A-210-86
F. K. Clayton Group Limited and Frederick Keith
Clayton (Appellants) (Applicants)
v.
Minister of National Revenue, Canada and James
Bagnall, Director—Taxation, of the London Dis
trict Tax Office of the Department of National
Revenue, Taxation (as at April 17, 1984) and
R. O. Bailey, Special Investigator under the
Income Tax Act and Attorney General for Canada
(Respondents) (Respondents)
INDEXED AS: F. K. CLAYTON GROUP LTD. v. M.N.R.
Court of Appeal, Heald, Mahoney and Hugessen
JJ.—Toronto, February 24; Ottawa, March 3,
1988.
Constitutional law — Charter of Rights — Criminal process
— Seizures — Income Tax Act, s. 231(1)(d) and 231(2) void as
inconsistent with Charter, s. 8 — Warrantless seizure prima
facie unreasonable — Lack of objective standard in legislation
against which to measure validity of seizure — Mere appear
ance of violation insufficient justification for seizure — Sei
zure of records that "may" be required as evidence of violation
of "any" provision of Act too broad — Failure to limit seizure
to urgent cases where otherwise evidence lost — No opportu
nity to contest seizure before occurs.
Judicial review — Prerogative writs — Certiorari County
Court judge ordering retention of seized documents pursuant
to Income Tax Act, s. 231(2) — Trial Judge erred in quashing
application for retention — No jurisdiction to quash proceed
ings before County Court judge, acting within jurisdiction
Order inappropriate as application already spent when Trial
Judge purporting to quash it.
Income tax — Seizures — Trial Judge erred in finding
seizure reasonable although statutory provision authorizing it
invalid — Also unreasonable as confrontation giving rise to
suggestion of urgency caused by departmental official, and
seizure exceeding documents necessary to prove offences —
Where seizure set aside as unreasonable, order for return of
seized goods normally made.
Federal Court Jurisdiction — Appeal Division — County
Court judge ordering retention of documents until produced
"in any court proceedings" — Court of Appeal's order to
return documents neither contradicting nor varying such order.
This was an appeal against the Trial Judge's order that a
seizure of documents pursuant to paragraph 231(1)(d) of the
Income Tax Act was reasonable although illegal, and that the
documents did not have to be returned until produced in court.
The Minister cross-appealed from those parts of the order
holding paragraph 231(1)(d) and subsection 231(2) void for
inconsistency with Charter section 8, and quashing the Minis
ter's application for retention.
In the course of a tax audit, the special investigator began to
suspect that he was dealing with a case of violations under
section 239, involving a pattern of willful misrepresentations.
When confronted with the suspect entries, the taxpayer admit
ted that certain expenses were personal, and that at least one
invoice had been falsely prepared to represent a business expen
diture. The company's books were seized and a County Court
judge subsequently ordered the retention of the books.
Held, the appeal should be allowed with costs and the
cross-appeal (as to the question of the quashing of the applica
tion for retention) should be allowed without costs.
Although the privacy interest protected by Charter section 8
was somewhat diminished in that the audit, the validity of
which was not in question, had already taken place, a citizen
who has been subjected to a tax audit still has an interest in the
protection of the confidentiality of the results of the audit. The
appellants also had an important property- interest in their
books, a right also protected by section 8. Judicial notice should
be taken of the difficulty in carrying on business without such
books.
The Trial Judge properly found paragraph 231(1)(d) and
subsection 231(2) to be contrary to the guarantee against
unreasonable search and seizure contained in Charter section 8
for the following reasons: (1) a warrantless seizure is prima
facie unreasonable; (2) the legislation does not set an objective
standard against which to measure the validity of the seizure;
(3) the requirement of a mere appearance of a violation is not
sufficient justification for the seizure; (4) the seizure of records
that "may" be required as evidence of the violation of "any"
provision of the Act is too broad; (5) the statute does not limit
the seizure to urgent cases where a failure to seize might result
in the loss or destruction of important evidence. The facts did
not support the suggestion of urgency as the special investigator
provoked the so-called confrontation to which reference was
made in his affidavit. Officialdom cannot create its own emer
gencies and then use them to justify a seizure. Considering that
the taxpayer admitted every allegation made against him and
that the investigator came with boxes in which to take away
seized documents, one had to wonder what the taxpayer could
have done to avert an "emergency"; (6) since the statute does
not provide an opportunity to contest the seizure before it takes
place, cases dealing with subpoenas duces tecum did not assist
the respondents.
The Trial Judge did, however, err in quashing the application
for retention. At the time he gave his order, the application was
spent and the order ineffective because a County Court judge
had already dealt with the application and granted an order for
retention. The Trial Judge did not have jurisdiction to quash
proceedings before a County Court judge who had jurisdiction
under the statute. The finding that subsection 2310) was void
rendered the County Court judge's order invalid, but the form
of the order of the Trial Judge was inappropriate.
The seizure must have been unreasonable because the statu
tory provision authorizing it was held to be unreasonable. That
the seizing officer acted in good faith and in accordance with
the law as he then believed it to be, did not make the seizure
reasonable. Furthermore, the special investigator acted unrea
sonably in that he instigated the confrontation, and the seizure
far exceeded the documents necessary to prove the suspected
offences. The Trial Judge's decision not to order the return of
the documents was made prior to the recent Court of Appeal
holding in Lagiorgia that when an order sets aside a seizure as
unreasonable, an order for the return of the things seized
should normally be made.
The Court of Appeal had jurisdiction to order the return of
the documents as such order neither contradicted nor varied the
County Court judge's order, which allowed the Minister to
retain the documents until they were produced "in any court
proceedings".
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 8.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5] (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1), s. 96.
Income Tax Act, S.C. 1970-71-72, c. 63 ss.
231(1)(d),(2), 241.
Plant Quarantine Act, R.S.C. 1970, c. P-13, s. 9(4).
CASES JUDICIALLY CONSIDERED
APPLIED:
United States v. Bisceglia, 420 U.S. 141 (6th Cir. 1975);
Minister of National Revenue v. Kruger Inc., [1984] 2
F.C. 535 (C.A.); Lagiorgia v. Canada, [1987] 3 F.C. 28
(C.A.).
CONSIDERED:
Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145;
Bertram S. Miller Ltd. v. R., [1986] 3 F.C. 291 (C.A.).
REFERRED TO:
Ziegler v. Hunter, [1984] 2 F.C. 608 (C.A.); Thomson
Newspapers Ltd. et al. v. Director of Investigation and
Research et al. (1986), 17 O.A.C. 330.
COUNSEL:
James A. Giffen for appellants (applicants).
S. Patricia Lee for respondents (respondents).
SOLICITORS:
Giffen & Partners, London, Ontario for
appellants (applicants).
Deputy Attorney General of Canada for
respondents (respondents).
The following are the reasons for judgment
rendered in English by
HUGESSEN J.: This is an appeal and a cross-
appeal from a decision of Walsh J.' By that
decision the Trial Judge found paragraph
231(1)(d) and subsection 231(2) of the Income
Tax Act [S.C. 1970-71-72, c. 63], as they then
read, to be of no force and effect as being incon
sistent with section 8 of the Charter [Canadian
Charter of Rights and Freedoms, being Part I of
the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)]. He quashed an
application for retention made by the Minister
pursuant to subsection 231(2) but declared that
such quashing was not to be construed as a collat
eral attack on an order for retention made by a
County Court judge pursuant to such application.
He found the seizure, although illegal, not to have
been unreasonable and he ruled that the docu
ments seized need not be returned until they were
produced in court proceedings.
The appellant taxpayers appeal against those
parts of the Trial Judge's order dealing with the
reasonableness of the seizure and the return of the
seized documents. The Minister's cross-appeal
attacks those parts relating to the adequacy of the
relevant provisions of the Income Tax Act in light
of the Charter and the quashing of the application
under subsection 231(2). It is logical to deal first
with the issues raised by the cross-appeal and only
subsequently with those raised by the appeal, if
that is found to be necessary. The case was argued
before us on that basis.
Reasons reported at [1986] 2 F.C. 105 (T.D.).
The background is simple. In the course of an
audit of the books of the appellant F. K. Clayton
Group Limited for the years 1978 to 1982, the
Minister's auditors became suspicious that certain
expenses charged to the company had, in fact,
been for the personal benefit of the controlling
shareholder, the appellant F. K. Clayton. In
accordance with apparently routine departmental
practice, the matter was turned over to a "special
investigator", Mr. R. O. Bailey. Mr. Bailey, after
making an extensive review of the auditor's work
sheets and conducting other investigations, con
cluded that there was indeed matter for further
enquiry. He arranged to meet with Mr. Clayton at
the Clayton company's offices on December 21,
1983. In the course of that day, he confronted Mr.
Clayton with a number of the suspect entries and
obtained from him an admission not only that the
expenses in question were personal rather than
business expenses of the company but also that at
least one invoice had been prepared by him to
falsely represent a business expenditure of $10,000
which was, in fact, used to purchase a boat for his
personal use. On the following day, December 22,
the two met again and Mr. Bailey obtained from
Mr. Clayton a number of further admissions
regarding other expenses charged to the company's
account which had, in fact, been for his own
personal benefit. It appeared to Mr. Bailey that he
was dealing with a case of violations under section
239 of the Income Tax Act and that those viola
tions indicated a pattern of willful conduct on the
part of the taxpayer aimed at misrepresenting the
amount of taxes payable. Mr. Bailey decided to
seize the books and records of the company pursu
ant to paragraph 231(1)(d). In an affidavit filed in
the Trial Division, he describes his reasons for
doing so as follows:
22. I believed that in the circumstances where the taxpayer
had been directly confronted with the evidence of improperly
deducted and misrepresented expenses, it was necessary to
secure the books, records and other documents which were or
may be evidence because they may not have been safe if left in
the possession of the taxpayers. (Appeal Book, at page 52).
The seized documents filled two boxes. They
appear to comprise most of the accounting and
banking books and records of the company for the
years 1978 through 1981 inclusive, although some
of the documents go back to as early as July 1973
and others are dated as recently as November
1982.
On a subsequent application, pursuant to sub
section 231(2), a County Court judge granted an
order
... THAT the documents, books, records, papers or things
referred to in the above application made on behalf of the
Minister of National Revenue be retained by him until they are
produced in any court proceedings.
The relevant portions of the Income Tax Act
have since been amended. At the time of the
events here in issue, however, they read as follows:
231. (1) Any person thereunto authorized by the Minister,
for any purpose related to the administration or enforcement of
this Act, may, at all reasonable times, enter into any premises
or place where any business is carried on or any property is
kept or anything is done in connection with any business or any
books or records are or should be kept, and
(a) audit or examine the books and records and any account,
voucher, letter, telegram or other document which relates or
may relate to the information that is or should be in the
books or records or the amount of tax payable under this
Act,
(b) examine property described by an inventory or any prop
erty, process or matter an examination of which may, in his
opinion, assist him in determining the accuracy of an inven
tory or in ascertaining the information that is or should be in
the books or records or the amount of any tax payable under
this Act,
(c) require the owner or manager of the property or business
and any other person on the premises or place to give him all
reasonable assistance with his audit or examination and to
answer all proper questions relating to the audit or examina
tion either orally or, if he so requires, in writing, on oath or
by statutory declaration and, for that purpose, require the
owner or manager to attend at the premises or place with
him, and
(d) if, during the course of an audit or examination, it
appears to him that there has been a violation of this Act or a
regulation, seize and take away any of the documents, books,
records, papers or things that may be required as evidence as
to the violation of any provision of this Act or a regulation.
(2) The Minister shall,
(a) within 120 days from the date of seizure of any docu
ments, books, records, papers or things pursuant to para
graph (1)(d), or
(b) if within that time an application is made under this
subsection that is, after the expiration of that time, rejected,
then forthwith upon the disposition of the application,
return the documents, books, records, papers or things to the
person from whom they were seized unless a judge of a superior
court or county court, on application made by or on behalf of
the Minister, supported by evidence on oath establishing that
the Minister has reasonable and probable grounds to believe
that there has been a violation of this Act or a regulation and
that the seized documents, books, records, papers or things are
or may be required as evidence in relation thereto, orders that
they be retained by the Minister until they are produced in any
court proceedings, which order the judge is hereby empowered
to give on ex parte application.
At the outset, it must be borne in mind that the
appellants' Charter-based attack was and is lim
ited to the power of seizure granted by paragraph
231(1)(d) and the concomitant power of retention
granted by subsection 231(2). Neither at trial nor
on appeal did the appellants take issue with the
rights of audit and examination granted by para
graphs 231(1)(a), (b) and (c). Those rights are
clearly very closely akin to a right of search. They
undoubtedly represent a substantial intrusion upon
the privacy of the subject which is protected by
section 8 of the Charter. Any assessment of their
validity would have to balance the prima facie
unreasonableness of a warrantless search against
the need for some sort of random compulsory audit
in any self-reporting and self-assessing tax system.
Although the present case does not require us to
undertake that balancing process, I find particu
larly apposite the words of Burger C.J. in United
States v. Bisceglia, 420 U.S. 141 (6th Cir. 1975),
at pages 145-146:
We begin examination of these sections against the familiar
background that our tax structure is based on a system of
self-reporting. There is legal compulsion, to be sure, but basi
cally the Government depends upon the good faith and integri
ty of each potential taxpayer to disclose honestly all informa
tion relevant to tax liability. Nonetheless, it would be naive to
ignore the reality that some persons attempt to outwit the
system, and tax evaders are not readily identifiable. Thus,
§ 7601 gives the Internal Revenue Service a broad mandate to
investigate and audit "persons who may be liable" for taxes and
§ 7602 provides the power to "examine any books, papers,
records, or other data which may be relevant ... [and to
summon] any person having possession ... of books of account
... relevant or material to such inquiry." Of necessity, the
investigative authority so provided is not limited to situations in
which there is probable cause, in the traditional sense, to
believe that a violation of the tax laws exists. United States v.
Powell, 379 U.S. 48 (1964). The purpose of the statutes is not
to accuse, but to inquire. Although such investigations unques
tionably involve some invasion of privacy, they are essential to
our self-reporting system, and the alternatives could well
involve far less agreeable invasions of house, business, and
records.
Where, as in the present case, the audit (search)
has already taken place and its validity is not
questioned, the privacy interest protected by sec
tion 8 is clearly somewhat diminished. Thus,
although the decision of the Supreme Court in
Hunter et al. v. Southam Inc., [1984] 2 S.C.R.
145, must remain the leading authority on the
limits of what the Charter permits in searches and
seizures, there are some distinctions that must be
made. In some respects, the position is analogous
to that dealt with in this Court's decision in Ber-
tram S. Miller Ltd. v. R., [1986] 3 F.C. 291.
In Southam, the protection of privacy was con
trolling: the impugned warrant authorized the
search at large into books and records which were
otherwise utterly unaccessible to officials and in
which Southam had every reasonable expectation
of privacy. In Miller, there was no privacy interest
whatsoever remaining to be protected: a consensu
al search (inspection) had revealed the existence of
dangerous parasites in nursery stock and the issue
was whether officials could, without warrant, pro
ceed to the destruction of the stock to prevent the
pest from spreading. Here, as I have indicated, the
appellants' privacy interest in their accounting
books and records is diminished by the fact that
officials of the Department of Revenue have
already examined them in detail. This is not to say,
however, that the privacy interest has altogether
disappeared as it had in Miller: the Income Tax
Act requires substantial disclosure by taxpayers
and authorizes extensive investigation by Depart
ment officials but it also imposes on the latter a
strict and onerous obligation of secrecy. What is
revealed on a tax return or learned on a tax audit
may not be disclosed except as specifically pro
vided by law. Section 241 of the Income Tax Act
provides detailed rules to ensure secrecy and
penalties for their breach.
In my view, the citizen who is subjected to a tax
audit has an interest in the protection of the
confidentiality of the results of that audit quite as
much as he does in his income tax returns them
selves. Unless and until court proceedings are
brought, the taxpayer is entitled to expect that his
personal financial affairs will remain private. Thus
his privacy interest, while perhaps not quite as
high as the one recognized in Southam, is still very
substantial indeed.
Privacy, however, is not the only interest pro
tected by section 8. As the reasons for judgment in
Southam demonstrate, the rule requiring that
searches be previously authorized by warrant had
its origins in the need to protect property rights. In
the present case, the appellants have an important
property interest in the things seized which are, by
definition, the books and records of the business
carried on by them. I believe we should take
judicial notice of the fact that the seizure of such
books and records and their physical removal from
the company's business premises is bound to have
the most serious repercussions on its ability to
carry on its business.
All these things being considered, it is my opin
ion that the Trial Judge properly found paragraph
231(1) (d) and subsection 231(2) to be contrary to
the guarantee against unreasonable search and
seizure contained in section 8.
In the first place, the seizure, being warrantless,
is prima facie unreasonable; it does not have the
prior sanction of an impartial arbiter "capable of
acting judicially". 2
Secondly, the legislation sets no objective stand
ard against which to test the validity of the sei
zure. The words of paragraph 231(1)(d) authorize
the official to make a wholly subjective assessment
of the need to seize:
231. (1) ...
(d) if ... it appears to him ...
Thirdly, the standard which is set by the legisla
tion is far too low, requiring only the appearance
of a violation to justify the seizure. As was stated
in Southam [at page 167]:
2 See Southam, supra, at pp. 161-162.
The state's interest in detecting and preventing crime begins to
prevail over the individual's interest in being left alone at the
point where credibly-based probability replaces suspicion.
In this respect, paragraph 231(1) (d) may be con
trasted unfavourably with subsection 9(4) of the
Plant Quarantine Act, 3 dealt with by this Court in
Miller, which required as a condition of seizure
the formation of belief on reasonable grounds that
the matter to be seized constituted a hazard.
Fourthly, it is my view that the scope of the
seizure authorized by paragraph 231(1) (d) is too
broad. As interpreted by the Minister, once a
violation of the Act or Regulations has taken
place, the paragraph authorizes the seizure of
records that "may be required as evidence as to
the violation of any provision of [the] Act."
This is precisely the type of provision which has
already been found by this Court to fall foul of
section 8: 4
However, I cannot accept the general proposition that the mere
fact that a taxpayer has, at a particular time, committed an
offence under the Income Tax Act or the Regulations, however
trifling that offence, affords sufficient justification for the
general power of search and seizure conferred by subsection
231(4). In my view, that subsection violates section 8 of the
Constitution Act, 1982 in that it contravenes the right of the
taxpayer "to be secure against unreasonable search or seizure."
Fifthly, there is no requirement in the statute
limiting the seizure to urgent cases where a failure
to seize might result in the loss or destruction of
important evidence. Nor do the facts of this case
support counsel's suggestion that there was in real
ity any such urgency. It will be recalled that Mr.
Bailey's affidavit, quoted above, asserts that the
confrontation with the taxpayer had made it neces
sary to seize the documents. But Mr. Bailey him
self had provoked that confrontation. I cannot
accept that officialdom can create its own emer
gencies and then use them to justify a seizure of
property. It will also be recalled that during the
so-called confrontation, Mr. Clayton had admitted
virtually every allegation which was made against
him. Since the evidence shows that Mr. Bailey
3 R.S.C. 1970, c. P-13.
4 Minister of National Revenue v. Kruger Inc., [1984] 2 F.C.
535, per Pratt J., at p. 549.
came to the meeting with the boxes necessary to
carry off the seized documents already in his car,
one wonders what possible responses Mr. Clayton
might have made to Mr. Bailey's questions which
would have had the effect of averting the
"emergency".
Finally, on this aspect of the matter I would
note that this is not a case where the statute
provides an opportunity to contest the seizure
before it takes place, such as was before the
Supreme Court of the United States in Bisceglia,
supra. Even subsection 231(2), allowing for the
retention of the documents after they have been
seized, specifically provides that the judicial
authorization may be obtained ex parte. Cases in
this country dealing with subpoenas duces tecum 5
are thus of no assistance to the respondents.
The only remaining issue to be dealt with on the
Crown's cross-appeal is that part of the Trial
Judge's order which quashed the application for
retention made pursuant to subsection 231(2).
With respect, the Trial Judge was in error here. In
the first place, at the time that he gave his order,
the application had already been acted upon and
an order issued pursuant thereto. The application
was thus spent and the order quashing it was
ineffective. More important still, the application
was made to a judge appointed under section 96 of
the Constitution Act, 1867 [30 & 31 Vict., c. 3
(U.K.) [R.S.C. 1970, Appendix II, No. 5] (as am.
by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1)] and having
jurisdiction under the statute. The Trial Judge had
no jurisdiction to quash proceedings before such a
judge. It is, of course, the case that the effect of
the finding that subsection 231(2) is of no force
and effect is to render the County Court judge's
order nugatory but the form of the order chosen by
the Trial Judge was wholly inappropriate.
This brings me to the principal appeal, relating
to the disposition of the seized documents. It will
5 See Ziegler v. Hunter, [1984] 2 F.C. 608 (C.A.), and
Thomson Newspapers Ltd. et al. v. Director of Investigation
and Research et al. (1986), 17 O.A.C. 330 (C.A.).
be recalled that the Trial Judge made a finding
that the seizure was not unreasonable; based on
that finding he ruled that the documents need not
be returned. In my opinion, both the finding and
the ruling are clearly wrong.
In the first place, as a matter of law, I do not
think that a seizure whose sole justification in law
is a provision which is found to be unreasonable
can itself be said to be reasonable. The seizing
officer may have acted in good faith and in accord
ance with the law as he then presumably believed
it to be, but that cannot make the seizure itself
reasonable. It need hardly be added that there can
be no justification for the seizure at common law
or otherwise than in virtue of the specific text of
paragraph 231(1)(d).
Furthermore, and notwithstanding the Trial
Judge's finding, I cannot accept that it is proper to
characterize Mr. Bailey's action in the present
circumstances as reasonable. He was, of course, in
good faith and believed the law allowed him to do
what he did but, on the showing of his own affida
vit, he justified the seizure by a confrontation
which was entirely of his own making. Also, as I
have indicated, and again no doubt in good faith,
Mr. Bailey's seizure extended far beyond the docu
ments which were necessary to provide evidence of
the offences which he, at that time, had reason to
believe had been committed.
With respect to the Trial Judge's refusal to
order the return of the documents, it is only fair to
point out that his ruling was made prior to this
Court's decision in Lagiorgia v. Canada, [1987] 3
F.C. 28. On this aspect of the matter, that case is,
despite counsel's plea to the contrary, controlling:
the normal disposition to make on an order setting
aside a seizure as being unreasonable in virtue of
section 8 of the Charter includes as a minimum an
order for the return of the things seized. Counsel
asked that we should at least delay the making of
such an order until ten days after the entry of
judgment; I can see no basis for doing this. If the
Crown has a right to seize the documents other
than in virtue of paragraph 231(1) (d), then it is
free to attempt to exercise it. If the Crown has no
such right, the materials should be returned
forthwith.
I would only add that an order for the return of
the seized documents neither contradicts nor varies
the terms of the order given by the County Court
judge. That order, which is quoted above, simply
allows the Minister to retain the documents "until
they are produced in any court proceedings".
Clearly the reference to court proceedings is not
limited to proceedings before the County Court
judge who signed the order. Indeed I do not think
it is limited to proceedings in courts in the same
province since it is entirely possible that a seizure
under paragraph 231(1)(d) might be carried out in
one province and the documents seized be used in
proceedings before the courts of another province
where a defendant has its head office or principal
place of business. There is no question as to this
Court's jurisdiction in the present proceedings and
that manifestly includes the jurisdiction to order
the production and return of the documents.
Finally, on the question of costs, the Trial Judge
awarded none on the basis that success had been
divided. That is no longer the case and success
both on the appeal and on the cross-appeal has
gone almost entirely to the appellants. The
Crown's success on the cross-appeal is limited to
the technical question of the quashing of the
application under subsection 232(2).
Accordingly I would allow the appeal with costs
and the cross-appeal without costs. I would strike
out all that part of the Trial Judge's order follow
ing paragraph (1) thereof and substitute therefor
an order that the documents seized and taken
away on December 22, 1983, by the respondent R.
O. Bailey, as well as any copies and extracts
thereof, be forthwith returned to the appellants. I
would further order that the appellants recover
their costs of the proceedings in the Trial Division.
HEALD J.: I agree.
MA HONEY J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.