Date: 20020125
Docket: 2000-831-IT-I
BETWEEN:
SHEILA ANANTHAN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasonsfor
Taxation
Tanasychuk, T.O., T.C.C.
[1]
This taxation came on for hearing on October 2, 2001, by means of
a telephone conference call. It follows an Amended Judgment of
the Honourable Judge Teskey dated April 23, 2001 wherein the
appeal from the assessment made under the Income Tax Act
for the 1996 taxation year was allowed, with costs. The Appellant
represented herself and Ms. Jocelyn Espejo Clarke
represented the Respondent.
[2]
The Bill of Costs as submitted by the Appellant is as
follows:
This is my bill of costs in the above appeal.
A. For services of counsel I claim the following:
(a)
preparation of notice of
appeal,
$
(b)
preparation of
hearing,
$1,186.64
(see attached invoice from Solicitor Sondra O.
Gibbons)
(c)
conducting the hearing,
# of half days =
_____________
$
B. For witnesses, fees I claim the following:
$
C. For expert witnesses I claim the
following:
$
D. Other disbursements (See Schedule A
attached)
$2,321.12
[3]
The claim for other disbursements of $2,321.12, was itemized on a
separate Schedule, as follows:
Unpaid leave to prepare for appeal: 5 days x 7.5
hours = 37.5 hours
Includes time to contact lawyer, photocopy, research
etc.
Unpaid leave for court
appearances:
3 days x 5 hours = 15.0 hours
52.5 hours
x $32.47/hr.
NOTE: $2,435.76 gross pay/75
hours
$1,704.67
Child
care
8 days x $55.00
=
440.00
Photocopying (no receipts available)
257
pages at $0.10
=
25.70
Mileage to make appearances at Tax Court:
June 26, 20000 (to Tax
Court) 45
km.
(return)
45 km.
January 22, 2000 (to Tax Court) 45
km.
(return)
45 km.
March 30,
2001
45 km.
(return)
45 km.
270 km. X $0.425
=
114.75
Note: Rate used is the rate I receive from CCRA for
travel
Parking:
June 26,
2000
$12.00
January 22,
2001
12.00
March 30,
2001
12.00
$36.00
$ 36.00
TOTAL
$2,321.12
[4]
Item A.(b) is a claim for preparation of hearing totalling
$1,186.64. The document submitted in support of this claim was an
account from a lawyer, Sondra O. Gibbons, comprised of
legal fees of $862.50 plus $60.38 for GST and disbursements of
$246.50 plus $17.26 for GST. At the outset, both parties
confirmed that there was no dispute as to the disbursements and
GST totalling $263.76, from Ms. Gibbons' account. Based on
the agreement of the parties, I will allow the sum of $263.76.
The remaining amounts from Ms. Gibbons' account of $862.50
for fees plus $60.38 for GST are in dispute.
[5]
The next item is a claim for disbursements of $2,321.12, as set
out on a separate Schedule. The parties advised that they had
reached agreement on three of the items claimed on the Schedule
of disbursements as follows:
Photocopies $
25.70
Mileage
114.75
Parking
36.00
TOTAL
$176.45
Accordingly, I will allow the sum of $176.45 for photocopies,
mileage and parking. The remaining amounts of $1,7604.67 for
unpaid leave and child care expenses of $440.00 from the Schedule
of disbursements are in dispute.
SUBMISSIONS BY MS. ANANTHAN:
[6]
The first item Ms. Ananthan dealt with was the claim for services
of counsel for preparation for hearing in the amount of $862.50
for fees plus $60.38 for GST, as set out in the account from Ms.
Sondra Gibbons. Ms. Ananthan stated that the hearing of her
appeal commenced on January 22, 2001. After she
commenced giving her evidence, the hearing was adjourned to
March 30, 2001, to enable her to obtain documents
necessary to prove her case and to arrange for the attendance of
her lawyer.
[7]
Ms. Ananthan's recollection was that the presiding Judge
recommended that she arrange for the attendance of her lawyer and
that the legal fees she is now seeking to recover were incurred
as a result of her acting on the Judge's
recommendation. She further stated that the fees incurred
were direct costs of successfully prosecuting her appeal.
[8]
Ms. Ananthan's claim for unpaid leave represents time she
spent preparing her notice of appeal, preparing for the hearing
and attending in Court. She was required to take time off work,
as a result of a decision made by Canada Customs and Revenue
Agency, which she successfully challenged in the Tax Court of
Canada.
[9]
Ms. Ananthan stated that she has four children, between the ages
of two and eight years. She incurred child care expenses over a
period of eight days while preparing her notice of appeal,
preparing for hearing and attending in Court.
SUBMISSIONS BY MS. ESPEJO CLARKE:
[10] With
respect to the claim for reimbursement of Ms. Gibbons'
account for legal fees, Ms. Espejo Clarke stated that the
Appellant represented herself and was not represented by a
lawyer. As such, legal fees are not recoverable. Further, there
was no order made by the Court compelling the attendance of her
lawyer, but only a suggestion.
[11] Ms.
Espejo Clarke admitted that Ms. Gibbons was in attendance in
Court on March 30, 2001, but did not give evidence. It is her
position that the Appellant is not entitled to recover anything
on account of legal fees charged by Ms. Gibbons.
[12] With
respect to the claim for unpaid leave, Ms. Espejo Clarke stated
that the income lost from employment is not reimbursable. In
support of this position, she referred to Stacey v. R.,
[2000] 2 C.T.C. 2677, Scarlett v. R., [1999] 1 C.T.C.
2295 and Tippet v R., [1996] G.S.T.C. 74.
[13] Ms.
Espejo Clark's position is that the child care expenses are
not recoverable on a taxation, as these costs are personal in
nature and should not be borne by the Respondent.
REPLY BY MS. ANANTHAN:
[14] With
respect to the lawyer's fees, Ms. Ananthan responded that
her claim for recovery of this amount falls within section 12(3),
which reads as follows:
such other disbursements may be allowed as were essential for
the conduct of the appeal, if it is established that the
disbursements were made or that the party is liable for them.
It is her position that she would not have been successful,
had she not incurred these costs and that they were therefore
essential for the conduct of the appeal.
[15] Miss
Ananthan believes that her claim for unpaid leave is
distinguishable from the Scarlett (supra) decision. Ms.
Ananthan stated that Ms. Scarlett's claim was for loss
of income from a business. Ms. Ananthan stated that
she is employed and receives a fixed income. As a result,
her claim for unpaid leave can be accurately quantified.
DECISION:
[16] With
respect to the claim for the lawyer's fees, they are not
recoverable under Rule 11, as the Appellant represented herself
in this matter. I must then consider the Appellant's
submission that the fees are recoverable under Rule 12(3).
[17] I have
reviewed the transcript from the proceedings of
January 22, 2001, a copy of which was provided to the
Appellant and myself by Ms. Espejo Clarke. Prior to the
commencement of the hearing, The Honourable Judge Teskey advised
the Appellant that he would grant her an adjournment, if she did
not have all necessary documents with her. His Honour
outlined what those documents were. Notwithstanding those
comments, the Appellant chose to proceed. During the course of
her testimony, it became obvious that she did not have all of the
documents required to prove her case. Upon attempting to file a
letter prepared by her lawyer as an exhibit, the Court adjourned
the hearing to a later date, to enable the Appellant to obtain
necessary documents and to secure the attendance of witnesses, if
required. The Court issued an Order fixing a date for the
continuation of the hearing. There was no Order issued compelling
the attendance of witnesses.
[18] Ms.
Gibbons' account is for services performed that relate to
preparation for hearing and attendance at hearing. Had counsel
represented the Appellant, Rule 11 permits the allowance of
$200.00 for preparation for hearing and $300.00 per half day for
the conduct of a hearing. It is interesting to note that Ms.
Gibbons' invoice exceeds the amounts allowable for the
services of counsel for preparation and attending at hearing,
pursuant to Rule 11.
[19] While
there is no doubt that Ms. Gibbons prepared document briefs for
the Appellant's use at hearing and was in attendance in Court
on March 30, 2001, the fees charged by Ms. Gibbons are not
recoverable under Rule 12(3). What the Appellant is
attempting to do is re-characterize the fees charged by her
lawyer for preparation and attendance at hearing and recover them
as a disbursement under Rule 12(3). Accordingly, the amount
of $863.50 for fees plus $60.38 for GST totalling $922.88 is
taxed off.
[20] The next
outstanding item is a claim for unpaid leave of $1,704.67.
In Tippett (supra) the Appellant's claim for lost
wages was disallowed on a taxation of costs before the Registrar
of the Tax Court of Canada. That decision was appealed, and the
Honourable Judge Rip upheld the decision. In his review of the
Registrar's decision, the Honourable Judge Rip stated:
Costs do not include loss of income from employment during
litigation.
I agree with The Honourable Judge Rip's decision. An
Appellant's claim to recover lost wages as a result of
preparation and attendance at hearing is not recoverable on a
taxation of costs. When the Appellant filed the notice of appeal,
she undertook to do so, at her own expense. Accordingly, I will
tax off the full amount claimed for lost wages of $1,704.67.
[21] The last
outstanding item is the claim for $440.00 for child care. There
is no provision in the Rules to permit the allowance of a claim
for child care expenses. I agree with Ms. Espejo Clarke's
submission that this is a personal expense, the cost of which
should not be borne by the Respondent. I will accordingly tax off
the amount claimed of $440.00.
[22] The Bill
of Costs of the Appellant in the amount of $3,507.76 is taxed and
the amount agreed upon by the parties of $440.21 is allowed. A
certificate will be issued.
Dated at Toronto, Ontario, this 25th day of January 2002.
"B.G. Tanasychuk"
Taxing Officer
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