Tanasychuk
T.O.:
This
taxation
came
on
for
hearing
on
April
8,
1999,
by
means
of
a
telephone
conference
call.
It
follows
a
Judgment
(hereinafter
referred
to
as
the
“Judgment’)
of
the
Honourable
Judge
Lamarre
Proulx
dated
October
29,
1997,
in
which
she
dismissed
the
appeal
made
under
the
Income
Tax
Act
for
the
1986
taxation
year,
with
costs.
Although
the
Appellant
had
been
duly
served
with
notice
of
this
conference
call,
no
one
participated
on
behalf
of
the
Appellant.
Ron
Miller,
the
officer
of
the
Appellant
authorized
to
represent
the
Appellant,
failed
to
provide
the
Court
with
a
current
telephone
number.
The
conference
call
proceeded
thirty
minutes
after
the
time
fixed
for
it.
Ms.
Susan
Tataryn
represented
the
Respondent.
The
Bill
of
Costs
as
submitted
by
the
Respondent
is
as
follows:
(Class
B
Proceeding)
|
(Class
B
Proceeding)
|
|
|
Item
No.
|
Item
|
|
Fees
|
Disbursements
|
|
A4(1)
|
Cost
of
witness
fees
and
ex
|
|
$
80.00
|
|
penses
for
Jerome
Voldock
|
|
|
Bl(l)(a)
|
Services
prior
to
examina
|
$
300.00
|
|
|
tion
for
discovery
|
|
|
Bl(l)(b)
|
Motion
heard
by
conference
|
$
300.00
|
|
|
call
on
August
9,
1994
|
|
|
Bl(l)(b)
|
Status
hearing
of
August
1,
|
$
300.00
|
|
|
1995
|
|
|
Bl(l)(b)
|
Motion
heard
on
April
30,
|
$
300.00
|
|
|
1996
|
|
|
Bl(l)(b)
|
Cross-examination
March
|
$
300.00
|
|
|
21,
1996
of
Paul
Dioguardi
|
|
|
on
Affidavit
|
|
|
Bl(l)(b)
|
Status
Hearing
of
October
1,
|
$
300.00
|
|
|
1996
|
|
|
Bl(l)(b)
|
Motion
heard
on
March
6,
|
$
300.00
|
|
|
1997
at
Ottawa
|
|
|
Bl(1)(b)
|
Motion
heard
on
June
9,
|
$
300.00
|
|
|
1997
at
Ottawa
|
|
|
Bl(l)(b)
|
Taxing
Costs
|
$
300.00
|
|
|
Bl(l)(c)
|
Preparation
for
hearing
|
$
400.00
|
|
|
Bl(l)(d)
|
Conduct
of
hearing
|
$1,000.00
|
|
|
Bl(l)(d)
|
Services
after
Judgment
|
$
200.00
|
|
|
Item
No.
|
Item
|
Fees
|
Disbursements
|
|
B1
(2)
|
Cost
of
Reporter
for
March
|
|
$
74.90
|
|
21,
1996
Examination
on
|
|
|
Affidavit
of
Paul
Dioguardi
|
|
|
Bl(2)
|
Cost
of
Provincial
Bailiff
|
|
$
85.60
|
|
and
Process
Server
Ltd.
of
|
|
|
May
21,
1997
for
serving
|
|
|
Motion
and
Affidavit
on
|
|
|
Appellant
Appellant
|
|
|
Bl(2)
|
Cost
of
Provincial
Bailiff
|
|
$165.85
|
|
and
Process
Server
Ltd.
of
|
|
|
July
15,
1997
for
serving
|
|
|
subpoena
and
letter
on
John
|
|
|
Voldock
|
|
|
Total
Fees
|
|
$4,300.00
|
|
|
Total
Disbursements
|
|
$406.35
|
|
SUBTOTAL
|
$4,706.35
|
At
the
outset,
Ms.
Tataryn
advised
that
she
was
withdrawing
the
first
item
claimed
on
the
bill
of
costs,
that
being
the
amount
of
$80.00
on
account
of
witness
fees
and
expenses
for
Jerome
Voldock.
This
amount
was
included
in
the
account
of
Provincial
Bailiff
and
Process
Server
Ltd.
of
July
15,
1997.
The
disbursement
of
$80.00
was
accordingly
struck
from
the
bill
of
costs
and
the
total
amount
claimed
for
disbursements
was
reduced
to
$326.35.
The
only
item
at
issue
is
whether
this
appeal
should
be
considered
a
Class
“A”
or
a
Class
“B”
action,
for
the
purposes
of
determining
costs.
The
appeal
was
instituted
as
a
Class
“A”
action
and
the
Bill
of
Costs
before
me
was
at
the
Class
“B”
level.
Ms.
Tataryn
stated
that
the
amount
of
federal
tax
at
issue
in
the
appeal
was
$119,826.50.
As
a
result,
this
proceeding
should
fall
under
Class
“B”,
for
the
purposes
of
determination
of
costs,
as
per
item
1
(b)(i)
Tariff
A
“Classes
of
Proceedings”,
which
reads
as
follows:
(b)
Class
B
proceedings
which
include
(i)
appeals
in
which
the
aggregate
of
all
amounts
in
issue
ts
$50,000.00
or
more
but
less
than
$150,000,...
Section
2.1
of
the
Tax
Court
of
Canada
Act
defines
“the
aggregate
of
all
amounts”
as:
the
total
of
all
amounts
assessed
or
determined
by
the
Minister
of
National
Revenue
under
the
Income
Tax
act,
but
does
not
include
any
amount
of
interest
or
any
amount
of
loss
determined
by
that
Minister.
The
notice
of
reassessment,
which
is
the
subject
of
this
appeal,
assessed
$119,826.50
on
account
of
federal
tax
and
a
penalty
of
$10,784.38.
An
assessment
of
this
amount
of
federal
tax
and
penalty
would
bring
the
appeal
within
the
Class
“B”
limits.
Notwithstanding
this
fact,
the
incorrect
filing
fee
was
submitted
and
the
appeal
was
classified
as
a
Class
“A”
proceeding
by
the
Registry.
The
Registry
staff
always
file
notices
of
appeal
in
the
Class
requested
by
the
party
instituting
the
appeal.
While
the
Respondent
had
no
control
over
the
amount
of
the
filing
fee
submitted
by
the
Appellant,
the
class
under
which
the
appeal
had
been
instituted
could
have
been
easily
determined
by
contacting
the
Registry.
Upon
ascertaining
that
the
appeal
had
been
instituted
under
the
wrong
class,
the
Respondent
could
have
taken
steps
to
compel
the
Appellant
to
submit
the
appropriate
filing
fee
to
bring
the
proceeding
into
the
correct
class.
In
the
decision
of
Capitol
Life
Insurance
Co.
v.
R.,
[1988]
2
C.T.C.
101
(Fed.
C.A.)the
Court
determined
that:
Classes
of
action
must
be
determined
at
the
outset
when
proceedings
are
instituted,
since
fees
are
required
to
be
paid
to
the
Registry,...
This
proceeding
was
classified
as
a
Class
“A”
action
at
the
time
the
appeal
was
instituted.
No
steps
were
taken
to
have
the
proceeding
re-classified.
As
a
Taxing
Officer,
I
cannot
vary
the
class
of
the
proceeding.
As
a
result,
the
costs
of
the
Respondent
will
be
taxed
at
the
Class
“A”
level.
The
items
claimed
for
fees
on
account
of
services
of
counsel
are
reduced
to
the
Class
A
level
and
the
amount
of
$2,700.00
is
allowed.
The
disbursements
claimed
were
substantiated
by
receipts
and
$326.35
is
allowed
The
Bill
of
Costs
of
the
Respondent
is
taxed
and
the
amount
of
$3,026.35
is
allowed.
A
certificate
in
that
amount
will
be
issued.
Order
accordingly.
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