Tax Court of Canada Judgments

Dockets: 2005-869(IT)G, 2005-870(IT)G,

2005-871(IT)G, 2005-442(GST)I

BETWEEN:

SHIRLEY-ANNE JAQUES, DAVID JAQUES and

PARK HAVEN DESIGNS INC.,

Appellants,

and

HER MAJESTY THE QUEEN,

Respondent.

____________________________________________________________________

Costs dealt with by written submissions, by

The Honourable Justice Campbell J. Miller

Participants:

Counsel for the Appellants:	James W. Dunphy
Counsel for the Respondent:	Margaret McCabe

____________________________________________________________________

ORDER

          Upon reviewing written submissions of counsel for the parties;

          It is ordered that the Appellants are entitled to two sets of costs in these appeals.

Signed at Ottawa, Canada, this 19th day of January 2007.

"CampbellJ. Miller"

Citation: 2007TCC41

Date: 20070119

Dockets: 2005-869(IT)G, 2005-870(IT)G,

2005-871(IT)G, 2005-442(GST)I

BETWEEN:

SHIRLEY-ANNE JAQUES, DAVID JAQUES

and PARK HAVEN DESIGNS INC.,

Appellants,

and

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR ORDER

WITH RESPECT TO COSTS

Miller J.

[1]      At the conclusion of my Reasons for Judgment in this matter, I invited the parties to make representations with respect to costs, failing which I ordered one set of costs to the Appellants. I have now received submissions from both sides. The Appellants seek solicitor/client costs or, in the alternative, more than one set of costs based on tariff. The Respondent maintains one set of costs in accordance with the Tariff is the appropriate award.

[2]      An award of costs is governed by Rule 147 of the Tax Court of Canada Rules (General Procedure) which reads:

147(1) Subject to the provisions of the Act, the Court shall have full discretionary power over the payment of the costs of all parties involved in any proceeding, the amount and allocation of those costs and determining the persons by whom they are to be paid.

            ...        

147(3) In exercising its discretionary power pursuant to subsection (1) the Court may consider,

            (a)         the result of the proceeding,

            (b)         the amounts in issue,

            (c)         the importance of the issues,

            (d)         any offer of settlement made in writing,

            (e)         the volume of work,

            (f)         the complexity of the issues,

            (g)         the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding,

            (h)         the denial or the neglect or refual of any party to admit anything that should have been admitted,

            (i)          whether any stage in the proceeding was,

                        (i)          improper, vexatious, or unnecessary, or

                        (ii)         taken through negligence, mistake or excessive caution,

            (j)         any other matter relevant to the question of costs.

[3]      This certainly gives a broad discretion to the Court to consider a wide variety of factors in making an award of costs. It is also clear from the jurisprudence that departure from tariff is exceptional, and that an award of solicitor/client costs usually requires improper conduct.

[4]      I find that rejecting a settlement offer does not, in this case, constitute such improper conduct on behalf of the Respondent; neither does the Respondent's decision not to conduct discoveries. Yet, I am satisfied that these circumstances, along with the fact that there were three Appellants with four appeals that involved both the Income Tax Act and the Excise Tax Act, justifies an award of two sets of costs in accordance with the Tariff, rather than just one set.

Signed at Ottawa, Canada, this 19th day of January 2007.

"CampbellJ. Miller"