Bernier v. The Queen, docket 2000-279(IT)I (Informal Procedure)

Date: 20021121

Docket: 2000-279-IT-I

BETWEEN:

CLAIRE BERNIER,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Taxation

Guenette, R.P., Ottawa, T.C.C.

[1]            This taxation was heard by telephone conference and it follows a Judgment of the Honourable Judge Dussault issued on September 25, 2001 wherein the Appellant was awarded costs. John A. Prosnick, as agent, represented the Appellant at this taxation as well as at the hearing of the appeal, and Philippe Dupuis represented the Respondent.

[2]            At the time the Notice of Appeal was filed and until just prior to trial, the Appellant was represented by counsel from the law firm of Gariepy, Marcoux, Richard, Dubois of Montreal.

[3]            The following are the relevant portions of the bill of costs submitted by the agent for the Appellant:

A.             For services of counsel I (acting as agent for the Appellant) claim the following:

(a)            For the preparation of the notice of appeal as undertaken by Gariepy, Marcoux, Richard, Dubois avocats (as substantiated by various invoices (enclosed) from Gariepy, Marcoux, Richard, Dubois avocats): $150.00

(b)            For the preparation work prior to the hearing as undertaken by Gariepy, Marcoux, Richard, Dubois avocats as demonstrated by correspondence (enclosed) dated May 29, 2000 received from Revenue Canada under the Freedom of Information Act (as substantiated by various invoices (enclosed) from Gariepy, Marcoux, Richard, Dubois avocats: $200.00

(c)            For conducting the hearing: nil

(d)            For taxation of costs: nil

B.             For witness' fees: $200.00

                To enable the Appellant to pay the four (4) witnesses who appeared and testified on her behalf at the hearing which took place on September 21, 2001; such witnesses being Mr. Pierre Gagné,

Mrs. Joanne Gagné, Mr. John Sebastien Prosnick and

Mr. John Andrew Prosnick (as substantiated by copies of cheques issued to the witnesses involved).

                                ...

[4]            The agent for the Appellant is claiming services of counsel for the preparation of the notice of appeal and for work prior to the hearing of the appeal. Mr. Prosnick argues that the Appellant was represented by counsel during that period and, therefore, should be allowed these costs. Counsel for the Respondent argues that there is no indication on file that the Appellant was represented by counsel and that I should not allow these costs. I have completed a thorough review of the Court file and find that the Appellant was in fact represented by counsel up to the hearing, as evidenced by correspondence (until the notice of hearing) between the Registry and Isabelle Mercure of the law firm Gariepy, Marcoux, Richard, Dubois as counsel of record.

[5]            For this reason, I have no difficulty in awarding costs for the preparation of the notice of appeal and for the work prior to the trial. Costs are allowed for these two items in the aggregate of $350.00.

[6]            The next item in dispute is a disbursement of $200.00 claimed for witness fees. There is no dispute that four witnesses appeared on behalf of the Appellant at the hearing of the appeal and that the Appellant has not paid the witness fees.

Mr. Prosnick argues that once he receives the monies owed to his client through this taxation, he will pay the witnesses. He indicates that he has the money in trust provided by the Appellant.

[7]            Counsel for the Respondent argues that since the disbursement has not in fact been paid, it should not be allowed. Mr. Dupuis is right in his submission that if the cost has not been incurred, how can the Appellant claim it as a disbursement?

[8]            I instructed the Registry to inform the agent for the Appellant that if he could provide proof that the witness fees had indeed been paid, the disbursement would be allowed. Mr. Prosnick did produce such proof to the Court as well as to counsel for the Respondent. However, Mr. Prosnick also produced a revised Bill of Costs including additional disbursements incurred to provide the required proof requested by the Registry. By letter dated September 10, 2002 counsel for the Respondent submits that "such disbursements were not essential to the conduct of the appeal, as required by paragraph 12(3) of the Tax Court of Canada Rules (Informal Procedure)".

[9]            I agree with counsel for the Respondent and I am not prepared to allow the additional costs associated with the payment of the witness fees. However, the disbursement for witness fees in the amount of $200.00 is allowed as a result of proof of payment received by the Court.

[10]          There is no dispute as to the amount of $120.38 claimed for photocopies as set out in an invoice and, therefore, this item is allowed in full.

[11]          A Certificate in the amount of $670.38 will be issued.

Dated at Ottawa, Canada, this 21^st day of November 2002.

Registrar