No unfairness arose by making each plaintiff responsible for payment of full costs award

Civil Practice and Procedure - Costs - Scale and quantum of costs

Canada Revenue Agency conducted criminal investigation of plaintiff tax preparers’ preparation of scientific research and experimental development claims on behalf of taxpayer clients. Plaintiffs attempted to overcome clients’ lack of documentation by creating after-the-fact evidence of inter-corporate transactions. Plaintiffs were charged with fraud under Criminal Code but Crown counsel ultimately entered stay of proceedings. Plaintiffs brought actions against Government of Canada for damages resulting from criminal investigation, alleging negligent investigation, breach of Canadian Charter of Rights and Freedoms, misfeasance in public office, malicious prosecution, and intentional interference with contractual relations. Actions were dismissed and parties were invited to submit arguments on costs in writing. Costs awarded. Although matters were not consolidated, matters were tried together and single set of reasons would apply to both actions. Plaintiffs’ cases did not meet conditions required for public-interest costs relief. Plaintiffs were made aware of potential cost consequences of making and continuing those allegations but they persisted. This was case where plaintiffs’ litigation conduct justified payment of enhanced costs to defendant. This was not overly complex case in legal or evidentiary terms, and ordinarily award of party-and-party costs at mid-point of Column III would be justified . Costs would be awarded in this case at upper level of Column V. Plaintiffs’ obligations for costs and disbursement was fixed in amount of $675,000.00 payable jointly and severally by three plaintiffs. No apparent unfairness arose by making each of plaintiffs responsible for payment of full costs award in event of default by any of others.

Gordon v. Canada (2019), 2019 CarswellNat 6852, 2019 FC 1348, R.L. Barnes J. (F.C.); additional reasons (2019), 2019 CarswellNat 3036, 2019 FC 853, R.L. Barnes J. (F.C.).

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