Date: 20020514
Docket: A-564-00
Neutral citation: 2002 FCA 194
CORAM: ISAAC J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
BRIAN FINCH
Respondent
Heard at Saskatoon, Saskatchewan, on May 14, 2002.
Judgment delivered at Saskatoon, Saskatchewan on May 14, 2002.
REASONS FOR JUDGMENT BY: NOËL J.A.
Date: 20020514
Docket: A-564-00
Neutral citation: 2002 FCA 194
CORAM: ISAAC J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
BRIAN FINCH
Respondent
REASONS FOR JUDGMENT
[1] This is an appeal against a Judgment of the Tax Court of Canada awarding costs in favour of the Respondent in the lump sum of $25,000.00 ([2000] 4 CTC 2212; 2000 DTC 2382). The appellant alleges that the Tax Court Judge erred in awarding costs in excess of the amount provided in Schedule II, Tariff B of the Tax Court of Canada Rules (General Procedure).
[2] In support of this award, the Tax Court Judge indicated that the assessment should never have been issued and that the ensuing appeal should not have taken place (para. 43). He added:
This view is not intended to point a finger at either the assessment auditor of the Justice counsel. The evidence is that the Finches copied various correspondence respecting these assessments to high government officials and representatives. Thus, it appears that Revenue Canada may have some kind of a bureaucratic number of years beyond which the losses are reassessed, which was applied in this case.
[3] The Tax Court Judge went on:
[44] In these circumstances, this case is an abuse of the Appellant and of the Court process. It required him to hire a very able and well known farm and commercial lawyer, who has approximately 45 years experience at the bar and is will experienced in tax litigation. He conducted the case efficiently and well. The Appellant is entitled to the equivalent of solicitor-client costs. The case began in 1998 and the trial lasted a full day and on-half in Saskatoon, although two full days were correctly set aside for the Hearing. This judge practised in Saskatchewan for more than 25 years. The preparation and conduct of a two-day trial by a counsel junior to Mr. Sanderson, would require a modest fee of about $30,000 for a two-day trial through to 1990. This Hearing only lasted a day and a half, because of the thorough preparation and efficient conduct of counsel. For these reasons, the Appellant is awarded costs, which are fixed in the lump sum of $25,000.
[4] This award was made without counsel being heard on the issue of costs and in circumstances where the respondent in his notice of appeal had not sought costs.
[5] In our view, it was incumbent upon the Tax Court Judge to give the parties an opportunity to be heard on the issue of costs before making the award. Furthermore, we can identify nothing in the record or in the reasons of the Tax Court Judge which would justify an award on a solicitor-client basis. The Tax Court Judge's suggestion that the assessment may have resulted from the application of an unwritten policy is without any evidentiary foundation.
[6] The appeal will be allowed and the matter will be referred back to the Tax Court Judge so that he may again dispose of the issue of costs in a manner consistent with these reasons and after giving the parties an opportunity to be heard. The appellant will be entitled to the costs of the appeal.
"Marc Noël"
J.A.
Saskatoon, Saskatchewan
May 14, 2002
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
DOCKET: A-564-00
STYLE OF CAUSE: Her Majesty the Queen v. Brian Finch
PLACE OF HEARING: Saskatoon, Saskatchewan
DATE OF HEARING: May 14, 2002
REASONS FOR JUDGMENT OF
THE HONOURABLE MR. JUSTICE NOËL
DATED MAY 14, 2002
APPEARANCES:
Ms. Karen Janke for the Appellant
Department of Justice
Saskatchewan Regional Office
5th floor, 101 - 22nd Street East
Saskatoon, SK S7K 0E1
Mr. James H.W. Sanderson for the Respondent
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada for the Appellant
Sanderson, Balicki, Popescul and Forsyth for the Respondent
Barristers & Solicitors
110 - 11th Street East
Prince Albert, SK S6V 1A1