Date: 20001019
Docket: 2000-198-IT-I
BETWEEN:
CONNIE KEW,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for taxation
Reeve, R. D., T.O., T.C.C.
[1] This taxation of costs was heard via conference call at 9:00 a.m. (PST) on Thursday October 5, 2000. It follows a judgment of the Honourable Judge Bowie dated May 15, 2000, allowing the appeals for the 1995 and 1996 taxation years with costs. Mr. James Kew represented the Appellant, and the Respondent's counsel was Mr. George Christidis.
[2] The Appellant submitted a Bill of Costs for the services of counsel in the amount of $650.00 and disbursements in an amount of $342.01 for a total of $992.01. The only portion of the Bill of Costs that Mr. Christidis did not take issue with was in respect to parking costs totalling $11.00.
Submissions - Mr. Kew for the Appellant
[3] The amount claimed for the services of counsel was made on the basis that he acted as counsel for his wife. He obtained a copy of the Informal Procedure Rules and Rule 11 was applied for the Bill of Costs.
[4] With respect to witness fees and the costs claimed for himself as a witness, he did not have a problem with the position taken by the Respondent if she was not willing to pay the amount claimed.
[5] The invoice from Mr. Beck’s office, follows an attempt to retain his firm a week to ten days before Court, but there would have been considerable costs involved. The appeal file was reviewed and an opinion was supplied as to what they would charge and the main issues that should be dealt with in Court. The disbursement was very applicable.
[6] With respect to the courier expenses for Felesky Flynn, this firm was contacted to see if they could handle the appeal. They were not able to provide the services because of time constraints, so Felesky Flynn referred him to Mr. Beck. Mr. Christidis spoke to a lawyer from Felesky Flynn, so he should have been aware that there were some expenses involved in forwarding the material.
Submissions - Mr. Christitis for the Respondent
[7] Mr. Kew represented his wife and is not a member of a bar or counsel as required by the rules; therefore amounts claimed for the services of counsel are not allowable expenses.
[8] Mr. Kew testified on behalf of his wife, he was not subpoenaed therefore no expense was incurred as a witness.
[9] An invoice provided from Matsura Beck does not indicate what activity Mr. Beck performed, and he was not retained as a lawyer. This was not a necessary disbursement as the Appellant chose not to retain counsel.
[10] Courier charges for $4.95 were not necessary for Felesky Flynn as this firm was not active on this file. Courier charges in the amount of $8.56 to Mr. Beck and $8.56 to the Department of Justice were not necessary expenses for the conduct of the appeal.
[11] In respect to telephone calls to Ottawa, the one eight-hundred number could have been used and no expense would have been incurred.
Decision
[12] This taxation of costs flows from an appeal filed by the Appellant on October 29, 1999, concerning the taxation years of 1995 and 1996. The appeal was instituted under the Tax Court of Canada Rules (Informal Procedure). The provisions in respect to Costs commence at section 10 of these Rules. Having considered both submissions my decision is as follows:
[13] Section 11 of these Rules, provide amounts allowable for the services of counsel. In these Rules, counsel is defined in section 2 as “...every person who may practice as a barrister, advocate, attorney or solicitor in any of the provinces;”. In the case of The Queen v. Munro, 98 D.T.C. 6443 (F.C.A.), at paragraph 21, the Appellant claimed fees for an agent as being “for services of counsel”. The Federal Court of Appeal held that those costs could not be allowed under the Rules. Mr. Kew was an agent of the Appellant but is not a lawyer and does not meet the definition of “counsel”; therefore he is not entitled to the amounts claimed for the services of counsel. The amount of $650 is not allowed and is taxed off.
[14 The Appellant agreed to waive the witness fee since the Respondent objected. The amount of $50.00 is taxed off.
[15] In appeals before the Tax Court, there are instances where tax lawyers or accountants might be retained for their skills, knowledge and expertise. An amount paid in order to acquire and use this expertise might be considered as an allowable disbursement provided it is established that it was essential for the conduct of the appeal. To properly evaluate the relevancy, necessity, and reasonableness of disbursements, there must be supporting documentation, not simply reliance upon an invoice. With respect to the invoice from Mr. Beck, there is nothing to indicate that the amount claimed was reasonable and necessary or essential for the conduct of the appeal. In fact, counsel was not retained for the appeal and if there was an analysis and an opinion provided, there is no evidence to indicate that any use was made of that service, making it essential for the conduct of the appeal, if that was what the invoice addressed. The amount of $267.50 is not allowed and is taxed off.
[16] Other disbursements involved courier fees in the amount of $13.15 and three receipts were attached. One receipt was for Felesky Flynn in the amount of $4.95, one for Mr. Beck in an amount of $8.56 and another for the Department of Justice in the amount of $8.56. The Respondent took issue with these expenses. The transaction relating to Mr. Beck has been determined not to be an allowable expense and there has been no evidence that any connection with the firm of Felesky Flynn was essential to the appeal process. Courier charges in relation to both of these firms have not been justified as reasonable expenses as there is no evidence as to the relevance and necessity of these courier charges in relation to the conduct of the appeal. The invoice showing an address for the Department of Justice in the amount of $8.56 is dated June 7, 2000, which was subsequent to the hearing of the appeal. Costs claimed for courier services in the amount of $13.15 are not allowed and are taxed off.
[17] A long distance telephone summary shows that two telephone calls were made to the Tax Court in Ottawa. One call for an amount of $.15 transpired on May 5, 2000 and a second call for an amount of $1.65 transpired on May 30, 2000. The Respondent submits that a toll free number could have been used thereby avoiding this expense. The toll free number is a fairly recent acquisition by the Court and some individuals may still not realize that such a number exists. Contact with the Tax Court in respect to a pending appeal is necessary and the amount claimed for the first call is a reasonable amount. The appeal was heard on May 12, 2000 and the written decision distributed on May 23, 2000. Since the second call is shown as transpiring on May 30, 2000, subsequent to the appeal, it is not an expense essential for the conduct of the appeal as provided for under Rule 12.(3). For telephone calls, an amount of $.15 is allowed.
[18] The Bill of Costs in the amount of $992.01 is taxed, and the total amount allowed is $11.15. A certificate will be issued in this amount.
Dated at Vancouver, British Columbia this 19th day of October 2000.
________________________
Taxing Officer
Date: 20001019
Docket:2000-198(IT)I
BETWEEN:
CONNIE KEW Appellant,
- and -
HER MAJESTY THE QUEEN Respondent
CERTIFICATE OF COSTS
I CERTIFY that I have taxed the party and party costs of the Appellant in this proceeding under the authority of subsection 13(1) of the Tax Court of Canada Rules (Informal Procedure), and I allow the sum of $11.15.
Dated at Vancouver, in the Province of British Columbia, this 19th day of October 2000.
____________________________________
Taxing Officer