FRED TURNER Appellant v. HER MAJESTY THE QUEEN, 2003 FCA 173

Date: 20030402 Docket: A-648-01 Citation: 2003 FCA 173 CORAM: ROTHSTEIN J.A. EVANS J.A. MALONE J.A. BETWEEN: FRED TURNER Appellant and HER MAJESTY THE QUEEN Respondent Heard at Yellowknife, Northwest Territories, on March 31, 2003. Judgment delivered at Calgary, Alberta, on Wednesday, April 2, 2003. REASONS FOR JUDGMENT BY: EVANS J.A. CONCURRED IN BY: ROTHSTEIN J.A. MALONE J.A. Date: 20030402 Docket: A-648-01 Neutral citation: 2003 FCA 173 CORAM: ROTHSTEIN J.A. EVANS J.A. MALONE J.A.

BETWEEN: FRED TURNER Appellant and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT EVANS J.A. [1] This is an appeal by Fred Turner from a decision of Nadon J. (as he then was) dismissing a motion requesting a review of anassessment of costs by the Assessment Officer in the amount of $2,381.22. Mr. Turner had claimed costs in the sum of $275,268.12.Nadon J.'s decision is reported as Turner v. The Queen (2001), 2001 FCA 289 , 211 F.T.R. 299. [2] The costs dispute arose from an order of this Court, dated June 27, 2000, in which, when allowing an appeal by Mr.

Turnerfrom a decision of the Tax Court of Canada, the Court ordered in a written judgment: "The appeal is allowed with costs". This decision ofthe Federal Court of Appeal is reported as Turner v. The Queen (2000), 259 N.R. 92. Mr. Turner neither asked for a reconsideration, norappealed.

[3] Mr. Turner's principal complaint in this appeal is that, as a self-represented litigant, his costs include an amount thatrecognizes the time that he had spent in pursuing his eventually successful appeals against the Minister's assessment of his income taxliability for 1994. Mr. Turner relied on Skidmore v. Blackmore (1995), (BC CA), 2 B.C.L.R. (3d) 201 (B.C.C.A.) asauthority for the proposition that he was entitled to be compensated for his time by an award of costs. [4] I cannot accept this argument. Skidmore v.

Blackmore decided that the County Court of British Columbia had the power tomake an award of costs in favour of a self-represented litigant that was not confined to disbursements. In our case, however, this Courtawarded costs in favour of Mr. Turner in its judgment of June 27, 2000. Hence, the only question before the Assessment Officer waswhat the Court meant when it ordered that the appeal was allowed "with costs", a question that Skidmore v. Blackmore did not address. [5] The Assessment Officer decided that the Court meant to award Mr.

Turner party and party costs, and that, in the absence ofany directions to the contrary, the award should be calculated pursuant to Tariff B of the Federal Court Rules, 1998,. However, Tariff Bonly provides for the partial recovery of legal fees and the usual disbursements, but not the value of the time spent on litigation byparties, whether or not they are self-represented. [6] In my opinion, Mr. Stinson was correct in reaching this conclusion: Munro v. Canada, (1998), (FCA),163 D.L.R. (4th) 541 (F.C.A.).

Further, the fact that Tariff B does not provide for a self-represented litigant's lost time does not violateMr. Turner's right to equality guaranteed by

section 15 of the Charter: Rubin v. Canada (Attorney General), (FC),[1990] 3 F.C. 642 (T.D.); Lavigne v. Canada (Human Resources Development) (1998), 228 N.R. 124 (F.C.A.). [7] This is not to say that, in the exercise of the plenary discretion over costs granted by Rule 400(1), the Court may not makean award that provides a litigant with some compensation for items that fall neither within disbursements as normally understood, norcounsel fees: see, for example, Entreprises A.B. Rimouski Inc. v. Canada, [2000] F.C.J.

No. 501 (C.A.). [8] However, in the case before us, the Court made no such special award in favour of Mr. Turner in its judgment of June 27,2000, even though it had been very critical of Revenue Canada's conduct. It was not within the jurisdiction of the Assessment Officer toamend the order made by the Court. Nor on an appeal from Nadon J.'s dismissal of Mr.

Turner's motion under Rule 414 for a review ofthe Assessment Officer's decision may this Court amend the costs order made by another panel of this Court when it allowed Mr.Turner's appeal against his income tax assessment. [9] I shall now deal with those relevant to his appeal. First, he asked to call a witness to testify as to the nature of the servicesthat he had rendered to Mr. Turner with respect to his appeal. The request was denied, on the ground that this evidence was not beforethe Assessment Officer, and it could have been submitted to him in support of the particular item of expense claimed by Mr.

Turner. [10] Second, Mr. Turner claimed a sum of $187.25 invoiced to him on May 6, 1998, by Wallbridge & Associates, barristers andsolicitors, for professional services rendered in regard to, inter alia, the preparation of affidavits. However, since these affidavits werefiled in support of Mr. Turner's appeal in the Tax Court of Canada, he cannot claim them as costs in the appeal. [11] Third, another invoice from Wallbridge & Associates for $935.89, dated July 14, 2000, was rejected by the AssessmentOfficer on the ground that neither the invoice, nor Mr.

Turner's supporting affidavit related the amount to the pursuit of the appeal. Theinvoice stated that it was in respect of "the provision of legal advice for matters pertaining with the Government of Canada". Mr. Turneradmitted that he had consulted Wallbridge & Associates during this period in connection with other disputes in which he was involvedwith the Government of Canada. An invoice with respect to computer equipment, photocopying, consulting services, and supplies alsosuffered from the same defect. [12] Fourth, Mr.

Turner asked the Court to credit him with a sum of $1,551.04 by way of legal fees that he had incurred inobtaining advice on the award of costs made to him by this Court. The invoice was dated December 11, 2000, and, although theAssessment Officer did not make his decision, without personal appearances, until February 22, 2001, Mr. Turner did not attempt tosubmit it to him. [13] Mr. Turner told us that this was because the time for the parties to make their submissions to Mr. Stinson had expired by thetime that he received the invoice. However, Mr.

Stinson had a residual discretion to grant an extension of time in appropriatecircumstances, but Mr. Turner did not request an extension. Hence, this Court cannot now take this document into account indetermining Mr. Turner's appeal. [14] Fifth, Mr. Turner complained that the written order of the Court of Appeal did not correspond to the oral judgment. Inparticular, Mr. Turner understood Robertson J.A., the presiding judge, to have ordered that Mr. Turner was to have his costs, not only inthe Court of Appeal, but also in the Tax Court.

It is clear that the written order set aside the order of the Tax Court, and that this includedthe award of costs made against Mr. Turner by the Tax Court Judge. [15] However, in the absence of an order from the Court of Appeal awarding a successful appellant his or her costs in the courtbelow, a setting aside of an order does not automatically reverse the award of costs, as opposed to simply cancelling it. If Mr.

Turner hadwanted to complain that the Court of Appeal's order was inconsistent with its reasons for decision or an oral order, or was unduly harsh inthat it did not award him his costs in the Tax Court, his proper remedy was to have moved the Court to reconsider its decision pursuant toRule 397.

[ 16 ] Mr. Turner said that he had not done this because he did not receive a copy of the Court's judgment until 30 days after it was rendered and a motion for reconsideration under Rule 397 must be brought within 10 days from when the judgment was rendered. However, if as Mr. Turner says, he did not receive a copy of the judgment in time because it was mailed to an incorrect address, the Court might well have exercised its discretion under Rule 397(1) to permit him to make a motion "within such other time as the Court may allow". But Mr. Turner never asked the Court to extend the time.

It is not the function of this Court on an appeal from an assessment of costs to amend the previous order of another panel respecting costs. [ 17 ] For these reasons, I would dismiss the appeal and make a lump sum award of costs to the respondent in the amount of $3,750.00 inclusive of disbursements. "John M. Evans" J. A. "I agree Marshall Rothstein J.A." "I agree B. Malone J.A." FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-648-01 STYLE OF CAUSE: Fred Turner v.

Her Majesty the Queen PLACE OF HEARING: YELLOWKNIFE, Northwest Territories DATE OF HEARING: Monday, March 31, 2003 REASONS FOR JUDGMENT BY: EVANS, J.A. CONCURRED IN BY: Rothstein J.A. Malone J.A. DATED: April 2, 2003 APPEARANCES : Mr. Fred Turner ON HIS OWN BEHALF THE APPELLANT Mr. R. Scott McDougall FOR THE RESPONDENT SOLICITORS OF RECORD : Mr. Fred Turner Yellowknife, Northwest Territories ON HIS OWN BEHALF THE APPELLANT Mr. Morris A. Rosenberg Deputy Attorney General of Canada FOR THE RESPONDENT