Deluca v. The Queen, docket 2000-3791(IT)I (Informal Procedure)

Date: 20020205

Docket: 2000-3791-IT-I

BETWEEN:

FRANK DELUCA,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Taxation

[1]          This taxation was held by way of a telephone conference on November 21, 2001. It follows a Judgment of the Honourable Associate Chief Judge Bowman wherein he allowed the appeals and "the appellant is entitled to his costs, if any, in accordance with the tariff".

[2]      The Appellant was represented by Bernard Linseman, C.A. and the Respondent by Pascal Tetreault.

[3]      The Appellant's Bill of Costs as submitted to the Court is reproduced as follows:

(a) filing of Notice of Appeal                    $                    100.00

(b) commencement of proceedings                    250.00

(c) for taking evidence before hearing                            250.00

(d) preparation of hearing                        250.00

(e) conducting the hearing, 1 day                               750.00

(f) for all services after judgment                         125.00

(g) for photocopies, courier, faxes                               150.00

                                      1,875.00

[4]      At the commencement of the hearing, item (a) was removed and is therefore not before me since the Appellant had already been reimbursed the filing fee of $100.00 by the Registry of the Court on October 2, 2001 pursuant to paragraph 18.26(1)(a) of the Tax Court of Canada Act. I shall deal with remaining items as they appear on the Bill of Cost as follows:

[5]      Mr. Linseman argued that, in his opinion, the word 'advocate' includes a 'professional'. Because he is an accountant, he believes he is therefore an advocate and entitled to counsel fees. In the alternative, he argues that the costs should be allowed under disbursements. He indicated that this was a complex tax case which required much preparation and he should be entitled to the fees as claimed. He also mentioned that according to Webster's Ninth New Collegiate Dictionary the word 'advocate' does not preclude an accountant and that this is the interpretation of the definition which I should apply to award him his costs.

[6]      Mr. Tetreault argued that this Court as well as the Federal Court of Appeal have already dealt with this same argument in an identical matter. He is of the opinion that the word 'counsel' does not include an accountant and that in addition, it would be improper to allow the costs as a disbursement. He referred to the Federal Court of Appeal decision in Her Majesty the Queen v. Munro, 98 DTC 6443 (F.C.A.), in which the Court stated at paragraphs 20 and 21:

[20] The informal procedure set out in the Act specifically contemplates in section 18.14 representation by an agent; yet, the Rules Committee has expressly restricted the taxable fees to those relating to "services of counsel". It does violence to the very clear intent in rule 11 of restricting fees to services of counsel to suggest that the words "such other disbursements" in rule 12(3) can be interpreted in such a way as to include fees for services of agents and furthermore to allow such agents the right to claim whatever they want beyond and above what counsel are allowed to claim. Agents should not be allowed to claim indirectly under rule 12(3) what has been directly denied to them in rule 11.

[21] I note that Mrs. Munro herself, in her Bill of Costs, has claimed her agent fees as being "for services of counsel", which, of course, they are not. Had her accountant been called as an expert witness, she could have claimed her accountant's fees under rule 12(2). But inasmuch as the costs claimed are with respect to the services of her accountant as an agent, and not with respect to his services as an expert witness or in an otherwise permissible capacity, these costs cannot be allowed under the Rules.

[7]      He also referred to the decision of Kew v. R. [2001] 2 C.T.C.2201 in which Judge Bowie of this Court had the following to say at paragraph 5:

The first matter that I will deal with is the question of the Appellant's entitlement to recover a counsel fee. It is abundantly clear from the decision of the Federal Court of Appeal in Munro v. R. (1998), 98 D.T.C. 6443 (Fed. C.A.), that a counsel fee may not be allowed for services of somebody other than a person who is entitled to practise as a barrister, advocate, attorney, or solicitor in one of the provinces, which is the manner in which the Rules define "counsel" in section 2. Mr. Kew argues that he, as agent for his wife, and permitted by the Tax Court of Canada Act to act as agent for his wife, was on the occasion of the appeal an advocate, and therefore comes within that definition of "counsel", and that his wife is therefore entitled to recover a counsel fee in respect of his services. The Federal Court of Appeal's decision in Munro leaves no opening for doubt that only persons who have qualified and been admitted to the bar of one of the provinces of Canada can qualify as "counsel" and therefore perform services for which a counsel fee may be awarded. Therefore I have no alternative but to confirm the taxing officer's decision on that point.

In addition, he relied on subsection 12(3) of the Tax Court of Canada Informal Rules 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.     

[8]      In view of the jurisprudence cited above, it is evident that the definition of counsel as it appears in the Rules of this Court does not include fees for an accountant. Therefore, I will tax off items (b), (c), (d), (e), and (f) for a total of $1,625.00.

[9]      Mr. Linseman indicated that the amount claimed under item (g) in the Bill of Costs is for disbursements incurred for photocopies, courier and fax charges. He stated that over 500 photocopies were made for use by the parties and the Court for which his office charges 30 cents per copy. The courier and fax charges are the normal items charged for the run of his office. He did not specify the amount of fax charges or couriers used nor the cost to his office.

[10]     Mr. Tetreault stated that he cannot comment if 500 copies is reasonable since he has no documentation from Mr. Linseman. Also, since he was not counsel at the hearing of the appeal, he is unaware if that amount of copies is reasonable. He further stated, however, that if I grant the request for the photocopies, I should allow 20 cents per page in accordance with subsection 1(2) of Schedule II Tariff of the General Procedure Rules. Once again, as far as the courier and fax charges, he has no details before him pertaining to these charges and, therefore, in the absence of any proof as to those costs, I should not allow them.

[11]     On consideration, I will allow for 500 photocopies but at 20 cents per page for a total of $100.00.

Signed at Ottawa, Canada, this 5^th    day of February 2002.

Registrar