March 06, 2012

Winston Blackmore (Appellant) v. Her Majesty the Queen (Respondent)

2012 DTC 5020
Neutral Citation: 2011 FCA 335
Federal Court of Appeal
Date: November 30, 2011

Docket No. A-233-11

History of Proceedings: Reversing costs in Blackmore v. The Queen, 2012 DTC 1053 (TCC)

Costs — Costs on solicitor–client basis — Whether trial judge erred — Federal Court Rules, SOR/98-106, Tariff B.

Facts: The taxpayer’s trial in the Tax Court of Canada was adjourned as the result of a late motion by the taxpayer, seeking a publication ban and an order precluding the use in future criminal prosecutions of the taxpayer’s witnesses’ evidence adduced at trial. The Tax Court judge allowed the Crown’s “costs thrown away” in the sum of $50,000, plus disbursements in the sum of $3,494 (2012 DTC 1053). The taxpayer appealed to the Federal Court of Appeal.

Held: The taxpayer’s appeal was allowed, and the matter returned to the Tax Court for redetermination. The Court found that the judge erred in principle. There was no doubt that the $50,000 clearly constituted an award of costs on a solicitor–client basis, for which there was no basis on the record. The taxpayer’s conduct in bringing the motion was not found by the judge to be either reprehensible, scandalous, or outrageous. Further, a sum of $2,400 attributable to a fee paid to a non-expert witness for preparation for trial was clearly not allowable under the relevant tariff.