Date: 20110727
Docket: DES-2-10
Citation: 2011 FC 945
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, July 27, 2011
PRESENT: The Honourable Mr. Justice Yves
de Montigny
BETWEEN:
ATTORNEY GENERAL
OF CANADA
Applicant
and
HANI AL TELBANI
Respondent
REASONS FOR ORDER AND ORDER
I. Introduction
[1]
Mr. Al Telbani is of Palestinian origin and
has been a permanent resident of Canada since 2004. On June 4, 2008, when
he was about to board an Air Canada flight to Saudi Arabia, he was denied
boarding and was given a copy of an Emergency Direction dated the same day
stating that the Minister of Transport, Infrastructure and Communities (the
Minister) had determined that he posed an immediate threat to aviation
security.
[2]
Mr. Al Telbani subsequently filed two
applications for judicial review (T-973-08 and T‑1696-09) related to the
decision to add his name to the list of people prohibited from flying (the no
fly list). The Attorney General of Canada (the AGC) then asked the Federal
Court to issue an order to protect certain information in connection with these
judicial reviews that he believes to be potentially injurious or “sensitive”
under sections 38.01 and following of the Canada Evidence Act, RSC
1985, c C-5.
[3]
In the context of the proceeding filed by the
AGC, and seeking a confidentiality order from the Federal Court (DES-2-10),
Mr. Al Telbani filed the motion for advance costs presently before the
Court. More specifically, Mr. Al Telbani is seeking an order compelling
the AGC to pay his professional fees. Although the motion is somewhat ambiguous
in that respect and can be interpreted as seeking the payment not only of
Mr. Al Telbani’s costs in docket DES-2-10, but also the costs
connected to his two applications for judicial review, it should be clarified
that in the context of the present proceeding, this Court does not have to rule
on the merit of the two judicial review applications, but only the AGC’s application
under the Canada Evidence Act. Indeed, the AGC is not a party and has no
interest in the applications for judicial review filed by Mr. Al Telbani,
and does not intend to take a position on the claims related to these two cases.
[4]
At the hearing, counsel for Mr. Al Telbani
admitted that the present motion could concern only the costs for docket
DES-2-10. She argued, however, that the Court had to consider the two
applications for judicial review in its assessment of the motion for advance
costs, since the evidence that would be available to the respondent—which
would, in part, be decided in the context of this motion—would have an impact
on the two underlying proceedings. I do not disagree that there is a link
between the application filed by the AGC under section 38 of the Canada
Evidence Act and the applications for judicial review filed by the
respondent. The fact remains that the analysis the Court must undertake to
determine whether advance costs should be granted in the present matter must
first and foremost be performed in light of the issues raised in the AGC’s application
to remove certain information from the Court’s records in dockets T-973-08 and
T-1696-09. It will be for the judge who will ultimately be responsible for
ruling on the two applications for judicial review to determine, if he or she
is asked to do so, whether advance costs should be awarded in those two cases.
II. Facts
[5]
As mentioned above, on June 4, 2008,
Mr. Al Telbani was denied boarding on an Air Canada flight destined for
Saudi Arabia. He was given an Emergency Direction issued in accordance with
section 4.76 of the Aeronautics Act, RSC, 1985, c A-2. The
Direction simply stated that the Minister was of the opinion that Mr. Al
Telbani posed an [translation] “immediate threat to aviation security or to any aircraft or
aerodrome or other aviation facility, or to the safety of the public,
passengers or crew members”. Under the Passenger Protect Program created by the
Department of Transport in June 2007, under the Aeronautics Act,
the names of individuals for whom there are reasonable grounds to suspect that
they pose an immediate threat to aviation security are recorded on the
Specified Persons List (commonly known as the no fly list). Airlines cannot
allow individuals on that list to board an aircraft leaving or heading to
Canada.
[6]
In response to the Minister’s decision,
Mr. Al Telbani applied to Transport Canada’s Office of Reconsideration to
request a reconsideration of the decision. On June 19, 2008, Mr. Al
Telbani also filed a notice of application for judicial review of the Minister’s
decision to add his name to the Specified Persons List and to issue an Emergency
Direction in his regard. The application also contests the constitutional
validity of the measure and the statutory and regulatory provisions.
[7]
On July 31, 2008, in response to
Mr. Al Telbani’s request for disclosure of the tribunal record, Transport
Canada filed in the Court docket a letter from the Director General, Aviation
Security, Transport Canada, stating that a certified copy of the following
documents had been appended, namely the Emergency Direction issued by a
Transport Canada intelligence officer on behalf of the Minister on June 4,
2008. According to this letter, the other documents contained in the tribunal
record could not be disclosed because they were covered by a notice given to
the AGC on June 24, 2008, under subsection 38.01(1) of the Canada
Evidence Act.
[8]
On September 15, 2008, the applicant filed
a notice of application under sections 317 and 318 of the Federal
Courts Rules (the Rules) and section 38 of the Canada Evidence Act
challenging Transport Canada’s refusal to disclose the record that resulted in the
Minister’s decision. The request was denied by the Court in a decision dated
November 3, 2008. Judge Frenette also ordered a stay of the
application for judicial review and concluded that the question of whether
Transport Canada had to disclose the sensitive or potentially injurious
information sought by the applicant had to be dealt with in a separate hearing
under subsection 38.04(1) of the Canada Evidence Act.
[9]
At the same time as these legal proceedings,
Transport Canada’s Office of Reconsideration issued a report and recommendations
in response to Mr. Al Telbani’s request o reconsider the Minister’s
decision to put his name on the Specified Persons List. This report is dated October 29,
2008, but was only disclosed to counsel for Mr. Al Telbani on
June 12, 2009. The Office set out its three conclusions as follows at
page 2 of its Report:
First, the
Deputy Minister of Transport, Infrastructure and Communities was not provided
with the information necessary for him to decide whether the fact of the
Applicant’s case, when considered in light of the requirements of paragraph
4.81(1)(b), justified the exercise of the power to compel the air
industry to provide information and the placing of him on the specified Persons
List (SPL). Second, subsequent decisions of the Specified Persons List Advisory
Group (SPLAG) to maintain the Applicant on the SPL were made without legal
authority. Third, the decision to issue an Emergency Direction to deny boarding
to the Applicant was made without legal authority because the officer who
issued the Emergency Direction was not authorized by the Minister of Transport,
Infrastructure and Communities to do so. We would also add that, even if he had
been authorized, the officer would not have formed the opinions necessary to
justify issuance of the Emergency Direction.
(Applicant’s Request Record, p. 149)
[10]
On the basis of these findings, the Office
recommended that the Deputy Minister declare that the decisions to put
Mr. Al Telbani’s name on the Specified Persons List and to issue an Emergency
Direction prohibiting him from boarding an aircraft were of no effect, and
remove his name from the list. Taking note of these recommendations, Transport
Canada re-examined Mr. Al Telbani’s file. On September 10, 2009, the
Minister decided to keep Mr. Al Telbani’s name on the Specified Persons
List. On October 14, 2009, Mr. Al Telbani filed a second application
for judicial review, this time of the Minister’s decision to keep his name on
the Specified Persons List (docket T-1696-09).
[11]
On June 29, 2010, the AGC filed a notice
of application in the present matter, in accordance with subsection
38.04(1) of the Canada Evidence Act. The AGC is thus seeking to protect
sensitive or potentially injurious information that he wishes to use in support
of his position in the two applications for judicial review filed by Mr. Al
Telbani.
[12]
The only issue in the present motion is whether
Mr. El Talbani’s situation warrants that the Court exceptionally award him
advance costs in the context of the AGC’s application under
subsection 38.04(1) of the Canada Evidence Act.
III. The law of
advance costs
[13]
Section 400 of the Federal Courts Rules
gives the Court full discretionary power over the amount and allocation of
costs. According to the traditional approach to awarding costs, costs are
usually awarded to the successful party at the end of the judgment.
[14]
In its leading decision
on the awarding of advance costs, the Supreme Court of Canada reiterated the
basic rules for costs. It quoted with approval from the Divisional Court of the
Ontario High Court of Justice’s decision in Re Regional Municipality of
Hamilton-Wentworth and Hamilton-Wentworth Save the Valley Committee, Inc. (1985),
51 OR (2d) 23; [1985] OJ No 1881, where (at page 32) the Ontario High
Court of Justice described the usual standard characteristics of costs awards. The
Supreme Court of Canada summarized these in the following terms:
[20] . . .
(1) They are an
award to be made in favour of a successful or deserving litigant, payable by
the loser.
(2) Of
necessity, the award must await the conclusion of the proceeding, as success or
entitlement cannot be determined before that time.
(3) They are
payable by way of indemnity for allowable expenses and services incurred
relevant to the case or proceeding.
(4) They are not
payable for the purpose of assuring participation in the proceedings.
[Emphasis in original.]
British
Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371.
[15]
These factors reflect the traditional approach
to the awarding of costs, namely indemnifying the successful party for the expenses
it incurred to defend against an action without merit or to pursue a valid
legal right. As the Supreme Court took pains to point out, these principles
should normally be followed, unless some special circumstances are established:
[22] These
background principles continue to govern the law of costs in cases where there
are no special factors that would warrant a departure from them. The power to
order costs is discretionary, but it is a discretion that must be exercised
judicially, and accordingly the ordinary rules of costs should be followed
unless the circumstances justify a different approach. . . .
British Columbia (Minister of Forests) v Okanagan Indian Band, ibid.
[16]
The Supreme Court of Canada has however
recognized that indemnity to the successful party is not necessarily the sole
purpose, or even the primary purpose of costs awards. A review of the case law
in this matter has led the Court to conclude that concerns about access to
justice and the desirability of mitigating severe inequality between litigants
may be considered. In public interest litigation, it is also important that
issues of significance to the broader community can be determined. In such
cases, the public importance of the questions at issue may be regarded as “special
circumstances” warranting the awarding of advance costs.
[17]
In that context, the Supreme Court of Canada has
established three conditions that must be met to justify an award of advance
costs:
[40]
. . .
1. The party
seeking interim costs genuinely cannot afford to pay for the litigation, and no
other realistic option exists for bringing the issues to trial — in short, the
litigation would be unable to proceed if the order were not made.
2. The claim to
be adjudicated is prima facie meritorious; that is, the claim is at
least of sufficient merit that it is contrary to the interests of justice for
the opportunity to pursue the case to be forfeited just because the litigant
lacks financial means.
3. The issues
raised transcend the individual interests of the particular litigant, are of
public importance, and have not been resolved in previous cases.
British Columbia (Minister of Forests) v Okanagan Indian Band, ibid.
[18]
These three conditions must be met for advance
costs to be ordered. On the other hand, the Court may also conclude that it is
not appropriate to order the payment of costs in the course of the proceeding
even if the three conditions are met. The Court reiterates that advance costs
are an extraordinary remedy that should be granted sparingly, as the following
excerpt from its reasons demonstrates:
[41] These are
necessary conditions that must be met for an award of interim costs to be
available in cases of this type. The fact that they are met in a particular
case is not necessarily sufficient to establish that such an award should be
made; that determination is in the discretion of the court. If all three
conditions are established, courts have a narrow jurisdiction to order that the
impecunious party’s costs be paid prospectively. . . .
British Columbia (Minister of Forests) v Okanagan Indian Band, ibid.
[19]
The Supreme Court of Canada returned to this
issue in Little Sisters Book and Art Emporium v Canada (Commissioner of
Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38, reiterating that advance
costs orders must be granted with caution, as a last resort and in circumstances
where the need for them is clearly established (para. 36). The Court added
that it is only a “rare and exceptional” case that is “special enough” to
warrant an advance costs award (para. 38). A number of excerpts underscore
that such orders should not be issued lightly or routinely:
[44] . . .
People with limited means all too often find themselves discouraged from
pursuing litigation because of the cost involved. Problems like this are
troubling, but they do not normally trigger advance costs awards. We do not
mean to minimize their unfairness. On the contrary, we believe they are
sufficiently serious that this Court cannot purport to solve them all through
the mechanism of advance costs awards. Courts should not seek on their own to
bring an alternative and extensive legal aid system into being. That would
amount to imprudent and inappropriate judicial overreach.
[71] The
impecuniosity requirement from Okanagan means that it must be proven to
be impossible to proceed otherwise before advance costs will be ordered.
Advance costs should not be used as a smart litigation strategy; they are the
last resort before an injustice results for a litigant, and for the public at
large.
[78] The rule
in Okanagan arose on a very specific and compelling set of facts that
created a situation that should hardly ever reoccur. As this Court held in Okanagan,
an advance costs award should remain a last resort. . . .
Little Sisters Book and Art Emporium v Canada (Commissioner of
Customs and Revenue), ibid.
See also the more recent R v Caron, 2011 SCC 5, [2011] SCJ No
5, at para. 39.
[20]
On the basis of these principles, I will now
examine the motion filed by Mr. Al Telbani in the present matter.
A. Mr. Al
Telbani’s financial situation
[21]
Mr. Al Telbani stated in his affidavit filed in
support of his motion that, as of January 1, 2011, he was no longer
eligible for the Province of Quebec’s legal aid program. This was not
contested. The Regulation respecting Legal aid (LRQ 1981, c A-14) does
in fact stipulate that a single person is not eligible for gratuitous legal aid
if his or her gross annual income exceeds $13,007, while single people whose
gross income exceeds $18,535 are not eligible for contributory legal aid. Mr. Al
Telbani has had a full-time position as a software developer since
November 15, 2010, and receives a gross annual salary of $56,004, three
times as much as the maximum eligibility amount established according the
schedule of annual income for the contributory component.
[22]
Mr. Al Telbani nonetheless submits that he
will be unable to pay for all the costs of the present proceeding because he
has no savings and has to reimburse his student loans totalling about $25,000,
which he is reimbursing at $250 a month, and an equivalent amount that his
parents lent him.
[23]
It is difficult to get a clear picture of
Mr. Al Telbani’s financial situation since he has not submitted a proper
financial statement. The only evidence before the Court concerning Mr. Al
Telbani’s expenses is one paragraph from his affidavit, where he alleges that
his (monthly) expenses include $700 in rent, $335 in transportation, $190 in
utilities (electricity and telecommunications) and $900 in living expenses. In
addition to that, he reimburses $250 a month for his student loan. He also states
that he is reimbursing his parents, without clarifying at what pace he has to
do so. In these circumstances, and on the basis of these facts alone, it is
hard to conclude that Mr. Al Telbani is impecunious and does not have the
means to pay his legal fees.
[24]
Moreover, Mr. Al Telbani has not shown the
Court that there is no other alternative to an advance costs order to allow him
to assert his rights before the Court. In his affidavit, Mr. Al Telbani
stated that his attempts to seek assistance from non-government organizations,
such as the Civil Liberties Monitoring Group and the Muslim Council of Montreal,
in June and July 2008 had been unsuccessful. It is true that Mr. Al
Telbani’s cannot be criticized for not persevering in these attempts while he was
receiving legal aid. It remains, however, that he could have resumed and
pursued his efforts when he stopped receiving legal aid, both with these and
other organizations. This is especially so as the affidavit sworn by
Mr. Salam Elmenyawi, on behalf of the Muslim Council of Montreal, attests
that the organization would undoubtedly not be able to financially support a
challenge concerning Mr. Al Telbani’s presence on the Specified Persons
List, but is silent on the funding that might be granted to Mr. Al Telbani
in the context of the proceeding instituted under the Canada Evidence Act.
[25]
Once again, it is important to recall that advance
costs are an exceptional measure the use of which may be justified when there
is no other alternative, as the Supreme Court of Canada wrote in Little
Sisters, above:
[40] . . .
the applicant must explore all other possible funding options. These include,
but are not limited to, public funding options like legal aid and other
programs designed to assist various groups in taking legal action. An advance
costs award is neither a substitute for, nor a supplement to, these programs.
An applicant must also be able to demonstrate that an attempt, albeit
unsuccessful, has been made to obtain private funding through fundraising campaigns,
loan applications, contingency fee agreements and any other available options.
If the applicant cannot afford all costs of the litigation, but is not
impecunious, the applicant must commit to making a contribution to the
litigation. Finally, different kinds of costs mechanisms, like adverse costs
immunity, should also be considered. In doing so, courts must be careful not
to assume that a creative costs award is merited in every case; such an award
is an exceptional one, to be granted in special circumstances. Courts should
remain mindful of all options when they are called upon to craft appropriate
orders in such circumstances. Also, they should not assume that the litigants
who qualify for these awards must benefit from them absolutely. . . .
[26]
In Abdelrazik v Canada (Minister of Foreign
Affairs and International Trade), 2008 FC 839, [2008] FCJ No 1046, this
Court dismissed a motion for advance costs, relying, among other things, on
the fact that the applicant had not fully explored the funding alternatives
potentially available to him (at para. 41). The Court also noted that
counsel for the applicant had not demonstrated, in his affidavit, that he would
be forced to withdraw from the file if the motion for costs was not granted to
his client (at para. 39). In the present matter, counsel for Mr. Al
Telbani did not file any personalized evidence concerning her inability or
refusal to act because of financial considerations. The only evidence on that
issue can be found at paragraphs 28 and 29 of Mr. Al Telbani’s
affidavit, where he claims to believe, according to information obtained from
his counsel, that his counsel would not be able to continue working on this
file without a source of funding. I find such a statement on the part of
Mr. Al Telbani to be clearly insufficient to obtain advance costs.
[27]
Finally, it is important to note that nowhere in
Mr. Al Telbani’s affidavit does it suggest that he or his parents are
unable to contribute to the payment of the fees in this matter. Mr. Al
Telbani received financial support from his family from January 2006 until
he started working in November 2010, and he writes at paragraph 38 of
his affidavit that his relatives cannot pay [translation] “all the legal fees” associated with this proceeding. At paragraph 39
of his affidavit, he adds that he is unable to pay [translation] “all the legal fees” associated with this proceeding himself. At
the hearing, counsel for Mr. Al Telbani indicated that Mr. Al Telbani
could set aside $750 a month to pay for part of his legal fees; there is no
mention of this, however, in Mr. Al Telbani’s affidavit. In the absence of
further clarifications in that respect, it is difficult to determine what
contribution he or his family could make to his case.
[28]
Given the circumstances described before the
Court, it is not possible to conclude that the first condition set out by the
Supreme Court of Canada to warrant an advance costs order has been fulfilled. Not
only has Mr. Al Telbani not proven his impecuniosity, but he has also
failed to establish that there is no other alternative that would allow him to
pay his legal fees. In these circumstances, I must dismiss his motion, since
the three conditions that emerge from the case law of the Supreme Court of
Canada are conjunctive, and not disjunctive.
[29]
It would be remiss of me, however, not to make
the following few comments. First, in regard to the second condition described
by the Supreme Court of Canada, it must be remembered that the application the
merit of which must be assessed is the one filed by the AGC under
section 38.04, and not the applications for judicial review filed as
dockets T-973-08 and T‑1696-09. Mr. Al Telbani is therefore not a
respondent in the usual sense of the term in docket DES-2-10, let alone an
accused, contrary to what he claims, but rather a person whose interests are
affected by the application, in accordance with subsection 38.04(5) of the
Canada Evidence Act. Indeed, subsection 38.04(5) of the Canada
Evidence Act provides that the Federal Court can rule on the application
solely on the basis of the AGC’s representations. Only if the judge decides
that a hearing should be held does he or she determine who should be given
notice of the hearing (subparagraph 38.04(5)(c)(i)).
[30]
On November 10, 2010, this Court appointed
two experienced counsel as amici curiae. The amici curiae will
participate at the hearings held in Mr. Al Telbani’s absence and will have
every opportunity to cross-examine the witnesses heard by the AGC and to submit
written and oral representations to the Court. It was also ordered that the
fees of the amici curiae will be paid by the AGC. Given the active role
to be played by the amici curiae and the fact that only 31 documents are
at issue (and that of this number, several overlap), it is hard to imagine that
Mr. Al Telbani’s interests will not be represented. Even assuming that he
insists on being represented by his counsel, his counsel’s workload will necessarily
be reduced. In the circumstances, it seems exorbitant to order advance costs.
[31]
Lastly, the questions raised by Mr. Al
Telbani do not transcend his own interests. According to Canada (Attorney
General) v Ribic, 2003 FCA 246, [2003] FCJ No 1964, the Court has to
determine three issues in the context of an application under
subsection 38.04(1) of the Canada Evidence Act:
(1) Is the
information relevant?
(2) If the information is relevant, would the disclosure of the
information be injurious to international relations, national defence or
national security?
(3) If the disclosure would result in injury, does the public
interest in disclosure outweigh in importance the public interest in
non-disclosure?
[32]
When it comes to the first two questions, the
burden rests squarely on the AGC. Again, the two amici curiae appointed
by the Court and whose fees will be borne by the AGD will be present at this
stage of the proceeding. If the AGC succeeds in establishing that the
disclosure would be injurious to international relations, national defence or
Canada’s national security, the Court must balance the public interest in
disclosure against the public interest in non-disclosure. Although this is
certainly an important exercise, it is not an exceptional one, and its outcome affects
only Mr. Al Telbani. The interest this assessment might have for the
general public will be limited, and certainly not sufficient to fulfill the
third condition established by the Supreme Court of Canada.
[33]
It is true that Mr. Al Telbani intends to
raise the constitutional invalidity of the scheme established by
section 38 of the Canada Evidence Act, which confers exclusive
jurisdiction on the Federal Court to determine issues regarding the disclosure
of information pertaining to international relations, national defence or
national security. That question was conclusively determined by the Supreme
Court of Canada in R v Ahmad, 2011 SCC 6, [2011] S.C.J. No 6, and by the
Ontario Court of Appeal in Abou-Elmaati v Canada (Attorney General),
2011 ONCA 95, [2011] OJ No 474. The Federal Court and the Federal Court of
Appeal have also examined section 38.11 of the Canada Evidence Act and
confirmed the constitutional validity of ex parte hearings which the
provision contemplates: see Canada (Attorney General) v Khawaja, 2007 FC
463, [2008] 1 FCR 621, aff’d. in 2007 FCA 388, [2008] 4 FCR 3. Consequently,
Mr. Al Telbani’s arguments as to the validity of section 38 of the Canada
Evidence Act have already been decided by the courts, and one therefore cannot
argue that these are issues of the utmost important and of public interest,
especially as Mr. Al Telbani has failed to explain how the arguments he
might raise would challenge the exhaustive analysis the Supreme Court undertook
in Ahmad.
[34]
Mr. Al Telbani is moreover basing his
challenge on an element of speculation, in arguing that the judge who will be
hearing the two judicial reviews might have to dispose of the applications on
the basis of an incomplete record. Yet, at this stage, one cannot assume the
outcome of the application filed by the AGC. Upon completion of the Court’s
assessment of the appropriateness of the partial or full disclosure of the information
the AGC considers to be “sensitive” or “potentially injurious”, Mr. Al
Telbani’s fears may well turn out to be unfounded. Consequently, the
constitutional question is premature and cannot justify the awarding of advance
costs.
[35]
Taking all this into consideration, I therefore
find that Mr. Al Telbani’s motion to have the AGC pay for his legal fees
for the proceeding instituted under the Canada Evidence Act must be
dismissed. Mr. Al Telbani has fulfilled none of the three conditions
developed by the Supreme Court of Canada in British Columbia (Minister of
Forests) v Okanagan Indian Band, above, Little Sisters Book and Art
Emporium, above, and Caron, above.
[36]
In closing, I must say a word about the
alternative argument raised by counsel for Mr. Al Telbani in her written
submissions, an argument that she did not refer to at the hearing. Relying on,
inter alia, R v Rowbotham et al (1988), 41 CCC (3d) 1, [1988] OJ
No 271 (Ont CA), she submits that case law has recognized the right of an impecunious
accused to be represented by state-funded counsel.
[37]
Many decisions have indeed recognized that the
right to a fair trial implies the possibility of retaining counsel. This right
arises from section 7 and paragraph 11(d) of the Canadian
Charter of Rights and Freedoms. But
in the present case, Mr. Al Telbani has not been charged with a criminal
or penal offence, and neither his freedom nor his safety is at stake. As
mentioned above, the sole purpose of an application filed under section 38
of the Canada Evidence Act is to determine whether certain information
must be protected because it is potentially injurious or sensitive within the
meaning of that provision. Accordingly, there is no accused in such a
proceeding, and the burden of proof is on the AGC. In this context, Mr. Al
Telbani cannot refer to this case law to claim the payment of his legal fees,
at least in respect of the present matter.
[38]
For all of these reasons, Mr. Al Telbani’s motion
for advance costs is dismissed, without costs.
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