Federal Court Decisions

Decision Information

Decision Content

                                                                                                                                            Date: 20020122

                                                                                                                                Docket: ITA-11043-00

Neutral Citation: 2002 FCT 70

BETWEEN:

IN THE MATTER OF THE INCOME TAX ACT,

- and -

IN THE MATTER OF AN ASSESSMENT OR ASSESSMENTS ESTABLISHED BY THE MINISTER OF NATIONAL REVENUE UNDER ONE OR MORE OF THE FOLLOWING ACTS: THE INCOME TAX ACT, THE CANADA PENSION PLAN, THE EMPLOYMENT INSURANCE ACT

Judgment Creditor

- and -

ANNE DUCHESNAY

Judgment Debtor

ASSESSMENT OF COSTS - REASONS

FRANÇOIS PILON

Assessment Officer


[1]         This case began with the filing on December 1, 2000 of a certificate under section 223 of the Income Tax Act. On March 6, 2001, the judgment debtor filed a notice of motion in opposition to the seizure in execution of movables. On June 15, 2001, the Court dismissed this motion by the adverse claimant, with costs. She filed a notice of appeal of this decision on July 5, 2001.

[2]         Mr. Louis Sébastien, counsel for the judgment creditor, filed his bill of costs on September 4, 2001 and asked that it be assessed without the personal appearance of the parties. Mr. William Noonan, counsel for the judgment debtor, has not filed any written submissions in opposition to this bill.

[3]         Although the adverse claimant has not disputed the bill of costs, I would like to make a few preliminary remarks since the decision of Mr. Justice Lemieux is before the Court of Appeal. I wondered whether it was premature to assess costs at this stage of the proceedings. While there are many divergent opinions on the matter, the point must be decided taking into account the particular circumstances of the case at bar.

[4]         In Inverhuron & District Ratepayers' Association v. Canada, [2001] F.C.J. no. 666, Assessment Officer J. Parent analyzes a number of judgments and correctly summarizes the principles governing this question. In her opinion, the final decision rendered at the trial level is authority for the recovery of costs by the winning party. I agree with this principle. If I were to decide to adjourn the assessment of the bill of costs pending the decision of the Court of Appeal, I would effectively stay the execution of the Court's judgment, and thereby exercise a discretionary authority that has not been given to me.


[5]         I will add that in this case the adverse claimant had presented a motion to stay the trial order in order to stay the sale of her property. This motion was dismissed with costs on August 1, 2001. In the circumstances, I am of the opinion that the judgment creditor's costs should be assessed upon filing of the bill of costs.

[6]         Mr. Sébastien is claiming the following items as assessable services:

item 5                 4 units

item 6                 2 units

item 25 1 unit

item 26 3 units

These claims are reasonable and will be allowed as submitted.

[7]         The assessable disbursements are proved in the affidavit in support of the bill of costs and are allowed in the amount of $1,015.16. The judgment creditor's costs are assessed and allowed in the amount of $2,035.16.

Halifax, Nova Scotia

January 22, 2002

                          François Pilon

                       Assessment Officer

Certified true translation

Suzanne M. Gauthier, LL.L., Trad. a.


FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

FILE NO:                                  ITA-11043-00

BETWEEN:

IN THE MATTER OF THE INCOME TAX ACT

Judgment creditor

- and -

ANNE DUCHESNAY

Judgment debtor

ASSESSMENT IN WRITING WITHOUT PERSONAL APPEARANCE

REASONS OF:                                    François Pilon, Assessment Officer

PLACE OF ASSESSMENT:Halifax, Nova Scotia

DATE OF REASONS:                         January 22, 2002

SOLICITORS OF RECORD:

Morris Rosenberg

Deputy Attorney General of Canada

Ottawa, Ontario                                                                                          for the Judgment Creditor

Hickson Noonan

Sillery, Quebec                                                                               for the Judgment Debtor

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.