Date: 19981009

Docket: 95-1363-IT-G

BETWEEN:

RICHARD W. BURKART,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Taxation

Tanasychuk B., T.O., T.C.C.

[1]            This taxation came on for hearing on September 29, 1998, by means of a telephone conference call. It follows a Judgment of the Honourable Judge Brulé dated December 15, 1997, in which he awarded the Respondent costs in the appeal, such to be determined on an application for costs. The Appellant represented himself at the hearing and at the taxation. Ms. Sandra Phillips represented the Respondent.

[2]            The Bill of Costs as submitted by the Respondent is as follows:RESPONDENT'S BILL OF COSTS

(Class B Proceeding)

Item No.	Item	Fees	Disbursements
B1(1)(a)	Services prior to	$ 300.00
	examination for
	discovery
B1(1)(b)	Status hearing of	$ 300.00
	June 4, 1996,
	Adjourned; held
	January 20, 1997
B1(1)(b)	Motion dated April	$ 300.00
	21, 1997 heard by
	conference call
	June 12, 1997
B1(1)(b)	Motion dated	$ 300.00
	June 27, 1997
	with written
	representations
B1(1)(b)	Examination for	$ 600.00
	Discovery held
	September 8 and 9,
	1997 in Ottawa
B1(1)(b)	Motion dated	$ 300.00
	September 23, 1997
B1(1)(b)	Taxing costs	$ 300.00

Item No.		Item			Fees		Disbursements
B1(1)(c)		Preparation for			$ 400.00
		hearing
B1(1)(d)		Conduct of hearing			$1,000.00
B1(1)(e)		Services after			$ 200.00
		Judgment
B1(2)		Costs of Transcript					$1,878.39
		of Examination for
		Discovery held on
Total Fees					$4,000.00
Total Disbursements							$1,878.39
	Subtotal					$5,878.39

[3]            At the outset, Mr. Burkart stated the only item he was disputing on the Respondent's bill of costs was the disbursement claimed of $1,878.39, on account of the cost of the examination for discovery held September 8 and 9, 1997. On consent, I will allow the claims for services of counsel pursuant to Schedule II, Tariff B, in the amount of $4,000.00.

[4]            A copy of the invoice for the disbursement had not been produced prior to the taxation of costs. Ms. Phillips undertook to produce a copy of the invoice, which was done. For the purposes of proceeding with the taxation, Ms. Phillips advised that the invoice included the following charges:

	Two day attendance	$ 350.00
	Transcript - Volume 1 -
	244 pages @ $4.50 per page	$1,098.00
	Transcript - Volume 2 -
	65 pages @ $4.50 per page	$ 292.50
	Courier & handling	$ 15.00
	Sub-total	$1,755.50
	GST	$ 122.89
	TOTAL	$1,878.39

[5]            Mr. Burkart`s position is that he had wanted to tape record the examination for discovery. It is his position that had he done so, he would not now be faced with a claim for the cost of the discovery in the amount of $1,878.39. He stated that the Rules and Procedures contained provision for this, but could not refer me to any particular Rule in support of his position.

[6]            Ms. Phillips stated that she was aware that Mr. Burkart had indicated a desire to tape record the examination for discovery. However, the examinations for discovery proceeded before an official court reporter, over a period of two days. There were numerous documents produced over the course of the two days and resulted in the production of two volumes of transcript totalling 309 pages.

[7]            Ms. Phillips referred to Rule 102(3) of the Tax Court of Canada Rules (General Procedure), which reads as follows:

"Unless otherwise directed by the court or the parties otherwise agree, an examination shall be recorded by a verbatim reporter and arrangements for the attendance of a reporter shall be made by the party conducting the examination, who shall pay the reporter's fees."

[8]            In this case, the examination for discovery proceeded before a verbatim reporter. There was no agreement between the parties or direction from the Court to conduct the examination for discovery in any other manner. As a result, the Respondent has incurred a disbursement of $1,878.39. I am satisfied that this disbursement was essential for the conduct of the proceeding, as contemplated under Tariff B, Section (1)(2) of the Rules and I will allow the amount of $1,878.39.

[9]            The Bill of Costs of the Respondent in the amount of $5,878.39 is taxed and the full amount of $5,878.39 is allowed. A certificate in that amount will be issued.

Dated at Toronto, Ontario, this 9th day of October, 1998.

"Barbara Tanasychuk"

Taxing Officer

Date: 19981009

Docket: 95-1363-IT-G

BETWEEN:

RICHARD W. BURKART,

Appellant,

and

                                                                              HER MAJESTY THE QUEEN,

Respondent.

Certificate of Costs

                I CERTIFY that I have taxed the party and party costs of the Respondent in this proceeding under the authority of subsection 153(1) of the Tax Court of Canada Rules (General Procedure), and I allow the sum of $5,878.39.

Dated at Toronto, Ontario, this 9th day of October, 1998.

                "Barbara Tanasychuk"       

Taxing Officer