[1] On December 2, 1998, the Honourable Mr. Justice Muldoon granted the application for mandamus, ordered the Respondent to make a decision on or before February 26, 1999 on the Applicant's application for permanent residence and ordered "costs of the application on a solicitor and client basis without regard to the date when those were incurred". The Applicant presents his bill of costs for the period of March 1983 (likely a few months before since the first invoice is only dated March 17, 1983) to February 1999 (the last invoice dates to February 26, 1999) totalling $538,531.92. The Respondent objects on the basis that the award of costs must be taken as limited to this mandamus proceeding instituted on December 8, 1997. The parties agreed to treat this as a preliminary objection. They could then use these Reasons as a guide for subsequent assessment of the individual items in the bill of costs. There are no significant issues between the parties concerning the dates and occurrences surrounding the Applicant's bid since 1982 to enter and remain in Canada.
Background
[2] The Applicant became involved in substantial financial dealings with President Marcos of the Philippines from about 1978. By 1980, the Applicant felt that problems associated with those activities were a threat to his well-being. In January 1981, he left the Philippines, with his wife and four young sons, to live and work in Costa Rica. They had personal and professional difficulties in adjusting to Costa Rica resulting in the Applicant and his wife mutually agreeing to divorce, which they did in April 1982. She received custody of the children. She and the children then received visas, came to Canada as landed immigrants in October 1982 and became Canadian citizens in 1986.
[3] The Applicant came to Vancouver in October 1982, stayed approximately one month to help his ex-wife and children get settled and then returned to Costa Rica. He had no difficulty entering Canada for this visit and had permission to stay until January 1983. However, when he returned in December 1982, visa problems at the Vancouver airport required him to leave first for Seattle and then Costa Rica to try in each location to sort out the difficulties. In Costa Rica, it was acknowledged that his travel document had indeed been valid in the first instance. He was given a single-entry visa expiring on February 5, 1983. He then returned to Vancouver in December 1982. In January 1983, the Applicant instructed his legal counsel to advise the Canada Immigration Centre at the Vancouver airport that he wished to apply for refugee status. He made the application on January 25, 1983. On January 26, 1983, the Manager of the Canada Immigration Centre advised him in writing that the legislation did not permit such a refugee claim because he was not the subject of an inquiry under the Immigration Act, 1976 to determine whether he had remained in Canada after expiry of his visa. The letter also referred to the validity of his status as a visitor until February 5, 1983 and warned him that if he did not leave Canada by that date, he "would become subject to an inquiry which could result in your deportation from Canada".
[4] The Applicant understood the Manager's letter as an implicit suggestion to stay in Canada beyond February 5, 1983 so as to invoke the inquiry process during which a refugee claim could be made. As he did not leave by February 5th, he became the subject of an inquiry process which commenced on April 27, 1983 and during which he claimed Convention refugee status. Initially, on the recommendation of the Refugee Status Advisory Committee, he was determined not to be a Convention refugee. He applied for redetermination and the Immigration Appeal Board on February 6, 1986 determined that he was a Convention refugee. The Minister of Employment and Immigration filed a section 28 application on February 13, 1986 to review and set aside that decision. In March 1986, given the favourable decision of the Immigration Appeal Board, the Applicant applied for a Minister's Permit which would have permitted him to work while being processed. In June 1986, he was informed that the Minister's Permit would not be issued pending disposition of the section 28 application. The Minister of Employment and Immigration withdrew the section 28 application on September 25, 1986. On September 26, 1986, the Applicant once again requested a Minister's Permit. On October 24, 1986, he was informed that the Minister's Permit had been denied and that his inquiry would resume. In December 1988, his application for certiorari quashing that refusal was dismissed without costs. In June 1991, his appeal from that decision was dismissed with costs and, in February 1992, leave to appeal to the Supreme Court of Canada was refused. A separate action by the Applicant for relief relative to these several occurrences was struck with costs in December 1987 by the Honourable Mr. Justice Joyal.
[5] On January 25, 1988, the adjudicator ordered that the Applicant be deported because he had overstayed his visitor's visa by one day (the February 5, 1983 deadline). In June 1991, his section 28 application for review of that decision was dismissed. His appeal of the January 25, 1988 deportation order to the Immigration Appeal Board was allowed in February 1994 and the application in the Trial Division by the Secretary of State of Canada for judicial review of that decision was dismissed in January 1995.
[6] In June 1989, the Applicant and his ex-wife remarried in Vancouver. In October 1989, his wife made a spousal application to sponsor him for permanent residence in Canada. The Applicant repeatedly asked for a decision, but none was forthcoming. In May 1995, he was notified that he had to file an application to perfect his wife's sponsorship. On July 14, 1995, he filed the application for landing and received approval in principle in November 1995 to remain in Canada while the application was being considered. In April 1998, he was determined to be criminally inadmissible and was asked to submit evidence of rehabilitation failing which he would be inadmissible to Canada under the Immigration Act[1]. He categorically denied the commission of any offence. On December 8, 1997, the Applicant instituted the present judicial proceeding for mandamus to compel the Respondent to make a decision on his application for landed status: the Order noted above and dated December 2, 1998 resulted.
[7] His Lordship, in Reasons dated December 4, 1998, commented disapprovingly on the delay in making a decision on the application for landing, and on the impossibility of the Applicant being able to respond to allegations of offences for which the Respondent would not disclose either what those offences were or the associated details. His Lordship noted that the Applicant was not responsible for the delay and had been put to prodigious costs over the years for which he should receive compensation. The Reasons refer to the volume of material in the records here and in the tribunal, comment on the brevity of the Respondent's submission concerning delay and conclude that mandamus should issue in the face of the unfair delay. The Reasons then address costs:
... This is in many ways a run-of-the-mill type of mandamus from which arises no serious question of general importance. That being said, what of costs? There is a long, sad story of being given a relatively soft answer, sometimes a hard answer, to turn away Mr. Dee in his efforts to have a decision on landing as a landed immigrant in Canada, and Mr. Dee is not responsible for this delay. Indeed, the delay has been so long his wife's health has deteriorated, as his might. He might fear that he would die without having landed immigrant status in Canada if he abided by the department's pace in coming to a decision. And so he has a sense of a real grievance, not just a sense of grievance, but he has a real grievance with the department over the years, and especially since 1995 when he made his last application for landing, to have costs, to compensate him, at least in that respect. He has not sued for wounded feelings, which seems popular these days, and perhaps the department should be thankful for that. But he should be compensated for his costs over these years. The Court would be willing to accord him solicitor-and-client costs. This is a special circumstance in the Court's opinion. Mr. Go Dee has been put to prodigious expenses, which perhaps Mr. Matas and Mr. Walsh never expect to even collect, but he has been put to expenses and for a long time, a long, hard time. And so the Court awards him costs on a solicitor-and-client scale for this application for mandamus. Now this application for mandamus is founded on the historical neglect of the respondent, so it seems to me that some of the costs would pre-date the application for mandamus since Mr. Dewey Go Dee's grievance does not start in July, 1995, but has already been afoot long before that. Now here the Court is going to ask some restraint on the part of the applicant. This is an application for mandamus. Had the Minister last week made a decision, it would have been a moot application for mandamus, and one may wonder why the Minister did not make that decision, but prefers to wait, prefers to rehash the old accusations by Ferdinand Marcos, or someone, and so the Court would counsel some restraint in solicitor-and-client costs as to how far back into the past they would go. And the assessment officer may know that the Court cautions a bit of restraint. But the Court cautions no restraint from July 14th, 1995 for solicitor/client costs. They are clearly awardable to the applicant. That presumably deals with all the outstanding issues, except this ought to be said: this Court commends counsel on both sides, each party's counsel, for a high degree of laudable professionalism in representing each one's client. Neither side, especially the respondent, ought not to feel in any way aggrieved by the first-class representation the respondent received from Mr. Fraser, let me name him. Not every client is a winner, but every lawyer is obliged to advocate every client's cause. If he takes a party as a client, then the lawyer is in for a penny, in for a pound, and the real test of a lawyer is how professionally the lawyer advocates the client's cause. The Court certainly respects Mr. Fraser in that regard ...
[8] In February 1999, his application for landing was refused on the basis that the Respondent was not satisfied about his rehabilitation. He instituted an application for judicial review of this decision and, in February 2000, the Honourable Mr. Justice MacKay allowed the application with costs. His Lordship found that the Applicant had been improperly denied the opportunity to review and rebut the allegations against him of criminal wrongdoing and ordered the Respondent to reconsider the landing decision.
The Respondent's Position
[9] The Respondent argued that the issues in this assessment would not be whether the costs claimed were actually incurred, but whether the Applicant's interpretation of the award of costs contemplates something beyond the Court's jurisdiction. The Respondent asserted that the bill of costs effectively claims every legal bill incurred from the date of the Applicant's first attempt in 1983 to claim refugee status, a misreading of the Order for costs. The Respondent argued that jurisprudence such as Lubrizol Corp. v. Imperial Oil Ltd.[2], Keramchemie (Canada) Ltd. v. Keramchemie Gmbh[3] and RCP Inc. v. M.N.R. et al[4] holds that the Court, in matters such as this proceeding for mandamus, has no jurisdiction to address and order costs outside the event under consideration. The Respondent noted that only two sections of the bill of costs, the account for December 15, 1994 to January 4, 1996 totalling $10,444.88 and the account for January 4, 1996 to February 24, 1999 totalling $38,275.06, may relate the mandamus application. In addition, they may relate to the July 14, 1995 application for landing, an unspecified application on that date for judicial review and the fees associated with the rehabilitation request, among other things.
[10] The Respondent argued that the Reasons and Order, supra, in limiting costs to this mandamus proceeding, clearly awarded those costs on a solicitor/client basis as opposed to costs as between solicitor and own client. This latter form of costs can include charges for non-litigation work per Byers Transport Ltd. v. Kosanovich[5] and, relative to every decision since 1983, whether judicial, quasi-judicial or administrative, with which the Applicant disagreed, was beyond the Court's jurisdiction to award because his Lordship was limited to the event of this mandamus proceeding. The Court did not use the word, "own", relative to costs and therefore its meaning should not be read into the award of costs. The Respondent argued that this must be so because the subject of and the argument in this mandamus proceeding were confined to the Applicant's landing request and not to any other litigation, tribunal decision or administrative matter, none of which were in issue or argued as part of the event of this proceeding. Therefore, just as it is not open to trial Judges in final judgments to vary costs awards in interlocutory judgments, such latter awards being subject only to formal appeals, the Court here was limited to the single mandamus application before it and did not have jurisdiction to either vary the dispositions of costs in other litigation or to extend the costs award to unrelated and non-litigation subjects. Other cases such as Fegol v. the Queen[6], Barnabe Estate v. Canada[7] and Agnes Frayn v. Ermineskin Band[8] support this restriction. The Respondent argued that an example of the inconsistency and even absurdity of the Applicant's interpretation of the award of costs is the claim for costs for a letter from his solicitor to his attention urging him to pay the costs to the Respondent noted above as ordered in December, 1987.
[11] The Respondent noted that his Lordship issued an edited version of the transcript as his Reasons. The term therein, "solicitor/client costs", represents the court reporter's attempt to transcribe what was said. That attempt must be construed in the context of the Court understanding the limits of its jurisdiction and therefore not meaning costs as between solicitor and own client, but solicitor-client costs as described in Byers Transport Ltd., supra. Some examples in addition to those in Byers Transport Ltd., supra illustrating the difference between solicitor/client (solicitor-client) costs and costs as between solicitor and own client would be the costs for representing the client in dealing with the media or in dealing with the Department on an administrative matter. Such costs would belong in the non-litigation costs as between solicitor and own client, but not in the costs indemnifiable between litigants such as the solicitor/client (solicitor-client) costs awarded in this mandamus proceeding. Tariff B to the Federal Court Rules, 1998 is a guideline for assessable steps of the more generous indemnity available in solicitor-client costs.
[12] The Respondent argued that the Court did not use terms such as indignation and therefore such meaning should not be read into the Reasons. As well, the Court characterized this proceeding as a "run-of-the-mill type of mandamus". The dates mentioned in the Reasons as a point of reference for costs are irrelevant because, as the Order, and not the Reasons, defines the limit of costs, those dates simply confirm his intention that there be no arbitrary cut-off point for the costs of this mandamus proceeding. The Respondent asserted that $538,531.92 was surely incurred by the Applicant since 1983 in pressing his various requests with the Department, with tribunals and with the Court, but only the $10,444.88 and $38,275.06 estimated above can be seen as the upper limit of potential costs for this mandamus proceeding. If the Applicant was unhappy with his treatment and the burden of some $538,000.00 over the years, his remedy was an action for damages. The Respondent asserted that solicitor-client costs are rarely awarded, usually express the Court's displeasure and are confined to the event argued before the Court. The Respondent noted that, although it is trite to state it, an award of costs is not compensation, but indemnification.
The Applicant's Position
[13] The Applicant rejected the Respondent's position concerning the limits of jurisdiction. The Applicant argued that the reference in the Reasons to the need for compensation in the face of the Respondent's "historical neglect" authorized costs well before the perfection in July 1995 of his application for landing. The Applicant asserted that proceedings such as those before MacKay J. above related to this mandamus proceeding and therefore his situation, in the context of the reference to "historical neglect", should not be seen as several disputes over the years, but rather this single dispute: can he stay in Canada or not.
[14] That single dispute reflects several instances of his mistreatment by the Respondent. Those instances were: (a) the incorrect advice at both the Vancouver and Seattle airports in December 1982 concerning his visa; (b) the false information in the January 26, 1983 letter concerning his status to make a refugee claim and containing an implied suggestion to overstay his visa time limit of February 5, 1983; (c) upon his attendance at the Vancouver airport on February 6, 1983, and not withstanding the inducement to overstay referred to above, the report issued that day concluding he had remained in Canada longer than authorized; (d) the adjudicator's deportation order in January 1988 for this unauthorized stay; (e) in 1986, the refusal, without an explanation or the opportunity to make submissions, to issue a Minister's Permit in the face of existing legislation and policy to issue one given a decision finding him to be a Convention refugee and given withdrawal of the section 28 application challenging the Convention refugee decision and (f) the lack of response over several years to his wife's spousal application in October 1989 sponsoring him for permanent residence in Canada.
[15] The Applicant argued that the pattern throughout these years of "historical neglect" was of decisions favourable to him which the Respondent would not accept thereby resulting in several court proceedings. The Reasons, with particular regard to the non-responsiveness of the Respondent to the application for landing and to the need for details of the alleged offences to permit a meaningful response, reflect the Court's indignation at this pattern of mistreatment over many years. The Applicant noted that the Department of Justice failed to disclose that it had closed its own file on these alleged offences thereby indicating they would no longer be pursued. There were other instances of non-disclosure, such as a formal request for extradition, for which the Applicant was required to resort to access to information legislation. MacKay J. in his Reasons, supra on February 18, 2000 shared Muldoon J.'s concern over the mistreatment. The Applicant asserted that the letter dated June 16, 2000 confirming approval by the Respondent of permanent residence in Canada, and the signed landing document dated June 29, 2000, represented the final resolution of a single dispute lasting seventeen and one-half years. The Applicant argued that the loss of the use of $538,531.92, plus interest, over those years, because that money had to be applied to legal counsel, represented an additional instance of his mistreatment by the Respondent given that no basis existed throughout to delay his entry into Canada to join his wife and children. The Respondent's proposal of some $48,000.00, balanced against the $538,000.00 actually required, is not the compensation intended in the Reasons, which should shape the approach on this assessment.
[16] The Applicant argued that the distinction raised by the Respondent concerning the difference between solicitor/client costs and costs as between solicitor and own client is irrelevant because all of the costs claimed were necessary and related to this mandamus proceeding and fall outside the examples cited as unsuitable. The Applicant argued that these two concepts of costs may be indistinguishable, but if there is a distinction, the Court intended to award costs as between solicitor and own client to reflect the enormity of the wrong done to him over seventeen and one-half years. Byers Transport Ltd., supra, is not relevant here because of the concession therein that costs were awarded at the solicitor-client level. In this mandamus proceeding, there was no such concession. Except on one occasion in the transcript, the Court uses the term, "solicitor-and-client" costs, and not "solicitor/client" costs, suggesting the intent was costs as between solicitor and own client.
[17] The Applicant argued that the phrase, "historical neglect", indicates that the Court recognized that the delay of almost six years from October 1989 to July 14, 1995 was not his fault and therefore intended that costs extend back in time from July 1995. If that result was beyond the Court's jurisdiction, the assessment officer cannot de facto sit in appeal and read in modifications to the award of costs. The Respondent's remedy was an appeal to the Federal Court of Appeal, for which the time has expired. The Applicant cited these cases in support:
"every order of a trial court is enforceable and must be obeyed until it is declared void by an appellate court"[9]
and
"In my opinion, the 1979 order of the Tribunal, entered in the judgment and order book of the Federal Court in this case, continues to stand unaffected by the Charter violation until set aside. This result is as it should be. If people are free to ignore court orders because they believe that their foundation is unconstitutional, anarchy cannot be far behind. The citizens' safeguard is in seeking to have illegal orders set aside through the legal process, not in disobeying them. ...For the purposes of the contempt proceedings, [the order] must be considered to be valid until set aside by legal process. Thus, the ultimate invalidity of the order is no defence to the contempt citation".[10]
The Applicant argued that Canada (Human Rights Commission) v. Canadian Liberty Net[11] applies as well. The Keramchemie and Lubrizol decisions, supra, hold that one Trial Division judge cannot change the award of costs of another judge, but they do not question the judge's jurisdiction to award costs as between solicitor and own client outside the context of the litigation before the Court. The Applicant argued that the June 16, 2000 letter noted above, which finally confirmed approval of landed status, implicitly suggested agreement with the inconsistencies summarized in an April 10, 2000 letter concerning the Department's position on allegations of offences, refugee status, extradition and admissibility. The Court recognized in the Reasons that costs could not compensate for seventeen and one-half years of mistreatment, but they would reflect the disapproval of the Court concerning that mistreatment.
[18] The Applicant argued that settlement is not a factor in this assessment because the dispute was not about an amount of money subject to adjustment in some manner, but simply whether he could stay in Canada or not. The Applicant noted any costs associated with the Order in December 1987, striking his action with costs, should be removed, but everything else is assessable and should remain. The Applicant argued that references in the Reasons to voluminous materials and extended periods of effort establish that this was not a simple application for mandamus. However, the amounts claimed in the bill of costs demonstrate the restraint requested in the Reasons. The hourly rates charged were considerably below the standard for Vancouver counsel by some fifty percent and approach the levels charged by Winnipeg lawyers. Finally, the Applicant noted that amounts in the bill of costs do not represent a profit because there was substantial work performed by counsel over the years which was not included.
Assessment
[19] From the perspective of Byers, supra and Wright v. Elliott[12]:
Costs are allowed to a party in litigation as an indemnity from pecuniary loss which his oppinent [sic] has caused him to suffer. Where there is no such pecuniary loss, the successful party recovers nothing under the head of costs, because there is nothing against which he is to be indemnified. ,
the bill of costs appears to represent the costs of the Applicant as between solicitor and own client dating from his initial difficulty in 1982, including the costs of other Federal Court and Supreme Court of Canada litigation independent of this mandamus proceeding. In the context of the Reasons, the costs awarded consist of solicitor-client costs after December 1997 and costs as between solicitor and client before. However, the scope of that award could be see in two ways.
[20] First, the Reasons, having noted that Applicant has not sued for wounded feelings, hold that he should be compensated in another way, ie. by costs. Therefore, the Court used the event of this mandamus proceeding to make the award of costs compensate him for any costs, both during and preceding litigation, associated with his efforts since 1982 to enter Canada. Thus, to the extent that the $538,531.92 can be demonstrated to be necessary and reasonable, it can be assessed within the purview of the Reasons and Order.
[21] Second, the Reasons, having noted the Applicant has not sued for wounded feelings, used the event of this mandamus proceeding to make the award of costs compensate him for any costs, both during and preceding litigation, associated with the application for landing. That is, the Court was aware of the limits of Rule 400 jurisdiction and intended costs to include those as between solicitor and own client predating the December 1997 institution of the mandamus litigation, but with a direct link to the particular subject of this mandamus proceeding as opposed to the general seventeen and one-half year dispute characterized by the Applicant's counsel as "can he stay in Canada or not".
[22] I think that the Court would have been aware that Rule 400 did not permit it to change the dispositions of costs in the various other pieces of litigation, ie. for a Minister's Permit, refugee status or damages. My cursory examination of the bill of costs discloses references to several Federal Court of Canada and Supreme Court of Canada proceedings over the years with no obvious nexus to the specific subject of this mandamus proceeding.
[23] I think that the second, and narrower, view above of the scope of the award of costs applies. This may include costs dating back to 1989, but I note it may not necessarily be straightforward for the Applicant to isolate those costs associated with the application for landing. For example, the December 15, 1994 to January 4, 1996 account includes a general entry for "advancing the claim of Mrs. Lily Dee." However, it may be difficult for the Applicant to establish that this award of costs includes the dollars for the entry for two hours on July 14, 1995 for preparation of an application for leave for judicial review, when said entry is compared to the entry in the January 4, 1996 to February 24, 1999 account for two hours on December 5, 1997 for drawing an application for leave for mandamus. Without yet having had the benefit of the guidance of counsel from both sides on specific details in the bill of costs, my guess is that, just as costs prior to December 1997 relating to the landing application could be identified in the bill of costs as within the purview of this award of costs, costs preceding litigation and relating to matters other than the landing application could similarly be identified relative to other pieces of litigation. As it happens, there were no such comparable awards of costs in the other litigation and such costs would have fallen outside the award of costs in this mandamus proceeding. I think it unlikely that any costs associated with the Applicant's efforts to remain in Canada from December 1982 to October 1989, but not including his wife's initiative to sponsor him for permanent residence, could be assessed within the purview of this award of costs. For the period October 1989 to July 1995 when he perfected the landing application, there may be costs assessable within the purview of this award of costs, but, on the materials and submissions to this point, nexus appears remote and such costs may be limited. From July 1995 forward, this award of costs reflects the displeasure of the Court, and to the extent that they are reasonably necessary and linked to the landing application, may be assessed without regard to the date of institution of the mandamus proceeding. Strictly speaking, the Order dated December 2, 1998 does not on its own appear to provide for that extent of costs, but I do not think the intent in the Reasons can be ignored. Given my conclusions, such costs could not include those associated with other proceedings such as the judicial review before MacKay J. in February 2000. In view of those conclusions, I see no need to comment on classifications of costs and de facto appeals of Orders for costs.
(Sgd.) "Charles E. Stinson"
Assessment Officer
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-5178-97
STYLE OF CAUSE: Dewey Go Dee v. Minister of Citizenship and Immigration
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: February 9, 2001
ASSESSMENT OF COSTS REASONS BY:CHARLES E. STINSON
DATED: May 9, 2001
APPEARANCES:
Harry Walsh, Q.C.
David Matas FOR THE APPLICANT
Duncan A. Fraser FOR THE RESPONDENT
SOLICITORS OF RECORD:
David Matas
Winnipeg, Manitoba FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
[2] [1996] 3 F.C. 40 (C.A.)
[3] (1988), 83 C.P.R. (3d) 223 (C.A.)
[4] [1986] 1_F.C. 485 (T.D.)
[5] [1996] F.C.J. No. 760 (A.O.)
[6] Docket T-2836-94, October 19, 1998 (A.O.)
[7] [2000] T.C.J. No. 702 (Tax Ct.)
[8] Docket T-1682-99, January 28, 2000 (A.O.)
[12] (1911) 17 W.L.R. 405 at page 407
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