Date: 20101215
Docket: T-1173-09
Citation: 2010 FC 1294
Ottawa, Ontario, December 15,
2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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SUAAD HAGI MOHAMUD
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Applicant
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and
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THE MINISTER OF FOREIGN AFFAIRS,
THE ATTORNEY GENERAL OF CANADA,
THE MINISTER OF PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondents
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REASONS FOR ORDER AND ORDER
(MOTION FOR
COSTS)
[1]
This
is the background to a fiercely contested motion for costs. With ticket and
valid passport in hand, Ms. Mohamud presented herself at the Jomo Kenyatta International Airport in Nairobi. She was
booked to fly to Amsterdam with KLM Royal Dutch Airlines, and from there
home to Toronto. She only
arrived two and a half months later.
[2]
The
KLM gate staff thought the person before them did not match her passport photo.
Paul Jamieson, a migration integrity officer with the Canadian High Commission,
was consulted. He did not have time to get to the airport, but, based on a
telephone interview, was also not satisfied that the individual with whom he was
speaking was the rightful holder of the passport. KLM denied her boarding and
referred her to the Kenyan immigration authorities.
[3]
Mr.
Jamieson interviewed her twice more, in person, over the next few days. From
her immigration file, he was aware that the real Suaad Hagi Mohamud immigrated
from Somalia in 1999,
sponsored by her husband, that she became a citizen in 2004 and had a 10-year
old son. In a lengthy affidavit he explained why he thought his initial
suspicions were confirmed. She was woefully ignorant of Canada in general and Toronto in
particular. The birth date of her son did not match that in the file, nor did
the particulars of her siblings. She insisted she was only married once, in
2006, and not in 1999. Having dealt with a number of passport frauds, he
suspected that the person before him might well be Ms. Mohamud’s younger
sister.
[4]
Be
that as it may, the Kenyan authorities were informed in writing that she was an
impostor. She was arrested, jailed and charged with fraud. She later made bail.
Her Canadian passport was confiscated.
[5]
Over
the next two months she had various discussions with the Canadian authorities,
always adamant that she was who she said she was. However things only began to
happen when she retained Mr. Boulakia, a well-known immigration specialist, who
has been acting pro bono.
[6]
Mr.
Boulakia moved this Court for an interlocutory order by way of mandamus
requiring the respondents to repatriate Ms. Mohamud. The underlying application
for judicial review sought a declaration that she was indeed a Canadian citizen
and declarations that her mobility rights under section 6 of the Charter of
Rights and Freedoms were violated, and as well that her liberty and
security of the person rights were put at risk without due process as required
by section 7 of the Charter.
[7]
The
interlocutory motion was withdrawn at the last moment on a no-costs basis as
the respondents agreed, at their expense, to carry out a DNA test on Ms.
Mohamud, her former husband in Toronto, and her son. These
tests established beyond doubt that she was the mother of the boy in Toronto. The
respondents then conceded that she was who she said she was, took steps to
notify the Kenyan authorities that the whole affair was a misunderstanding, and
repatriated her to Canada.
[8]
Promptly
on her return, she, and family members, instituted a multi-million dollar
action in the Ontario Superior Court of Justice. There was some jockeying in
the Federal Court over the next few months over the issuance of a fresh
passport and other matters. Eventually it was agreed that the merits of her
case would proceed in the Ontario action, reserving the
question of costs for this Court.
[9]
The
costs motion was originally first made presentable last year, but took on a
life of its own. Mr. Jamieson filed an affidavit against the motion. Ms.
Mohamud has not filed an affidavit.
[10]
There
has been no order on the merits of Ms. Mohamud’s case, and only one previous
order as to costs. Mr. Jamieson was cross-examined on his affidavit. He refused
to answer certain questions and refused to provide certain documents.
Prothonotary Aalto compelled him to answer and to provide. He awarded Ms.
Mohamud costs.
[11]
This
motion deals with the costs on the balance of the proceedings.
[12]
Ms.
Mohamud seeks costs on a solicitor/client basis. She submits that the
respondents knew perfectly well before these proceedings were instituted that
she was who she said she was. They were arrogant, dismissive, refused to come
to her aid and circled the wagons when cracks in their case began to appear. It
was only the pressure of these proceedings (and media publicity attendant
thereon) that forced them to agree to DNA tests. The affidavit of Mr. Jamieson
was a red herring in that he was transferred out of Nairobi while key
events were taking place.
[13]
The
Government is just as adamant that there should be no costs. Although the
person presenting herself at the KLM counter and the valid Canadian passport
holder turned out to be one and the same, they claim she is the author of her
own misfortune. There is a scam afloat, probably involving family members who
have used the passport to illegally smuggle persons into Canada.
[14]
Thus,
both parties invite me to mount the bully pulpit to sing their respective
praises.
ISSUE
[15]
The
issue is whether Ms. Mohamud should be awarded costs. If so, should they be on
a solicitor/client basis, an enhanced basis such as party-and-party costs, or
in accordance with Federal Courts Tariff B?
DISCUSSION
[16]
The
Court enjoys wide judicial discretion under rule 400 and following of the Federal
Courts Rules which deal with costs. All things being equal, costs usually
follow the event. Ms. Mohamud obtained most of what she sought without court
order. An award of damages is not one of the available remedies under judicial
review. While she had various options, such as moving to transform the judicial
review into an action, or to institute a separate action in this Court, she
chose to file suit in the Ontario Superior Court of Justice which has
concurrent jurisdiction. That was her right. On the other hand, since the
judicial review did not proceed, she was not obliged to file an affidavit, and
could not be subjected to cross-examination. As a result of her choice, this
Court is deprived of her evidence.
[17]
In
the circumstances, I have come to the conclusion that Ms. Mohamud is entitled
to costs. In awarding costs, the Court may consider, among other things, the
result of the proceeding, the importance and complexity of the issues, any
written offer to settle, the amount of work, whether the public interest in
having a particular proceeding litigated justifies an award, the conduct of a
party, the failure to admit anything that should have been admitted, and
whether any step was improper, vexatious, unnecessary or taken through
negligence, mistake or excessive caution.
[18]
A
decision of considerable assistance is that of Mr. Justice Zinn in Abdelrazik
v. Canada (Minister of
Foreign Affairs), 2009 FC 580, [2010] 1 F.C.R. 267, with supplementary
reasons as to costs reported at 2009 FC 816, [2009] F.C.J. No. 956 (QL). Mr.
Abdelrazik lived for some time within the sanctuary of the Canadian Embassy in Khartoum, Sudan, the country
in which he was born. Although a Canadian citizen, he feared detention and
torture should he leave the embassy and alleged that the Canadian Government
was thwarting his return to Canada. The Canadian Government took the position
that Mr. Abdelrazik could not return to Canada because the
United Nations Security Council 1267 Committee had listed him as an associate
of Al-Qaeda and as a result he was on a no-fly list. Following a full judicial
review, Mr. Justice Zinn found his Charter right to enter Canada had been
breached by the respondents. He ordered the Canadian Government to immediately
take steps to repatriate him. Unlike the present case, Mr. Abdelrazik’s
identity was never in doubt, and there was a decision on the merits of the
application for judicial review.
[19]
As
Justice Zinn pointed out in his subsequent order for costs, solicitor/client
costs are unusual and are intended to punish reprehensible behaviour during
litigation. Mr. Justice Zinn did not award solicitor/client costs. In this
case, it was only two days after the filing of proceedings in this Court that
the defendants agreed to conduct the DNA test which led to Ms. Mohamud’s return
home. If the respondents behaviour prior thereto caused her damage, that is a
matter to be dealt with in the Ontario action. Even if there
were enough material in the record before me, which there is not, it would be
inappropriate for me to comment, just as there is insufficient material in the
record to substantiate the allegations that Ms. Mohamud was engaged in fraudulent
activity and was the author of her own misfortune.
[20]
Mr.
Boulakia’s fallback position, somewhat reluctantly, was party-and-party costs.
He is a certified immigration specialist and equated himself with the special
advocates in security certificate cases who are paid $275 an hour. This case
was not nearly as complicated as Mr. Abedelrazik’s, a case which involved complex
issues of international law. Mr. Boulakia was admittedly extremely diligent and
had Ms. Mohamud home within weeks of his retainer. In my view, there is no real
public interest in this case in that the issue was Ms. Mohamud’s identity. Once
that was sorted out, she was returned home. If the behaviour of the respondents
during litigation is in any way questionable, it has to relate to instructing
Mr. Jamieson not to answer questions and not to produce certain documents
during his cross-examination. However that matter was dealt with by
Prothonotary Aalto who awarded costs of $5,000 and disbursements of $3,602.29
plus applicable HST. Based on Mr. Boulakia’s time records, this award was on an
enhanced basis. However, as to the balance I see no reason to go beyond the
tariff.
[21]
The
respondents’ fallback position is that costs should be awarded in accordance
with Tariff B, Column 3, mid-range, but only until 11 August 2009, the date on
which they agreed to repatriate Ms. Mohamud. They also submit that no costs are
owing on the motion for an interlocutory order by way of mandamus in
that they agreed to carry out DNA tests on the basis that the motion would be
adjourned without costs. As it was that motion was never heard on the merits.
[22]
In
light of the agreement between the parties, no costs should be awarded with
respect to the interlocutory motion for an order by way of mandamus.
However with respect to events after 11 August 2008, although costs were
the prime consideration, there were some other issues which eventually fell by
the wayside. In addition, there was never a settlement offer. The respondents
were every bit as adamant as the plaintiff with respect to costs, either
solicitor/client costs or nothing.
[23]
Basing
myself on Mr. Boulakia’s time records for his work, and that of a law student,
I hold that costs should be awarded calculated in accordance with Table B,
Column 3, high-end. Rounding matters out slightly, this works out to 100 units
at $130 a unit or $13,000 in fees. Disbursements are awarded in the amount of
$510.06 plus HST.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that the respondents pay the applicant lump sum costs of $13,510.06
plus HST.
“Sean Harrington”
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