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Docket: 2000-3081(IT)G
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BETWEEN:
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WONSCH CONSTRUCTION COMPANY LIMITED,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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____________________________________________________________________
Appeal heard on April 28, 29 and May 1, 2003 at
Windsor, Ontario and Judgment rendered May 21, 2003
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Before: The Honourable Justice L.M. Little
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Appearances:
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Counsel for the Appellant:
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Roland Peter Schwalm
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Counsel for the Respondent:
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Ifeanyichukwu Nwachukwu
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____________________________________________________________________
ORDER
Whereas
the above appeal was heard in Windsor, Ontario on April 28,
29 and May 1, 2003;
And
Whereas by Reasons for Judgment dated May 21, 2003 the
Appellant's appeal was allowed without costs;
And
Whereas by Notice of Motion dated August 5, 2003 counsel for the
Appellant requested that the Court grant the Appellant costs in
accordance with section 147 of the Tax Court of Canada
Rules (General Procedure).
And
Whereas by a Motion Record filed on August 21, 2003 counsel for
the Respondent stated that the Court should not reconsider its
decision not to award costs;
Now
Therefore this Court has reconsidered its position and orders
that the Appellant be paid costs in the amount of $17,732.88.
Signed at Vancouver, British Columbia, this 1st day of
December 2003.
Little, J.
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Citation: 2003TCC879
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Date: 20031201
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Docket: 2000-3081(IT)G
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BETWEEN:
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WONSCH CONSTRUCTION COMPANY LIMITED,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR ORDER
Little, J.
A. FACTS:
[1] The Appellant's appeal was
heard in Windsor, Ontario on April 28, 29 and May 1,
2003.
[2] By Reasons for Judgment dated May
21, 2003 the Appellant's appeal was allowed without costs.
The Reasons for Judgment provided, in part, as follows:
[35] ... Since success has been
divided, I am not inclined to award costs in this situation.
[3] By Notice of Motion dated August
5, 2003 counsel for the Appellant requested that the Court grant
the Appellant's costs in accordance with section 147 of
the Tax Court of Canada Rules (General Procedure).
[4] In a Motion Record filed with the
Court on August 21, 2003 counsel for the Respondent submitted
that the Court should not reconsider its decision not to award
costs to the Appellant.
B. ISSUE:
[5] Should costs be awarded to the
Appellant?
C. ANALYSIS:
[6] Subsections 147(1) to 147(5) of
the Tax Court of Canada Rules (General Procedure) (the
"Rules") reads as follows:
147. (1) Subject to the provisions of
the Act, the Court shall have full discretionary power over the
payment of the costs of all parties involved in any proceeding,
the amount and allocation of those costs and determining the
persons by whom they are to be paid.
(2) Costs may be awarded to or against the Crown.
(3) In exercising its discretionary power pursuant to subsection
(1) the Court may consider,
(a) the result of the proceeding,
(b) the amounts in issue,
(c) the importance of the issues,
(d) any offer of settlement made in writing,
(e) the volume of work,
(f) the complexity of the issues,
(g) the conduct of any party that tended to shorten or to
lengthen unnecessarily the duration of the proceeding,
(h) the denial or the neglect or refusal of any party to
admit anything that should have been admitted,
(i) whether any stage in the proceedings was,
(i) improper, vexatious, or unnecessary, or
(ii) taken through negligence, mistake or excessive caution,
(j) any other matter relevant to the question of
costs.
(4) The Court may fix all or part of the costs with or without
reference to Schedule II, Tariff B and, further, it may award a
lump sum in lieu of or in addition to any taxed costs.
(5) Notwithstanding any other provision in these rules, the
court has the discretionary power,
(a) to award or refuse costs in respect of a particular
issue or part of a proceeding,
(b) to award a percentage of taxed costs or award taxed
costs up to and for a particular stage of a proceeding, or
(c) to award all or part of the costs on a solicitor
and client basis.
[7] It will be noted that subsection
147(5) of the Rules provides that the Court has full
discretionary power to award or refuse to award costs. It will
also be noted that subsection 147(4) of the Rules provides
that the Court may award a lump sum in lieu of or in addition to
any taxed costs.
[8] I have carefully reviewed the
Notice of Motion filed by counsel for the Appellant and the
Motion Record filed by counsel for the Respondent. In reviewing
the documents filed by both parties and in considering the items
outlined in section 147 of the Rules I have concluded that I
should reconsider my decision regarding costs. I have determined
that the Appellant should be paid costs calculated as
follows:
Lump
Sum Award (subsection
147(4))
$ 5,000.00
Fee of
Ray Bower October 9,
2003
6,460.00
May 28,
2003
6,272.88
Total
Costs to be
Allowed
$17,732.88
[9] In reaching this conclusion I have
relied upon the following items enumerated in subsection 147(3)
of the Rules:
(a) The result of the proceeding:
(As a result of the decision of the Court the valuation day
value of the Appellant's property was increased by
$900,000.00 from the value as determined by officials of the
Canada Customs and Revenue Agency);
(b) The amounts in issue:
(A large
amount of money was in issue);
(c) The importance of the issues:
(The result
of the appeal was significant to the Appellant);
(d) The volume of work:
(It is
apparent from the documents filed with the Court and the detailed
legal arguments provided to the Court that counsel for both
parties spent a great deal of time preparing for the appeal);
(e) The complexity of the issue:
(In referring to the complexity of the issue the Court was
assisted by the Bower Report and the testimony provided by
Mr. Ray Bower).
[10] The Appellant's motion is allowed
with costs as noted above.
Signed at Vancouver, British Columbia, this 1st day of
December 2003.
Little, J.
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