Mittal v. R. – TCC: Non-Attorney Engineer Representing Himself Not Entitled to Hourly Costs

Bill Innes on Current Tax Cases

http://decision.tcc-cci.gc.ca/site/tcc-cci/decisions/en/item/64567/index.do New Window

Mittal v. The Queen
[1] (November 4, 2013) is a decision of a Taxing Officer.  The appellant, a professional engineer, had been successful in his appeal of his 2006 and 2007 taxation years and  had been awarded costs.  The court had not, however, made any special directions to the Taxing officer under Rule 147(6):

(6) The Court may give directions to the taxing officer and, without limiting the generality of the foregoing, the Court in any particular proceeding may give directions,

    (a) respecting increases over the amounts specified for the items in Schedule II, Tariff B,

    (b) respecting services rendered or disbursements incurred that are not included in Schedule II, Tariff B, and

    (c) to permit the taxing officer to consider factors other than those specified in section 154 when the costs are taxed.

Nor had the taxpayer applied for an order under Rule 147(7):

(7) Any party may,

    (a) within thirty days after the party has knowledge of the judgment, or

    (b) after the Court has reached a conclusion as to the judgment to be pronounced, at the time of the return of the motion for judgment,

whether or not the judgment included any direction concerning costs, apply to the Court to request that directions be given to the taxing officer respecting any matter referred to in this section or in sections 148 to 152 or that the Court reconsider its award of costs.

Under the circumstances the Taxing Officer rejected the taxpayer’s claim for fees in the amount of $11,880.00 (based on his hourly rate as an engineer – $110.00):

[12] In the absence of a direction from the Court to the Taxing Officer, the costs must be taxed pursuant to Rule 154 which states:

Where party and party costs are to be taxed, the taxing officer shall tax and allow the costs in accordance with Schedule II, Tariff B and the officer shall consider,

(a)   the amounts in issue,

(b)   the importance of the issues,

(c)    the complexity of the issues,

(d)   the volume of work, and

(e)    any other matter that the Court has directed the taxing officer to consider.

[13] Schedule II, Tariff B sets out the amounts which may be allowed for the services of counsel. “Counsel” is defined in section 2 of the Rules as:

Every person who by virtue of subsection 17.1(2) of the Act, may practise in the Court.

Subsection 17.1(2) of the Act states:

Every person who may practise as a barrister, advocate, attorney or solicitor in any of the provinces may so practise in the Court and is an officer of the Court.

Comment:  This decision seems beyond reproach.  However had the taxpayer applied to the Tax Court Judge for amounts in addition to the Tariff it is difficult to know how he would have fared.  The Federal Court of Appeal’s jurisprudence on whether hourly fees can be awarded to self-represented litigants appears to be split:   Preston v. The Queen.[2]


http://decision.tcc-cci.gc.ca/site/tcc-cci/decisions/en/item/28357/index.do New Window

[1] 2013 TCC 355.

[2] 2007 TCC 761.