F Maurice Edgar v. Her Majesty the Queen (Informal Procedure), [1994] 1 CTC 2562

Christie, A.CJ.T.C.C.:—This appeal was preceded by an appeal under the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "Act") that came on for hearing before my colleague Judge Bonner at Toronto, Ontario, on June 11, 1993. On June 18, 1993, he signed judgment allowing the appeal with costs. Subsections 13(1) and (4) of the Tax Court of Canada Rules (informal procedure), SOR/90-688 (hereinafter "the Rules") provide:

13(1) Subject to subsection 10(2) [1] , costs shall be taxed by the registrar or such other person as may be designated by the Chief Judge as a taxing officer.

(4) Immediately following the taxation the registrar shall send to each of the parties a certificate of taxation.

On December 20, 1993, the Registrar, R. P. Guenette, signed a certificate of taxation. It reads:

I CERTIFY that I have taxed the party and party costs of the appellant in this appeal under the authority of subsection 13(1) of the Tax Court of Canada Rules (informal procedure) and the total bill of costs submitted in the amount of $1,569.94 is taxed and $519.94 is allowed.

On December 22, 1993, a copy of this certificate was sent to the appellant and to Mr. Gerald A. Samways, a certified management accountant. He had acted on the appeal heard by Bonner, J.T.C.C. as agent for the appellant under the authority of section 18.14 of the Tax Court of Canada Act, R.S.C. 1985, c. T-2. It provides:

18.14 All parties to an appeal referred to in section 18 may appear in person or may be represented by counsel or an agent.

Subsection 14(1) of the Rules provides:

14(1) Any party may appeal to a judge of the Court from the taxation, such appeal to be exercised by notice in writing sent to the registrar within 20 days of the date of mailing of the certificate of taxation.

By notice in writing dated January 5, 1994, this appeal from the taxation was instituted. There were two amounts disallowed on the taxation. First, $1,000 in relation to those items set out in section 11 of the Rules. Second, $50, being a witness fee claimed regarding the appellant having testified on his own behalf.

I think the $1,000 was properly disallowed on the ground that Mr. Samways is not a person who may practise as a barrister, advocate, attorney or solicitor in any of the provinces. I believe this is manifest from the wording of the relevant statutory provisions, namely, subsection 35(1) of the Interpretation Act, R.S.C. 1985, c. I-21; subsections 18.26(1), 20(1) and paragraph 20(1.1)(j) of the Tax Court of Canada Act, sections 2 and 11 of the Rules. They provide:

35(1) In every enactment. . ."province" means a province of Canada, and includes the Yukon Territory and the Northwest Territories;

18.26(1) Where an appeal referred to in section 18 is allowed and the judgment reduces the aggregate of all amounts in issue or the amount of interest in issue, or increases the amount of loss in issue, as the case may be, by more than one-half, the Court may award costs to the appellant in accordance with the rules of Court.

20(1) Subject to the approval of the Governor in Council, rules for regulating the pleadings, practice and procedure in the Court shall be made by the rules committee.

(1.1) Without limiting the generality of the foregoing, the rules committee may make rules

(j) for awarding and regulating costs in the Court in favour of or against the Crown as well as other parties and for authorizing the refusal of costs to an appellant who, in circumstances in which the appellant could make an election under section 18, does not make such an election.

2. In these rules. . ."counsel" means every person who may practise as a barrister, advocate, attorney or solicitor in any of the provinces; (avocat)

11. On the taxation of party and party costs the following fees may be allowed for the services of counsel

(a) for the preparation of a notice of appeal, $150,

(b) for preparing for a hearing, $200,

(c) for the conduct of a hearing, $300 per half day or part thereof, and

(d) for the taxation of costs, $50.

I am also of the view that the $50 witness fee was also properly disallowed. Subsection 12(1) of the Rules provides:

12(1) A witness, other than a witness who appears to give evidence as an expert, is entitled to be paid by the party who arranged for his attendance $50 per day, plus reasonable and proper transportation and living expenses.

This subsection should be regarded and applied in the light of this statement in The Principles of the Law of Costs by J.A.C. Cameron at page 277: “It is not a general rule that parties, if witnesses, are to have an allowance for their attendance: Dowdell v. Australian Royal Mail Steam Navigation Co. (1854), 3 El. & BI. 902, 118 E.R. 1379 (Q.B.).” I also emphasize the words "is entitled to be paid by the party who arranged for his attendance” in subsection 12(1).

The appeal is dismissed.

Appeal dismissed.