Date: 20070221
Docket: A-379-03
Citation: 2007 FCA 79
BETWEEN:
JAMES
VENNERI
Appellant
and
HER
MAJESTY THE QUEEN
Respondent
ASSESSMENT OF
COSTS - REASONS
Charles E. Stinson
Assessment Officer
[1]
This
appeal from a consent judgment of the Tax Court of Canada allowing James
Venneri's appeals in part for three taxation years and dismissing his appeals
for two other taxation years was dismissed with costs on February 8, 2005 (the
Judgment). I issued a timetable for written disposition of the assessment of the
Respondent's costs. The Appellant's mother, Rose Venneri, asserts that the
transmission of my directions to the Appellant, in care of herself to the
address for service set out in the instituting document, constitutes insulting
behaviour, harassment and intimidation which must stop immediately. As well,
she asserts that she has informed the Registry several times that the Appellant
is engaged in medical studies out of the country for two or three years, that
she no longer represents his interests and that he has not been served with the
costs materials and my directions.
[2]
James
Venneri did not sign the instituting document (filed August 18, 2003). Rather,
the signature block shows "J. Venneri by R. Venneri" followed by an
address for service unchanged throughout this proceeding and then by the
identification of Rose Venneri as "agent for the appellant." She
attested that she was authorized by her son to act in all matters related to
the transactions in dispute (the transactions). Both are lay persons. The order
dated September 23, 2003 directed that the Appellant, who was a minor at the
time of the transactions, could be represented by his mother. I could not find
any documents in the record signed by the Appellant. There is a pattern in the
documents signed by Rose Venneri of complaints about stress associated with her
health and her doctorate program interfering with her conduct on his behalf. Some
allege intimidation and some blame others for her problems in conduct.
[3]
Correspondence
to and from Rose Venneri sometimes specifies that she is the Appellant's agent
and sometimes it does not. That would not generally be of significance relative
to an agent serving merely as a conduit for the materials and submissions of
the named party litigant. However, my reading of the record is that Rose
Venneri is the driving force in this litigation effectively formulating
materials and submissions with minimal, if any, consultation with or input from
her son. An example of this, by no means exhaustive, is her Response to Status
Review Request filed March 24, 2004, the first page of which identifies her as
agent for her son. This document is not generally drafted in the third person
as if it had been prepared by her as agent for her son as the named Appellant.
Rather, it generally is written in the first person and she signed it without
specifying that she did so as agent for her son. That would not preclude James
Venneri as the creator of its contents with Rose Venneri simply receiving it
from him, adding her signature on his behalf and then filing it for him.
However, that is not so here. That is, paragraphs 1 to 4 assert generally in
the first person that this matter arises from "investments which were
registered to me and my son, James, who is now 30 and in medical school outside
the country", he was in high school and not working at the time of the
transactions, "I have his permission to deal with this matter as I have
first-hand information about the funds in question", the transactions
"have already been addressed in a Tax Court case, which ruled in my
favour", the Respondent subsequently made the transactions a separate
issue for her son and "I would be pleased to pay income tax which is
warranted, but I am not willing to pay income tax…".
[4]
Paragraph
6 then asserts that the Respondent has "attempted to deny my right to
appeal…and have denied my right to object to their decision" and that the
Tax Court of Canada "ultimately ruled in my favour". This I think
refers to an earlier Tax Court of Canada decision not the subject of this
appeal. Paragraph 7 asserts that "I expressed my desire to pay appropriate
taxes" and then asserts her frustration with the process.
[5]
Rose
Venneri submitted a notice of motion dated April 7, 2004 for an extension of
time to file the Application Record and Requisition for Hearing. This document
is drafted in the third person for the Appellant. I read the supporting
materials as blaming everyone other than herself for the difficulties giving
rise to this application, which was allowed in part. The point is simply that,
although the record disclosed some previous difficulties for the Registry in
transmitting materials to her, she appeared to still be fully engaged in a
process with the potential from her perspective for success. Her supporting
materials included her periodic statement throughout that she was authorized to
act for her son.
[6]
The
problem of effecting service on the Appellant was the subject of a motion by
the Respondent for security for costs. Reference was made to a letter signed by
Rose Venneri (no mention of agent status) asserting that she has "no
intention of paying these costs", referring to a recent award of
interlocutory costs in the Respondent's favour. This motion was granted in part
on June 11, 2004, i.e. for $1,000.00 to be paid into Court as security for
costs instead of the $2,986.00 sought. At about this time, Rose Venneri filed
the Application Record requisite for hearing. It contains material reinforcing
my belief that Rose Venneri, and not James Venneri, was and is driving this
proceeding. An example, not exhaustive, is her assertion in paragraph 4 of her
affidavit sworn May 31, 2004 that the transactions were made in her name and in
the name of her son, in high school at the time, to ensure that he would have
access to the funds given her medical problems at the time. Paragraph 17 then
asserts that James Venneri "had no material knowledge" of the
transactions. I note that it is understandable that, in drafting materials, she
might lose sight of the fact that this proceeding supposedly addressed
resolution of her son's issues as opposed to her own. Given that the Respondent
was pushing at about this time for collection of costs, the reality of a
potential lack of success and adverse monetary consequences may have affected
her conduct (see her letters dated May 20 and June 7, 2004, blaming the
Registry for her liability for costs). Certainly, problems with transmissions
of material by the Registry to her subsequently became more frequent.
[7]
The
record discloses several attempts to contact Rose Venneri about a hearing date.
On November 22, 2004, she called the Judicial Administrator (Appeal) to outline
her available dates, which included February 1, 2005, the date subsequently set
by order for hearing of the appeal. The record discloses that the Judicial
Administrator (Appeal) advised Rose Venneri by telephone of said hearing date. I
note with interest that James Venneri initially answered at the telephone
number for Rose Venneri, but did not take the hearing date information and
instead requested that a voice-mail be left for her. The Registry official
immediately called back and did so. The Registry's mailing of the order to her
was returned by Canada Post and marked unclaimed, as was the Registry's second
mailing of said order on January 17, 2005. As above, this reinforces my feeling
that the only active step taken by James Venneri in this matter was to permit
his mother to use his name as the Appellant so that she could fully engage with
the Respondent over her disagreements concerning the transactions. The appeal
hearing convened on February 1, 2005, no one appearing for James Venneri, and
the matter was taken under reserve. The presiding judge then added a note to
the record on February 8, 2005, that he was satisfied with the Registry's
notice to Rose Venneri of the hearing date and that the Court would not
reconvene further to her informal request to do so. The Court directed that its
note and the judgment be sent to her by registered mail and by ordinary mail.
The registered mailing was returned marked unclaimed.
[8]
By
letter dated February 9, 2005, she asserted that she did "not intend to
abandon this appeal" and she requested information about how to appeal.
There is no indication that her son concurred in or was aware of this. The supporting
materials for her motion for reconsideration of the judgment did briefly
distinguish between herself and her son, but do not convince me that her son was
involved in their preparation. I find it ironic that she had blamed the
Registry throughout for shortcomings in conduct on the part of the Appellant,
yet when it was convenient in these supporting materials to do so in an attempt
to convince the Court of her good intentions as justification to reconvene, she
asserted in paragraph 6 of her affidavit sworn February 11, 2005 that various
Senior Registry Officers kept her properly informed throughout. On March 11,
2005, the Court dismissed her motion for reconsideration. The Registry
transmitted this order to her by facsimile and by mail. The letter was returned
unclaimed. Her letter to the Registry dated March 21, 2005, complained of the
unfairness of the court process, including the use of registered mail given her
inability to get to Canada Post during work hours and medical issues causing
her to avoid public places. The Registry pointed her to the Supreme Court of
Canada.
[9]
The
Respondent filed a notice of motion on May 19, 2005, for payment out to the
Crown of the $1,000.00 paid into Court on behalf of the Appellant for security
for costs. Rose Venneri filed (on June 30, 2005) a motion record opposing
payment out on the grounds that James Venneri cannot directly address this
matter because of his medical studies in Europe, he is not at fault, he is
retaining legal services to investigate alternative process, his preoccupation
with his studies precluded him from properly assessing the incompetence or
incapacity of Rose Venneri as his representative and a number of other factors.
Apparently, in asserting at paragraph 20 that the Registry had "provided incorrect
information to the Appellant's representative that resulted in the motion for
security and court costs", she had forgotten her recent affidavit (sworn
February 11, 2005) that the Registry had kept her properly informed throughout.
Her accompanying affidavit sworn June 30, 2005 asserted that, as James Venneri
had been too busy with his studies, he was not aware of the details of the
proceeding or the medical incapacity of her as his representative. Paragraph 14
of said affidavit asserting negligent advice by the Registry staff directly
contradicts paragraph 6 of her affidavit sworn February 11, 2005. The little that
I do believe as a function of the aggregate of materials formulated throughout
by her on behalf of her son is that he gave her permission to use his name and
that he gave little, if any, instructions or input to her. By order dated July
26, 2005, the Court granted the Respondent's motion. Again, the record
discloses difficulty for the Registry in transmitting this order to her.
[10]
On
October 10, 2006, the Respondent initiated process for assessment of costs. The
record discloses her letter dated June 7, 2006 to the Respondent's
representative asserting that her son will not be able to address the matter of
costs until after he finishes his studies and returns to Canada in three
years. The Respondent's letter dated June 21, 2006 in response reminded her of
her sworn evidence that she had permission to act in all matters related to the
transactions, which would include these outstanding costs. Her letter dated
July 4, 2006 in response asserted that the June 21, 2006 letter was
"threatening, harassing, intimidating, inappropriate and
unacceptable", that she no longer represents her son and that there must
be no further attempts to contact her about the transactions. She responded to
my directions concerning conduct of the assessment in similar fashion with the
added assertion that James Venneri has not been served with or received the
costs materials, including my directions.
[11]
Simply
put, I reject her position that the assessment of costs must be delayed. She,
by way of her son as the named Appellant, cannot treat court process as a
convenient conduit for expression of her dissatisfaction without having to
coincidentally bear the associated consequences if imposed as here.
Technically, only James Venneri could have designated her as his agent and only
he can rescind said designation. Neither can frustrate, at their convenience,
the Respondent's rightful access to court process. My reading of the court
record is that Rose Venneri alone conceived, initiated and implemented all
steps on the part of James Venneri without substantive instruction from and
participation by him, other than the granting of permission to use his name. In
so concluding, I acknowledge that the transactions giving rise to the relevant
Tax Court of Canada decision addressed him alone, but I think that the reality
is that she cannot disassociate herself from the events further to which the
Respondent has received costs. I am not suggesting that nor is it my role to
determine whether Rose Venneri, as opposed to James Venneri, is liable to
satisfy any assessed costs. I simply think that she cannot frustrate court
process by disengaging at her convenience. I might think differently if James
Venneri had removed her as his agent or if there was believable evidence of her
incapacity. I also think that, even if James Venneri was not aware of any
details of the process conducted in his name, he had to have been aware that it
was occurring. I find that proper notice of the assessment of the Respondent's
costs has been given.
Assessment
[12]
The
effect of Rose Venneri's conduct is that the Appellant did not file any
materials in response to the Respondent's materials. My view, often expressed
in comparable circumstances, is that the Federal Courts Rules do not
contemplate a litigant benefiting by an assessment officer stepping away from a
position of neutrality to act as the litigant's advocate in challenging given
items in a bill of costs. However, the assessment officer cannot certify
unlawful items, i.e. those outside the authority of the judgment and the
tariff. I examined each item claimed in the bill of costs and the supporting
materials within those parameters. Certain items warrant my intervention as a
function of my expressed parameters above and given what I perceive as general
opposition to the bills of costs.
[13]
The
Respondent presented a bill of costs further to an order dated March 26, 2004,
dismissing the Appellant's motion for an order allowing the appeal. Costs were
awarded payable forthwith to the Respondent. The resultant bill of costs dated
April 15, 2004 (the 1st bill of costs) included an item 2 claim for
preparation of the Respondent's Record for the hearing of the appeal, but no
item 21(a) claim for preparation of a motion record. The bill of costs dated
May 19, 2005, for the appeal proceeding (the 2nd bill of costs) also
included an item 2 claim for the Respondent's record for the hearing of the
appeal. It did include an item 21(a) claim for preparation of the motion record
(the March 26, 2004 order). By direction of the Court further to statutory
requirements, this proceeding had been converted from an application for
judicial review to an appeal proceeding. Therefore, although item 2 is not
necessarily the appropriate counsel fee item, its amount approximates that for
the comparable service in an appeal proceeding and is allowed as presented at
$600.00 in the 2nd bill of costs, but is disallowed in the 1st
bill of costs. Items 21(a), 22(a) (appearance at the hearing of the appeal) and
25 (services after judgment) are allowed as presented at $360.00, $270.00 and
$120.00 respectively. Each bill of costs claims a mid-range value of $480.00
for item 26 (assessment of costs). I allow only 5 units in total at $120.00 per
unit (in the 2nd bill of costs) as these assessments were
essentially a single process. Disbursements for photocopies are in order and
are allowed as presented at $96.00 and $162.40 respectively. The 1st
and 2nd bill of costs of the Respondent, presented at $1,086.00 and
$1,992.40 respectively, are assessed and allowed at $96.00 and $2,112.40
respectively. A single Certificate of Assessment will issue confirming assessed
costs totalling $2,208.40 for the Respondent. Of that, only $1,208.40 remains
outstanding and payable by the Appellant to the Respondent given that the
$1,000.00 paid into Court by the Appellant as security for costs has already
been paid out to the Respondent. Given the difficulties associated with
transmission of documents by the Registry to the Appellant, the Registry is
instructed to send my decision to the Appellant by registered mail and then
again by ordinary mail.
"Charles
E. Stinson"
Email this Content