Mugesera v. Canada (Minister of Citizenship and Immigration), 2004 FCA 157

Date: 20040419

Dockets: A-316-01

A-317-01

Citation: 2004 FCA 157

CORAM:        DÉCARY J.A.

LÉTOURNEAU J.A.

PELLETIER J.A.

                                                                                                                                             A-316-01

BETWEEN:

LÉON MUGESERA,

GEMMA UWAMARIYA,

IRENÉE RUTEMA,

YVES RUSI,

CARMEN NONO,

MIREILLE URUMURI and

MARIE-GRÂCE HOHO,

                                                                                                                                          Appellants

                                                                           and

                                               MINISTER OF CITIZENSHIP AND

                                                               IMMIGRATION

                                                                                                                                        Respondent

                                                                                                                                             A-317-01

BETWEEN:

                                               MINISTER OF CITIZENSHIP AND

                                                               IMMIGRATION

                                                                                                                                            Appellant

                                                                           and

LÉON MUGESERA,

GEMMA UWAMARIYA,

IRENÉE RUTEMA,

YVES RUSI,

CARMEN NONO,

MIREILLE URUMURI and

MARIE-GRÂCE HOHO,

                                                                                                                                      Respondents

                                                 Decided without appearance of parties.

                                    Order delivered at Ottawa, Ontario, on April 19, 2004.

REASONS FOR ORDER:                                                                                             DÉCARY J.A.

CONCURRED IN BY:                                                                                        LÉTOURNEAU J.A.

                                                                                                                                 PELLETIER J.A.

Date: 20040419

Dockets: A-316-01

A-317-01

Citation: 2004 FCA 157

CORAM:        DÉCARY J.A.

LÉTOURNEAU J.A.

PELLETIER J.A.

                                                                                                                                             A-316-01

BETWEEN:

LÉON MUGESERA,

GEMMA UWAMARIYA,

IRENÉE RUTEMA,

YVES RUSI,

CARMEN NONO,

MIREILLE URUMURI and

MARIE-GRÂCE HOHO,

                                                                                                                                          Appellants

                                                                           and

                                               MINISTER OF CITIZENSHIP AND

                                                               IMMIGRATION

                                                                                                                                        Respondent

                                                                                                                                             A-317-01

BETWEEN:

                                               MINISTER OF CITIZENSHIP AND

                                                               IMMIGRATION

                                                                                                                                            Appellant

                                                                           and

LÉON MUGESERA,

GEMMA UWAMARIYA,

IRENÉE RUTEMA,

YVES RUSI,

CARMEN NONO,

MIREILLE URUMURI and

MARIE-GRÂCE HOHO,

                                                                                                                                      Respondents

                                           REASONS FOR ORDER AS TO COSTS

DÉCARY J.A.

[1]                Under rule 22 of the Federal Court Immigration and Refugee Protection Rules (SOR/2002-232), no costs shall be awarded to or payable by any party except "for special reasons" in respect of an application for judicial review or an appeal under these rules.

[2]                This Court, in the judgment that it delivered on September 8, 2003, in dockets A-316-01 and A-317-01 (2003 FCA 325), ordered that costs be paid to Mr. Mugesera and to the members of his family in Trial Division, and based on a single appeal, in this Court. Relying on subsection 400(4) of the Federal Court Rules, 1998, the Court decided to award a lump sum in lieu of assessed costs and asked counsel to submit written submissions to it on this point.

[3]                This decision to award costs and to do so in the form of a lump sum was not an issue raised by the Minister in the application for leave to appeal that he filed with the Supreme Court of Canada (SCC 30025), nor in the written submissions that he made to us. Accordingly, it is acknowledged that "special reasons" support an award of costs. The only issue that remains between the parties, with respect to this Court, is the determination of the amount of these costs.

[4]                On October 7, 2003, counsel for the Mugesera family, Guy Bertrand, filed his written submissions. He summarizes his arguments himself, as follows:

[TRANSLATION]

IV. AMOUNTS CLAIMED

Based on all of the circumstances, including the extent of work done to protect the rights of our clients, i.e. their right to life and liberty; based on the unequivocal results, the public interest in the resolution of the case as well as the importance, the difficulty and the unusual nature of the questions of fact and law which were raised in these cases, you are justified, as an assessment officer, in exercising the power you have under rules 400(4) and 400(6) of the Federal Court Rules to award Mr. Mugesera and his family a lump sump calculated on a solicitor-and-client basis.

A. Federal Court - Trial Division

For the proceedings before the Federal Court - Trial Division, the claim amounts to $112,602.08 . . . . This amount is broken down as follows: $97,903.75 for fees, $158.47 for the non-assessable disbursements, $7,183.74 for the assessable disbursements and $7,356.12 for the GST.

The Court will note that Guy Bertrand worked for 314 hours on the case at an hourly rate of $200. Suzanne Gagné spent 251 hours on the case at an hourly rate of $109.30. Dominique Bertrand (student) and Sandra Lagacé (paralegal) worked 7.25 and 0.50 hours, respectively, at an hourly rate of $50. Nancy Bonsaint spent 62 hours on the case at an hourly rate of $115. Finally, Maggie Champagne worked on the case for 2.75 hours at the rate of $80/hour.

In our view, the tariffs requested are reasonable, given the extensive experience of the chief counsel in the case, Guy Bertrand.

B. Federal Court of Appeal

For the proceedings before the Federal Court of Appeal, the fees and disbursements claimed amount to $51,090.49 [ . . . ]. The amount is broken down as follows: $44,120.00 for fees, $64.80 for non-assessable disbursements, $3,567.56 for assessable disbursements and $3,338.13 for GST.

A review of the statement of account will enable the Court to see that Guy Bertrand spent 135.25 hours on the case at the hourly rate of $200. Suzanne Gagné worked on it for 81.75 hours at the hourly rate of $121.957. Dominique Bertrand (student) and Manon Labrecque (paralegal) worked for 15.50 and 2.50 hours, respectively, at an hourly rate of $50, while Mélanie Samson (student) spent 155 hours on the case at a rate of $40/hour.

Once again, these tariffs are reasonable given the extensive experience of the chief counsel in the case, Guy Bertrand.

[5]                On October 17, 2003, counsel for the Minister asked the Court to stay the proceedings on the awarding of costs until the Supreme Court of Canada had decided on the application for leave to appeal which was about to be filed. The Court granted the motion and allowed the Minister to file his submissions within 15 days of the order to be issued by the Supreme Court.

[6]                On February 19, 2004, the Supreme Court of Canada granted the application for leave to appeal. On February 25, 2004, the Minister petitioned our Court to once again stay the proceedings on the awarding of costs, until the Supreme Court of Canada had decided on the merits of the appeal.

[7]                On March 8, 2004, our Court dismissed this motion to stay and ordered the Minister to file his submissions no later than March 29, 2004. The Court, in its direction, made the following comment:

[TRANSLATION]

In order to avoid any misunderstanding that could arise from the written submissions filed by Mr. Bertrand, the parties must assume that, as stated in paragraph 246 of the reasons for judgment, the costs will be awarded on a lump sum basis under subsection 400(4) of the Federal Court Rules while, obviously, being consistent with the factors listed in subsection (3). It was never a matter of awarding costs on a solicitor-and-client basis within the meaning of subsection 400(6) of the Rules.

[8]                The Minister filed his submissions on March 29, 2004. His conclusion reads:

[TRANSLATION]

As stated above, Mr. Bertrand did not identify exceptional reasons justifying a significant departure by the Court from what is provided in the Tariff.

Assuming that the pro forma accounts that Mr. Bertrand attached to his submissions are an accurate indication of the nature and the quality of the work done in the proceedings before the Federal Court, we have calculated what would be, in our opinion, a reasonable amount for costs, based on what is provided by the Tariff in like circumstances.

On this point, we considered the work done before the Trial Division as well as before the Court of Appeal, even if, as it was said, ultimately, the result after the hearing before the Trial Division should have been entirely in favour of the Minister.

We also considered that there was a second counsel present for the appellants before the Trial Division.

Taking, as a basis for calculation, the maximum units in Column 3 of Tariff B - Counsel Fees and Disbursements Allowable on Assessment, the total costs to which the appellants would be entitled amount to $42,700.00, not including disbursements, the assessment of which we leave to the Court.

We attach hereto a table detailing the calculations that we made to arrive at this amount of $42,700.00.

In view of the exceptional nature of costs in immigration and refugee protection matters and the application of the Tariff in like circumstances, in our view this is a reasonable amount which adequately compensates for the work done by Mr. Bertrand in the proceedings before the Federal Court.

[9]                In short, the Minister argued against a significant departure by the Court from what is provided in the Tariff and suggests that the lump sum, for all practical purposes, be the amount which is usually awarded to the successful party, i.e., in the words of rule 407, "party-and-party costs . . . in accordance with column III of the table to Tariff B". The Minister further proposes that the maximum units in this column be used.

[10]            On April 8, 2004, Mr. Bertrand filed his reply. In view of the Court's direction, he abandoned his proposal to establish costs on a solicitor-and-client basis. He proposes, rather, that they be established based on the maximum units in column V of Tariff B, or, at the least, in column IV, which would amount to a lump sum of $83,710, or, as the case may be, $66,000 for costs alone.

[11]            The award of a lump sum in lieu of costs can serve various purposes. It is usually meant to simplify the assessment process and reduce its cost in relatively simple matters, when, for example, the parties are representing themselves or when counsel are ready, at the hearing, to submit their representations to the Court, or even in particularly complex matters where a precise calculation of costs would be unnecessarily complicated and burdensome. It may also, on occasion, be used to give a party costs higher than the maximum provided by the Tariff when the Court determines that it should be so.

[12]            In Consorzio del Prosciutto Di Parma v. Maple Leaf Meats Inc., [2003] 2 F.C. 451 (C.A.), this Court awarded a lump sum because it was of the opinion that an award of costs in accordance with the Tariff was unsatisfactory. My colleague, Rothstein J.A., wrote:

[7] The increased costs to be awarded are party-and-party costs. They do not indemnify the successful party for its solicitor-client costs and they are not intended to punish the unsuccessful party for inappropriate conduct.

[8] An award of party-and-party costs is not an exercise in exact science. It is only an estimate of the amount the Court considers appropriate as a contribution towards the successful party's solicitor-client costs (or, in unusual circumstances, the unsuccessful party's solicitor-and-client costs). Under rule 407, where the parties do not seek increased costs, costs will be assessed in accordance with column III of the table to Tariff B. Even where increased costs are sought, the Court, in its discretion, may find that costs according to column III provide appropriate party-and-party compensation.

[9] However, the objective is to award an appropriate contribution towards solicitor-client costs, not rigid adherence to column III of the table to Tariff B which is, itself, arbitrary. Subsection 400(1) makes it clear that the first principle in the adjudication of costs is that the Court has "full discretionary power" as to the amount of costs. In exercising its discretion, the Court may fix the costs by reference to Tariff B or may depart from it. Column III of Tariff B is a default provision. It is only when the Court does not make a specific order otherwise that costs will be assessed in accordance with column III of Tariff B.

[10] The Court, therefore, does have discretion to depart from the Tariff, especially where it considers an award of costs according to the Tariff to be unsatisfactory. Further, the amount of solicitor-and-client costs, while not determinative of an appropriate party-and-party contribution, may be taken into account when the Court considers it appropriate to do so. Discretion should be prudently exercised. However, it must be borne in mind that the award of costs is a matter of judgment as to what is appropriate and not an accounting exercise.

[13]            In Sherman v. Minister of National Revenue, 2004 FCA 29, Létourneau J.A. made the following comments:

[8]            The purpose of the costs rules is not to reimburse all the expenses and disbursements incurred by a party in the pursuit of litigation, but to provide partial compensation. The costs awarded, as a matter of principle, are party-and-party costs. Unless the Court orders otherwise, Rule 407 requires that they be assessed in accordance with column III of the table to Tariff B. As the Federal Court properly said in Apotex Inc. v. Wellcome Foundation Ltd. (1998), 159 F.T.R. 233, Tariff B represents a compromise between compensating the successful party and burdening the unsuccessful party.

[9]            Column III of the table to Tariff B is intended to address a case of average complexity: Apotex Inc. v. Syntex Pharmaceuticals International Ltd., 2001 FCA 137. The Tariff includes counsel fees among the judicial costs. Since it applies uniformly across Canada, it obviously does not reflect a counsel's actual fees as lawyers' hourly rates vary considerably from province to province, from city to city and between urban and rural areas.

[14]            I understand from these two decisions that, in seeking an award of costs that is appropriate, the Court must be prudent in exercising its discretion, if only to prevent parties whose conduct is not reprehensible from being ordered to pay costs of an unforeseeable quantum. I should add that the Court must be even more cautious, if not conservative, when it comes to assessing the award of costs, not under the general principle that costs follow the outcome of the proceedings, as in Consorzio, but under an exception, as is the case here, that costs only be awarded if there are "special reasons".

[15]            To ensure that the discretion exercised by the Court is not overly dependent on the perspective of a given panel of judges and to avoid fluctuations in awarding costs which would jeopardize the degree of uniformity and foreseeability that the litigants are entitled to expect, I believe that the Court should be guided, as much as possible, by the standards established in the table to Tariff B when awarding a lump sum in lieu of assessed costs. I note that, in this case, each party's proposal is within the standards set by Tariff B.

[16]            In this case, quite simply, the parties' counsel did a tremendous amount of work. There are few pages among the 15,000 or so contained in the 28 volumes of the Appeal Book, that did not have to be pored over by counsel, in their oral and written arguments, or by the Court in its deliberations. The same can be said, I am certain, at trial, when the hearing lasted 14 days. The research, description and analysis of political, historical and social contexts, which served as a background to the litigation, required the presence of many expert and other witnesses and the production of a multitude of documents. The number, complexity, variety and interplay of issues of law that were raised - administrative, international and criminal issues - obliged counsel to engage in exhaustive research and intense and careful reflection.

[17]            In my opinion, in this case an assessment of costs on the basis, roughly, of the maximum units of column IV of the table to Tariff B would do justice to the work done by Mr. Bertrand while maintaining the degree of foreseeability that I discussed above. In my view, accordingly, a lump sum of $65,000, covering the proceedings at trial and on appeal, would be appropriate. To this amount, the 7% goods and services tax should be added, for a total of some $4,550.

[18]            As for the assessable and non-assessable disbursements, Mr. Bertrand evaluated them at some $11,000 and the Minister defers to the discretion of the Court. Mr. Bertrand gave us a particularly detailed breakdown, which I verified and which appears entirely reasonable to me.

[19]            All told, I would award a lump sum of $80,550 in lieu of costs, at trial and on appeal, and which would include fees, disbursements and tax. Accordingly I would vary the judgment rendered on September 8, 2003, by replacing the fourth paragraph with the following:

Mr. Mugesera and the members of his family are entitled to their costs in this Court based on a single appeal and in the Trial Division. A lump sum of $80,550 will be awarded in lieu of assessed costs. This lump sum includes all fees, disbursements and tax.

so that it will now read as follows :

The appeal by Mr. Mugesera, and members of his family, in file A-316-01 is allowed and the appeal by the Minister in file A-317-01 is dismissed.

The part of the judgment of the Trial Division setting aside the decision by the Appeal Division on allegations C and D is affirmed. The part of the judgment of the Trial Division affirming the decision by the Appeal Division on allegations A and B is reversed.

The decision of the Appeal Division is set aside in its entirety and the matter is referred back to the Appeal Division for determination on the basis that the Minister did not discharge the burden of proof upon him on each and every one of the allegations.

Mr. Mugesera and the members of his family are entitled to their costs in this Court based on a single appeal and in the Trial Division. A lump sum of $80,550 will be awarded in lieu of assessed costs. This lump sum includes all fees, disbursements and tax.

The motion to submit new evidence is dismissed without costs.

[20]            A copy of these reasons will be filed in docket number A-317-01.

                                                                                                           "Robert Décary"                            

                                                                                                                              J.A.

"I concur.

     Gilles Létourneau, J.A.

"I concur.

     J.D. Denis Pelletier, J.A.

Certified true translation

Kelley A. Harvey, BA, BCL, LLB

                                                      FEDERAL COURT OF APPEAL

                                                         SOLICITORS OF RECORD

DOCKET:                                                                      A-316-01

STYLE OF CAUSE:                                                       LÉON MUGESERA, GEMMA UWAMARIYA, IRENÉE RUTEMA, YVES RUSI, CARMEN NONO, MIREILLE URUMURI, MARIE-GRÂCE HOHO v. MINISTER OF CITIZENSHIP AND IMMIGRATION

DECIDED WITHOUT APPEARANCE OF THE PARTIES

REASONS FOR ORDER:                                              Décary J.A.

CONCURRED IN BY:                                                    Létourneau and Pelletier, JJ.A.

DATE OF REASONS:                                                    April 19, 2004

WRITTEN SUBMISSIONS BY:

SOLICITORS OF RECORD:

                                                      FEDERAL COURT OF APPEAL

                                                         SOLICITORS OF RECORD

DOCKET:                                                                      A-317-01

STYLE OF CAUSE:                                                       MINISTER OF CITIZENSHIP AND IMMIGRATION v. LÉON MUGESERA, GEMMA UWAMARIYA, IRENÉE RUTEMA, YVES RUSI, CARMEN NONO, MIREILLE URUMURI, MARIE-GRÂCE HOHO

DECIDED WITHOUT APPEARANCE OF THE PARTIES

REASONS FOR ORDER:                                              Décary J.A.

CONCURRED IN BY:                                                    Létourneau and Pelletier, JJ.A.

DATE OF REASONS:                                                    April 19, 2004

WRITTEN SUBMISSIONS BY:

SOLICITORS OF RECORD: