Date: 20060811
Docket: A-420-03
Citation: 2006 FCA 276
BETWEEN:
WILLIAM SHAWN DAVITT
Appellant
and
THE MINISTER OF NATIONAL
REVENUE
Respondent
ASSESSMENT OF COSTS - REASONS
PAUL
G.C.ROBINSON
ASSESSMENT
OFFICER
[1]
This
is an assessment of costs pursuant to the Order of the Court of Appeal dated
September 21, 2004 which dismissed the Appellant’s
Notice of Appeal. This proceeding arose from an Order of the Tax Court of
Canada dated June 18, 2003 which ordered the Appellant’s appeal struck out in
its entirety. The Appellant filed his Notice of Appeal on September 19, 2003. The
Court of Appeal dismissed the Notice of Appeal with costs, when it was determined
that the Appellant did not comply with the strict conditions of the Notice of
Status Review dated June 1, 2004 that determined the date for the filing of a
supporting affidavit and adhering to the normal procedural steps to advance
this proceeding.
[2]
On April
18, 2006, the Respondent filed its Bill of Costs and requested an appointment
to have its costs assessed.
[3]
On
April 19, 2006, I forwarded correspondence to the parties informing them that
this matter was appropriate for disposition by way of written submissions and I
set a timetable for the filing of all materials. All supporting and opposing
material of the respective parties regarding the assessment of costs were
submitted within the timeframes.
[4]
I note
that the Appellant has made extensive submissions regarding his motion dated
March 21, 2006 that he had submitted to the Tax Court of
Canada. In this Tax Court of Canada motion, the Appellant sought specific
relief which included:
a) an Order setting
aside the May 31, 2001 judgment of the Associate Chief Judge Bowman (as he then
was) on the ground of fraud (Tax Court File No. 2001-893(IT)G);
b) an Order setting
aside the June 18, 2003 judgment of Judge McArthur (as he then was) on the
ground of fraud (Tax Court File No. 2002-2807(CPP));
c) an Order setting
aside the February 9, 2004 judgment of Justice Little on the ground of fraud
(Tax Court file Nos. 2003-283(CPP), 2003-284(EI) and 2003-511(IT)G).
In fact, the Appellant
submitted at paragraph 11 of his Written Representations that
…it is premature for the Federal Court to
assess costs in advance of the June 15, 2006 motion.
The
Appellant’s Tax Court of Canada motion mentioned above was dismissed on
June 15, 2006. Since the
matter is now moot, I will not outline the parameters of my
jurisdiction as it pertains to
the Tax Court of Canada.
[5]
As
mentioned above in paragraph [4], the Appellant’s motion dated March 21, 2006
before the Tax Court of Canada has been dismissed. That decision dated June 15,
2006 renders the Respondent’s request to proceed with the assessment of costs
moot so I will not outline the Respondent’s respective submissions or
associated case law pertaining to that issue.
[6]
I
should note that the Appellant at paragraph 3 of his Written Submissions has
indicated that “The Appellant was unable to proceed with this appeal because of
insufficient funds.” Rule 119 of the Federal Courts Rules states:
119. Subject to rule 121, an individual
may act in person or be represented by a solicitor in a proceeding.
It is trite to point out that lay litigants
with limited means regularly represent themselves in the Court of Appeal. It is
my opinion that the Appellant’s lack of funds should be given little weight in
my assessment of the Respondent’s Bill of Costs.
[7]
The
Appellant has submitted that when assessing the Respondent’s Bill of Costs in
this matter, I should consider the alleged conduct of counsel for the Respondent.
The Appellant submits that:
…the Respondent is acting dishonestly by
misleading the Tax Court of Canada in its submissions to the Court.”
In
fact, the Appellant has made reference to Riddell v. Hamel, [1989] 2
F.C. 434 in support
of his submission that Respondent’s counsel has not acted
appropriately in the matter before the Tax Court of Canada as well as the Court
of Appeal. In addition, the Appellant has submitted that there was a public
interest element that should have been considered in the assessment of costs.
The Appellant noted that he is a chartered accountant and auditor and at
paragraph 16 of his submissions states:
The appeal to the Federal Court of Appeal
was made in his capacity as auditor and required by his professional duty to
challenge the fraud he discovered while working as an auditor. The Appellant
notes that neither the Tax Court of Canada nor the Federal Court of Appeal have
allowed the Appellant to present evidence in support of his allegations of
fraud. Details of the fraud are outlined in the Appellant’s Notice of Motion
dated March 21, 2006.
The Appellant has also made reference to Singh v. Canada
(AG), [1994] 4 F.C. 583 in support of this submission that this was a
public interest matter and I should govern myself accordingly since:
… auditors acting in accordance with
their duties to challenge fraud is in the public interest and therefore
auditors should not be liable for costs.
[8]
With
regard to the public interest issue and the Appellant’s alleged dishonest
conduct of Respondent’s counsel, it is my opinion that the procedures and rules
contained in the Federal Courts Rules gave the Appellant ample
opportunity to present these issues, as well as any remaining pertinent
submissions, to the Court of Appeal. I also note that the conditions contained
in the Court of Appeal Notice of Status Review decision were an additional
favourable circumstance offered to the Appellant to present the merits of his
case. It is appropriate that I refer to Rule 3 of the Federal Courts Rules which
states:
3. These Rules shall be interpreted and
applied so as to secure the just, most expeditious and least expensive
determination of every proceeding on its merits.
The Appellant has to be responsible for his actions or, in
this proceeding, the lack of action, in the presentation of the merits of the
Notice of Appeal. In dismissing this proceeding with costs, the Court of Appeal
adjudicated the matter on the merits that were before it and awarded costs to the
Respondent. For these reasons, it is my opinion that the Court of Appeal has
exercised its full discretionary power regarding costs and it is not
appropriate that I revisit or change that decision.
[9]
It is my
opinion that the Respondent’s Bill of Costs which includes 3 units ($360.00)
for assessable services and disbursements of $65.21 which includes applicable GST
of is reasonable and has been supported by affidavit evidence.
[10]
The
Respondent’s Bill of Costs in A-420-03 is assessed and allowed in the amount of
$425.21 which includes assessable services, disbursements and applicable GST. A
certificate is issued in this Court of Appeal proceeding for $425.21 payable by
the Appellant to the Respondent.
“Paul
Robinson”
Paul G.C.
Robinson
Assessment
Officer
Toronto,
Ontario
August
11, 2006.
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