Citation: 2011 TCC 18
Date: 20110111
Docket: 2004-3538(IT)G
BETWEEN:
GEORGE ALBERTO DEMARCHI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR TAXATION
Bruce Preston, T.O., T.C.C.
[1] This taxation came on for hearing by way of a telephone
conference call on Wednesday, December 22, 2010. It follows the decision of the
Honourable Justice McArthur of this Court dismissing the appeal, with costs to
the Respondent.
[2] The Appellant was self-represented, and the Respondent
was represented by Mr. Bobby Sood.
[3] Counsel for the Respondent submitted that the Court awarded
party and party costs and that the bill was prepared in accordance with Tariff
B of the Tax Court of
Canada Rules (General Procedure). It was further submitted that the fees
and disbursements are straight forward.
[4] The Appellant commenced by submitted
that he was not aware that costs had been awarded in the Tax Court of Canada
proceeding. After referring the Appellant to the Judgment of the Court dated
November 13, 2007, the Appellant understood that costs had been awarded.
[5] The Appellant submitted that the charge for photocopying
seems excessive. It was argued that $0.095 per page for photocopying is
expensive and that photocopying is available for $0.03 per page.
[6] The Respondent made no reply concerning photocopying,
however, I find the amount claimed to be reasonable. Although it may be
possible to obtain duplication services for $0.03 per page, the amount the
Respondent was charged by Ikon Office Solutions has been proven and is not
excessive. Further, the total amount claimed is reasonable considering the file
and the amounts at issue.
[7] During the hearing, the Appellant requested clarification
as to why an amended Bill of Costs had been filed.
[8] In reply to the Appellant’s query, the Respondent
referred to the letter dated May 28, 2010 found as exhibit D to the Affidavit
of Irena Krakowska and submitted that this matter had been explained to Mr.
Demarchi in the letter. In support of this counsel referred the James v. HMQ,
2001 TCJ 675 at paragraph 17 which held that it is within the authority of
Taxing Officers to amend the Class of an appeal if it is found that the
taxpayer made an error in determining the class of the appeal. Further,
referring to paragraphs 1 and 3 of the Reasons for Judgment, counsel argued that
as the aggregate of all amounts in issue in this appeal are greater than
$50,000.00 the Bill of Costs was amended to make a claim under Class B, rather
than Class A.
[9] Having reviewed the decision in James v. HMQ (supra),
and having read the judgment of the Court, the Class of the appeal is amended
and the Respondent is allowed to claim for services of counsel under Class B as
set out in the Tax Court of Canada Rules (General Procedure).
[10] In answer to a question concerning hearing dates, counsel for
the Respondent concluded by requesting an amendment to the Bill of Costs.
Counsel submitted that the Respondent had inadvertently omitted two hearing
days when calculating the claim under 1(1)(h). It was submitted that 4 days,
not 2 days, should have been claimed for a total of $6,000.00 under 1(1)(h),
conduct of the hearing for each day or part thereof.
[11] The Appellant submitted that although the hearing was held
on 4 days some of the days were not complete days and that a claim for 2 days
reflected reasonable costs for the hearing.
[12] In reply counsel for the Respondent submitted that the
Respondent was completely successful in the matter, including any motions
filed. It was further submitted that there is no reason to discount the amount
claimed as the Bill of Costs reflects only a small percentage of the amount at
issue in the appeal.
[13] Concerning the Respondent’s request to amend the Bill of
Costs, having reviewed the abstracts of hearing, it is apparent that the
hearing proceeded on October 2 and 3, 2006 and October 31 and November 2, 2007.
However, on November 2, 2007 the hearing was resumed for somewhat less than 30
minutes for the Court to render judgment. Considering the length of the sitting
on that particular day and the fact that the parties were not required to make
submissions, I am reluctant to allow the Respondent’s claim for November 2,
2007. In Flaherty v. The Queen 2009 TCC 223 at paragraph 4, the Court
held:
With respect to counsel fees, the
disagreement is whether, in the case of a one-day trial followed by reasons
being delivered on a later day, the tariff contemplates two half-days or three
half-days. I have not been referred to any previous judicial pronouncement on
the subject. In the circumstances of this case, I believe a fair and reasonable
result on costs is reached by providing for only two half-day counsel fees.
That is not to say that in another case, attending to hear delivery of oral
reasons can not be reflected in costs awarded. I leave that open. I will therefore
fix counsel fees at $1,185.
[14] Although the decision in Flaherty concerns the costs of an
informal proceeding, I find that the principle may be applied to the present
matter. Therefore, in light of the above reasons, I believe that in the
circumstances of this case, a fair and reasonable result is to allow the
Respondent to amend her Bill of Costs and allow the Respondent’s claim under
1(1)(h) for 3 hearing days and the amount of $4,500.00.
[15] As the Appellant made no submissions concerning the other
services of counsel and disbursements claimed, they will be allowed as
presented.
[16] For
the above reasons, the Bill of Costs is taxed, and I allow the sum of
$8,246.95.
Signed at Toronto, Ontario,
this 11th day of January 2011.
“Bruce Preston”
Email this Content