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Date: 20021218
Docket: A-648-00
Neutral citation: 2002 FCA 513
BETWEEN:
BUDGET PROPANE CORPORATION
Applicant
- and -
MINISTER OF NATIONAL REVENUE AND MORLEY RAYMER
Respondents
ASSESSMENT OFFICER
[1] The applicant sought judicial review of the decision of the Tax Court of Canada for production of income tax returns of a non-party and intervenor. The Court dismissed the judicial review with costs for one counsel in any event of the cause. I directed that the assessment of the bill of costs of the respondent, Minister of National Revenue (hereafter, the respondent) be addressed by the service and filing of written material. The Applicant's Position [2] The applicant argues that any costs that are allowed should be proportionate to the nature and intent of the original proceeding at hand and that no costs were awarded for the interlocutory motion at the Tax Court of Canada to either the appellant or the respondent irrespective of the final result. The application for judicial review is merely one aspect of the motion. Relative to the respondent's claim for total fees presented at $330.00 and corrected to $770.00, the applicant submitted that much of the preparation for the application had already occurred in preparing the material for the motion brought before the Tax Court of Canada and that reasonable costs would therefore be one-half of said $770.00. The same argument is put forward for disbursements presented at $352.71 and corrected to $353.71. Those disbursements should be reduced generally. The respondent paid extra money for rush service by Legal Express in the amount of $69.55 and service by Avanti Paralegal of $50.40. The applicant argues it should not bear the additional cost due to a rush request. The applicant submits service by Legal Link in the amount of $60.00 appears excessive and the cost is in the general price range that the other two companies charged for the same type of service. Further, the affidavit and respondent's record did not require personal service and other options were available. The applicant noted a calculation error: the bill of costs totals $682.71, and not $1,122.77. The Respondent's Position [3] The respondent submits there was a requirement to draft a notice of appearance, affidavit and an application record in preparation for the judicial review, none of which was prepared for the motion before the Tax Court of Canada. The respondent made every reasonable effort to mitigate costs as it ordered four pages of the transcript rather than the full transcript for the respondent's affidavit. The respondent argued that none of the disbursements were excessive and that it was necessary to serve and file documents on both the applicant and the respondent, Morley Raymer, on the due date under the Federal Court Rules, 1998. Process servers were employed to ensure timely service. There is nothing on the face of Exhibits G and H to the affidavit of disbursements which indicates an extra charge for "urgent" or "rush" service. Total fees and disbursements were reflected correctly on the bill of costs. Assessment [4] I have read all the materials in the record and summarized only those relevant for disposition of this assessment. The assessment of costs in Fred Turner v. Her Majesty The Queen (2000), 259 N.R. 92 concluded that any costs related to the Tax Court of Canada cannot be assessed as part of a Federal Court of Appeal bill of costs. On the record before me, that does not preclude the preparation and filing of the respondent's record and materials. As such, item 2 for the preparation and filing of the respondent's record and materials is allowed at $440.00. [5] I examined each item in the bill of costs within the parameters of the Federal Court Rules, 1998 and Tariff B. I determined that costs are reasonably claimed at the low end of item 14(a) for counsel fees at $220.00 and of item 25 for services after judgment at $110.00 and are therefore allowed. [6] I agree with the respondent's submissions that costs were mitigated by ordering an excerpt of 4 pages from the full transcript. Costs for the copies of transcript are allowed at $26.43. The charges for outside agency copies of $33.60 and the fee of $113.73 for the respondent's record presented at $146.33 and corrected to $147.33, are reasonable and allowed at $147.33. [7] The timeliness of filing documents is driven by the Federal Court Rules, 1998. I am in agreement with the applicant that the service of the respondent's affidavit incurred a "rush" fee in the amount of $20.00 plus tax. Pursuant to Federal Court Rule 307, the respondent had 30 days from the service of the applicant's affidavit to file supporting affidavits. The record appears to indicate that the additional charges for personal service as compared to regular service are $60.00. Federal Court Rule 138 does not require personal service of the respondent's materials. I am therefore reducing the total amount claimed for personal service at $179.95 to $100.00. [8] I have noted and corrected the addition of items 2, 14(a) and 25 from $330.00 to $770.00 and photocopying from $146.33 to $147.33 and total disbursements from $352.71 to $353.71. The respondent's bill of costs, presented at $1,122.71 and corrected to $1,123.71 is assessed and allowed at $1,043.76. "Susan Findlay" S. Findlay Assessment Officer Toronto, Ontario December 18, 2002. FEDERAL COURT OF CANADA APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-648-00 STYLE OF CAUSE: BUDGET PROPANE CORPORATION Applicant - and -
MINISTER OF NATIONAL REVENUE AND MORLEY RAYMER Respondents ASSESSMENT OF COSTS - REASONS BY: SUSAN FINDLAY DATED: WEDNESDAY, DECEMBER 18, 2002 ASSESSMENT IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES SOLICITORS OF RECORD: Ms. Samantha L. Callow For the Applicant Ms. Andrea Jackett For the Respondents FEDERAL COURT OF CANADA
Date: 20021218
Docket: A-648-00
BETWEEN:
BUDGET PROPANE CORPORATION
Applicant
- and -
MINISTER OF NATIONAL REVENUE AND MORLEY RAYMER
Respondents
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