Citation: 2010 TCC 97
Date: 20100217
Docket: 2003-4552(IT)G
BETWEEN:
DWAYNE HEPPNER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR TAXATION
Bruce Preston, T.O., T.C.C.
[1] This matter came on for hearing by way of a telephone
conference call on Thursday, February 11, 2010. It follows a Judgment of the
Honourable Madam Justice Woods of this Court issued on November 2, 2007,
dismissing the appeal, with costs to the Respondent.
[2] The Appellant was self-represented, and the Respondent was
represented by Mr. Brent E. Cuddy.
[3] At the outset of the hearing counsel for the Respondent conceded
that Item 1(1)(b) for discovery of documents or inspection of property was
claimed in error and was to be removed from the Bill of Costs.
[4] At the hearing the Appellant took no issue with the
Respondent’s disbursements claimed. Disbursements are therefore allowed as
claimed in the Bill of Costs.
[5] The Appellant questioned Items 1(1)(d) and 1(1)(g),
indicating that the dates were the same. He had concern that they were two
claims for the same service.
[6] Counsel for the Respondent submitted that the date for Item
1(1)(g) was incorrect. The date of the hearing was May 11, 2007, not April 21,
2007.
[7] The Appellant accepted the explanation and did not contest
the amounts claimed.
[8] The only item in dispute between the parties was Item
1(1)(h), services of counsel for the conduct of the hearing for each day or
part thereof. The Appellant submitted that although the hearing did take place
over two days (May 11 and September 24, 2007), the total duration of the
hearing was the equivalent of one day. Mr. Heppner submitted that the first day
the hearing was adjourned at noon and the second day the hearing lasted only a
short time.
[9] In rebuttal counsel for the Respondent submitted that the
adjournment of the first day was occasioned by the fact the Appellant required
additional documents. The documents were necessary under the circumstances of
this particular case and an adjournment was granted so the Appellant could
provide the Court with the documents. Counsel submitted that the hearing did
continue on the second day and counsel did attend. It is only fair in the
circumstances that conduct of the hearing for the second day be allowed.
[10] Concerning Item 1(1)(h), I am in agreement with the
Respondent. In Linus Gosse v. Her Majesty the Queen 95 DTC 88, it was
held:
The respondent in the appeal asserts that the
Taxing Officer erred in law in decreasing the costs by not allowing the
requested tariff item for two days of hearing. Counsel for the appellant in the
appeal submits that the Court should not interfere with the decision of the
Taxing Officer unless there has been an error in principle and with that
submission I agree. He submits further that the word "may" in the
opening portion of the tariff item is intended to confer a discretion on the
Taxing Officer and again I agree. However, in my view, the Taxing Officer has
erred in principle. As I see it, in the absence of a clear reason it is
appropriate to award compensation at the rate of $1,000 for each day or part thereof.
That is what is called for by the tariff and that general rule applies except
where special circumstances justify a departure from it. The word
"day" is to be given its ordinary meaning, that is to say a 24-hour
period commencing at midnight. Here part of the hearing took place on one day
and the remainder of the hearing took place on the next day. The fact that the
total hearing time could have been fitted into one normal sitting day is beside
the point.
[11] In keeping with the above decision, Item 1(1)(h) is allowed
as claimed at $2,000.00.
[12] As there was no challenge to the other Items claimed, they
will be allowed as submitted.
[13] The
Bill of Costs is taxed, and I allow the sum of $3,884.84.
Signed at Toronto, Ontario, this 17th day of February 2010.
“Bruce Preston”
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