Date: 20100326
Docket: IMM-529-09
Citation: 2010
FC 336
Ottawa, Ontario, March 26, 2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
OLUSEGUN
EMMANUEL ADESINA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The only
live issue is whether the Respondent should pay costs. The original judicial
review has been withdrawn and the only matter reserved was that of costs.
[2]
This
matter started as a mandamus application to require the Minister to return the
Applicant’s non-fraudulent documents and an application in the nature of
declaration that the Respondent’s failure to provide the Applicant with an
opportunity to respond to the decision (it being assumed that the refusal to
return the documents was a decision) violated the principles of procedural
fairness.
[3]
The
Applicant is a citizen of Nigeria who had been sponsored by his
sister for permanent residency. As it turns out, the Applicant’s application
was part of a larger group of applications, some of which were eventually
appealed to the IAD. The appeals were withdrawn on January 30, 2009.
[4]
In the
course of the Applicant’s permanent residence application, it was determined by
the Canadian High Commission in Lagos
that two letters from two universities filed by the Applicant were fraudulent.
The Applicant did not contest this conclusion but simply withdrew his
application on May 8, 2008 and requested the return of the non-fraudulent
documents he had submitted. He was particularly interested in the documents
related to his real education. These documents were non-replaceable true copies
as opposed to photocopies and therefore of considerable importance to him.
[5]
The
Respondent did not respond to the written request of May 8, 2008 for return of
the non-fraudulent documents nor to other efforts to secure their return until
the mandamus application was filed.
[6]
While the Court
file is lacking in detailed evidence of what transpired regarding the documents,
I accept Mr. Butterfield’s explanation that the Applicant’s documents were tied
up in the IAD appeals which ended on January 30, 2009. Under CIC processes, the
documents were returned to the visa post after which they appear to have
bounced around in the bureaucracy and within Federal Express.
[7]
The
Applicant now, having obtained the documents, requests that he be awarded costs
because of the Respondent’s neglect and/or refusal to fulfill its duty to
return the non-fraudulent documents. It is argued that such neglect or failure
constitutes bad faith and that bad faith constitutes “special reasons”
justifying costs under Rule 22 of the Federal Courts Immigration and Refugee
Protection Rules.
[8]
The costs
requested are modest and really intended to convey disapproval of the
Respondent’s conduct rather than an attempt to extract legal fees. The
Applicant’s counsel has been forthright in this regard.
[9]
There is
insufficient evidence to establish either a deliberate attempt to deprive the
Applicant of his documents nor of any callous disregard for his interests. If
there was neglect, it appears to be more in the nature of incompetence or
inattention than in the nature of callousness.
[10]
There is a
rational explanation for the documents being tied up in IAD proceedings which
terminated at the end of January 2009. The remaining delay, while explainable,
is hardly justifiable.
[11]
However,
Rule 22 evidences a deliberate attempt to have a “no cost” regime on
immigration matters. It is a rule which applies to both parties.
|
22.
No costs shall be awarded to or payable by any party in respect of an
application for leave, an application for judicial review or an appeal under
these Rules unless the Court, for special reasons, so orders.
|
22.
Sauf ordonnance contraire rendue par un juge pour des raisons spéciales, la
demande d’autorisation, la demande de contrôle judiciaire ou l’appel
introduit en application des présentes règles ne donnent pas lieu à des
dépens.
|
[12]
The mere fact
that a mandamus order would have been justified is not sufficient basis for a
cost order (Subaharan v. Canada (Minister of Citizenship and Immigration), 2008 FC 1228). The threshold
for “special reasons” is high and each case must turn on its own facts (Ibrahim
v. Canada (Minister of Citizenship and
Immigration),
2007 FC 1342).
[13]
“Special
reasons” have been described, non-exhaustively, as including conduct which is
unfair, oppressive, improper, motivated by bad faith or results in undue
prolongation of proceedings.
[14]
Viewing
the whole circumstances, the Applicant contributed to his plight by submitting
fraudulent documents. It is not unreasonable that these documents, along with
his legitimate documents, would be entangled in related IAD proceedings which
ended over one year after the written request for the return of the documents.
The remaining time until their return, approximately one year, can be ascribed
to bureaucratic rigidity but not to deliberateness or malice.
[15]
Therefore,
there are no “special reasons” which justify a cost order. Parties should bear
in mind the adage “what is sauce for the goose is sauce for the gander” before
they seek to narrow the no cost regime of Rule 22.
ORDER
THIS COURT ORDERS that the application for judicial
review, being moot, is dismissed. No order as to costs is made.
“Michael
L. Phelan”
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