Citation: 2007 FC 56
Ottawa, Ontario, January 19, 2007
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
SANDRA JACKSON (a.k.a. SANDRA BEVERLY JACKSON);
TANYA ABERDEEN (a.k.a. TANYA AVIANNE ABERDEEN)
Applicants
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER AS TO COSTS
[1] The general rule in the awarding of costs is that this Court has full discretion as set out in Federal Courts Rules 400 and following. One fact to take into account is whether any step was improper, vexatious, unnecessary or taken through negligence, mistake or excess of caution.
[2] However, in immigration litigation the rule is quite different. Rule 22 of the Federal Courts Immigration and Refugee Protection Rules provides that no costs be awarded to or against any party unless the Court so orders “for special reasons”. The Minister submits that the circumstances of this case justify an award against the applicants for wasted costs on a motion which was adjourned. I agree.
[3] The applicants, mother and daughter, are citizens of Trinidad and Tobago. They are currently here without immigration status, although they have filed an application to remain in Canada on humanitarian and compassionate grounds. No decision has been made in that regard. In the meantime, on 27 December 2006 they were served with a direction to report which informed them that their removal from Canada was scheduled for Saturday, 20 January 2007. The direction also stated that failure to report at the Canada Immigration Centre at the Pearson International Airport in Toronto would result in enforcement action being taken against them, including a Canada wide warrant for their arrest.
[4] On the morning of 29 December, through counsel, they requested the enforcement officer to defer their removal. Their letter concluded, “no reply from you before 12:00 p.m. Friday, December 29, 2006 will be considered to be a negative answer.” Let me say that this ultimatum to render a decision within a few hours was completely inappropriate.
[5] Be that as it may, later that same day, 29 December 2006, the applicants filed an application for leave and for judicial review of what they called:
The continued decision of an Enforcement Officer of the Canada Border Services Agency to remove the applicant dated December 29, 2006, and communicated to the Applicant on the same day.
[6] At the same time they filed a notice of motion for a stay of removal pending the outcome of that application. The motion was originally made presentable at the general sittings of the Court in Toronto on 8 January 2007, but for reasons I need not discuss was put over to a special sitting by teleconference (Toronto/Ottawa) two days ago.
[7] The Minister took issue with the appropriateness of the proceedings. By letter faxed to the Federal Court Registry on 3 January 2007, with copy to applicants’ counsel, counsel for the Minister pointed out that no decision to defer or not had yet been made and that therefore the motion was premature in accordance with the jurisprudence of this Court as set out in such cases as Tharmaratnam v. Canada (Minister of Public Security and Emergency Preparedness), IMM-3208-06 and Luchka v. Canada (Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness), IMM-4144-06.
[8] The Court of its own direction inquired if a decision to defer or not had been made, and was informed on the eve of the scheduled hearing by counsel for the Minister that no decision had yet been made but that she understood the decision would be rendered imminently.
[9] As it turns out, a negative decision was rendered in writing and delivered to the parties, and to the Court, less than one hour before the hearing. In the circumstances, counsel for the applicants requested an adjournment in order to study the decision, an adjournment which was granted. These reasons have no bearing whatsoever on the merits of any motion for deferral. However, I must mention that the notes to file of the enforcement officer state that additional submissions had been received on 5 January 2007 and that although the request for a deferral of removal was denied, as the applicants chose to purchase their own air tickets, removal was delayed to 28 February 2007 to reflect a new itinerary. Those additional submissions were only given to me during the adjournment hearing.
[10] The Minister’s argument is that the proceedings to date have been pointless. To obtain a stay pending an application for leave and judicial review of a decision of a federal board or tribunal, there obviously must be a decision. There was no decision until 19 days after proceedings were filed. The refusal or inability to answer the applicants’ request within a few hours as they demanded was not a negative decision. The applicants were on notice, with jurisprudence, for two weeks, and yet pressed on. Then, as was inevitable, they had to ask for a postponement given that the reasons to refuse to defer the removal were only delivered within minutes of the scheduled court hearing. In any event, a deferral of approximately six weeks was granted so that the matter was no longer so urgent that it required a special sitting.
[11] The applicants take the position that it was far better to file an application for leave and for judicial review, with an accompanying motion for a stay, as soon as possible after the notice to report was received. They cited instances where the Court has refused to consider last minute applications. However, those were cases arising from tardiness on the part of the applicant. That certainly is not the case here. Their application was clearly premature.
[12] Counsel for the applicants also points out that it would be unjust to remove someone because an enforcement officer fails to make a decision on a deferral request. No doubt there are instances where that is so, instances which would justify an application by way of mandamus and a stay until that decision was rendered. That is not quite the case here.
[13] Counsel for the applicants relies upon three decisions: Uppal v. Canada (Minister of Citizenship and Immigration), 2005 FC 1133; Iftikhar v. Canada (Minister of Citizenship and Immigration), 2006 FC 49 and Casanova v. The Minister of Citizenship and Immigration, 2006 FC 232. None of these cases is of assistance in the special circumstances of this case. Uppal was a decision in which Madam Justice Dawson refused to grant costs against the Minister notwithstanding that a finding of an order of mandamus was warranted. She was of the view that the pace in that case was not so slow or lax as to give rise to special circumstances. There certainly were no special circumstances in this case which justified the applicants filing proceedings within a few hours of requesting a deferral.
[14] Iftikhar is another case in which the applicants were successful, and sought costs. Mr. Justice Phelan pointed out that the policy behind the normal “no cost” rule is that costs should not be a deterrent factor for those engaged in immigration litigation. The rule applies to applicants and respondents equally. In that case he found no evidence of bad faith in the immigration officer’s decision. Although the officer may have been wrong, that was not enough to overturn the basic “no cost” regime. However, this request for wasted costs has nothing to do with the merits of the application. Even if the applicants obtain a stay, there are special circumstances which justify an award of costs against them on the adjournment.
[15] Casanova is one of the many cases dealing with last minute applications. Although the applicant’s motion was dismissed, no costs were awarded. However, Mr. Justice de Montigny does not state in his reasons that costs in fact were sought.
[16] The special circumstances in this case are that proceedings were filed within a few hours of a request for a deferral, more than three weeks before the scheduled departure. The enforcement officer had no opportunity whatsoever to respond thereto before proceedings were filed. Not only was there no underlying decision which could be stayed, the Minister specifically called the applicants to task on this point some two weeks before the motion was actually heard (albeit postponed). The motion was not withdrawn, causing the respondent to have to prepare and file a memorandum in reply and to prepare for a hearing, a hearing which would have related to the fact that no decision had been made. Whether this motion be re-presented in amended form, or fresh proceedings instituted and a fresh motion presented, the merits of that motion will be quite different as there is now an underlying decision.
[17] Furthermore, the applicants failed to inform the Court in a timely manner that they were still in communication with the enforcement officer on 5 January 2007, notwithstanding they had already filed proceedings on the basis that a decision had been made.
[18] Guided by Tariff B of the Federal Courts Rules; the preparation and filing of written argument and the attendance fee, based on Column III, would run somewhere between $600 and $1,200. In the special circumstances, I award the respondent Minister costs in the amount of $500, payable in any event of the cause.
ORDER
THIS COURT ORDERS that on applicants’ motion for a stay of proceedings which was adjourned at their request, they are ordered to pay costs to the respondent in the amount of $500 payable in any event of the cause.
“Sean Harrington”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6782-06
STYLE OF CAUSE: Sandra Jackson (a.k.a. Sandra Beverly Jackson); Tany Aberdeen (a.k.a. Tanya Avianne Aberdeen) v. The Minister of Public Safety and Emergency Preparedness
PLACE OF HEARING: Teleconference call Toronto/Ottawa
DATE OF HEARING: January 17, 2007
AND ORDER AS TO COSTS: HARRINGTON J.
APPEARANCES:
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Mr. Joel Etienne
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FOR THE APPLICANTS |
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Ms. Anshumala Juyal
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SOLICITORS OF RECORD:
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Etienne Law Office Barrister & Solicitor
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FOR THE APPLICANTS |
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John H. Sims, Q.C. Deputy Attorney General of Canada
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