Blackmore v. Canada
The Federal Court of Appeal held the judge erred in principle by awarding $50,000 equivalent to solicitor-client style trial-preparation fees without basis in the record and erred in allowing a $2,400 non-tariff disbursement; the appeal was allowed, the Tax Court judgment set aside and the matter remitted for...
Source-derived case information.
- Citation
- 2011 FCA 335
- Parties
- Appellant: Winston Blackmore; Respondent: Her Majesty The Queen
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 30 November 2011
- Procedural Posture
- Tax Appeal to the Federal Court of Appeal / Appeal From Tax Court Costs Order; Remitted for Redetermination
- Outcome
- Appeal allowed with costs; Tax Court judgment set aside and matter remitted to Tax Court for redetermination
- Legal Topics
- Costs Thrown Away, Solicitor Client Costs, Disbursements, Publication Ban Motion, Adjournment Due to Late Motion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Winston Blackmore
Appellant
Her Majesty The Queen
Respondent
Procedural Posture
Tax Appeal to the Federal Court of Appeal / Appeal From Tax Court Costs Order; Remitted for Redetermination
Legal Issues
- 1 Whether the $50,000 award constituted an improper award of solicitor-client costs
- 2 Whether disbursements of $3,494 (including $2,400 paid to a non-expert witness for trial preparation) were allowable under the tariff
- 3 Whether the appellant's late motion justified extraordinary costs given it was not found reprehensible or scandalous
Ratio Decidendi
The Federal Court of Appeal held the judge erred in principle by awarding $50,000 equivalent to solicitor-client style trial-preparation fees without basis in the record and erred in allowing a $2,400 non-tariff disbursement; the appeal was allowed, the Tax Court judgment set aside and the matter remitted for redetermination.
Court Disposition
Appeal allowed with costs; Tax Court judgment set aside and matter remitted to Tax Court for redetermination
Orders
- Appeal allowed with costs
- Judgment of the Tax Court (dated June 7, 2011) set aside
Full Case Text
Judgment text and source record
1 paragraphs
Blackmore v. Canada Court (s) Database Federal Court of Appeal Decisions Date 2011-11-30 Neutral citation 2011 FCA 335 File numbers A-233-11 Decision Content Federal Court of Appeal Cour d'appel fédérale Date: 20111130 Docket: A-233-11 Citation: 2011 FCA 335 CORAM: NADON J.A. SHARLOW J.A. MAINVILLE J.A. BETWEEN: WINSTON BLACKMORE Appellant and HER MAJESTY THE QUEEN Respondent Heard at Vancouver, British Columbia, on November 30, 2011. Judgment delivered from the Bench at Vancouver, British Columbia, on November 30, 2011. REASONS FOR JUDGMENT OF THE COURT BY: NADON J.A. Federal Court of Appeal Cour d'appel fédérale Date: 20111130 Docket: A-233-11 Citation: 2011 FCA 335 CORAM: NADON J.A. SHARLOW J.A. MAINVILLE J.A. BETWEEN: WINSTON BLACKMORE Appellant and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Vancouver, British Columbia, on November 30, 2011) NADON J.A. [1] Before us is an appeal from a decision of Campbell Miller J. (the “judge”) of the Tax Court of Canada dated June 3, 2011, wherein the judge allowed the respondent’s “costs thrown away” in the sum of $50,000 plus disbursements in the sum of $3,494 payable within three months of his Judgment. [2] We are all agreed that the judge erred in principle in allowing $50,000 to the respondent in respect of the “thrown away costs” resulting from the adjournment of the trial following the late presentation of a motion by the appellant seeking a publication ban and an order precluding the use in future criminal prosecutions of the appellant’s witnesses’ evidence adduced at trial. [3] There can be no doubt that the $50,000 – representing the respondent’s legal fees for trial preparation calculated on an hourly basis – clearly constitutes an award of costs on a solicitor/client basis for which there is, in our respectful view, no basis on the record before us. The appellant’s conduct in bringing the motion was not found by the judge to be either reprehensible, scandalous or outrageous. [4] With respect to the disbursements of $3,494 allowed by the judge, a sum of $2,400 was attributable to a fee paid to a non-expert witness in respect of preparation for trial. That amount is one that is clearly not allowable under the relevant tariff. [5] For these reasons, the appeal will be allowed with costs, the Judgment of the Tax Court will be set aside and the matter will be returned to the Tax Court for redetermination in the light of these Reasons. "M. Nadon" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-233-11 APPEAL FROM THE ORDER OF THE HONORABLE MR. JUSTICE CAMPBELL J. MILLER OF THE TAX COURT OF CANADA, DATED JUNE 7, 2011, DOCKET NUMBER 2008-101(IT)G STYLE OF CAUSE: Winston Blackmore v. Her Majesty The Queen PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: November 30, 2011 REASONS FOR JUDGMENT OF THE COURT BY: NADON, SHARLOW, MAINVILLE J.J.A. DELIVERED FROM THE BENCH BY: NADON J.A. APPEARANCES: David R. Davies S. Natasha Reid FOR THE APPELLANT Lynn M. Burch Selena Sit FOR THE RESPONDENT SOLICITORS OF RECORD: Thorsteinssons LLP, Tax Lawyers Vancouver, BC FOR THE APPELLANT Myles J. Kirvan Deputy Attorney General of Canada FOR THE RESPONDENT