Date: 20001213
Docket: A-667-97
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
- and -
ROBERT PHÉNIX
Respondent
ASSESSMENT - REASONS
FRANÇOIS PILON
Assessment Officer
[1] This is an assessment of the respondent's bill of costs pursuant to the judgment rendered on September 12, 2000 dismissing the appeal with costs.
[2] On October 31, 2000, Mr. Yves Ouellette, the respondent's solicitor, filed his bill of costs and asked that it be assessed without the personal appearance of the parties. On November 14, 2000, we sent a copy of the bill of costs to Ms. Chantal Jacquier, the appellant's solicitor, inviting her to submit her written representations in opposition to the said bill.
[3] On December 4, 2000, Ms. Jacquier filed her written representations in which she disputed the number of units claimed for certain fees. Finally, on December 12, Mr. Ouellette filed his written observations in reply.
[4] Under item 19 of Tariff B, the respondent is claiming 7 units for the filing of the memorandum of fact and law. The appellant argues that this number of units is unreasonable, given that there was only one issue before the Federal Court of Appeal, and she suggests that the assessment officer read the Court's reasons for judgment. She concludes that 5 units would be reasonable.
[5] Mr. Ouellette, on the other hand, refers the assessment officer to the various factors listed under Rule 400(3) and argues that the issue in dispute before the Court of Appeal was important and complex, as is shown by the following factors:
(a) up to now there was no decision of the courts, either the Tax Court of Canada or the Federal Court of Appeal, on the issue;
(b) the hearing lasted six days in the Tax Court of Canada;
(c) a Finance Canada release dated July 23, 1999 mentions that the Income Tax Act is being amended to remove any uncertainty in the wake of the decision of the Tax Court of Canada in Robert Phénix v. Her Majesty the Queen; and
(d) many cases were awaiting this decision, both in the Tax Court of Canada and in the Appeals Division of the Canada Customs and Revenue Agency.
[6] I doubt that I am able to take into consideration the facts referred to above in paragraphs (b) and (d). Having reviewed the Court's reasons for judgment, which indicate that the dispute at issue was clear and unequivocal, as were counsels' submissions, I will allow 6 units.
[7] The respondent claims $300 in item 24 for travel by counsel to attend trial. He maintains that the assessment officer has jurisdiction over all expenses under Rules 405 and 407. However, the appellant bases her opposition on the expression "at the discretion of the Court" in item 24, which, she says, does not extend to the assessment officer absent any directive to that effect. I think Ms. Jacquier is right; only the Court has the discretionary authority to compensate counsel for his or her travel.
[8] The appellant is of the opinion that the claim for 6 units for assessment of costs is excessive, and she proposes to reduce this number to 3 units. The respondent replies that it is necessary to take into account the importance and complexity of the issue. In my opinion, the number of units under item 26 of the Tariff refers solely to the preparation of the bill of costs and the documents filed in support thereof. In the case at bar, the bill of costs is quite simple and the affidavit in support contains only four short statements. Added to this is the respondent's time in answering the appellant's written representations. Four units would seem quite reasonable to me in the circumstances.
[9] Finally, Ms. Jacquier objects to the $150 claimed under item 28 of the Tariff for services provided by a student-at-law. She argues that, absent any explanation by Mr. Ouellette as to the identity of the student and the nature of the services rendered by him, this claim should not be allowed. To determine this point, I read the summary of the hearing placed in the Court record; it is indicated there that Mr. Ouellette was accompanied by Mr. Brian Forget, a student-at-law, during the hearing of September 12. Although the services rendered by Mr. Forget were not specified by Mr. Ouellette, I will nevertheless allow this fee, since I assume that in this case the presence of a student-at-law had been considered necessary by the respondent. Furthermore, I note that at the hearing of the appeal two lawyers from the Department of Justice appeared on behalf of Her Majesty the Queen.
[10] As disbursements, the sum of $3,563.48 for the preparation of the respondent's memorandum and six books of authorities is supported by the evidence and will be allowed.
[11] The respondent's costs will be assessed and allowed in the amounts of $1,550.00 for the fees and $3,563.48 for the disbursements. A certificate shall issue in the amount of $5,113.48.
Halifax, Nova Scotia
December 13, 2000
François Pilon
Assessment Officer
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE NO: A-667-97
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
- and -
ROBERT PHÉNIX
Respondent
ASSESSMENT IN WRITING WITHOUT PERSONAL APPEARANCE
REASONS OF FRANÇOIS PILON, ASSESSMENT OFFICER
PLACE OF ASSESSMENT: Halifax, Nova Scotia
DATE OF REASONS: December 13, 2000
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario for the appellant
Gowling Lafleur Henderson
Montréal, Quebec for the respondent
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