The auditing firm (“DMCL”) for the appellant obtained the agreement of the appellant, as evidenced by a December 7, 2007 email sent by DMCL to the appellant, to fix the audit fee at a level higher than that originally estimated. In discussing, without concluding, whether DMCL had unduly delayed issuing its invoice after providing its audit opinion on January 23, 2008, Sommerfeldt J first noted (at para. 57):
It appears that the original intention of the Department of Finance, in drafting paragraph 152(1)(b) of the ETA, was that undue delay would be determined by reference to the usual invoicing practices of the particular supplier.
He then stated (at paras. 59-61):
… Spur Oil … indicated that … the word “undue” should be given its dictionary meaning of “excessive.”
[Lacroix, 2011 FCA 128, at para. 32] confirmed that, even in a situation where the performance of a contractual supply is only partially completed, it is possible for the issuance of an invoice to be unduly delayed … .
...[I]t is noteworthy that on February 18, 2008, DMCL issued an invoice to IHI in respect of a report that DMCL had issued on January 23, 2008. In other words, the invoice was issued only 26 days after the report was issued. On the other hand, it appears that DMCL stopped working on the audit of IHI’s financial statements in November or December 2007, but did not issue an invoice until June 19, 2008, a delay of approximately five or six months.