Date:20000608
Docket:A-162-97
CORAM: LINDEN, J.A.
ROTHSTEIN, J.A.
MALONE, J.A.
BETWEEN:
DONALD ZALDIN, former solicitor for D. BRUCE RIVERS
and others before the TAX COURT OF CANADA
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
Heard at Toronto, Ontario, Wednesday, June 7, 2000, and
Thursday, June 8, 2000
Judgment delivered from the Bench at Toronto, Ontario,
on Thursday, June 8, 2000
| REASONS FOR JUDGMENT OF THE COURT BY: MALONE J.A. |
Date: 20000608
Docket: A-162-97
CORAM: LINDEN J.A.
ROTHSTEIN J.A.
MALONE J.A.
BETWEEN:
DONALD ZALDIN, former solicitor for D. BRUCE RIVERS
and others before the TAX COURT OF CANADA
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario
on Thursday, June 8, 2000)
MALONE J.A.
[1] The appellant appeals paragraph 3(b) of the judgment and order of the Tax Court of Canada dated February 4, 1997. Paragraphs 3(a) and (b) provide:
| 3. The Respondent"s costs are to be fixed in the amount of $98479.64 and shall be paid as follows: |
| (a) by each of the appellants, the amount of $300.00, and |
| (b) by the appellants" counsel, Donald Zaldin, who shall be personally liable for the payment of 10,279.64. |
[2] The order for costs against Mr. Zaldin personally arose from a motion for judgment by the Crown in respect of a large number of related tax appeals. The Tax Court Judge ordered each of 294 appellants to pay costs of $300 each and the balance of $10,279.64 to be paid by Mr. Zaldin.
[3] The reasons of the Tax Court Judge indicate why he made the order for costs against counsel personally - that he caused costs to be incurred unnecessarily, that he did not facilitate an efficient resolution of the matters, that he sought continual adjournments, that he failed to produce documents, that he filed inadequate notices of appeal, that he was late with affidavits and notices, and that he did not execute notices of discontinuance after agreeing to do so.
[4] In a related file A-185-97, we have determined that there was procedural unfairness in the proceedings leading to the decision of the Tax Court which included the costs award against Mr. Zaldin personally. As a result, the costs award cannot stand.
[5] We would add the following observation. As we indicated in our reasons in Court file A-185-97, there was confusion on the part of both Mr. Zaldin and the Crown in correspondence prior to the motion for judgment and in submissions to the Tax Court Judge on the motion which seem to have caused the Judge to misunderstand some of the issues before him. For example, contrary to the finding of the Tax Court Judge, Mr. Zaldin did not agree to execute notices of discontinuance. This was one of the express reasons for the award of costs against Mr. Zaldin personally.
[6] An award of costs payable by counsel personally is an extraordinary order. Such orders are made sparingly and only in clear cases (see Myers v. Elman, [1940] A.C. 282). As we have indicated, there was much confusion in this case. In the circumstances, an award of costs against counsel personally would be inappropriate.
[7] The appeal should be allowed and paragraph 3(b) of the order of the Tax Court of Canada dated February 4, 1997 is quashed. There will be no costs on this appeal.
"B. Malone"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| DOCKET: A-162-97 |
| STYLE OF CAUSE: DONALD ZALDIN, former solicitor for D. BRUCE RIVERS and others before the TAX COURT OF CANADA |
- and -
| HER MAJESTY THE QUEEN |
DATE OF HEARING: WEDNESDAY, JUNE 7, 2000, AND
THURSDAY JUNE 8, 2000
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
| OF THE COURT BY: MALONE J.A. |
Delivered at Toronto, Ontario on Thursday, June 8, 2000
APPEARANCES: Mr. Donald Zaldin
| For the Appellant, on his own behalf |
Ms. K. Philpott, and
Mr. P. Malette
| For the Respondent |
| SOLICITORS OF RECORD: Mr. Donald Zaldin |
Barrister & Solicitor
5863 Leslie Street, #909
North York, Ontario
M2N 1J8
| For the Appellant, on his own behalf |
| Morris Rosenberg |
| Deputy Attorney General of Canada |
| For the Respondent |
FEDERAL COURT OF APPEAL
Date: 20000608
Docket: A-162-97
BETWEEN:
| DONALD ZALDIN, former solicitor for D. BRUCE RIVERS and others before the TAX COURT OF CANADA |
Appellant
- and -
HER MAJESTY THE QUEEN
Respondents
| REASONS FOR JUDGMENT |
| OF THE COURT |