Date: 20010227
Docket: 2000-198-IT-I
BETWEEN:
CONNIE KEW,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for order
(Delivered orally at Ottawa, Ontario, on January 11, 2001)
Bowie J.
[1] The matter before me is a review of a taxation of costs. The Appellant in this matter was successful at trial in an informal appeal, and obtained judgment allowing the appeal with costs.
[2] The costs were taxed by Mr. R.D. Reeve, taxing officer, who taxed off almost all of the items included in the bill of costs. The ones that were not taxed off were certain amounts for parking, that were allowed as disbursements, together with a telephone call. In the result, a bill of costs which had been delivered in the amount of $992.01, was taxed down to $11.15, and the certificate was issued in that amount.
[3] It is beyond dispute that on a review of taxation my function is to determine whether the taxing officer has made any error in principle, and not simply to review the exercise by him of his discretion.
[4] The matters which were objected to by Mr. Kew, acting as agent for Connie Kew, include the claim in the original bill of costs for a counsel fee, and the claim for a disbursement of $250, plus goods and services tax (GST), which was an amount paid by the Appellant to a law firm for services apparently in connection with the appeal, although the exact nature of the services seems to have been left in some doubt, at least before the taxing officer, who had no material before him on which he could assess either the nature or the value of the services. Disbursements were also disallowed for courier fees, apparently at least one of them related to the services of that law firm, and for a courier delivery to the Department of Justice, and for a long distance telephone call to the Court.
[5] The first matter that I will deal with is the question of the Appellant's entitlement to recover a counsel fee. It is abundantly clear from the decision of the Federal Court of Appeal in McLean v. Munro, 98 DTC 6443, that a counsel fee may not be allowed for services of somebody other than a person who is entitled to practise as a barrister, advocate, attorney, or solicitor in one of the provinces, which is the manner in which the Rules define "counsel" in section 2. Mr. Kew argues that he, as agent for his wife, and permitted by the Tax Court of Canada Act to act as agent for his wife, was on the occasion of the appeal an advocate, and therefore comes within that definition of "counsel", and that his wife is therefore entitled to recover a counsel fee in respect of his services. The Federal Court of Appeal's decision in Munro leaves no opening for doubt that only persons who have qualified and been admitted to the bar of one of the provinces of Canada can qualify as "counsel" and therefore perform services for which a counsel fee may be awarded. Therefore I have no alternative but to confirm the taxing officer's decision on that point.
[6] The next matter of substance that comes before me on this review is Mr. Kew's claim that the Appellant is entitled to recover as a disbursement the fee of $250 plus GST that was paid to a legal firm. I am prepared to assume for the purposes of this review that the services provided by that firm were, in fact, legal services in the nature of an opinion or advice relating directly to the conduct of the appeal. The question then becomes whether that can be considered a necessary disbursement for the purpose of its inclusion within a bill of costs under the Rules. In my view, to permit such a fee to be recovered as a disbursement would, as Mr. Christidis put it, be permitting indirectly the recovery of an amount that cannot be recovered directly.
[7] The informal procedure Rules of the Court provide in section 11 that party and party costs may be recovered for the services of counsel under four different heads: an amount of $150 for preparation of a Notice of Appeal, $200 for preparation for hearing, $300 per half day for the conduct of the hearing, and $50 for the taxation costs. To permit a disbursement to a law firm for legal services in connection with an appeal to be recovered by way of a disbursement would necessarily involve one of two things. Either it would become an open-ended route by which the Appellant could recover whatever amount was reasonably charged by the legal firm for its services, which would then amount to a complete indemnity, or to put it in terms of the technical vocabulary, solicitor and client costs, where no such scale of costs is contemplated by the Rules. Alternatively, it would require that the taxing officer allow a disbursement for some part of the fee charged by the law firm on the theory that the services provided and being remunerated on taxation, are analogous to those set out in Rule 11, and the taxing officer would in effect allow a counsel fee for either preparation of the Notice of Appeal, or preparing for the hearing, or both, depending on the exact nature of the legal services provided. In my view, either of these alternatives is not only contrary to the obvious object of the provisions of the Act and of Rule 11, but moreover cannot be brought within the wording of the Rule.
[8] I therefore confirm the taxing officer's decision in respect of the disbursement for legal services.
[9] Insofar as the other disbursements are concerned, Mr. Kew addressed them in his written materials, and he takes issue with Mr. Reeve's decision in respect of the disbursements disallowed. With respect to the courier charges, as I understand Mr. Reeve's decision, there was no explanation before him in respect of the courier charge related to the firm Felesky Flynn. The courier charge in respect of the other law firm in my submission must stand or fall with the fees of that firm, and having decided that the fees may not be allowed, I confirm Mr. Reeve's decision to disallow these courier charges.
[10] The other courier charge, as I understand it, was for a delivery to the Department of Justice. It, like the second of two telephone calls, was disallowed by Mr. Reeve, on the basis that these events took place after the hearing of the appeal. Inasmuch as they took place between the hearing of the appeal and the taxation of the costs, it seems to me reasonable to conclude that these disbursements, which would be otherwise unexceptional, were disbursements in connection with the delivery of the bill of costs and the taxation of it. I am going to direct that those amounts be allowed in addition to the $11.15 allowed by Mr. Reeve's certificate.
[11] Those two items come to $8.56 for a courier charge and $1.65 for a telephone call, a total of $10.21. I therefore direct that the certificate be amended to provide that the amount allowed on taxation is $21.36.
Signed at Ottawa, Canada, this 27th day of February, 2001.
"E.A. Bowie"
J.T.C.C.