PRACTICE |
Costs |
Turner v. Canada
A-538-98
2001 FCA 33, Stinson A.O.
22/2/01
15 pp.
Court allowed appeal with costs, set aside Tax Court's judgment concerning appellant's claim for allowable business investment loss based on shares having adjusted cost base of $55,090--Appellant represented self except for brief period--Submitted revised bill of costs of $275,268.12 consisting of 48 fee items, calculated by multiplying number of hours of own time (total of 424 hours for 48 fee items) times number of units for particular service listed in Tariff times $100--Appellant arguing Skidmore v. Blackmore, [1995] 4 W.W.R. 524 (B.C.C.A.) unequivocally declared rule people who represent themselves get nothing for efforts by way of costs now outmoded--Skidmore containing practical commentary concerning costs as indemnity as distinct from costs as deterrent, but must be construed in context in which decided--In Skidmore, Court considered issue of costs in context of court exercising discretion as tool, i.e. by award or denial of costs, to control process as function of one or several factors--Discretion comparable to that contemplated by Federal Court Rules, 1998, r. 400(1)--Skidmore might have helped appellant in this litigation only if had raised it before panel in Federal Court of Appeal hearing case and urged that directions for compensation for time as self-represented litigant be included as part of judgment and as function of r. 400(1)--Circumstances in Skidmore not part of process of assessment of costs, but clearly addressed inclusion of appropriate directions in award of costs, as part of judgment, which in turn would permit allowance at subsequent assessment of costs for time of lay litigant--Skidmore decided in context comparable to discretion exercised under r. 400(1), but not in context comparable to discretion under r. 405 to resolve individual issues of entitlement at assessment--Court decides in first instance, under r. 400(1), whether entitlement to costs--Until that happens, assessment officer has no authority to proceed under r. 405 and cannot usurp Court's authority under r. 400(1)--As well, Lavigne v. Canada (Human Resources Development) (1998), 229 N.R. 205 (F.C.A.) rejecting proposition of compensation for time of lay litigant, rejecting rule denying such compensation breaches Charter rights--Canada (Attorney General) v. Kahn (1998), 160 F.T.R. 83 (F.C.T.D.) allowing lump sum to reimburse lay litigant for "lost" time in representing himself, illustrating discretion possible under r. 400(1) for exercise by judge, but not by assessment officer--Appellant incorrectly claimed number of units beyond ranges permitted by r. 407 and incorrectly multiplied number of units by number of hours claimed for services--Litigant entitled to only partial indemnity cannot claim full indemnity by means of solicitor-client bill charged as disbursement in bill of costs--Appellant misconceived award of costs, purpose of partial indemnity embodied in Tariff--Comparing solicitor-client costs as opposed to party and party costs--Bill of costs assessed, allowed at $42,381.22--Federal Court Rules, 1998, SOR/98-106, rr. 400(1), 405, 407.