Costs awards in tax disputes since Bowker v. Canada
Some comments about average costs awards in the Tax Court in the last 15 months
In a recent article for the OBA’s tax section newsletter, I summarized costs decisions from the Tax Court of Canada since the Federal Court of Appeal’s decision in Bowker v. Canada in June 2023.1 I wrote about the Bowker decision in an earlier blog post and I wrote about two subsequent Tax Court cost decisions in a later post.
The full article is available here (I don’t think a login is necessary). Here is a summary of the main points of the article:
In the 10 costs decisions since Bowker, the Tax Court awarded an average of 35.80% of actual costs. The majority of decisions fell within an approximate range of 20-40%, with the outliers being 7.44%, 57.65%, and 60%.
Where the Court found one or more of the factors in Rule 147(3) related to litigation conduct to support a higher cost award, the Court awarded an average of 39% of actual costs compared to an average of 32.61% in the remaining cases.
Where the Court found the amount at issue to support a higher cost award, the Court awarded an average of 46.11% of actual costs compared to an average of 25.50% in the remaining cases.
Of course, each case depends on its own facts. And, as Bowker instructs, the Court is not required to conduct a statistically sound review of past cases to arrive at an appropriate costs award.2 Still, I found these numbers interesting.
Canada v. Bowker, 2023 FCA 133.
Canada v. Bowker, 2023 FCA 133, para. 31.