T-2711-92
Between:
WALTER C. MARTIN,
Plaintiff,
- and -
HER MAJESTY THE QUEEN,
Defendant.
TAXATION OF COSTS - REASONS
Charles E. Stinson
Taxing Officer
The Defendant presents her Bill of Costs for $1,215.20 at the party and party level as follows:
TARIFF B - Column III - Unit Value: $100 per unit
FEES
ITEM DESCRIPTION AMOUNT
A2 Preparation and filing of defence 6
| B5 Preparation and filing of a contested motion, |
including material or responses thereto 5
F25 Services after judgment 1
SUB-TOTAL 12 units
Multiplied by $100 per unit $1,200.00
TOTAL COST $1,200.00
DISBURSEMENTS
Priority Post to Revenue Canada, Ottawa $ 15.20
TOTAL FEES AND DISBURSEMENTS $1,215.20
Plaintiff, by a law firm, commenced this action for relief relative to his 1983 taxation year. The Crown filed a Defence and subsequently obtained an Order dismissing the action with costs for want of prosecution. Defendant served Plaintiff's solicitor of record with a draft Bill of Costs, supporting affidavit and a request for disposition in writing. The parties were given time limits to perfect the record. The Plaintiff himself, without first proceeding under Rule 300.1, filed these submissions dated October 3, 1996:
| ... We respectfully submit that the Defendant's Bill of Costs in [sic] unreasonable, and request a review and adjustment thereof. |
| While our initial request is to have the costs eliminated in their entirety, we have been advised this is not possible. In the event this is not a possibility, we request the number of units be amended to reflect that no further action was taken against the Defendant subsequent to filing the Notice of Appeal, and motions were uncontested. We are of the impression that at very most, 4 (four) units for the ,preparation and filing of defense', and 2 (two) units for the ,preparation and filing of a contested motion, including material responses thereto' is more than reasonable in this instance, if not less.... |
Defendant responded by letter filed October 11, 1996:
| In response to the Plaintiff's submission on costs dated October 3, 1996, the Defendant takes the position that the amounts claimed in its Bill of Costs for the preparation and filing of the Defence, and for the preparation and filing of a contested motion are reasonable. In addition, the Defendant also claims the costs of this taxation. |
| There appears to be no dispute that the proceeding falls within Column III of Tariff B and that therefore the range for preparing and filing the Defence was between four and seven units and for preparing and filing a contested motion was between three and seven units. |
| The Defendant has claimed for six units for preparing and filing the Defence. The Defence deals with the Plaintiff's claim for employment expenses which fell into three categories: travel, promotion and entertainment, and club expenses. The nature of the Plaintiff's claim required that details of each aspect of the expenses be presented in the Defence and that the assumptions made in respect of the particular expenses be listed. In addition, the particulars of the actual assessment of tax made by the Minister is contained in the Defence and four grounds of support for it are set out therein. It is submitted that the Defence is sufficiently complex to warrant a cost rating of six units out of a possible seven unit maximum in Column III. |
| The Defendant has claimed for five units for the preparation and filing of the motion to strike the Plaintiff's action for want of prosecution. The Plaintiff's submission that only two units be allowed fails to take into account that the lower range for a contested motion is three units. It is submitted that it is reasonable to allow five units for the motion because it entailed sending two preliminary letters to Plaintiff's counsel indicating the Defendant's intention to seek a dismissal for want of prosecution (see the affidavit of Thomas Torrie filed with the Court May 1, 1996), the filing of the Notice of Motion and affidavit of Thomas Torrie, an affidavit of service, and five pages of written submissions in support of the Motion. It is submitted that the work involved clearly justifies the claim of five units. |
| The Plaintiff has submitted that "no further action was taken against the Defendant subsequent to the filing of the Statement of Claim". However, once the Statement of Claim was filed the Defendant had no choice but to respond by filing a full Defence, and finally, because of the Plaintiff's inaction, by following the procedures required by the Rules to strike the matter. The Plaintiff was free to withdraw his action, something he chose not to do and which caused the Defendant extra work and effort. The Defendant is entitled to receive costs for the work done, all in accordance with the Tariff. |
| It is further submitted that the Defendant is entitled to costs for the taxation of its Bill of Costs, something which was not originally claimed by it. The Defendant claims for two units for the taxation under Item 26 of the Tariff, thereby amending the total claimed to $1,415.20.... |
By letter dated October 21, 1996, the Registry advised the parties that:
| ... the Taxing Officer directs that submissions are closed relative to the $1,215.20 in Defendant's draft Bill of Costs. |
| The last paragraph of Defendant's submissions (dated and filed September 11 and October 11, 1996 respectively) amends the draft by adding two units under item no. 26 for taxation. The Taxing Officer directs that Plaintiff file and serve any reply material on that point only by Friday, November 1, 1996 and that Defendant file and serve any rebuttal material by Friday, November 8, 1996. |
| The Taxing Officer noted that Plaintiff's October 3rd submissions were filed under his signature despite the continued presence of a solicitor of record. Recognizing the rough and ready aspect of costs in the closing stage of litigation, the Taxing Officer will entertain submissions directly from the Plaintiff but cautions him that a formal notice of change will be required if he pursues issues of costs beyond the taxation. |
The Plaintiff himself filed this response on November 4, 1996:
| Thank you for your letter of October 21, 1996. |
| In your first paragraph, you state that submissions are closed relative to the Defendant's Bill of Costs. I am therefore unable to understand how the Defendant can request an amendment to their original claim. |
| The only other issue in the Plaintiff's letter I wish to specifically address deals with their comment wherein they stated I was free to withdraw the action but chose not to do so. I was not represented by my solicitor of record in Tax Court, nor have I been formally represented by my solicitor of record subsequently. I also was not aware of the requirements or procedures as set out in the second last paragraph of the Plaintiff's letter. It was not by choice that I did not act, but due to the lack of knowledge and sufficient information (instruction).... |
Analysis
Rule 346(1.1) applies to each item in turn. That is, the same point in a range ie. upper, lower or mid, need not be used for every item. My directions clearly distinguished the two units for item no. 26 from those generating the $1,215.20 in the draft Bill of Costs. Parties often forget to include a request for item no. 26 (taxation of costs) but, in their appearance before the Taxing Officer, routinely request and receive permission to adduce it ad hoc. In such circumstances, a conservative allowance should be the norm. I allow 5 units; 4 units; 1 unit and 2 units respectively for item nos. A2; B5; G25 and G26 as well as the disbursement of $15.20.
The Bill of Costs of the Defendant, presented as amended at $1,415.20, is taxed and allowed at $1,215.20.
(Sgd.) "Charles E. Stinson
Taxing Officer
Dated this 8th day of January, 1997, at Vancouver, B.C.