Date: 20070119
Docket: IMM-6782-06
Citation: 2007 FC 56
Ottawa, Ontario,
January 19, 2007
PRESENT: The
Honourable Mr. Justice Harrington
BETWEEN:
SANDRA JACKSON (a.k.a. SANDRA
BEVERLY JACKSON);
TANYA ABERDEEN (a.k.a. TANYA AVIANNE ABERDEEN)
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER AS
TO COSTS
[1]
The
general rule in the awarding of costs is that this Court has full discretion as
set out in Federal Courts Rules 400 and following. One fact to take into
account is whether any step was improper, vexatious, unnecessary or taken
through negligence, mistake or excess of caution.
[2]
However,
in immigration litigation the rule is quite different. Rule 22 of the Federal
Courts Immigration and Refugee Protection Rules provides that no costs be
awarded to or against any party unless the Court so orders “for special
reasons”. The Minister submits that the circumstances of this case justify an
award against the applicants for wasted costs on a motion which was adjourned.
I agree.
[3]
The
applicants, mother and daughter, are citizens of Trinidad and Tobago. They are currently here
without immigration status, although they have filed an application to remain
in Canada on humanitarian and
compassionate grounds. No decision has been made in that regard. In the
meantime, on 27 December 2006 they were served with a direction to report which
informed them that their removal from Canada
was scheduled for Saturday, 20 January 2007. The direction also stated that failure
to report at the Canada Immigration Centre at the Pearson International Airport in Toronto would result in enforcement
action being taken against them, including a Canada wide warrant for their arrest.
[4]
On the
morning of 29 December, through counsel, they requested the enforcement officer
to defer their removal. Their letter concluded, “no reply from you before 12:00
p.m. Friday, December 29, 2006 will be considered to be a negative answer.” Let
me say that this ultimatum to render a decision within a few hours was
completely inappropriate.
[5]
Be that as
it may, later that same day, 29 December 2006, the applicants filed an
application for leave and for judicial review of what they called:
The continued decision of an Enforcement
Officer of the Canada Border Services Agency to remove the applicant dated
December 29, 2006, and communicated to the Applicant on the same day.
[6]
At the
same time they filed a notice of motion for a stay of removal pending the
outcome of that application. The motion was originally made presentable at the
general sittings of the Court in Toronto
on 8 January 2007, but for reasons I need not discuss was put over to a special
sitting by teleconference (Toronto/Ottawa) two days ago.
[7]
The
Minister took issue with the appropriateness of the proceedings. By letter
faxed to the Federal Court Registry on 3 January 2007, with copy to applicants’
counsel, counsel for the Minister pointed out that no decision to defer or not
had yet been made and that therefore the motion was premature in accordance
with the jurisprudence of this Court as set out in such cases as Tharmaratnam
v. Canada (Minister of Public Security and Emergency Preparedness),
IMM-3208-06 and Luchka v. Canada (Minister of Citizenship and Immigration
and Minister of Public Safety and Emergency Preparedness), IMM-4144-06.
[8]
The Court
of its own direction inquired if a decision to defer or not had been made, and
was informed on the eve of the scheduled hearing by counsel for the Minister
that no decision had yet been made but that she understood the decision would
be rendered imminently.
[9]
As it
turns out, a negative decision was rendered in writing and delivered to the
parties, and to the Court, less than one hour before the hearing. In the
circumstances, counsel for the applicants requested an adjournment in order to
study the decision, an adjournment which was granted. These reasons have no
bearing whatsoever on the merits of any motion for deferral. However, I must
mention that the notes to file of the enforcement officer state that additional
submissions had been received on 5 January 2007 and that although the request
for a deferral of removal was denied, as the applicants chose to purchase their
own air tickets, removal was delayed to 28 February 2007 to reflect a new
itinerary. Those additional submissions were only given to me during the
adjournment hearing.
[10]
The
Minister’s argument is that the proceedings to date have been pointless. To
obtain a stay pending an application for leave and judicial review of a
decision of a federal board or tribunal, there obviously must be a decision.
There was no decision until 19 days after proceedings were filed. The refusal
or inability to answer the applicants’ request within a few hours as they
demanded was not a negative decision. The applicants were on notice, with
jurisprudence, for two weeks, and yet pressed on. Then, as was inevitable, they
had to ask for a postponement given that the reasons to refuse to defer the
removal were only delivered within minutes of the scheduled court hearing. In
any event, a deferral of approximately six weeks was granted so that the matter
was no longer so urgent that it required a special sitting.
[11]
The
applicants take the position that it was far better to file an application for leave
and for judicial review, with an accompanying motion for a stay, as soon as
possible after the notice to report was received. They cited instances where
the Court has refused to consider last minute applications. However, those were
cases arising from tardiness on the part of the applicant. That certainly is
not the case here. Their application was clearly premature.
[12]
Counsel
for the applicants also points out that it would be unjust to remove someone
because an enforcement officer fails to make a decision on a deferral request.
No doubt there are instances where that is so, instances which would justify an
application by way of mandamus and a stay until that decision was
rendered. That is not quite the case here.
[13]
Counsel
for the applicants relies upon three decisions: Uppal v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1133; Iftikhar v. Canada (Minister of Citizenship and
Immigration),
2006 FC 49 and Casanova v. The Minister of Citizenship and Immigration,
2006 FC 232. None of these cases is of assistance in the special circumstances
of this case. Uppal was a decision in which Madam Justice Dawson refused
to grant costs against the Minister notwithstanding that a finding of an order
of mandamus was warranted. She was of the view that the pace in that
case was not so slow or lax as to give rise to special circumstances. There
certainly were no special circumstances in this case which justified the
applicants filing proceedings within a few hours of requesting a deferral.
[14]
Iftikhar is another case in which the
applicants were successful, and sought costs. Mr. Justice Phelan pointed out
that the policy behind the normal “no cost” rule is that costs should not be a
deterrent factor for those engaged in immigration litigation. The rule applies
to applicants and respondents equally. In that case he found no evidence of bad
faith in the immigration officer’s decision. Although the officer may have been
wrong, that was not enough to overturn the basic “no cost” regime. However,
this request for wasted costs has nothing to do with the merits of the
application. Even if the applicants obtain a stay, there are special
circumstances which justify an award of costs against them on the adjournment.
[15]
Casanova is one of the many cases dealing
with last minute applications. Although the applicant’s motion was dismissed,
no costs were awarded. However, Mr. Justice de Montigny does not state in his
reasons that costs in fact were sought.
[16]
The
special circumstances in this case are that proceedings were filed within a few
hours of a request for a deferral, more than three weeks before the scheduled
departure. The enforcement officer had no opportunity whatsoever to respond
thereto before proceedings were filed. Not only was there no underlying
decision which could be stayed, the Minister specifically called the applicants
to task on this point some two weeks before the motion was actually heard
(albeit postponed). The motion was not withdrawn, causing the respondent to
have to prepare and file a memorandum in reply and to prepare for a hearing, a
hearing which would have related to the fact that no decision had been made.
Whether this motion be re-presented in amended form, or fresh proceedings
instituted and a fresh motion presented, the merits of that motion will be
quite different as there is now an underlying decision.
[17]
Furthermore,
the applicants failed to inform the Court in a timely manner that they were
still in communication with the enforcement officer on 5 January 2007, notwithstanding
they had already filed proceedings on the basis that a decision had been made.
[18]
Guided by
Tariff B of the Federal Courts Rules; the preparation and filing of
written argument and the attendance fee, based on Column III, would run
somewhere between $600 and $1,200. In the special circumstances, I award the
respondent Minister costs in the amount of $500, payable in any event of the
cause.
ORDER
THIS COURT ORDERS that on applicants’ motion for a
stay of proceedings which was adjourned at their request, they are ordered to
pay costs to the respondent in the amount of $500 payable in any event of the
cause.
“Sean Harrington”
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