Date: 20110621
Docket: A-501-09
Citation: 2011 FCA 208
CORAM: SHARLOW
J.A.
DAWSON J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
BEN NDUNGU
Appellant
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW J.A.
[1]
The
appellant Ben Ndungu successfully appealed a judgment of the Federal Court
dismissing his application for judicial review of a decision of the Minister
under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the
“IRPA”). The notice of appeal included a claim for solicitor and client
costs in this Court and in the Federal Court.
[2]
The
memorandum of fact and law filed for Mr. Ndungu included a request for all
relief sought in the notice of appeal, but no submissions on costs appear in
the memorandum of fact and law, and no submissions on costs were made at the
hearing. The judgment on appeal and the reasons for judgment, which were issued
on April 29, 2011, are silent on costs (2011 FCA 146). On May 6, 2011, Mr.
Ndungu moved for an order granting costs on a solicitor and client basis, or
alternatively, costs on a “public-interest basis” at a specified hourly rate. The
respondent, the Minister of Citizenship and Immigration, opposes the motion.
[3]
For
the reasons that follow, I have concluded that the motion should be dismissed.
[4]
The
motion is in substance a motion under Rule 397(1)(b) of the Federal Courts
Rules, SOR/98-106, for reconsideration of a judgment on the basis that a
matter that should have been dealt with was overlooked. As the motion was filed
within 10 days after judgment, it is properly before this panel of the Court. The
judgment will be reconsidered to deal with the matter of costs.
[5]
The
appeal was from a judgment dismissing Mr. Ndungu’s application for judicial
review of a decision under the IRPA. Therefore, the motion for costs is
subject to Rule 22 of the Federal Courts Immigration and Refugee Protection
Rules, SOR/93-22, which precludes an award of costs in the absence of
“special reasons”.
[6]
There
is no statutory definition of the phrase “special reasons” as used in Rule 22,
and no definition has been developed in the jurisprudence. Perhaps no such
definition is possible, given the variety of circumstances that can give rise
to an application for judicial review in the immigration context, or an appeal
upon a certified question.
[7]
However,
the cases involving the application of Rule 22 provide some examples of the circumstances
that have been held to comprise “special reasons”, as well as circumstances
that have been held to fall short of that standard. I summarize as follows the
conclusions reached in some of the cases, based on a non-comprehensive survey:
The
nature of the case
1)
An
appeal based on a certified question generally will be presumed to have been
appropriately brought (Rahaman v. Canada (Minister of
Citizenship and Immigration), [2003] 3 F.C.R. 537, 2002 FCA 89).
2)
“Special
reasons” justifying costs on a solicitor and client basis may be found where
the Minister has applied for judicial review of an immigration decision which
then takes on the nature of a test case as to the interpretation of a
fundamental provision of the statute (for example, where the issues are whether
“Trinidadian women subject to spousal abuse” comprise a particular social group
and whether fear of that abuse, given the indifference of authorities, amounts
to persecution: Canada (Minister of Employment and Immigration) v. Mayers, [1993] 1 F.C.R. 154 (C.A.)).
3)
After an unsuccessful judicial review application by
refugee claimants challenging the establishment of a “lead case” format for
determining refugee claims, the Federal Court found “special reasons” justifying
an award of costs to the applicants on the basis of “the novel and recognized
contentious nature of the lead case at the time it was brought” (Geza v.
Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 3, 2004
FC 1039). That costs award was upheld on appeal. The applicant’s appeal on the
merits was allowed, and costs were granted on the appeal for the reasons given
by the Federal Court judge, and also because of the extra-record material
obtained by counsel for the applicant establishing that the process culminating
in the decisions in the lead cases was flawed (Kozak v. Canada (Minister of
Citizenship and Immigration), [2006] 4 F.C.R. 377, 2006 FCA 124).
Behaviour
of the applicant
4)
“Special
reasons” justifying an award of costs against an applicant may be found where the
applicant has unreasonably opposed the Minister’s motion to allow the
application for judicial review, thereby prolonging the proceedings (Chan v.
Canada (Minister of
Employment and Immigration) (1994), 83 F.TR. 158 (T.D.); D’Almeida v. Canada (Minister of
Citizenship and Immigration) (1999), 1 Imm. L.R. (3d) 309 (F.C.T.D.)).
Behaviour
of the Minister or an immigration official
5)
An
award of costs against the Minister for “special reasons” cannot be justified
merely because:
i)
an
immigration official has made an erroneous decision (Sapru v. Canada (Minister of
Citizenship and Immigration), 2011 FCA 35);
ii)
the
Minister seeks summary dismissal of an immigration appeal for mootness after
the appellant has expended resources to perfect the appeal, rather than
applying at the earliest opportunity (Jones v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 279); or
iii)
the
Minister discontinues an appeal on the eve of the hearing as a result of new
legislation undermining the basis of the appeal (Harkat v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 179).
6)
“Special
reasons” justifying costs against the Minister may be found where:
i)
the
Minister causes an applicant to suffer a significant waste of time and
resources by taking inconsistent positions in the Federal Court and the Federal
Court of Appeal (Geza v. Canada (Minister of
Citizenship and Immigration) (2001), 266 N.R. 158 (F.C.A.));
ii)
an
immigration official circumvents an order of the Court (Bageerathan v. Canada (Minister of
Citizenship and Immigration), 2009 FC 513);
iii)
an
immigration official engages in conduct that is misleading or abusive (Sandhu
v. Canada (Minister of Citizenship and Immigration), 2006 FC 941); Said
v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 663 (FCA));
iv)
an
immigration official issues a decision only after an unreasonable and
unjustified delay (Nalbandian v. Canada (Minister of
Citizenship and Immmigration), 2006 FC 1128; Doe v. Canada (Minister
of Citizenship and Immigration), 2006 FC 535; Jaballah v. Canada (Minister of
Citzenship and Immigration), 2003 FC 1182);
v)
the
Minister unreasonably opposes an obviously meritorious application for judicial
review (Ayala-Barriere v. Canada (Minister of Citizenship and Immigration) (1995),
101 F.T.R. 310 (T.D.); Ndererehe v. Canada (Minister of Citizenship and
Immigration), 2007 FC 880; Dhoot v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1295).
Behaviour
of counsel
7)
“Special
reasons” justifying an award of costs personally against counsel may be found
where counsel has repeatedly failed to appear at scheduled hearings (Ferguson
v. Canada (Minister of Employment and Immigration), [1986] F.C.J. No. 172
(F.C.A.)).
[8]
This
appeal was heard together with Toussaint v. MCI (A-408-09) from
identical judgments of the Federal Court that the Minister is not compelled by
subsection 25(1) or any constitutional principle to consider a request to waive
the fee stipulated for an application for relief from the requirement to submit
a permanent residence application from outside Canada. We agreed with the
Federal Court judge on the constitutional issues, but we interpreted subsection
25(1) of the IRPA to require the Minister to consider the request for a
fee waiver, and on that basis alone reversed the Federal Court judgment.
[9]
It
is argued for Mr. Ndungu that “special costs” are justified in this case
because:
1)
Mr.
Ndungu was eligible for and sought legal aid for this appeal but was refused
because legal aid had funded the other appeals raising the same issue
(including Toussaint) as a test case and it would not be reasonable to
fund a further, independent appeal;
2)
this
case raises serious and systematic issues of public importance, as evidenced by
the certification of questions of general importance and the fact that it was
joined with Toussaint involving similar issues; and
3)
the
Minister unreasonably refused to consent to Mr. Ndungu’s application for leave and
for judicial review so that it could be joined to other cases then pending on
the same issue, (including Toussaint), thereby requiring Mr. Ndungu to
shoulder the entire burden of his case independently.
[10]
In
my view, in determining whether there are “special reasons” for awarding costs,
it is not relevant that Mr. Ndungu was unable to obtain legal aid funding.
[11]
Nor
am I persuaded that “special reasons” can be based on the importance of the
issue raised in the appeal, because a certified question of general importance
is required in all appeals in immigration matters.
[12]
Given
the particular circumstances, I find no fault with the decision of the Minister
not to consent to the joining of the Ndungu judicial review application
to the Toussaint judicial review application. The Toussaint
application was filed in the Federal Court on January 26, 2009. The Ndungu application
was filed on March 3, 2009. By March 5, 2009, the Toussaint application
had advanced to the point where leave was granted and a date was set for the
Federal Court hearing (originally September 2, 2009). On March 23, 2009, the date
for the Toussaint hearing was changed to June 23, 2009 at the request of
Ms. Toussaint’s counsel (and it was actually heard on that date). By that date,
not much had happened in the Ndungu file, perhaps because of the delay
while the Minister’s consent was sought. The applicant’s record in Ndungu
was filed on June 15, 2009, only 8 days before the Toussaint hearing. Without
the Ndungu application record, it would have been difficult, if not
impossible, for the Minister or counsel for the Minister to determine whether
the facts were sufficiently similar to justify joining it with the Toussaint
application in the Federal Court. Therefore, in my view it was reasonable for
the Minister not to consent at that stage.
[13]
The
two files were joined in the Federal Court of Appeal, but by that time counsel
for Mr. Ndungu had done all the work for a separate Federal Court hearing and
had separately perfected the Ndungu appeal. This seems to be a neutral
factor, given that I assign no weight to the Minister’s decision not to consent
to the granting of leave for the Ndungu application for judicial review.
[14]
I
have considered the fact that although both parties argued both issues on
appeal, counsel for Mr. Ndungu pressed the statutory interpretation point more
strongly and with more particularity, and that was the basis upon which the
appeal succeeded. Counsel for Ms. Toussaint argued the statutory interpretation
point, but placed more emphasis on the constitutional issues in the hope that a
favourable result on that basis would be more likely to apply despite a
statutory amendment that came into force too late to be applied in these cases.
Given that both appellants argued the point of statutory interpretation that
ultimately succeeded, it is difficult to find a “special reason” in the fact
that arguments were presented differently.
[15]
Taking
all of the relevant circumstances into account, I am unable to conclude that
there are “special reasons” in this case justifying an award of costs in favour
of Mr. Ndungu. The motion will be dismissed.
“K.
Sharlow”
“I
agree
Eleanor R. Dawson J.A.”
I
agree
Carolyn Layden-Stevenson J.A.”
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