Jaballah v. Canada (Minister of Citizenship and Immigration), 2003 FC 1182

Date: 20031010

Docket: IMM-1828-99

Citation: 2003 FC 1182

BETWEEN:

                                                  MAHMOUD ES-SAYY JABALLAH,

                                           HUSNAH MOHAMMAD AL-MASHTOULI,

                                                  AHMAD MAHMOUD JABALLAH,

                                                        ASH-SHAYMAA ES-SAYYID,

                                                        AL-MUNZIR ES-SAYYID and

                                                    AFNAN MAHMOUD ES-SAYYID

                                                                                                                                                      Applicants

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                          TERRY MacKAY (Minister's Representative),

                                              CRISTINA COUTTS (IRB Case Officer),

                                                    JAMES WATERS, S. GOSH, and

                                                 JOEL BAUSFIELD, SAM BERMAN,

                                      CATHERINE FREEDMAN (CRDD MEMBERS)

                                                                                                                                               Respondents

                                   REASONS FOR AN ORDER REGARDING COSTS

GIBSON J.

INTRODUCTION

[1]         By motion filed the 16^th of October 2002, the applicants sought an order that the Minister of Citizenship and Immigration (the "Minister"), and six individuals named in addition to the Minister but not originally identified as respondents in the underlying application for leave and for judicial review, with the relief sought on the motion directed to each of them, be ordered to: first, attend to show cause why they should not be held in contempt of court; secondly, for a declaration, pursuant to section 2 of the Immigration Act, sections 18 and 18.1 of the Federal Court Act, and sections 7 and 24(1) of the Charter, flowing from the findings of fact by Cullen, J. in DES-06-99, with respect to the Applicants and the Minister's own decision, on a pre-removal risk assessment, that the Applicants are Convention refugees or, in the alternative, to the declaratory relief, an Order to the Convention Refugee Determination Division, by then the Refugee Protection Division, of the Immigration and Refugee Board that the Applicants be found to be Convention refugees; thirdly, and apparently in the alternative to the second relief requested, for an immediate disjoinder of the claims of Al-Mashtouli and minor children from that of Mr. Jaballah; fourthly, for solicitor-and-client costs of the motion; and finally, for such further relief as counsel might advise and this Court deem just.

[2]         I heard the applicants' motion on the 16^th of December 2002. I adjourned the motion sine die by Order dated the 17^th of December, 2002 and provided the following directions:

If, by the 15^th of April, 2003, the Applicants' claim to Convention refugee status has not been reheard in accordance with the Order of this Court dated the 28^th of September, 2000 and decided by the Refugee Protection Division of the Immigration and Refugee Board, this Court directs that affidavit evidence as to the efforts to schedule such hearing at a suitable venue and the difficulties encountered, be filed with this Court to the attention of this judge by or on behalf of one or more of the Respondents herein, on or before the 30^th of April, 2003.

If, on the 30^th of April, 2003, an application by the Applicants seeking leave and relief in the nature of mandamus to compel a hearing of the Applicants' claim to Convention refugee status is before this Court, I direct that it be referred to me for disposition as to leave, and if leave be granted, for directions to ensure an expedited hearing.

[3]         By letter dated the 11^th of April 2003, the Registrar of the Immigration and Refugee Board advised the Court to the following effect:

... The applicants' claims for Convention refugee status were decided by the Refugee Protection Division of the IRB by decision dated April 9, 2003, and [that] reasons for decision were sent to the applicants' [sic] applicants' counsel and to the Minister on April 10, 2002, together with Notices of Decision.

[4]         In the result, by communication dated the 29^th of April 2003, the Court advised with counsel of this judge's view that the applicants' motion of the 8^th of October 2002, was moot in all respects other than as to costs. Neither counsel questioned the view that the Applicants' motion was moot except as to costs. Counsel for the applicants indicated that he wished to pursue the question of costs on behalf of the Applicants.

[5]         In the result, counsel for the applicants filed a motion and motion record on the 27^th of August 2003, seeking solicitor-and-client costs of the motion filed the 16^th of October 2002, and "...a further order and/or direction as this Court deems just." The motion regarding costs named only the Minister as a respondent. Counsel for the Minister filed a responding motion record on the 8^th of September 2003. None of the other respondents named in the notice of motion filed the 16^th of October 2002, filed material. The applicants' motion indicated that it should be dealt with in writing, pursuant to Rule 369 of the Federal Court Rules, 1998.

[6]         These reasons are responsive to the Rule 369 motion regarding costs.

BACKGROUND

[7]         The applicants' application for Convention refugee status in Canada has a long and controversial history, in part related to security proceedings instituted against Mahmoud Jaballah. Suffice it to say, for the purposes of these reasons, that on the 14^th of March 1999, the Convention Refugee Determination Division of the Immigration and Refugee Board found the applicants not to be Convention refugees. By order dated the 28^th of September 2000, a judge of this Court set aside the decision of the Convention Refugee Determination Division and remitted the applicants' application back for rehearing by a differently constituted panel. The Refugee Protection Division, the successor to the Convention Refugee Determination Division, only complied with this Court's order of the 28^th of September 2000, on the 9^th of April 2003.

THE POSITIONS OF THE PARTIES

[8]         Counsel for the applicants urges that the delay on the part of the Minister, I reiterate, the only Respondent named on the motion regarding costs, is indefensible and that it can be inferred that the applicants' claim to Convention refugee status was only reheard after more than 2½ years, by reason of motions brought on behalf of the applicants and the order of this Court dated the 17^th of December 2002. He urges that the applicants, particularly the wife and four minor children of Mr. Jaballah, have been prejudiced, denied their rights and forced to incur unwarranted expenses. Counsel urges that the history of this proceeding more than meets the requirement for "special reasons" required by section 22 of the Federal Court Immigration and Refugee Protection Division Rules^[1] to justify an order of costs in favour of the applicants. Rule 22 reads as follows:

[9]         By contrast, counsel for the respondents urges that the applicants' motion filed the 16^th of October 2002 was ill-founded, bore no chance of success in relation to the substantive reliefs requested and amounted to an abuse of process. Counsel urges that the motion for costs should be dismissed and that the respondent Minister should have his costs throughout of the motion filed on the 16^th of October 2002, as the nature of that motion in itself constituted "special reasons" for an award of costs in favour of the respondent Minister.

ANALYSIS

[10]       I am satisfied that the long delay on the part of the Immigration and Refugee Board in complying with the Order of this Court dated the 28^th of September 2000, constitutes "special reasons" for an award of costs on the applicants' motion filed the 16^th of October 2002. That delay cannot be attributed directly to the Minister but the Minister nonetheless, on two separate motions before this Court, defended the delay. The Minister was successful in his defence of his delay on the first occasion and, I am satisfied, was justified in defending against the second motion, that being the motion filed the 16^th of October 2002, given the nature of the relief sought on that motion. That being said, it would have been open to the Minister to negotiate an agreement in the nature of the directions given by this Court in its Order of the 17^th of December 2002, or some reasonable variation of those directions. If the Minister had undertaken such negotiations, it would have demonstrated an acknowledgement that the delay was unjustifiable while at the same time demonstrating that the relief sought on behalf of the applicants was unacceptable and inappropriate. In the end result, the directions provided achieved, or at least could be seen to have contributed, to closure on the long delay in complying with this Court's Order.

[11]       That being said, I am not satisfied that all of the circumstances warrant an award of costs on a solicitor-and-client basis.

[12]       In Young v. Young^[2], Justice McLachlin, as she then was, with the support of the majority of the panel in this regard, wrote at page 134:

Solicitor-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties. Accordingly, the fact that an application has little merit is no basis for awarding solicitor-client costs; nor is the fact that part of the cost of the litigation may have been paid for by others.

[13]       In Apotex Inc. v. Canada (Minister of National Health and Welfare)^[3], Justice Malone, for the Court, wrote at paragraphs [7] and [8]:

... In my opinion, the new Rule 400(1) does not confer unfettered discretion. Existing jurisprudence must still be considered including the Supreme Court of Canada's recent decision in Baker which applied the traditional principle namely:

Solicitor-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties.

As well, this Court established a similar rule in its 1986 decision in Amway of Canada Ltd. v. Canada where Mahoney J.A. stated:

Costs as between solicitor and client are exceptional and generally to be awarded only on the ground of misconduct connected with the litigation.

                                                                                                                           [Citations omitted]

[14]       In Roberts v. R.^[4], Justice McDonald, with Justice Linden concurring, and in part quoting from and paraphrasing Young, supra, wrote at page 193:

An award of costs on a solicitor and client basis is exceptional. Such awards are "generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties." Furthermore, the fact that one parties [sic] claim has little merit or was "very weak" is no basis for awarding solicitor-client costs.

[15]       Finally, in Leung v. Leung^[5], Chief Justice Esson considered the meaning of the word "reprehensible" in the context of "reprehensible, scandalous or outrageous" conduct that might justify solicitor-and-client costs. He wrote at paragraph 5:

There is nothing in the conduct of Mr. Leung in relation to this matter which I would call "scandalous" or "outrageous". But "reprehensible" is a word of wide meaning. It can include conduct which is scandalous, outrageous or constitutes misbehaviour; but it also includes milder forms of misconduct. It means simply "deserving of reproof or rebuke".

[16]       Thus, where, as here, a party seeks solicitor-and-client costs, the Court must bear in mind that such costs are awarded only in rare instances and where the party against whom solicitor-and-client costs are sought has demonstrated in his conduct of the proceeding "scandalous" or "outrageous" behaviour, or misconduct that is "deserving or reproof or rebuke".

[17]       Against the foregoing, I am not satisfied that this is one of those "rare instances" that justify solicitor-and-client costs against the Minister. I am not satisfied that it can be said that the conduct of the Minister in this matter since the 28^th of September 2000 can in any sense be said to be "scandalous" or "outrageous" or, indeed, "misconduct that is deserving of reproof or rebuke". The other respondents named in the notice of motion filed the 16^th of October 2002 and in these reasons, are, as earlier noted, no longer named in the style of cause of the costs motion. I am satisfied that they were not properly named in the October 16^th motion. In the result, I will not consider the question of costs as against them or any one of them.

CONCLUSION

[18]       Special reasons for an award of costs in this matter having been found, an order will go for costs of the applicants' motion filed the 16^th of October 2002 in favour of the applicants, payable by the respondent Minister, such costs to be determined on the ordinary scale.

[19]       In all other respects, the applicants' motion filed the 16^th of October 2002, will be dismissed as moot.

[20]       The Order herein will name only the Minister as a respondent.

Judge

Ottawa, Ontario

October 10, 2003

             FEDERAL COURT OF CANADA

    Names of Counsel and Solicitors of Record

DOCKET:                                              IMM-1828-99

STYLE OF CAUSE:              MAHMOUD ES-SAYY JABALLAH,AND OTHERS vé

            THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND OTHERS

PLACE OF HEARING:                      TORONTO, ONTARIO

DATE OF HEARING:           MONDAY, MARCH 3, 2002   

REASONS FOR AN ORDER

REGARDING COSTS BY:              GIBSON J.

DATED:                          OCTOBER 10, 2003

APPEARANCES BY:            

Mr. Joel Sandaluk            For the Applicant

Ms. Mary Matthews        For the Respondent

SOLICITORS OF RECORD:          

Mr.Joel Sandalukl            For the Applicant

Mamman & Associates

74 Victoria St., Suite 303

Toronto,Ont. M5C-2A5

Morris Rosenberg           For the Respondent

Deputy Attorney General of Canada