Breathe E-Z Homes Ltd. v. R. – TCC: Applicant’s counsel ordered to pay $743.43 costs personally in extension applications

Bill Innes on Current Tax Cases

http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/72401/index.do New Window

Breathe E-Z Homes Ltd v. M.N.R. (June 19, 2014 – 2014 TCC 201) was a costs hearing in a decision blogged earlier on this site. The court granted the applicant’s application for extension of the time to file EI and CPP appeals but ordered the costs payable personally by the applicant’s counsel. In this hearing the court quantified the costs at $743.43 and detailed its rationale for making the award:

[6] Re-examination of the original order of this Court reveals broader reasons than those narrowly defined by Applicant’s counsel. The aggregate “technical” defaults committed required this Court to reserve its judgment, review all authorities and provide the highest and best value to the Applicant’s facts in the applications. Such a process was not related to correcting a single technical default; in the absence of such detailed and nuanced factual findings, there would have been no jurisdiction to issue the extension order. Jurisdiction is not technical or nuanced. It is a fundamental and elemental principle of natural justice. In the Court’s view, the Respondent could not have consented in this matter prior to the Court’s hearing and its findings of fact. Applicant counsel’s litany of omissions were not “technical”. Factually, they lacked due diligence, proper following of systems and best practices and, most importantly, communications with the Applicant (now Appellant).

[7] Simplistically, one might have difficulty with ordering costs against Applicant’s counsel, preferring to believe such cost awards relating to errors, omissions and conduct are more fittingly and fairly assessed against the Respondent where warranted, given the Crown’s enhanced authority and resources. This Court does not ascribe to that small and unbalanced view. Applicant’s counsel, in his own application notice, referenced and willingly admitted his office’s multiple omissions and during his argument before the Court pleaded that the Applicant should not be penalized for errors and omission not of his own choosing or making and which the Applicant himself did his best to avoid, despite his counsel. This Court agrees. Just as Respondent’s counsel owes a duty to the Court and taxpayers to review matters thoroughly and be wary of easy traps, lazy habits and avoidable errors, so to does Applicant’s counsel albeit in reserve. The awarding of costs in these applications is designed to address the unnecessary and avoidable deployment of resources all round in what ought to have been a simple filing by Applicant’s counsel.

[8] This Court has jurisdiction to make this order for the costs in favour of the Respondent: De Costa v R, 2008 TCC 136. It likely could have been convinced to depart from the Tariff and to award enhanced costs. Given the Respondent’s more constrained submissions, it will not do so. In breaching the objective standard of care in the review of the file, non-use of proper office systems and the pasture of open client communications, Applicant’s counsel is required to pay such reasonable costs. The errors and omissions giving rise to the necessity of the applications were exclusively and unequivocally those of Applicant’s counsel or of those in law for whose actions Applicant’s counsel is responsible. On that basis, costs are payable personally by Applicant’s counsel to the Respondent in the amount of $743.43.