Date: 20100928
Docket: IMM-5612-08
Citation:
2010 FC 965
[UNREVISED CERTIFIED
TRANSLATION]
Ottawa, Ontario, September 28,
2010
PRESENT:
The Honourable Mr. Justice Lemieux
BETWEEN:
MAMADOU
DIALLO
Applicant
and
MINISTER OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
I. Introduction
[1]
The
only issue raised in the motion of the applicant, Mamadou Diallo, a
citizen of Mali (the applicant), is whether he has demonstrated that there are special
reasons to award him $5,650 in costs payable by the respondent, the Minister of
Public Safety and Emergency Preparedness, under section 22 of the Federal
Courts Immigration and Refugee Protection Rules (the Rules), which
reads as follows:
|
Costs
22.
No 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.
|
Dépens
22. Sauf ordonnance contraire
rendue par un juge pour des raisons spéciales, la demande d’autorisation, la
demande de contrôle judiciaire ou l’appel introduit en application des
présentes règles ne donnent pas lieu à des dépens.
|
[2]
The
applicant submits that he is entitled to certain costs because on
January 11, 2009, a Sunday, the Minister unnecessarily opposed his motion
to stay the enforcement of his removal from Canada to Mali. The removal
had been scheduled for the following day, Monday, January 12, 2009,
at 7:00 p.m. from the Pierre Elliot Trudeau airport notwithstanding that the
Minister’s department had not obtained a travel document from the Embassy of
Mali in Ottawa (the Embassy) that was required for him to enter Mali.
[3]
He
maintains that this Court’s urgent hearing on Sunday, January 11,
2009, on his motion for a stay was a waste of time and judicial resources
because the next day the Minister had to cancel his removal since the applicant
did not have a travel document authorizing him to enter Mali; this also
required the Court to convene the parties in Montréal to clarify the
circumstances surrounding the cancellation of the removal.
[4]
The
Minister submits that the applicant’s motion for costs should be dismissed on
the
following grounds:
·
The
applicant did not file a detailed affidavit setting out the facts that could ground
a costs order. Simply stated, there are no facts before the Court that would allow
it to grant the motion for costs.
·
The
Minister has always acted in good faith in this matter and carried out his duty
diligently; there was no bad faith. The affidavit of Mr. Kabongo‑Katalay,
supervisor of removals at the Canada Border Services Agency (CBSA), shows that
the applicant’s removal could not be carried out as planned essentially for two
reasons: on the one hand, the applicant did not co-operate with the
authorities, refusing to sign the notice to appear and the application for a
travel document and, on the other hand, the Embassy changed its procedure for
obtaining a travel document at the end of December or early January.
·
Neither
the applicant nor his counsel ever asked the CBSA to defer the removal; instead
they filed a stay motion in this Court.
·
The
relief claimed is inappropriate for a number of reasons: (1) his motion does
not specify how he arrived at such a high amount of costs; (2) he has already
commenced an action in damages against the Minister in which he states that he
was held illegally in the context of his removal, a legal proceeding that is
still pending; (3) awarding costs would bring the administration of justice into
disrepute and encourage similar conduct.
II. Facts
[5]
The
applicant arrived in Canada on August 3, 1999, via the
United States from Mali; two weeks later, he claimed refugee
status, which was denied on January 21, 2000. His application for leave
and judicial review met the same fate.
[6]
Subsequently,
the applicant filed a first application for exemption based on humanitarian and
compassionate considerations and a first application for a pre‑removal
risk assessment (PRRA); both were rejected on January 4, 2005. On
November 2, 2006, he filed a second application for exemption based on
humanitarian and compassionate considerations, which was supported by the sponsorship
of his new common-law spouse, now his wife. That application was rejected on
October 23, 2008. The second PRRA application was rejected on
December 22, 2008. The parties recognize that the second PRRA application did
not trigger an administrative stay as is the case for a first PRRA application.
[7]
On
December 17, 2008, Mr. Diallo and his counsel met with Removals Officer
Eric Charlebois, who wanted to establish the terms and conditions of his
departure. The officer served him with a notice to appear requiring him to
attend in person at the P.E. Trudeau International Airport on January 12,
2009, at 7:00 p.m. for his departure from Canada. He refused
to acknowledge receiving the notice.
[8]
The
same day, on December 17, 2008, the CBSA asked the Embassy to issue
a travel document for Mr. Diallo; the request complied with the Embassy’s
requirements at the time. According to Mr. Kabongo‑Katalay, the
Embassy should have issued this travel document within three days at most.
[9]
Since
she was not in possession of a travel document for Mr. Diallo, CBSA officer
Koen reached the Embassy by telephone on January 5, 2009, and was
informed by an officer that the Embassy had not received an application for a
travel document for the applicant. The next day, on January 6, 2009,
Ms. Koen provided the Embassy with proof that the application had been sent
in December 2008 and that the Embassy had received it. The Embassy found the
lost application but told the officer that, as the result of a new policy, a
new requirement had been implemented: concerned persons must sign a statement
that they are aware that a removal order has been made against them.
[10]
The
same day, January 6, 2009, the CBSA required Mr. Diallo to attend
its office the following day, January 7. Mr. Diallo complied, but
the meeting did not take place because of severe weather. He was again summoned
for the following day, Thursday January 8. He appeared before
Mr. Charlebois with his counsel but refused to sign the required
statement. He was arrested on the spot by Officer Charlebois, who stated that
he had reasonable grounds to believe that the applicant was a flight risk and
would not attend for his removal on January 12, 2009.
[11]
The
applicant’s motion for a stay of removal, filed on January 7, 2009,
was heard by the Court on Sunday, January 11, 2009 at 11:00 a.m.
During the hearing, the Court expressed its concern a number of times as to
whether the Embassy had issued a travel document for Mr. Diallo, and, if
not, whether the stay motion was moot and unnecessary because the Minister could
not carry out the removal without the travel document. Counsel for the Minister
advised the Court that, as far as she knew, the Minister had the necessary
travel document. She even tried unsuccessfully at the hearing to verify with
the CBSA that this was accurate.
[12]
Accordingly,
the Court heard the parties on the merits. It dismissed the stay motion and was
of the view that Mr. Diallo had not demonstrated a serious question or
irreparable harm and that the balance of convenience favoured the Minister.
Reflecting its apparent concern, the Court also ordered the following: [translation] “If a travel document was
not issued in a timely manner, the parties will inform the Montréal Registry on
Monday morning and, in that case, I will issue directions” (Emphasis
added.). By coincidence, I was sitting in Montréal the week of January 11, 2009.
[13]
On
January 11, 2009, in the afternoon, the Court received a letter
from counsel for the applicant informing it that his client’s removal had been
cancelled for lack of a travel document. He asked the Court to summon the
parties. The letter described the CBSA’s attempt on the morning of January 11,
2009, to persuade Mr. Diallo to sign the statement, which Mr. Diallo again
refused to do.
[14]
Despite
an explanatory letter from counsel for the Minister dated January 12, 2009,
stating that a hearing before the Court was unnecessary in the circumstances, the
Court summoned the parties for January 14, 2009. After hearing the
parties, the following day, January 15, 2009, the Court set aside
its decision of January 11, 2009, refusing the stay on the ground that a
new fact had arisen—the absence of the travel document. The issue of costs was
put over for a subsequent decision following the receipt of written
representations.
[15]
I
end this overview by reproducing paragraphs 22 to 28 of Mr. Kabango‑Katalay’s
affidavit:
[translation]
22. When the applicant was arrested, his
lawyer stated that there was still hope that the applicant would sign the
statement after his detention review scheduled for the morning of
January 12, 2009, which would permit his removal in accordance with the
terms and conditions already established.
23. In fact, it was possible to go to Ottawa to file the statement at the
Embassy and obtain a special travel document issued on the spot, thus ensuring that
the applicant would be removed on the evening of January 12, 2009, as
originally scheduled.
24. The applicant’s plane ticket was not
cancelled at any time because removal was still possible.
25. On January 12, 2009, at 10 a.m.,
I contacted the representative of the Embassy of Mali to update him on the situation.
To my great surprise, he told me that no travel document could be issued the
same day and that the application would be processed within ten days.
26. The same day, the applicant was
released on condition that he co‑operate with the CBSA and sign any
document required for his removal.
27. On January 13, 2009, the applicant
again refused to sign the statement that his Embassy required to issue his
travel document. Given that the applicant deliberately breached his release conditions,
he was detained again.
28. On January 15, 2009, the applicant
finally agreed to sign the statement required by his Embassy. He was therefore
released.
[Emphasis added.]
III. Analysis - Principles
[16]
The
threshold for “special reasons” in section 22 of the Rules “is high
. . . each decision must turn upon the particular circumstances
before the Court” (see Ibrahim v. Canada (MCI), 2007 FC 1342, at paragraph
8, where Madam Justice Dawson, then of this Court, cited her decision in Uppal
v. Canada (MCI), 2005 FC 1133, at paragraph 6: “[e]ach request for costs
will turn upon the particular circumstances of the case”).
[17]
According
to this Court’s consistent jurisprudence, special reasons include “situations
where one party has acted in a manner that may be characterized as unfair,
oppressive, improper or actuated by bad faith. But special reasons can also
include conduct that unnecessarily or unreasonably prolongs the proceedings” (see
Manivannan v. Canada (MCI) at paragraph 51).
[18]
Specifically,
an award of costs under section 22 of the Rules is justified to compensate for
wasted costs on a stay motion that was adjourned (see Jackson v. Canada (MPSEP),
2007 FC 56 at paragraphs 2 and 14 and the Federal Court of Appeal decision in Geza
v. Canada (MCI), [2001] F.C.J. No. 9) in which Madam Justice Sharlow, at
paragraph 16, awarded costs against the Minister of Citizenship and Immigration
where “the
appellants [were] compelled to waste time and effort in commencing and
defending these appeals”(Emphasis added). In
that case, the Minister had taken inconsistent positions.
[19]
An
award of costs requires the Court to consider and weigh all the relevant
factors. One of these factors (which could cause the Court to refuse costs) is
inappropriate behaviour on the part of the applicant (see Ibrahim at paragraph
9 and Uppal at paragraph 7) provided that there is a causal link between
the inappropriate behaviour (here, the applicant’s refusal to sign the
statement) and the costs requested (here, the costs resulting from the stay
motion and its repercussions after the CBSA cancelled Mr. Diallo’s removal)
(see Ibrahim, paragraphs 9 and 12).
[20]
Costs
ordered under section 22 of the Rules are calculated in accordance with section
400(4) of the Federal Courts Rules (see Jackson at paragraph
18 and Federal Court Practice by Saunders et al. at page 1167). This
section refers to Tariff B.
IV. Conclusion
[21]
For
the following reasons, I believe that an award of costs in favour of the applicant
is justified based on the particular circumstances of this case but not in the
amount requested.
[22]
First,
I do not agree with the Minister’s submission that without an affidavit from
the applicant the Court did not have any facts before it that could ground the
applicant’s motion for costs. The Court knew all the relevant facts: it was at
the heart of the proceedings in question including the stay motion records; the
oral submissions made on January 11 and 14, 2009; and the Minister’s
representations of January 9 and 12, 2009. More important in this case,
this Court’s direction on costs simply required written representations by the
parties.
[23]
Second,
the stay motion was not necessary. The applicant was not removed to Mali on
January 12, 2009, for the simple reason that the Embassy of Mali had not
issued a travel document for him. I repeat: at the hearing on the stay, the
Court repeatedly expressed its concern about this.
[24]
Third,
I gave careful consideration to the Minister’s argument that Mr. Diallo,
through his inappropriate behaviour, was the reason why the travel document had
not been issued in time. In my view, Mr. Diallo’s refusal to sign the
statement required to issue his travel document for his removal is unacceptable
behaviour that, under normal circumstances, would disqualify him from being
awarded costs under section 22 of the Rules. However, the specific
circumstances of this case are unusual and justify an award of costs. To
summarize, the evidence before me is not sufficient for me to find that
Mr. Diallo contributed to the fact that a travel document was not issued
in time.
[25]
Prior
to the hearing on January 11, 2009, the Minister was well aware that the
Embassy had not issued the requisite travel document to enforce his removal the
following day. I am satisfied that counsel for the Minister who argued before
me on Sunday, January 11, 2009, had not been informed by her client that
there was no travel document.
[26]
Is
Mr. Diallo responsible for the fact that a travel document was not issued in
time? I think not.
[27]
It
is true that Mr. Diallo refused to acknowledge the notice to appear on
December 17, 2008. However, that did not prevent the CBSA from asking the
Embassy for a travel document during the day on December 17, 2008. This
request complied with the Embassy’s requirements at the time. According to
Exhibit R-2 to Mr. Kabango‑Katalay’s affidavit, the Embassy needed [translation] “three days to proceed”.
[28]
After
realizing that the Embassy had not yet issued a travel document for Mr. Diallo,
the CBSA contacted the Embassy on January 5, 2009, and was told
that the Embassy did not have an application file for Mr. Diallo, which was
found later. It was the following day, on January 6, 2009, that the
CBSA was informed of the new requirement for a statement by the concerned party.
[29]
On
January 8, 2009, a Thursday, the applicant refused to sign such a
statement for the first time. His departure had been scheduled for the
following Monday. The day before, the applicant filed his motion for a stay
with a request for an urgent hearing. Counsel for the Minister filed her
written representations on Friday, January 9, 2009.
[30]
Based
on the evidence, the second time the applicant refused to sign the statement
required for his travel document to be issued was the morning of the day he was
to be removed. The Minister argued that if Mr. Diallo had signed the
statement the Embassy could have issued the travel document, but Mr. Kabongo‑Katalay
told us in his affidavit that he contacted the Embassy on January 12,
2009, at 10 a.m. to inform them of the situation but [translation] “to my great surprise
. . . he told me that no travel document could be issued the same day
. . .”
[31]
In
my view, the evidence before me establishes that the fundamental raison why a travel
document was not issued in time stems from the Embassy of Mali’s new
requirement and that the refusal to sign the statement on January 8, 2009,
was not a sufficient contributing factor to deny him the costs incurred for an
unnecessary proceeding (the hearing of the stay motion), which could have been
avoided if the Court had been advised that the CBSA did not have in its possession
a document that was necessary for the removal.
[32]
The
Minister’s concern that awarding costs in this case would constitute a
precedent that is prejudicial to the proper administration of justice is
without merit. The circumstances of this case are unusual. The applicant’s
inappropriate behaviour was not a factor that contributed to his non‑removal.
If it had been, this Court’s decision would have been different.
[33]
However,
the amount of $5,650 requested for costs is not acceptable for the following
reasons:
A. Some of the
costs have no connection to the Court. That is the case for the administrative
attendances of December 17, 2008, and January 7 and 8, 2009.
B. The fees for
the preparation of the motion record and the hearings on January 11 and
15, 2009, are not in accordance with Tariff B, items 5 and 6.
C. If he is
seeking solicitor-client costs (which is possible according to the jurisprudence),
I have no evidence before me to justify the amounts indicated.
[34]
Section
400(4) authorizes this Court to award a lump sum in lieu of, or in addition to,
any assessed costs. Taking into consideration the items in Tariff B, the number
of units in Column III for assessable services, the appearance on
January 14, 2009, as well as the submissions on costs, I award costs to
the applicant under section 22 of the Rules, which I fix at $1,500 payable
forthwith.
ORDER
THE COURT ORDERS
that
the applicant is entitled to costs under section 22 of the Federal Court’s
immigration rules, which I fix at $1,500 payable forthwith by the respondent.
“François Lemieux”
Certified true
translation
Mary Jo Egan, LLB
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