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Docket: 2002-1584(IT)I |
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BETWEEN: |
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PAUL MARSHALL, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
____________________________________________________________________
Appeal heard on May 9, 2003 at Toronto, Ontario
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Before: The Honourable Justice L.M. Little |
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Appearances: |
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Counsel for the Appellant: |
Richard G. Fitzsimmons and Leigh Taylor (Student-at-Law) |
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Counsel for the Respondent: |
Suzanne M. Bruce |
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ORDER
Whereas the above appeal was heard in Toronto, Ontario on the 9th day of May 2003;
Whereas by Reasons for Judgment dated the 8th day of July 2003 the Appellant's appeal was allowed without costs;
Whereas by Notice of Motion dated the 18th day of August 2003 Counsel for the Appellant requested that the Court grant the Appellant his costs of the appeal in the fixed sum of $7,368.00;
Whereas by a Submission dated the 10th day of September 2003 Counsel for the Respondent submitted that the Appellant is not entitled to costs;
Now therefore this Court has reconsidered its position and now orders that the Appellant be paid costs in the amount of $2,720.00.
Signed at Vancouver, British Columbia, this 1st day of December 2003.
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"L.M. Little" |
Little, J.
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Citation: 2003TCC877 |
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Date: 20031201 |
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Docket: 2002-1584(IT)I |
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BETWEEN:
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PAUL MARSHALL, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
REASONS FOR ORDER
Little, J.
A. FACTS
[1] The Appellant's appeal was heard by the Court in Toronto on the 9th day of May 2003.
[2] By Reasons for Judgment dated the 8th day of July 2003 the Appellant's appeal was allowed without costs.
[3] By Notice of Motion dated the 18th day of August 2003 Counsel for the Appellant requested that the Court grant the Appellant his costs in the fixed sum of $7,368.00.
[4] In a Submission dated the 10th day of September 2003 Counsel for the Respondent submitted that the Appellant is not entitled to costs.
B. ISSUE
[5] Should costs be awarded to the Appellant?
C. ANALYSIS
[6] Rules 10.(1) and 10.(2) of the Tax Court of Canada Rules (Informal Procedure) read as follows:
10.(1) Costs on an appeal shall be at the discretion of the judge by whom the appeal is disposed of in the circumstances set out in subsection 18.26(1) of the Act which reads as follows:
"18.26(1) Where an appeal referred to in section 18 is allowed and the judgment reduces the aggregate of all amounts in issue or the amount of interest in issue, or increases the amount of loss in issue, as the case may be, by more than one half, the Court may award costs to the appellant in accordance with the rules of Court."
10.(2) A judge may direct the payment of costs in a fixed sum, in lieu of any taxed costs.
[7] Rule 11 reads as follows:
11. On the taxation of party and party costs the following fees may be allowed for the services of counsel
(a) for the preparation of a notice of appeal, $150,
(b) for preparing for a hearing, $200,
(c) for the conduct of a hearing, $300 per half day or part thereof, and
(d) for the taxation of costs, $50.
[8] As will be noted Rule 10.(1) indicates that costs on an appeal shall be at the discretion of the judge by whom the appeal is disposed of.
[9] Counsel for the Appellant prepared a Memorandum of Points of Argument and Authorities (See Tab C of the Appellant's Motion Record).
[10] Paragraph 10 of the memorandum reads as follows:
10. The Appellant respectfully requests that this Honourable Court grant the Appellant his costs incurred for the production of witnesses at the hearing of his appeal and one and a half the tariff amounts for the services of counsel, as follows:
For expert witness fees
Anthony Laws, M.D. $1,620.00
Prenick Langer, LLP $4,173.00
For witness fees
Karen Marshall $50.00
James Marshall $50.00
Capt. Kip Campbell $50.00
For the services of counsel
For preparation of the Notice of Appeal $225.00
For preparation of hearing $300.00
For conducting the hearing $900.00 (2 half days)
$7,368.00
[11] I have carefully reviewed and considered the Appellant's Motion Record and the Respondent's Motion Record and I have concluded that the Appellant should be awarded costs determined as follows:
For Expert Witness Fees:
Anthony Laws, M.D. $1,620.00
I have determined that Dr. Laws provided useful evidence to the Court and I believe the fee should be recognized as a cost of the Appellant.
Counsel for the Appellant claimed that the Appellant's cost should include the fee of $4,173.00 submitted by Prenick Langer, LLP (an accounting firm). I have determined that the accounting fees claimed by the Appellant should not be allowed since the accountant was not called as a witness. Furthermore no Expert Report from the accountant was filed with the Court.
For Witness Fees:
Karen Marshall $50.00
James Marshall $50.00
Capt. Kip Campbell $50.00
$150.00
I am prepared to accept these amounts.
For the Services of Counsel:
For Preparation of the Notice of Appeal $150.00
For Preparation for a Hearing $200.00
For Conducting the Hearing $600.00
$950.00
Total allowed as Costs $2,720.00
[12] The Appellant requested costs at the rate of one and one half times the tariff set by Rule 11 of the Tax Court of Canada Rules. Under the circumstances as outlined in the Motion Records I am not prepared to increase the costs above the regular tariff.
Signed at Vancouver, British Columbia, this 1st day of December 2003.
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"L.M. Little" |
Little, J.
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CITATION: |
2003TCC877 |
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COURT FILE NO.: |
2002-1584(IT)I |
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STYLE OF CAUSE: |
Paul Marshall and Her Majesty the Queen |
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PLACE OF HEARING: |
Toronto, Ontario |
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DATES OF HEARING: |
May 9, 2003 |
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REASONS FOR ORDER BY: |
The Honourable Justice L.M. Little |
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DATE OF ORDER: |
December 1, 2003 |
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APPEARANCES: |
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Counsel for the Appellant: |
Richard G. Fitzsimmons and Leigh Taylor (Student at law) |
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Counsel for the Respondent: |
Suzanne M. Bruce |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
Richard G. Fitzsimmons |
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Firm: |
Fitzsimmons & Company |
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For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |