Date: 1990709
Docket: IMM-3316-98
Ottawa, Ontario, this 13th day of July, 1999
PRESENT: THE HONOURABLE MADAME JUSTICE SHARLOW
BETWEEN:
JAN HOY CASSELLS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER and ORDER
[1] In this application Mr. Cassells sought to compel the Minister to consider a refugee claim made in 1998 arising from his fear of persecution in Jamaica. The claim was based in part on events that occurred in 1992 when he was a witness to a crime in Canada. It was renewed on the basis of events that occurred after April of 1998, when the Minister caused Mr. Cassells to be removed from Canada to Jamaica in the face of a statutory stay of a 1995 deportation order against him.
[2] The Minister took the position that the 1995 deportation order was unexecuted, and therefore Mr. Cassells' refugee claim was barred by subsection 44(1) of the Immigration Act. Mr. Cassells argued that subsection 44(1) did not apply because the deportation order was executed in April of 1998 when the Minister caused Mr. Cassells to be removed from Canada. The Minister argued that an unlawful removal of a person from Canada cannot be the execution of a deportation order.
[3] In reasons issued on June 16, 1999, I said that I agreed with the Minister that subsection 44(1) barred Mr. Cassells' refugee claim but would defer issuing the order dismissing the application to allow time for written submissions on costs and on a certified question. The submissions have been filed and I have reviewed them.
Costs
[4] Mr. Cassells seeks solicitor and client costs against the Minister. He faces three hurdles. First, Rule 22 of the Immigration Rules requires "special reasons" before any costs may be awarded in an application for judicial review of a decision under the Immigration Act. Second, an award of solicitor and client costs is extraordinary and should be ordered only if there has been misconduct connected with the litigation: Bland v. National Capital Commission, [1993] 1 F.C. 541 (C.A.). Third, his application was not successful.
[5] It is argued for Mr. Cassells that the issue in the case is novel and that this should be seen as a test case. The Federal Court of Appeal has indicated that the existence of a test case may be sufficient to award costs on a solicitor and client basis: Canada (Minister of Employment and Immigration) v. Mayers, [1993] 1 F.C. 154 (C.A.). I have no basis for concluding that this is a test case, in the sense that there are other similar cases awaiting the outcome of this one. On the contrary, the Minister claims that the situation presented in this case is rare.
[6] It is also argued for Mr. Cassells that the refugee claim he sought to assert upon his return from Jamaica (and therefore this application) would not have arisen but for Mr. Cassells' unlawful removal to Jamaica in circumstances that caused him to fear for his safety there. Whether that is so is not for me to determine. In any event, I understand that Mr. Cassells has commenced other proceedings in order to claim damages for the unlawful removal. I have noted the decision of Rouleau J. rejecting the motion of the Minister to have that claim struck: Cassells v. The Minister of Citizenship and Immigration, IMM-5228-98, June 9, 1999. Whatever comes of that claim, I cannot characterize the Minister's unlawful removal of Mr. Cassells from Canada as misconduct in respect of the application before me that would justify an award of solicitor and client costs.
Certified question
[7] Counsel for Mr. Cassells submits that this is an appropriate case for a certified question. Counsel for the Minister does not agree. He argues that the application of Mr. Cassells is based on arguments that are clearly wrong, and also that the situation presented in this case is rare. He says that the case by definition does not raise a serious question of general importance.
[8] The execution of a deportation order has substantial legal consequences. The question of what constitutes the execution of a deportation order is therefore a serious question of general importance. Questions relating to execution have arisen in the past, though not often. See, for example, Re Ramkissoon and Minister of Manpower and Immigration, [1978] 2 F.C. 290 (C.A.), leave to appeal denied, (1978), 20 N.R. 445n, Cuskic v. Canada (Minister of Citizenship and Immigration) (1997), 130 F.T.R. 232, Clarke v. Canada (Minister of Citizenship and Immigration) (1998), 147 F.T.R. 259. For that reason I will certify the question set out below.
O R D E R
The application for judicial review is dismissed. No costs are awarded. The following question is certified:
| For purposes of the Immigration Act, is a deportation order against a person executed when the Minister causes that person to be removed from Canada while the deportation order is the subject of a statutory stay? |
"Karen R. Sharlow"
Judge