Date: 20030402
Docket: A-648-01
Citation: 2003 FCA 173
CORAM: ROTHSTEIN J.A.
BETWEEN:
FRED TURNER
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Yellowknife, Northwest Territories, on March 31, 2003.
Judgment delivered at Calgary, Alberta, on Wednesday, April 2, 2003.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
MALONE J.A.
Date: 20030402
Docket: A-648-01
Neutral citation: 2003 FCA 173
CORAM: ROTHSTEIN J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
FRED TURNER
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
[1] This is an appeal by Fred Turner from a decision of Nadon J. (as he then was) dismissing a motion requesting a review of an assessment of costs by the Assessment Officer in the amount of $2,381.22. Mr. Turner had claimed costs in the sum of $275,268.12. Nadon J.'s decision is reported as Turner v. The Queen (2001), 211 F.T.R. 299.
[2] The costs dispute arose from an order of this Court, dated June 27, 2000, in which, when allowing an appeal by Mr. Turner from a decision of the Tax Court of Canada, the Court ordered in a written judgment: "The appeal is allowed with costs". This decision of the Federal Court of Appeal is reported as Turner v. The Queen (2000), 259 N.R. 92. Mr. Turner neither asked for a reconsideration, nor appealed.
[3] Mr. Turner's principal complaint in this appeal is that, as a self-represented litigant, his costs include an amount that recognizes the time that he had spent in pursuing his eventually successful appeals against the Minister's assessment of his income tax liability for 1994. Mr. Turner relied on Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201 (B.C.C.A.) as authority for the proposition that he was entitled to be compensated for his time by an award of costs.
[4] I cannot accept this argument. Skidmore v. Blackmore decided that the County Court of British Columbia had the power to make an award of costs in favour of a self-represented litigant that was not confined to disbursements. In our case, however, this Court awarded costs in favour of Mr. Turner in its judgment of June 27, 2000. Hence, the only question before the Assessment Officer was what the Court meant when it ordered that the appeal was allowed "with costs", a question that Skidmore v. Blackmore did not address.
[5] The Assessment Officer decided that the Court meant to award Mr. Turner party and party costs, and that, in the absence of any directions to the contrary, the award should be calculated pursuant to Tariff B of the Federal Court Rules, 1998,. However, Tariff B only provides for the partial recovery of legal fees and the usual disbursements, but not the value of the time spent on litigation by parties, whether or not they are self-represented.
[6] In my opinion, Mr. Stinson was correct in reaching this conclusion: Munro v. Canada, (1998), 163 D.L.R. (4th) 541 (F.C.A.). Further, the fact that Tariff B does not provide for a self-represented litigant's lost time does not violate Mr. Turner's right to equality guaranteed by section 15 of the Charter: Rubin v. Canada (Attorney General), [1990] 3 F.C. 642 (T.D.); Lavigne v. Canada (Human Resources Development) (1998), 228 N.R. 124 (F.C.A.).
[7] This is not to say that, in the exercise of the plenary discretion over costs granted by Rule 400(1), the Court may not make an award that provides a litigant with some compensation for items that fall neither within disbursements as normally understood, nor counsel fees: see, for example, Entreprises A.B. Rimouski Inc. v. Canada, [2000] F.C.J. No. 501 (C.A.).
[8] However, in the case before us, the Court made no such special award in favour of Mr. Turner in its judgment of June 27, 2000, even though it had been very critical of Revenue Canada's conduct. It was not within the jurisdiction of the Assessment Officer to amend the order made by the Court. Nor on an appeal from Nadon J.'s dismissal of Mr. Turner's motion under Rule 414 for a review of the Assessment Officer's decision may this Court amend the costs order made by another panel of this Court when it allowed Mr. Turner's appeal against his income tax assessment.
[9] I shall now deal with those relevant to his appeal. First, he asked to call a witness to testify as to the nature of the services that he had rendered to Mr. Turner with respect to his appeal. The request was denied, on the ground that this evidence was not before the Assessment Officer, and it could have been submitted to him in support of the particular item of expense claimed by Mr. Turner.
[10] Second, Mr. Turner claimed a sum of $187.25 invoiced to him on May 6, 1998, by Wallbridge & Associates, barristers and solicitors, for professional services rendered in regard to, inter alia, the preparation of affidavits. However, since these affidavits were filed in support of Mr. Turner's appeal in the Tax Court of Canada, he cannot claim them as costs in the appeal.
[11] Third, another invoice from Wallbridge & Associates for $935.89, dated July 14, 2000, was rejected by the Assessment Officer on the ground that neither the invoice, nor Mr. Turner's supporting affidavit related the amount to the pursuit of the appeal. The invoice stated that it was in respect of "the provision of legal advice for matters pertaining with the Government of Canada". Mr. Turner admitted that he had consulted Wallbridge & Associates during this period in connection with other disputes in which he was involved with the Government of Canada. An invoice with respect to computer equipment, photocopying, consulting services, and supplies also suffered from the same defect.
[12] Fourth, Mr. Turner asked the Court to credit him with a sum of $1,551.04 by way of legal fees that he had incurred in obtaining advice on the award of costs made to him by this Court. The invoice was dated December 11, 2000, and, although the Assessment Officer did not make his decision, without personal appearances, until February 22, 2001, Mr. Turner did not attempt to submit it to him.
[13] Mr. Turner told us that this was because the time for the parties to make their submissions to Mr. Stinson had expired by the time that he received the invoice. However, Mr. Stinson had a residual discretion to grant an extension of time in appropriate circumstances, but Mr. Turner did not request an extension. Hence, this Court cannot now take this document into account in determining Mr. Turner's appeal.
[14] Fifth, Mr. Turner complained that the written order of the Court of Appeal did not correspond to the oral judgment. In particular, Mr. Turner understood Robertson J.A., the presiding judge, to have ordered that Mr. Turner was to have his costs, not only in the Court of Appeal, but also in the Tax Court. It is clear that the written order set aside the order of the Tax Court, and that this included the award of costs made against Mr. Turner by the Tax Court Judge.
[15] However, in the absence of an order from the Court of Appeal awarding a successful appellant his or her costs in the court below, a setting aside of an order does not automatically reverse the award of costs, as opposed to simply cancelling it. If Mr. Turner had wanted to complain that the Court of Appeal's order was inconsistent with its reasons for decision or an oral order, or was unduly harsh in that it did not award him his costs in the Tax Court, his proper remedy was to have moved the Court to reconsider its decision pursuant to Rule 397.
[16] Mr. Turner said that he had not done this because he did not receive a copy of the Court's judgment until 30 days after it was rendered and a motion for reconsideration under Rule 397 must be brought within 10 days from when the judgment was rendered. However, if as Mr. Turner says, he did not receive a copy of the judgment in time because it was mailed to an incorrect address, the Court might well have exercised its discretion under Rule 397(1) to permit him to make a motion "within such other time as the Court may allow". But Mr. Turner never asked the Court to extend the time. It is not the function of this Court on an appeal from an assessment of costs to amend the previous order of another panel respecting costs.
[17] For these reasons, I would dismiss the appeal and make a lump sum award of costs to the respondent in the amount of $3,750.00 inclusive of disbursements.
"John M. Evans"
J. A.
"I agree
Marshall Rothstein J.A."
"I agree
B. Malone J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-648-01
STYLE OF CAUSE: Fred Turner v. Her Majesty the Queen
PLACE OF HEARING: YELLOWKNIFE, Northwest Territories
DATE OF HEARING: Monday, March 31, 2003
REASONS FOR JUDGMENT BY: EVANS, J.A.
CONCURRED IN BY: Rothstein J.A.
Malone J.A.
DATED: April 2, 2003
APPEARANCES:
Mr. Fred Turner ON HIS OWN BEHALF
THE APPELLANT
Mr. R. Scott McDougall FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Fred Turner
Yellowknife, Northwest Territories ON HIS OWN BEHALF
THE APPELLANT
Mr. Morris A. Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT