Barbu v. Canada (Citizenship and Immigration), docket A-153-96

     A-153-96

CORAM:      STONE J.A.

         LINDEN J.A.

         McDONALD J.A.

B E T W E E N :

PAUL BARBU

     APPELLANT

     - and -

THE MINISTER OF CITIZENSHIP & IMMIGRATION

     Respondent

Heard at Toronto, Ontario, on Thursday, September 26, 1996.

JUDGMENT delivered from the Bench at Toronto, Ontario, on Thursday, September 26, 1996.

REASONS FOR JUDGMENT BY:      STONE J.A.

     A-153-96

CORAM:      STONE J.A.

         LINDEN J.A.

         McDONALD J.A.

B E T W E E N :

PAUL BARBU

     APPELLANT

     - and -

THE MINISTER OF CITIZENSHIP & IMMIGRATION

     Respondent

     REASONS FOR JUDGMENT OF THE COURT

     (Delivered from the Bench at Toronto, Ontario,

     Thursday, September 26, 1996)

STONE J.A.

         The Respondent moves to strike the appeal on the ground that the Trial Division has not certified pursuant to subsection 83(1) of the Immigration Act that "a serious question of general importance is involved".¹

         The circumstances out of which the motion arises appear in the transcript of the Appellant's judicial review proceedings in the Trial Division, where Simpson J. observed at pages 2-3:

The application for judicial review was commenced on September 1st, 1994 and the Application Record was filed on October 28th of that year. Following a review of the file, the respondent determined that a reviewable error had indeed been made. Accordingly, on February 8th, 1995, the respondent offered to consent to an order setting the Decision aside and referring the matter back for a redetermination by a different visa officer (the "Consent").

The Consent remained available, but was never accepted by counsel for the applicant because he insisted on costs to conclude the settlement. Due to the settlement negotiations, the respondent did not file its memorandum on time. It sought and was granted an extension by this Court and it filed its memorandum on August 21st, 1995.

With this background the matter came before me. The merits were not argued and an order will go directing a redetermination. The only issue is whether the applicant is entitled to costs, pursuant to Rule 1618 of the Federal Court Rules, C.R.C. 1978, c. 663.

In the end, Simpson J. made the order of February 2, 1996 which is the subject of the appeal, the relevant portion of which reads:

1.      The Decision is set aside and the matter is referred back for a redetermination by a different visa officer;

2.      The applicant's application for costs is denied.

         The Notice of Appeal filed February 16, 1996 reads in part:

Take notice that the APPELLANT, PAUL BARBU appeals against the judgment of the Trial Division of the Federal Court of Canada delivered on the 2nd day of February, 1996, by Madame Justice Simpson. Said decision only dealt with the issue of costs... .

         In our view it is not correct to say that the order of February 2, 1996 "only dealt with the issue of costs" when, in fact, it disposed of the entire application for judicial review by allowing it on the merits, albeit on consent, and declining to award costs to the Appellant. The refusal to award costs was thus part and parcel of the order which is the subject of the appeal. In these circumstances, we are satisfied that the disposition of costs cannot be appealed against in the absence of a subsection 83(1) certificate, the order below being a "judgment...on an application for judicial review with respect to any decision or order made...under this Act or the rules or regulations thereunder...".

         The Respondent asks for costs against the Appellant's counsel personally. While Rule 348(1) provides for such an award of costs it does so in rather narrow circumstances, i.e. "[w]here...costs are incurred improperly or without reasonable cause or are wasted by undue delay or by any other misconduct or default". We are not persuaded that the Respondent has brought the case within the rule. Although this Court had dealt with the need for certification in some circumstances (see Balaga v. Canada (Minister of Citizenship and Immigration (1995), 187 N.R. 315 (F.C.A.); Maftei v. Secretary of State et al., Court File No. A-206-94, judgment rendered June 9, 1994 (unreported)), it had not earlier done so in circumstances such as those which are present in this case. That said, we accept the Respondent's further submission that he should have the costs of the motion.

         The motion will be allowed with costs fixed at $200 in lieu of taxation payable forthwith and the appeal will be struck.

     "A.J. STONE"

     J.A.

                         FEDERAL COURT OF CANADA

                         Court No. A-153-96

                     BETWEEN:

PAUL BARBU

- AND -

THE MINISTER OF CITIZENSHIP & IMMIGRATION

             ________________________________________

                     REASONS FOR JUDGMENT

     ________________________________________

__________________

¹      Subsection 83.(1) reads:
         83.(1) A judgment of the Federal Court - Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court - Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question.