Olympia Interiors Ltd. v. R., [1997] 2 CTC 81, 97 DTC 5168

MacKay J.:

Reasons for Various Orders and Reasons for Costs

These Reasons are concerned with summary explanations for a number of Orders disposing of a series of applications dealt with by the Court after hearing from the plaintiff in the action in T-1436-92, Olympia Interiors Ltd. and Mary David, represented by Mrs. David on her own behalf and for the corporate plaintiff, and from counsel for the defendant in that action, Her Majesty the Queen. Two full days of hearings, on October 23, 1996 and November 19, 1996, were concerned with these matters.

At the conclusion of the second day of hearings, counsel for Her Majesty the Queen moved orally for costs, considering the bases for the applications dealt with and the relative success of the parties. Included in these proceedings were two applications by the plaintiffs for show cause orders directed respectively to counsel of record for Her Majesty the Queen and to instructing counsel from the Department of Justice on behalf of Her Maj- esty the Queen, dealt with in separate Reasons which include directions as to costs in relation to submissions made at the hearing of those motions on October 23, 1996. Aside from those motions, counsel for Her Majesty submitted that, in relation to other matters dealt with on October 23 and November 19, 1996, costs be awarded to Her Majesty, in view of the defendant’s relative success, and that costs be deemed to be on a solicitor and client basis, in an amount of $10,000.00. Further, it was urged that costs in that amount be made payable forthwith, or in the alternative that costs be awarded in the amount of $10,000.00 with $2,500.00 to be paid forthwith, and if costs not be paid by a specified date then the defendant be at liberty to move that the plaintiffs’ action be dismissed.

Having finally disposed of all matters raised during those two days of hearings, including the two applications for show cause orders and the award of costs in relation to those applications, I now direct that costs be awarded to Her Majesty in relation to all other matters considered on October 23 and November 19, 1996, in a fixed sum $2,500.00, payable by the plaintiff Mary David in any event of the cause. In the circumstances, I am not persuaded it is appropriate to consider costs on a solicitor and client basis or to direct that costs in any amount be payable forthwith.

It will assist in explanation of my Order for costs if the background is briefly described and if the various motions considered on October 23 and November 19 are reviewed with summary reasons for their disposition.

The three Court files involved in these motions originated in regard to claims by the Minister of National Revenue for taxes assessed as due and unpaid in the early 1980’s. A certificate was filed in relation to income taxes claimed as unpaid by the corporate plaintiff (Court file ITA-8447-92), and another certificate in relation to excise taxes claimed as unpaid (Court file GST-41-92). Both were apparently filed pursuant to statutory provisions for collection of unpaid taxes. Thereafter the plaintiffs commenced action against Her Majesty the Queen for relief in relation to the claims for taxes unpaid (Court file T-1436-92).

In these proceedings, Mary David has represented herself and by Order of Simpson J. she is permitted to represent the plaintiff corporation. She is not a solicitor. She is a principal or sole shareholder and was an officer of the plaintiff corporation, which is now bankrupt.

In preparation for trial, Associate Chief Justice Jerome sought to assist the parties through pre-trial conferences. In that process a number of initiatives were taken primarily by Mary David, on behalf of the plaintiffs, not all of which had been dealt with before the case management of the proceedings became my responsibility. The hearings on October 23 and November 19, 1996 were arranged to deal with motions outstanding and other matters raised by the parties after August, 1996.

The following is a summary of matters dealt with and reasons for the determinations in each case.

1. Plaintiffs’ motions for judgment which were dismissed.

(i) By Notice of Motion dated August 16, 1996, received by the Court on August 7, 1996 and ordered filed at the hearing on October 23, 1996, the plaintiffs sought summary judgment and asked for directions (Court files T-14392 and GST-41-92).

(ii) By Notice of Motion dated August 12, 1996, received by the Court on August 18, 1996 and ordered filed at the hearing on October 23, 1996, the plaintiffs sought summary judgment and asked for directions (Court files T-1436-92 and ITA-8447-92).

(iii) By Notice of Motion dated September 11, 1996, the plaintiffs sought, in part, judgment under Rules 432.3 and 341(a)(b), (Court files T-1436-92 and GST-41-92).

Reasons'. All three motions were dismissed at the hearing on October 23, as confirmed by two Orders issued on October 31, 1996 the first concerning motions (i) and (iii) above and the second concerning motion (ii) above. As indicated in recitals of both Orders, these motions were dismissed following agreement of Mrs. Mary David, in the course of presenting submissions on behalf of both plaintiffs, that there was nothing new in evidence or argument to be submitted beyond submissions made earlier when Mr. Justice Rothstein dismissed an application for summary judgment made by the plaintiffs in action T-1436-92 (See Order of Rothstein J. dated November 22, 1995), or later when he dismissed a motion by plaintiffs for reconsideration of that Order (see Order of Rothstein J. dated December, 15, 1996).

Motions dismissed.