthwith. The plaintiffs are also seeking an order
setting a litigation timetable.
[2]
The
plaintiffs state that the defendant stated in its notice of motion that the
defendant brought the motion “out of an abundance of caution and to ensure that
the Canada Revenue Agency (CRA), Department of Justice (DOJ) and the Federal
Prosecution Services (FPS) may provide the relevant information and
documentation to counsel for the defendant to defend the civil action brought
against the defendant without violating the law.”
[3]
I have
considered the submissions of the parties and have noted that the applicable
sections of the legislation do, in certain situations, provide for the release
of taxpayer information and personal information. The parties did not disagree
that the exemption provisions of paragraph 241(3)(b) of the Income Tax Act,
R.S.C. 1985, c.1 (5th Supplement) and paragraphs 8(2)(b) or (d) of the Privacy
Act, R.S.C. 1985, c. P-21, apply to the taxpayer information in this case.
The defendant requested a declaration to this effect from the Court.
[4]
The
plaintiffs are seeking solicitor and client costs payable forthwith as they
claim it was not necessary for the defendant to seek this confirmatory relief
from the Court.
[5]
First, I
will deal with the issue of whether the plaintiffs are entitled to the grant of
costs on a solicitor and client basis. In Mackin v. New Brunswick (Minister of Finance) 2002 1 S.C.R. 405 at paragraph
86:
At trial, the respondents were awarded
party-and-party costs. In the Court of Appeal, this decision was reversed and
it was decided that the government’s conduct justified the award of
solicitor-client costs. It is established that the question of costs is left to
the discretion of the trial judge. The general rule in this regard is that
solicitor-client costs are awarded only on very rare occasions, for example
when a party has displayed reprehensible, scandalous or outrageous conduct (Young
v. Young, [1993] 4 S.C.R. 3, at p. 134). Reasons of public interest
may also justify the making of such an order (Friends of the Oldman River
Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at p.
80).
[6]
I have
reviewed the factual background of this action contained in the application and
submissions for costs and I cannot find any evidence of reprehensible,
scandalous or outrageous conduct by the defendant. As a result, I cannot make
an award of solicitor and client costs against the defendant.
[7]
That does
not mean that I should not make an award of costs. The defendant did seek and
receive a declaration that the relevant exemption provisions of the Income
Tax Act and the Privacy Act applied to the actual facts of this
case. It gave the defendant some degree of comfort that the requested
information could be released with safety. The plaintiffs did not need this
comfort.
[8]
As a
result, I am of the view that even though the defendant succeeded in its
application, the plaintiffs should be awarded their costs of the application.
There shall be one set of costs.
[9]
If the
parties cannot agree on the amount of the costs, the amount may be determined
by an assessment officer.
[10]
I agree
that a timetable should be set but I do not have adequate information to set
this timetable. As this matter is in case management, maybe the case management
team should set the timetable. I retain jurisdiction with respect to this
issue.
ORDER
[11]
IT IS
ORDERED that the
plaintiffs shall have their costs of the application and if the parties cannot
agree on the amount of the costs, the amount may be set by an assessment
officer.
“John A. O’Keefe”
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