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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.
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