Date: 20060811
Docket: A-420-03
Citation: 2006 FCA 276
BETWEEN:
WILLIAM SHAWN DAVITT
Appellant
and
THE MINISTER OF NATIONAL REVENUE
Respondent
ASSESSMENT OF COSTS - REASONS
PAUL G.C.ROBINSON
ASSESSMENT OFFICER
[1] This is an assessment of costs pursuant to the Order of the Court of Appeal dated
September 21, 2004 which dismissed the Appellant’s Notice of Appeal. This proceeding arose from an Order of the Tax Court of Canada dated June 18, 2003 which ordered the Appellant’s appeal struck out in its entirety. The Appellant filed his Notice of Appeal on September 19, 2003. The Court of Appeal dismissed the Notice of Appeal with costs, when it was determined that the Appellant did not comply with the strict conditions of the Notice of Status Review dated June 1, 2004 that determined the date for the filing of a supporting affidavit and adhering to the normal procedural steps to advance this proceeding.
[2] On April 18, 2006, the Respondent filed its Bill of Costs and requested an appointment to have its costs assessed.
[3] On April 19, 2006, I forwarded correspondence to the parties informing them that this matter was appropriate for disposition by way of written submissions and I set a timetable for the filing of all materials. All supporting and opposing material of the respective parties regarding the assessment of costs were submitted within the timeframes.
[4] I note that the Appellant has made extensive submissions regarding his motion dated
March 21, 2006 that he had submitted to the Tax Court of Canada. In this Tax Court of Canada motion, the Appellant sought specific relief which included:
a) an Order setting aside the May 31, 2001 judgment of the Associate Chief Judge Bowman (as he then was) on the ground of fraud (Tax Court File No. 2001-893(IT)G);
b) an Order setting aside the June 18, 2003 judgment of Judge McArthur (as he then was) on the ground of fraud (Tax Court File No. 2002-2807(CPP));
c) an Order setting aside the February 9, 2004 judgment of Justice Little on the ground of fraud (Tax Court file Nos. 2003-283(CPP), 2003-284(EI) and 2003-511(IT)G).
In fact, the Appellant submitted at paragraph 11 of his Written Representations that
…it is premature for the Federal Court to assess costs in advance of the June 15, 2006 motion.
The Appellant’s Tax Court of Canada motion mentioned above was dismissed on
June 15, 2006. Since the matter is now moot, I will not outline the parameters of my
jurisdiction as it pertains to the Tax Court of Canada.
[5] As mentioned above in paragraph [4], the Appellant’s motion dated March 21, 2006 before the Tax Court of Canada has been dismissed. That decision dated June 15, 2006 renders the Respondent’s request to proceed with the assessment of costs moot so I will not outline the Respondent’s respective submissions or associated case law pertaining to that issue.
[6] I should note that the Appellant at paragraph 3 of his Written Submissions has indicated that “The Appellant was unable to proceed with this appeal because of insufficient funds.” Rule 119 of the Federal Courts Rules states:
119. Subject to rule 121, an individual may act in person or be represented by a solicitor in a proceeding.
It is trite to point out that lay litigants with limited means regularly represent themselves in the Court of Appeal. It is my opinion that the Appellant’s lack of funds should be given little weight in my assessment of the Respondent’s Bill of Costs.
[7] The Appellant has submitted that when assessing the Respondent’s Bill of Costs in this matter, I should consider the alleged conduct of counsel for the Respondent. The Appellant submits that:
…the Respondent is acting dishonestly by misleading the Tax Court of Canada in its submissions to the Court.”
In fact, the Appellant has made reference to Riddell v. Hamel, [1989] 2 F.C. 434 in support
of his submission that Respondent’s counsel has not acted appropriately in the matter before the Tax Court of Canada as well as the Court of Appeal. In addition, the Appellant has submitted that there was a public interest element that should have been considered in the assessment of costs. The Appellant noted that he is a chartered accountant and auditor and at paragraph 16 of his submissions states:
The appeal to the Federal Court of Appeal was made in his capacity as auditor and required by his professional duty to challenge the fraud he discovered while working as an auditor. The Appellant notes that neither the Tax Court of Canada nor the Federal Court of Appeal have allowed the Appellant to present evidence in support of his allegations of fraud. Details of the fraud are outlined in the Appellant’s Notice of Motion dated March 21, 2006.
The Appellant has also made reference to Singh v. Canada (AG), [1994] 4 F.C. 583 in support of this submission that this was a public interest matter and I should govern myself accordingly since:
… auditors acting in accordance with their duties to challenge fraud is in the public interest and therefore auditors should not be liable for costs.
[8] With regard to the public interest issue and the Appellant’s alleged dishonest conduct of Respondent’s counsel, it is my opinion that the procedures and rules contained in the Federal Courts Rules gave the Appellant ample opportunity to present these issues, as well as any remaining pertinent submissions, to the Court of Appeal. I also note that the conditions contained in the Court of Appeal Notice of Status Review decision were an additional favourable circumstance offered to the Appellant to present the merits of his case. It is appropriate that I refer to Rule 3 of the Federal Courts Rules which states:
3. These Rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.
The Appellant has to be responsible for his actions or, in this proceeding, the lack of action, in the presentation of the merits of the Notice of Appeal. In dismissing this proceeding with costs, the Court of Appeal adjudicated the matter on the merits that were before it and awarded costs to the Respondent. For these reasons, it is my opinion that the Court of Appeal has exercised its full discretionary power regarding costs and it is not appropriate that I revisit or change that decision.
[9] It is my opinion that the Respondent’s Bill of Costs which includes 3 units ($360.00) for assessable services and disbursements of $65.21 which includes applicable GST of is reasonable and has been supported by affidavit evidence.
[10] The Respondent’s Bill of Costs in A-420-03 is assessed and allowed in the amount of $425.21 which includes assessable services, disbursements and applicable GST. A certificate is issued in this Court of Appeal proceeding for $425.21 payable by the Appellant to the Respondent.
“Paul Robinson”
Paul G.C. Robinson
Assessment Officer
Toronto, Ontario
August 11, 2006.
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-420-03
STYLE OF CAUSE: WILLIAM SHAWN DAVITT
Appellant
and
MINISTER OF NATIONAL REVENUE
Respondent
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
ASSESSMENT OF COSTS -
REASONS BY: PAUL G.C. ROBINSON, Assessment Officer
DATED: AUGUST 11, 2006
SOLICITORS OF RECORD:
John H.Sims, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT