Henco v. R. – TCC: Court awards $576,673 in costs against CRA

Bill Innes on Current Tax Cases

http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/73491/index.do New Window

Henco Industries Limited v. The Queen (September 18, 2014 – 2014 TCC 278) is one of the largest costs awards ever issued by the Tax Court of Canada. The underlying issue had to do with the taxation of proceeds received by the owner of land known as Douglas Creek Estates which was at the epicentre of a protest and occupation by members of the Six Nations in 2006.

https://williaminnes.wordpress.com/2014/06/30/henco-industries-v-r-tcc-15-8-m-paid-by-ontario-to-landowner-at-center-of-six-nations-occupation-non-taxable/

The taxpayer was completely successful on the main issue, i.e., that the receipt from the province of Ontario was non-taxable. Nevertheless the court was measured in the award of costs, not casting aspersions at either side:

[20] With respect to both Parties, they both chose to conduct their litigation in a manner to represent their respective client’s best interest as keenly as possible. None of these accusations flying both ways do either side credit. It smacks more of schoolyard haggling than respectful acknowledgment of how an opponent chooses to run his or her case. For this factor to be determinative, it must be clear, I would respectfully suggest, that a party has acted unreasonably in its conduct. I have not been convinced that either side has so acted. This factor plays no role in my deliberations.

[21] There are no other factors that I deem relevant in determining costs. With no settlement offer playing into this award, no vexatious or egregious behaviour and no behaviour tending to lengthen the proceeding unjustifiably, I am left to weigh the factors of the successful result, the significant amount and the importance of the issues, with some lesser weight given to the volume of work and complexity of issues. These do not justify the percentage of solicitor-client costs sought by the Appellant, but fall more within the range the Respondent suggests, as an alternative, is appropriate in such cases – 20% to 50%, albeit at the higher end of that scale. I set the award at 45% of the solicitor-client costs.

The court awarded the taxpayer 45% of its actual costs of $1,203,770 being $541,696 plus disbursements of $34,977 for a total of $576,673. The Crown had argued for a costs award of the amount based on Tariff of $27,550 plus disbursements of $19,913.77, though in the alternative requesting an award between 20% to 50% of actual costs.

Despite the balanced tone of this decision it is sure to send some shock waves in the direction of CRA.