Date: 20010906
Docket: 1999-2085-GST-I
BETWEEN:
510628 ONTARIO LIMITED o/a ROSSET
LANDSCAPING,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons For Taxation
Tanasychuk, T.O., T.C.C.
[1]
This taxation came on for hearing on May 15, 2001, by means of a
telephone conference call. It follows a Judgment of the
Honourable Judge Bowman dated July 21, 2000 wherein the
Appellant's liability for Goods and Services Tax was reduced
by $1,452.47 and costs, if any, to the extent allowed by the
tariff, were awarded.
[2]
At the time fixed for the taxation of costs, a telephone call was
placed to Mr. Denis Michel, counsel for the Appellant. Mr. Michel
was not in his office. The matter was adjourned for thirty
minutes, at which time a further attempt to contact Mr. Michel
was made, without success.
[3]
On January 25, 2001, the Court was advised that Mr. Michel had
been retained to represent the Appellant with respect to the
issue of costs. Prior to fixing a date for the taxation of costs,
attempts were made to contact Mr. Michel, to confirm his
availability. Mr. Michel did not respond to the messages left for
him. I am satisfied that Mr. Michel, counsel for the Appellant,
was properly served with the Notice of Appointment for this
taxation of costs. The Court file included a confirmation of
delivery notice from Canada Post. The taxation of costs
proceeded, without the participation of the Appellant's
counsel. Ms. Cathy Chalifour represented the Respondent.
[4]
The Bill of Costs as submitted by the Appellant is as
follows:
A.
FOR SERVICES OF COUNSEL I CLAIM THE FOLLOWING:
A) Preparation of Notice of
Appeal
$ 150.00
B) Pre-Trial
Conference
75.00
C) Preparation of
Hearing
200.00
D) Conducting the Hearing, including expert
witness, 2 half
days
600.00
B.
For Witness' fees I claim the following:
One
witness
50.00
D.
Other disbursements:
A) 28 copies at
$2.00
56.00
B) Financial
statements
200.00
C) Filing
Fee
100.00
D) Making up and forwarding of
documents
605.00
$1,496.00
GST
104.72
TOTAL
$1,600.72
[5]
Counsel for the Respondent reviewed each item claimed by the
Appellant on the Bill of Costs. Her submissions concerning each
item are set out below.
[6]
Ms. Chalifour stated that the claim for counsel fees totalling
$1,025.00 should be disallowed. Mr. Bop Topp, who filed the
notice of appeal and represented the Appellant at hearing, was an
accountant and not a lawyer. To verify this assertion, she made
inquiries of the Law Society of Upper Canada, to determine
whether Mr. Topp was a member of the Ontario Bar and it was
confirmed that he was not. Ms. Chalifour referred to the
case of The Queen v. Munro, 98 D.T.C. 6443 (F.C.A.) to
support her position that only fees relating to "services of
counsel" are recoverable.
[7]
Ms. Chalifour disputed the Appellant's entitlement to the
$50.00 claimed for the witness fee. While a Mr. Georges Rosset
did give evidence on the Appellant's behalf at hearing, there
was no proof provided that the $50.00 witness fee was actually
paid
[8]
The next item reviewed was a claim for 28 copies at the rate of
$2.00 per page. Ms. Chalifour acknowledged that copies of
documents were produced and filed as exhibits at hearing. As
such, she stated that she would consent to the allowance of the
claim for 28 copies, but not at the rate of $2.00 per page. She
suggested that the rate of $.20 per page was reasonable, which is
the amount that may be allowed under Tariff B of the Tax Court
of Canada Rules (General Procedure), in the absence of
proof to the contrary.
[9]
The Bill of Costs includes a claim for financial statements in
the amount of $200.00. Ms. Chalifour stated that there were no
financial statements filed at hearing. In addition, given that
the appeal related to the issue of whether an automobile was
purchased for use primarily in the Appellant's business,
financial statements were not required for the conduct of the
hearing. In addition, there had been no documents produced to
show that the expense was incurred.
[10] Upon
filing the notice of appeal, a fee of $100.00 was paid. The Bill
of Costs includes a claim for this $100.00 fee. Ms. Chalifour
stated that this amount is not recoverable from the Respondent.
She stated that the filing fee is reimbursed by the Tax Court of
Canada and that the Appellant should contact the Court for
reimbursement of the fee.
[11] The last
disbursement claimed of $65.00 is noted as a claim for making up
and forwarding documents. Ms. Chalifour stated that she had not
been provided with an explanation as to what documents were
prepared and where they were forwarded. In the absence of such
details and an explanation as to how the documents were essential
to the appeal, no amount should be allowed.
[12] GST of
$104.72 has been claimed. Ms. Chalifour stated that the
Appellant's entitlement to recover GST would follow the Rules
regarding the recovery of GST paid or payable.
[13] To
summarize Ms. Chalifour's submissions, she is prepared to
consent to the amount of $5.60 on account of photocopies. It is
her position that the Appellant is not entitled to any of the
other amounts claimed.
[14] I will
deal with the claim for counsel fees first. Rule 11 sets out that
certain fees may be allowed for the services of counsel. Rules 2
defines counsel as:
every person who may practise as a barrister, advocate,
attorney or solicitor in any of the provinces;
Mr. Topp does not fall within the definition of counsel. As
such, no amount is recoverable on account of fees under Rule 11.
I will accordingly tax off the full amount claimed for counsel
fees in the amount of $1,025.00.
[15] The first
disbursement of $50.00 is allegedly on account of a fee paid to a
witness. While there is no doubt that one witness, other than the
Appellant, did testify at the hearing, there was no proof that a
$50.00 witness fee was actually paid. I am not satisfied that the
disbursement was incurred. Accordingly, I will tax off the amount
of $50.00
[16] The next
disbursement is for photocopies in the amount of $56.00 The
document produced to support this claim consisted of a
hand-written receipt issued by 630548 Ontario Limited to the
Appellant in the total amount of $121.00 with the following
notation:
photocopies ($56.00) and complete & deliver documents
($65.00)
This receipt did not contain a notation of the number of
copies made, the cost per copy and a description of what was
copied. On its face, I find that this receipt is not sufficiently
detailed to allow the claim of $56.00 for photocopies. In
recognition of the fact that exhibits were filed at hearing and
in view of Ms. Chalifour's comments as set out above, I will
allow the sum of $5.60 for photocopies, calculated on the basis
of 28 copies at the rate of $.20 per page.
[17] A receipt
did not substantiate the claim for financial statements of
$200.00. I am not satisfied that the Appellant incurred a $200.00
disbursement for the preparation of financial statements. Even if
such disbursement was incurred, I do not believe that the
preparation of financial statements was required for the conduct
of the appeal. I will tax off the sum of $200.00.
[18] The
reimbursement of the $100.00 filing fee is not recoverable from
the Respondent on a taxation of costs. Pursuant to s.
18.3009(1)(a) of the Tax Court of Canada Act, the $100.00
fee paid was returned to the Appellant. Accordingly, I will tax
off the sum of $100.00.
[19] The claim
for $65.00 relates to the making up and forwarding of documents.
Again, the receipt produced to substantiate this claim did not
identify what documents were prepared, for what purpose and
whether they were forwarded. In the case of Leung et al v.
M.N.R. 93 D.T.C., at page 789, the Honourable Judge Kempo
stated:
"The Respondent is entitled to know, within a reasonable
certainty, what, and why, and at what rate it is called upon to
pay the appellant's out of pocket expenses incurred as a
result of its successful outcome of the trial."
The supporting receipt falls short of providing a reasonable
explanation as to what documents were produced, for what purpose
and where they were sent. Accordingly, I will tax off the amount
of $65.00
[20] The last
item claimed was for GST in the amount of $104.72. The only
amount on which GST could be allowed is the $5.60, which I have
allowed for photocopies. In determining whether GST is to be
allowed, one must refer to Rule 11(4), as follows:
"There may be allowed all services, sales, use or
consumption taxes and other like taxes paid or payable on any
counsel fees and disbursements allowed if it is established that
such taxes have been paid or are payable and are not otherwise
reimbursed or reimbursable in any manner whatever, including,
without restriction, by means of claims for input tax credits in
respect of such taxes."
It has not been established that GST was paid or is payable on
the $5.60, which I have allowed for photocopies. The amount
claimed for GST of $104.72, is accordingly taxed off.
[21] The Bill
of Costs of the Appellant in the amount of $1,600.72 is taxed and
$5.60 is allowed. A certificate will be issued.
Dated at Toronto, Ontario, the 6th day of September 2001.
"B.G.
Tanasychuk"
Taxing Officer
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