Date: 20080514
Docket: A-376-07
Citation: 2008 FCA 179
Present: RICHARD
C.J.
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
and THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Appellants
and
MOHAMED HARKAT
Respondent
REASONS FOR ORDER
[1]
This is a
motion brought in writing by the respondent pursuant to Rule 369 of the Federal
Courts Rules for an Order:
a) granting costs in this matter
to be paid on a solicitor-and-client basis for all aspects of this appeal,
including the Application to Certify Questions and
b) for Directions pursuant to
Rule 403.(1) to the assessment officer respecting the costs in this matter.
[2]
The
grounds for the motion are as follows:
a) On March 31, 2008 the appellants
filed a Notice of Discontinuance of this appeal.
b) The appeal had been perfected
and was scheduled to be argued on May 6, 2008.
c) Rule 400(6)c) allows the Court
to order all or part of the costs on a solicitor-and-client basis.
d) The Notice of Discontinuance
of the appeal was sent out in response to a motion in writing to terminate the
appeal filed with the Court on March 18, 2008.
e) The unique circumstances of
the matter, having regard to it being a total waste of the Court’s time, is a
“special reason” to justify a costs award against the appellants.
[3]
In
response the appellants allege that the appeal was brought in good faith in
order to have this Court answer the serious questions certified by the motions
judge and when new legislation was passed in February 2008 the transitional
provisions effectively terminated the proceeding underlying the appeal. After
the respondent brought a motion to dismiss the appeal for mootness, the
appellants discontinued the appeal.
[4]
The
appellants position is that there has been no delay or misconduct on their part
and there are therefore no special reasons to award costs, let alone
solicitor-and-client costs.
[5]
Since this
appeal is subject to the Federal Courts Immigration and Refugee Protection
Rules there can be no award of costs on an appeal absent special reasons.
Rule 22 reads as follows:
22. Not 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.
[6]
Based on
the record I find that there are no special reasons to award costs of this
appeal, let alone costs on a solicitor-and-client basis.
[7]
The
judgment under appeal was delivered on May 11, 2007. Pursuant to subsection
74(d) of the Immigration and Refugee Protection Act the Federal Court
Judge certified three serious questions of general importance on August 13,
2007.
[8]
The three
certified questions are as follows:
1.
Did the
Federal Court judge err in his interpretation of the Supreme Court’s decisions
in Charkaoui and Suresh in that they do not require a stay of the
judicial review proceedings in this case?
2.
Did the
Federal Court judge err in law in that he ordered the stay based on speculation
that a future evidentiary record, in this case, would be materially different
from the present record?
3.
Is the
Supreme Court’s determination in Charkaoui that detention reviews and
reasonableness hearings can proceed under the existing IRPA scheme during the
one-year period of suspension inconsistent with the Federal Court judge’s
decision in this case that the judicial review cannot proceed during the
one-year period of suspension?
[9]
Given that
the motions judge certified three separate questions on the grounds that they
were serious questions or general importance it cannot be claimed that the
appeal was frivolous or vexatious.
[10]
On October
22, 2007, Bill C-3 was introduced in Parliament. The new legislation
significantly amended the security certificate process, in response to the
Supreme Court’s judgment in Charkaoui.
[11]
On
Feburary 22, 2008, Bill C-3 came into force. Section 8 of the transitional
provisions terminated any existing proceeding involving the respondent relating
to section 112 or 115 of the IRPA, including the decision underlying the
judicial review proceeding.
[12]
On March
18, 2008, the respondents brought a motion to dismiss the appeal for mootness.
On March 31, 2008, the appellants wholly discontinued this appeal.
[13]
The test
for awarding solicitor-and-client costs is whether a party has engaged in
reprehensible, scandalous or outrageous conduct Baker v. Canada (MCI),
[1999] 2 S.C.R. 817 at 864. On reviewing the record the test for
solicitor-and-client costs has not been met and this is not an appropriate
situation to award costs on a solicitor-and-client basis.
[14]
The
respondent also requests that costs of the interlocutory steps leading up to
the appeal be granted. The Federal Court’s order certifying the three questions
is silent as to costs and I see no reason to disturb this decision.
[15]
Accordingly
the motion for costs will be dismissed.
“J.
Richard”
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