Samson et frères ltée v. The Queen, docket 92-607-IT-G

Date: 20000229

Docket: 92-607-IT-G

BETWEEN:

SAMSON ET FRÈRES LTÉE,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for order on review of taxation

Archambault, J.T.C.C.

[1] In accordance with section 159 of the Tax Court of Canada Rules (General Procedure) (Rules), the respondent has requested a review of the taxation of costs conducted in this case by the taxing officer on October 27, 1999. The hearing of the appellant's appeals commenced on March 21, 1995 and ended on March 22, 1995. In his decision of November 1, 1995, the Honourable Judge Dussault dismissed the appeals and awarded costs to the respondent, but gave no specific directions.

[2] The Court did not receive the bill of costs prepared by counsel for the respondent until May 17, 1999. The following appears among the services of counsel described in that bill:

1(1)(d) For conduct of the hearing for each day or part day (three days at $600 per day - March 21 and 22, 1995, plus discussion of the facts and preparation of the joint written submission stating the mutual concessions produced at the Court's request by counsel after March 22, 1995 to serve in the event the Court found that certain expenses were deductible).

[3] In his certificate of costs, the taxing officer reduced the "fees for conduct of the hearing for each day or part day" requested by the respondent by $600 and awarded an amount of only $1,200.

[4] In his motion of November 25, 1999 for review of the taxation, counsel for the respondent describes as follows the services he rendered which the taxing officer refused to tax: (a) he met the appellant's counsel and president in the evening of March 21, 1995 and reviewed numerous exhibits which the appellant wished to file in evidence, and did so at the Court's request in order to shorten the proceedings; and (b) he spoke with counsel for the respondent and they prepared draft joint submissions stating the mutual concessions which the parties had made as a result of that discussion and specifying the limited use that the Court could make of those concessions, which document was filed with the Registry of the Court in April 1995. Counsel for the respondent believes that he was treated unfairly because the same taxing officer had previously awarded costs for the preparation of written submissions after hearing of the evidence without special directives from the Court in SPG International Limitée v. Canada [1998] T.C.J. no. 359.

Analysis

[5] It has consistently been held that the Court should not interfere with a taxing officer's decision in reviewing the officer's taxation unless he or she has committed an error of principle. In The Queen v. Munro, [1998] 4 C.T.C. 89, the Federal Court of Appeal confirmed that this Court should not intervene unless the amounts taxed are so inappropriate or the decision so unreasonable as to be tantamount to an error of principle. The question arising here is thus whether the taxing officer properly exercised his powers under the Rules. Sections 154 and 157 of the Rules define the scope of his powers as follows:

154. Where party and party costs are to be taxed, the taxing officer shall tax and allow the costs in accordance with Schedule II, Tariff B and the officer shall consider,

(a) the amounts in issue,

(b) the importance of the issues,

(c) the complexity of the issues,

(d) the volume of work, and

(e) any other matter that the Court has directed the taxing officer to consider.

157. (1) A taxing officer may direct production of books and documents and give directions for the conduct of a taxation.

(2) The taxing officer may, in his or her discretion, award or refuse the costs of a taxation to either party, and fix those costs.

[My emphasis.]

[6] It is helpful to compare the scope of the taxing officer's powers with those conferred on the Court by section 147 of the Rules:

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.

. . .

(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.

. . .

(6) The Court may give directions to the taxing officer and, without limiting the generality of the foregoing, the Court in any particular proceeding may give directions,

(a) respecting increases over the amounts specified for the items in Schedule II, Tariff B,

(b) respecting services rendered or disbursements incurred that are not included in Schedule II, Tariff B, and

(c) to permit the taxing officer to consider factors other than those specified in section 154 when the costs are taxed.

[Emphasis added.]

[7] It is clear from an analysis of these provisions of the Rules that the Court has full discretionary power over the payment of costs and that it is not required to limit itself to the amounts specified in Schedule II, Tariff B of the Rules. The taxing officer, on the other hand, is required to tax costs in accordance with Tariff B. Only the Court may authorize the taxing officer to award increases over the amounts specified for the items in Tariff B or to consider services rendered which are not provided for in Tariff B.

[8] There is no item in Tariff B under which the taxing officer could have awarded costs in respect of services rendered after the hearing but before the judgment was delivered. All the tariff provides for is an amount for preparation for hearing in paragraph 1(1)(c), fees for conduct of the hearing for each day or part day in paragraph 1(1)(d) and fees for services after judgment in paragraph 1(1)(e). Nor could the taxing officer award an amount greater than $600 as costs for each hearing day without directions from the Court. Here the taxing officer awarded the respondent $600 for each of the two hearing days. He could tax no more than that.

[9] The taxing officer accordingly acted properly and in accordance with the authority conferred on him under the Rules for the taxation of costs. He committed no error of principle.

[10] For these reasons, the application for review of the taxing officer's taxation of October 26, 1999 is dismissed.

Signed at Ottawa, Canada, this 29th day of February 2000.

"Pierre Archambault"

J.T.C.C.

[OFFICIAL ENGLISH TRANSLATION]

Translation certified true on this 9th day of March 2000.

Stephen Balogh, Revisor