Dockets: IMM-6000-09
IMM-6005-09
IMM-6009-09
IMM-6010-09
Citation: 2011 FC 773
Ottawa, Ontario, June 27,
2011
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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HENOK AYNALEM GHIRMATSION
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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AND BETWEEN:
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Docket: IMM-6005-09
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TSEGEROMAN ZENAWI KIDANE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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AND BETWEEN
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Docket: IMM-6009-09
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TSEGAY KIFLAY WELDESILASSIE
(A.K.A. TSEGAY FIKLAY
WELDESILASSIE)
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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AND BETWEEN
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Docket: IMM-6010-09
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SELAM PETROS WOLDESELLASIE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
The
Applicants in each of Ghirmatsion v Canada (Minister of Citizenship &
Immigration), 2011 FC 519, [2011] FCJ No 650 (QL), Kidane v Canada
(Minister of Citizenship & Immigration), 2011 FC 520, [2011] FCJ No 651
(QL), Weldesilassie v Canada (Minister of Citizenship & Immigration),
2011 FC 521, [2011] FCJ No 652 (QL) and Woldesellasie v Canada (Minister of
Citizenship & Immigration), 2011 FC 522, [2011] FCJ No 653 (QL) (together
referred to as the “four lead cases”) were successful in their applications for
judicial review. In each case, the decision of the same Visa Officer was
overturned. Pursuant to the direction of this Court, the parties provided
written representations as to costs.
[2]
In
their submissions (made jointly in respect of the four lead cases), the
Applicants seek costs on a solicitor and client basis in the amount of $166,500
plus HST. The Respondent, the Minister of Citizenship and Immigration (the
Minister), submits that no costs are warranted. Having reviewed those
submissions, I am persuaded that, in the exceptional circumstances of the four
lead cases and in my discretion, a total award of $24,000 is justified. My
reasons follow.
[3]
The
authority to grant costs is set out in s. 400 of the Federal Courts Rules, SOR/98-106
[the Rules] and r. 22 of the Federal Court Immigration and
Refugee Protection Rules, SOR/93-22 [the Refugee Rules].
Rule 22 of the Refugee Rules states that no costs shall be awarded
on an application for leave or for judicial review unless the Court determines
that there are special reasons. For the cases at bar, special reasons exist –
specifically; the context of the four lead cases, the unnecessary prolongation
of the proceedings and the nature of the errors in the decisions.
[4]
The
first – and most significant – special reason is the context of the four lead
cases. These cases were representative of more than 40 cases that were held in
abeyance pending the disposition of the judicial review applications in the four
lead cases. I have recently been advised that the Minister has consented to
judgment in all of the remaining cases. Without the need for further
litigation, all remaining cases will be sent back for reconsideration. In the
unusual circumstances, the careful selection and preparation of the four lead
cases obviated the need for extensive preparation and further litigation costs
for both parties in respect of the remaining files. This context supports an
award of costs.
[5]
The
second reason relates to how these cases unfolded before the Court. The Federal
Court has held that “special reasons” may be found where a party has
unnecessarily or unreasonably prolonged proceedings (Johnson v Canada (Minister
of Citizenship and Immigration), 2005 FC 1262, 275 FTR 316 at para 26) or
where it could be apparent from a review of the file that the officer’s reasons
for decision would not withstand judicial review and should be brought to a
“rapid conclusion” (Ndererehe v Canada (Minister of Citizenship and
Immigration), 2007 FC 880, 317 FTR 23 at para 35). Both of these factors
support an award of costs in these cases.
[6]
For
the four lead cases and the files no longer held in abeyance, there has been a
lengthy timeline, dating back to November 4, 2009, when the Applicants, through
the Executive Director of the Canadian Counsel for Refugees, brought “common
issues” to the attention of senior officials at Citizenship and Immigration
Canada (CIC) headquarters in Ottawa. This was several weeks before the
proceedings for leave and judicial review of these files had commenced. I agree
with the Applicants that, if the Minister had carefully investigated these
complaints, in November 2009, this litigation may not have been necessary. This
is compounded by the very nature of the Applicants’ claims. The four
representative Applicants and all of the remaining applicants are refugees in a
dangerous foreign country without the resources to finance the judicial review
of their claims in Canada. This should have been a consideration for the
Minister in 2009. Obviously, the Minister does not have the obligation to
investigate every issue that arrives on his desk; however, when a reputable
organization brings to his attention a number of similar issues, arising from
the same visa post, common sense and fairness leads me to conclude that the
Minister ought to have taken the complaint more seriously. It appears that this
was not done, or not done in any satisfactory manner.
[7]
The
Applicants insist that the Minister had numerous opportunities to resolve these
cases, as the problems with the Visa Officer’s decision became more apparent. In
response, the Minister’s counsel asserts that the actions of the Applicants’
counsel called for him “to vigorously protect his client’s interests” and
called for “an energetic and robust defence”. I strongly agree. However, it is
also in the Minister’s interest to resolve litigation where there is a clear
indication that an application for judicial review will succeed on its merits.
[8]
The
fact, as asserted by the Minister, that the Applicants sought “unwarranted and
improper injunctive relief” was a secondary consideration that could likely
have been dealt with either through negotiation or in a much-reduced judicial
review.
[9]
One
particular event on the path to the hearings of the four lead cases stands out.
The cross‑examination of the Visa Officer on her affidavits was a
watershed moment, at which point the magnitude and existence of some of the
errors should have been apparent to the Minister.
[10]
The
Applicants also refer to the Visa Officer’s lack of training and “blatant”
mistakes, contrary to the understanding and skills expected of the professional
visa officer. In such a situation, costs may be appropriate to encourage CIC to
review, and perhaps modify, the training and practices of visa officers in
overseas posts (see, for example, Qin v Canada (Minister of
Citizenship and Immigration), 2002 FCT 1154, 225 FTR 136 at para 34).
In the four lead cases, the Visa Officer’s errors were very apparent on the
face of the record. As noted above, this became strikingly obvious on
cross-examination of the Visa Officer where her lack of adequate training and
support became evident. This is a factor that favours an award of costs.
[11]
The
Court has held that costs may be warranted where a party has acted in a manner
that may be characterized as unfair, oppressive, improper or actuated by bad
faith (Kargbo v Canada (Minister of Citizenship and Immigration), 2011
FC 469, [2011] FCJ No 577 (QL) at paras 33-35). I agree with the Minister that
there has been no behaviour that reaches that level. I am satisfied that these
matters should have been addressed or resolved earlier and that the Visa
Officer, in all four lead cases, should have been better trained or prepared
for her post. However, there is no sign of unfair, oppressive or improper
behaviour on the part of the Visa Officer, the Minister or the Minister’s
counsel.
[12]
In the unusual circumstances of the four lead cases, for the
reasons described above, there are “special reasons” to award costs that go
above and beyond the normal circumstances of a judicial review. Accordingly,
costs are warranted.
[13]
As noted above, the Applicants seek costs on a solicitor and
client basis. Such costs are only justified where there is evidence of
"reprehensible, scandalous or outrageous conduct" on the part of the
Respondent (see Canada (Minister
of Citizenship and Immigration) v Harkat, 2008 FCA
179, [2008] FCJ No 761 (QL) at para 13). There is no evidence of such behaviour
in the case at hand.
[14]
In my view, a lump sum award of $5000 per file plus a total sum of
$4000 for disbursements on all four files, for a total of $24,000, is
reasonable and justifiable on the facts of these cases. This amount is
inclusive of HST.
[15]
Lastly,
I wish to address the submission by the Applicants made by letter dated May 31,
2011. With this letter, the Applicants submitted a copy of a document entitled
“The PSR QA Project: Managing Quality Counts” and requested that the
Court take this report into account in the determination of costs. The
Applicants assert that this report is evidence that, if the recommendations for
assessing the problems identified in the report had been implemented, the
within litigation would likely never have been necessary. I will not consider
this report for two reasons: (1) it is not appropriate to consider the report filed
after the completion of the judicial review and after the date for submissions
on costs; and, (2) the report has been presented without any context to assess
whether any of the recommendations have been implemented. Therefore, this
report was not taken into consideration in the determination of costs.
ORDER
THIS COURT
ORDERS that:
1.
Costs
in the amount of $6,000, inclusive of all disbursements and HST, are awarded to
the Applicant in each of Court File Nos. IMM-6000-09, IMM-6005-09, IMM‑6009-09
and IMM-6010-09, for a total of $24,000.
“Judith
A. Snider”
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