http://decision.tcc-cci.gc.ca/site/tcc-cci/decisions/en/item/62742/index.do 
Daishowa-Marubeni International v. The Queen[1] (September 5, 2013) is another Tax Court case involving a successful appellant seeking costs in excess of the normal Tariff.
The substantive issue was whether the proceeds of sale of timber tenures should include the amount of reforestation obligations assumed by the purchasers of those tenures. In the Tax Court the appellant had a degree of success in that the court reduced the amount of the reforestation obligations to be included in the proceeds of sale. The Federal Court of Appeal reversed the Tax Court and held that all of the reforestation obligations formed part of the proceeds of sale. The Supreme Court of Canada reversed the Federal Court of Appeal and held that none of the reforestation obligations formed part of the proceeds of sale, analogizing them to future repairs required to a property which operate to depress the value of the property sold.
http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/13071/index.do 
The Supreme Court decision was blogged earlier this year on this site.
In light of its ultimate success, the appellant asked the Tax Court for costs of $148,380, which represented one-third of the total of the fees, costs and taxes incurred by the Appellant at the Tax Court of Canada.
The court first turned to the issue of whether costs in excess of the Tariff should be awarded in the absence of evidence of malfeasance or misconduct:
[4] A year before the Associate Chief Justice’s comments in Velcro, I awarded costs in the case of
Peter Sommerer v Her Majesty the Queen and indicated that in my view the Court has moved away from the position of limiting costs beyond Tariff to situations of malfeasance or misconduct. As I indicated at that time, the appropriate course in the determination of costs beyond Tariff is to consider those relevant factors found in Rule 147(3) and reach a reasoned, balanced and just result.
[5] The Respondent recognizes this recent jurisprudence but argues that the law of costs is more accurately reflected in a recent decision of the Federal Court of Appeal,
The Queen v Canadian Imperial Bank of Commerce, confirming, in the Respondent’s view, the basic tenet that there must be exceptional circumstances to justify costs beyond Tariff, and that actual costs far greater than Tariff is not such a circumstance. The Respondent also raises the caution raised by the Federal Court of Appeal that fluctuation in cost awards would jeopardize the degree of uniformity and foreseeability litigants are entitled to expect.
[6] With respect, litigants should not be entitled to expect uniformly low costs at the Tax Court of Canada, not appropriate when taking a principled, balanced view of the Rule 147(3) factors. It is clear the Tax Court of Canada has serious concerns about the inadequacy of its Tariff as evidenced from recent rule changes, as well as the recent jurisprudence. Consistency will follow from a principled approach of the enumerated factors, which I now turn to.
[Footnotes omitted]
The court held the success of the appellant was not in and of itself a factor entitling it to higher costs:
[7] Daishowa had partial success at the Tax Court of Canada but was wholly successful at the Supreme Court of Canada. The Respondent argues that the Supreme Court of Canada decision is not a proper consideration for me in exercising my discretion to award increased costs, as it somehow would encroach on the discretionary power of the Supreme Court of Canada. I awarded costs at trial based on Daishowa’s partial success. I now have direction from the Supreme Court of Canada that Daishowa is entitled to costs at the Tax Court of Canada because of its full success. That is a significant factor in causing me to reconsider my earlier costs award, but I view it more as a gatekeeping factor than a significant reason itself for increased costs. In effect, if a litigant is wholly successful, rather than only partially successful, it flings the door wide open to a closer scrutiny of the factors to determine if increased costs are appropriate.
Nor were the amounts of money at issue determinative:
[8] The amount in issue of approximately $14,000,000 of proceeds seems a large number, but it must be contextualized. It was approximately six percent of the proceeds of the major transaction in issue; it resulted, due to the use of losses, in minimal tax in the years in issue; Daishowa is a multi-million dollar business. So, what is a significant amount in this regard – a small business facing a $100,000 tax bill that could bankrupt it, or a large multi-national organization, bringing a case based on principle, regardless of the numbers? I conclude the amount is not such a significant factor in this case to justify increased costs.
The importance of the issue was however a significant factor. The importance of the issue was demonstrated by the fact that the Supreme Court granted leave to appeal:
[16] The Respondent seems to be mixing the importance of the case with the importance of specific issues argued at different court levels. The Supreme Court of Canada did not make an unimportant case important: it confirmed the importance of the issues, the primary one being whether the reforestation liabilities are to be included in proceeds of disposition. That is an issue of concern to both a vendor and a purchaser. The fact that different arguments were raised at the Supreme Court of Canada and by different parties – intervenors – does not render that issue any more or less important to taxpayers and tax jurisprudence generally.
The court was only slightly swayed by what counsel for the appellant characterized as the volume of work involved in the appeal:
[20] With respect, my recollection was that the Appellant put emphasis on a handful of cases. Any research with respect to the “embedded” concept would have been subsequent to the Tax Court of Canada hearing.
[21] There were only two witnesses, the evidence lasting less than a couple hours, as most of it was entered through an Agreed Statement of Facts. I accept the Appellant’s categorization that considerable time was spent negotiating the Agreed Statement of Facts, and that it was difficult and contentious, but ultimately saved considerable court time.
The same was true of the court’s view of the complexity of the issues on the appeal:
[24] The fundamental issue at the Tax Court of Canada was not complex in its formulation, but the resolution required a Cirque du Soleilian acrobatic twisting and turning to grapple it to the ground. I did not have the benefit of any argument with respect to an “embedded” liability that might have simplified the analysis.
[25] Complexity also arose in the nature of the secondary issue, which I described as somewhat circuitous. This tied in to the concern with respect to asymmetry; again, not a particularly complex concept to understand but certainly a concerning one and tricky to resolve.
[26] On balance, I am prepared to give some weight to this factor, but like the volume of work, not a great deal. Again, I find this is not in the same league as the cases of General Electric and Sommerer, where the issues were many, interconnected and indeed complex.
The conduct of the respondent did not justify a higher costs award:
[31] In summary on this factor, the Respondent might have been more forthcoming and perhaps conciliatory on how it would deal with the fair market value issue, but that was a strategy clearly taken by the Respondent, a strategy that ultimately worked against it in my judgment. I do not believe this is a factor that goes to costs.
In the result the court cut the appellant’s requested costs by half:
[33] I conclude that in this case the Tariff is inadequate, but not by as much as the Appellant might suggest. My review of the factors does not leave me with an overriding sense that significant costs were justified. I weigh no settlement and no untoward conduct versus some complexity, some volume and the importance of the issue and determine that one-half of what the Appellant seeks is an appropriate award. I therefore award the Appellant costs of $74,190.
This case appears to be completely in accord with the developing jurisprudence of the Tax Court on awards of costs in excess of the Tariff.
[1] 2013 TCC 275.