A-89-75
The Queen (Appellant) (Cross Respondent)
v.
Morton Pascoe (Respondent) (Cross Appellant)
Court of Appeal, Preston Prothonotary—Toronto,
January 14 and 29, 1976.
Practice—Costs—Income tax—Section 178(2) of the
Income Tax Act does not allow submission of a full solicitor
and client bill—Meaning of "all reasonable and proper
costs"—Income Tax Act, S.C. 1970-71-72, c. 63, s. 178(2).
While section 178(2) of the Income Tax Act requires the
Minister to pay "all reasonable and proper costs of the taxpay
er" in an appeal from a Tax Review Board decision where the
amount in question does not exceed $2,500, it does not allow a
solicitor to submit a full solicitor and client bill. Where no
specific direction that costs are to be paid on a solicitor and
client basis is given, it is not proper to interpret "all reasonable
and proper costs" to include all costs properly collectable under
the terms of a solicitor and client taxation.
APPLICATION for taxation of costs.
COUNSEL:
M. Bonner for appellant.
L. Colt for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Muni Basman, Lorne Colt, Toronto, for
respondent.
The following are the reasons for judgment
rendered in English by
PRESTON Prothonotary: This application by the
respondent, cross-appellant is for the taxation of
the solicitor's bill of costs on an appeal to the
Federal Court of Appeal from the judgment of the
Trial Division pronounced on January 29th, 1975
by the Honourable Mr. Justice Cattanach. It came
on before me on January 14, 1976, and after
hearing counsel for both appellant and respondent,
I taxed the bill in the amount of $1,048.84. Coun
sel requested that I give reasons for my decision,
and I indicated that I would prepare reasons as
soon as possible.
The Federal Court of Appeal pursuant to a
judgment pronounced on October 27th, 1975,
allowed the appeal, dismissed the cross-appeal and
directed that the respondent be paid, after taxation
thereof, all his reasonable and proper costs both in
the Trial Division and on appeal.
The Trial Division costs have already been paid
and all that is before me on this taxation is the
solicitor's account covering the costs of the appeal.
The account as presented takes the form of a
solicitor and client bill and for all services ren
dered sets a fee of $1,500.00 plus $48.84 for
disbursements.
The respondent's solicitor prepared a notice of
cross-appeal and filed a memorandum of fact and
law. The argument on the appeal lasted half a day,
and counsel were required to return later the same
week, when judgment was delivered.
Pursuant to section 178(2) of the Income Tax
Act as amended, the Minister is required to pay all
reasonable and proper costs of the taxpayer on an
appeal by the Minister from a decision of the Tax
Review Board where the amount of tax that is in
controversy does not exceed $2,500.00.
This direction allows the taxpayer to have his
bill taxed and be compensated for all his reason
able and proper costs. However, it does not, in my
opinion, allow a solicitor to submit a full solicitor
and client bill. Some legislation includes a specific
direction that costs are to be paid on a solicitor
and client basis. Where no such direction is given,
I do not think it is proper to interpret "all reason
able and proper costs" to include all costs properly
collectable under the terms of a solicitor and client
taxation.
It is my opinion, after having given this matter
careful consideration, that a fee of $1,000.00
would adequately compensate this respondent for
all reasonable and proper costs in connection with
this appeal. To this amount I would add the
disbursements of $48.84 and tax and allow this
account in the sum of $1,048.84.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.