Date: 20020322
Docket: A-412-96
Neutral citation: 2002 FCT 314
OTTAWA, ONTARIO, THIS 22nd DAY OF MARCH 2002
PRESENT: THE HONOURABLE MADAM JUSTICE DANIÈLE TREMBLAY-LAMER
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
- and -
ROBERT B. FURUKAWA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion by the respondent brought pursuant to section 414 of the Federal Court Rules, 1998, SOR/98-106 (the "Federal Court Rules") asking this Court to review the assessments of costs made by assessment officer Charles E. Stinson on February 7, 2002.
[2] The assessments of costs result from the appellant's appeals to the Federal Court of Appeal from final judgments of the Tax Court of Canada.
[3] The respondent, Robert Furukawa, had appealed to the Tax Court under the informal procedure described in section 18 of the Tax Court of Canada Act, R.S.C. 1985, c. T-2 (the "TCCA"). Prior to the informal procedure hearing, the Minister of National Revenue had successfully applied to have the matter transferred to the general procedure of the Tax Court pursuant to section 18.11 of the TCCA.
[4] The respondent's appeals were successful and the Minister appealed the decisions of the Tax Court to the Federal Court of Appeal (Court File Nos: A-412-96 and A-80-99) in accordance with section 27 of the Federal Court Act, R.S.C. 1985, c. F-7. Sections 17.6 and 17.7 of the TCCA read:
| Appeals to Federal Court of Appeal
17.6 An appeal from a judgment of the Court in a proceeding in respect of which this section applies [general procedure] lies to the Federal Court of Appeal in accordance with section 27 of the Federal Court Act.
Procedure
17.7 A party wishing to appeal to the Federal Court of Appeal from a judgment of the Court in a proceeding in respect of which this section applies shall give notice of appeal to the Registry of the Federal Court and all provisions of the Federal Court Act and the Federal Court Rules governing appeals to the Federal Court of Appeal shall apply, with such modifications as the circumstances require, in respect of such an appeal. [emphasis added]
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Appels à la Cour d'appel fédérale
17.6 Appel d'une décision de la Cour peut être interjeté auprès de la Cour d'appel fédérale en conformité avec l'article 27 de la Loi sur la Cour fédérale.
Procédure
17.7 La partie qui désire se prévaloir de l'article 17.6 donne un avis d'appel au greffe de la Cour fédérale; l'appel est régi, compte tenu des adaptations de circonstance, par la Loi sur la Cour fédérale et les règles de cette cour régissant les appels à la Section d'appel.
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[5] The Federal Court of Appeal allowed one appeal and dismissed the other. In A-412-96, the Court awarded the respondent his costs, even though he was the unsuccessful party. In A-80-99, Justice Evans explained that as the successful party, Mr. Furukawa should receive the reasonable and proper costs incurred in successfully pursuing the appeal. He then went on to dismiss the appeal with costs.
[6] The assessment officer concluded that he had no jurisdiction to assess costs on a solicitor-and-client basis in A-412-96 because there was no visible exercise of the Court's authority under Rule 400(1) to depart from the party-and-party costs contemplated by Rule 407.
[7] Concerning A-80-99, given section 18.25 of the TCCA addresses judicial review under section 28 of the Federal Court Act, given the appeal was governed by section 27 of the Federal Court Act, and given both the Judgment itself and paragraph 45 of the Court's Reasons for Judgment were phrased in the manner ordinarily associated with party-and-party costs, the assessment officer concluded that he would be overreaching his discretion if he were to conclude that the Court awarded anything other than party- and-party costs.
[8] Subsection 400(1) of the Federal Court Rules grants the Court full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid. Paragraph 400(6)c) provides that the Court may award all or part of costs on a solicitor-and-client basis.
[9] Section 407 of the Federal Court Rules states that "unless the Court orders otherwise, party-and-party costs shall be assessed in accordance with column III of the table to Tariff B."
[10] On many occasions, this Court has reiterated that an award of solicitor-and-client costs remains exceptional. They are generally granted when there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties. When the Court wishes to award costs on such a basis, it must specifically say so.
[11] As the Court did not give such directions in A-412-96 or in A-80-99, the assessment officer had no other choice but to assess the respondent's costs as between party-and-party according to the appropriate tariffs.
[12] For these reasons, the motion is dismissed.
"Danièle Tremblay-Lamer"
JUDGE
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-412-96
STYLE OF CAUSE: Her Majesty the Queen -vs- Robert B. Furukawa
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCES OF PARTIES
REASONS FOR
ORDER AND ORDER: Tremblay-Lamer D.
DATED: March 22, 2002
WRITTEN REPRESENTATIONS
BY :
Louis A.T. Williams FOR APPELLANT
Michel Bourque FOR RESPONDENT
SOLICITORS ON THE RECORD:
Department of Justice Canada FOR APPELLANT
Edmonton
Bennett Jones LLP
Calgary FOR RESPONDENT
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