Tax Court of Canada Rules (General Procedure)

147 (1) The Court may determine the amount of the costs of all parties involved in any proceeding, the allocation of those costs and the persons required to pay them.

(2) Costs may be awarded to or against the Crown.

(3) In exercising its discretionary power pursuant to subsection (1) the Court may consider,

• (a) the result of the proceeding,

• (b) the amounts in issue,

• (c) the importance of the issues,

• (d) any offer of settlement made in writing,

• (e) the volume of work,

• (f) the complexity of the issues,

• (g) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding,

• (h) the denial or the neglect or refusal of any party to admit anything that should have been admitted,

• (i) whether any stage in the proceedings was,

  • (i) improper, vexatious, or unnecessary, or

  • (ii) taken through negligence, mistake or excessive caution,

• (i.1) whether the expense required to have an expert witness give evidence was justified given

  • (i) the nature of the proceeding, its public significance and any need to clarify the law,

  • (ii) the number, complexity or technical nature of the issues in dispute, or

  • (iii) the amount in dispute; and

• (j) any other matter relevant to the question of costs.

(3.1) Unless otherwise ordered by the Court, if an appellant makes an offer of settlement and obtains a judgment as favourable as or more favourable than the terms of the offer of settlement, the appellant is entitled to party and party costs to the date of service of the offer and substantial indemnity costs after that date, as determined by the Court, plus reasonable disbursements and applicable taxes.

(3.2) Unless otherwise ordered by the Court, if a respondent makes an offer of settlement and the appellant obtains a judgment as favourable as or less favourable than the terms of the offer of settlement or fails to obtain judgment, the respondent is entitled to party and party costs to the date of service of the offer and substantial indemnity costs after that date, as determined by the Court, plus reasonable disbursements and applicable taxes.

(3.3) Subsections (3.1) and (3.2) do not apply unless the offer of settlement

• (a) is in writing;

• (b) is served no earlier than 30 days after the close of pleadings and at least 90 days before the commencement of the hearing;

• (c) is not withdrawn; and

• (d) does not expire earlier than 30 days before the commencement of the hearing.

(3.4) A party who is relying on subsection (3.1) or (3.2) has the burden of proving that

• (a) there is a relationship between the terms of the offer of settlement and the judgment; and

• (b) the judgment is as favourable as or more favourable than the terms of the offer of settlement, or as favourable or less favourable, as the case may be.

(3.5) For the purposes of this section, substantial indemnity costs means 80% of solicitor and client costs.

(3.6) In ascertaining whether the judgment granted is as favourable as or more favourable than the offer of settlement for the purposes of applying subsection (3.1) or as favourable as or less favourable than the offer of settlement for the purposes of applying subsection (3.2), the Court shall not have regard to costs awarded in the judgment or that would otherwise be awarded, if an offer of settlement does not provide for the settlement of the issue of costs.

(3.7) For greater certainty, if an offer of settlement that does not provide for the settlement of the issue of costs is accepted, a party to the offer may apply to the Court for an order determining the amount of costs.

(3.8) No communication respecting an offer of settlement shall be made to the Court, other than to a judge in a litigation process conference who is not the judge at the hearing, until all of the issues, other than costs, have been determined.

(4) The Court may fix all or part of the costs with or without reference to Schedule II, Tariff B and, further, it may award a lump sum in lieu of or in addition to any taxed costs.

(5) Notwithstanding any other provision in these rules, the Court has the discretionary power,

• (a) to award or refuse costs in respect of a particular issue or part of a proceeding,

• (b) to award a percentage of taxed costs or award taxed costs up to and for a particular stage of a proceeding, or

• (c) to award all or part of the costs on a solicitor and client basis.

(6) The Court may give directions to the taxing officer and, without limiting the generality of the foregoing, the Court in any particular proceeding may give directions,

• (a) respecting increases over the amounts specified for the items in Schedule II, Tariff B,

• (b) respecting services rendered or disbursements incurred that are not included in Schedule II, Tariff B, and

• (c) to permit the taxing officer to consider factors other than those specified in section 154 when the costs are taxed.

(7) Any party may,

• (a) within thirty days after the party has knowledge of the judgment, or

• (b) after the Court has reached a conclusion as to the judgment to be pronounced, at the time of the return of the motion for judgment,

whether or not the judgment included any direction concerning costs, apply to the Court to request that directions be given to the taxing officer respecting any matter referred to in this section or in sections 148 to 152 or that the Court reconsider its award of costs.