When the Court Will Award Costs

Meurrens LawJudicial Reviews

In Canadian litigation, an order for “costs” compels one party to pay a portion of the other party’s legal fees.  The main purpose of costs is to dissuade frivolous lawsuits.

In the immigration context, the Federal Court Rules provide the authority of a court to order one party to pay another party’s legal fees.  Section 22 of the Federal Courts Immigration and Refugee Protection Rules, , however, limits when they can be awarded.  It states that:

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.

In this post, which will be updated frequently, I will be looking at scenarios where the Federal Court ordered costs.  I’m hoping that this post can become a useful reference for Federal Court practitioners.

Johnson v. Canada, 2005 FC 1262

Costs can be awarded where a party has unnecessarily or unreasonably prolonged legal proceedings.  (Paragraph 26)

Paul v. Canada, 2010 FC 1075

Consulate sent applicant a letter stating “YOU SHOULD SUBMIT ONLY THOSE ITEMS MARKED WITH AN “✔ (emphasis added).” Applicant was specifically told to only submit a birth certificate for one of his relatives. He did, and his application was ultimately denied because he did not submit a marriage certificate as well.

[14]           I am of the view that there are special reasons why costs should be awarded in this case.  The Immigration Officer who made the decision made a clear error, and in so doing committed an egregious breach of procedural fairness.  The respondent decided to oppose the applicant’s application for leave and for judicial review, causing the applicant to incur significant legal expenses even though he is clearly in the right.  Furthermore, the respondent’s submissions did not address the serious issue raised by the applicant and on which he was successful.  Instead, the respondent made boilerplate submissions about the duty to give reasons and patent unreasonableness which have no relevance to the single and clear issue raised by the applicant.

[16]           In this case, the conduct of the respondent throughout has been unfair, improper, and has resulted in undue prolongation of proceedings and a delay in the applicant’s application being determined in a timely manner.  These are sufficient special reasons to justify an award of costs.  Further, it is appropriate to order the respondent to give prompt attention to the applicant’s application for a permanent resident visa as a skilled worker.

Dhoot v. Canada (Minister of Citizenship and Immigration), 2006 FC 1295

Consulate faxed request for interview in Y-1 which was never received by applicant. In Y applicant sent a letter to embassy requesting an interview be scheduled. Consulate received letter, but rejected application on the basis that applicant did not attend interview that was scheduled in the fax.

[19]          It is wrong for the respondent, in a case such as this, to oppose the applicant’s Court case.  For this reason there are special circumstances in this case to award legal costs to the applicant.  The applicant presented clear evidence that he did not receive the letter scheduling the interview.  The respondent should have recognized that this letter was not properly sent or received, so that this Court hearing should not have been necessary.  Accordingly, the legal costs associated with this application before the Court are awarded to the applicant.

Aghdam v. Canada (Public Safety and Emergency Preparedness), 2011 FC 131

Five year delay in processing a Ministerial exemption, including two after which the CBSA made its preliminary rejection.

[21]           However, this Court has also considered undue delay in processing a claim to be a “special reason” which would justify an award of costs: see, for example, Manivannan, above, at para. 60; Singh v. Canada (Minister of Citizenship and Immigration), 2005 FC 544, [2005] F.C.J. No. 669, at para. 24; Ben-Musa v. Canada (Minister of Citizenship and Immigration), 2005 FC 764, [2005] F.C.J. No. 942, at para. 36.

Singh Dhaliwal v. Canada (Citizenship and Immigration), 2011 FC 201

Costs awarded where the IAD refused to allow a self represented litigant to provide oral evidence.

[33]           The mere fact that an immigration application for judicial review is opposed, and the tribunal is subsequently found to have erred, does not give rise to a “special reason” justifying an award of costs. However, this is, in my view, an exceptional case. The breaches of procedural fairness here were so obvious and so serious that the application for judicial review should never have been opposed.

Qin v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1154

Costs may be awarded where a visa officer’s lack of training and “blatant” mistakes are evident and contrary to the understanding and skills expected of the professional visa officer. Costs may be appropriate to encourage CIC to review, and perhaps modify, the training and practices of visa officers in overseas posts.

Kargo v. Canada (Citizenship and Immigration), 2011 FC 469

In an H&C case that had been rejected twice on groundless reasons Justice Russell noted that:

[34]           Mistakes have been made in two decisions that, in my view, were perverse but, as Justice Dawson points out, this is not sufficient. This is a case that, from the beginning, cried out for compassion and prompt action. The Applicants have faced trauma that simply cannot be comprehended by most people. In this context I do believe that, given their backgrounds and vulnerabilities, the Applicants have been treated in a way that has been insensitive, and they have been subjected to needless delays at the visa post in the processing of their applications and needless resistance from the Minister in rectifying obvious mistakes and bringing this matter to a point where a final decision can be made. The processing of their application has taken twice as long as could have been expected, and through no fault of the Applicants. Their application has been refused twice because of careless mistakes and notwithstanding considerable efforts by Applicants’ counsel to expedite the process. All of this has cost the Applicants time and money in a context where time is of the essence because of the fragile state of Ms. Rosaline Kargbo and where funds are not available to finance a drawn-out process and careless mistakes.

[35]           Notwithstanding obvious careless mistakes at the visa post, the Minister has continued to resist until, apparently, the arrival of Mr. Hicks as counsel for the Minister and a change of attitude in the face of the compelling H&C factors and an acknowledgment of past mistakes. At the very least, I think I would have to describe the Minister’s approach to this matter until the more recent change of attitude as careless, unfair and oppressive, particularly when the situation of the Applicants cried out for a prompt resolution. On the other side, since the Minister has finally taken stock of the situation and acknowledged past mistakes and injustices and there has been some cooperation. Leave was not opposed and the Minister has made suggestions for the timely resolution of the problems. Consequently, I feel that some recognition of past unfairness and oppression is required in the way of costs but that the full amount claimed is too much. I think an appropriate figure would be $4000.

Eshraghian v. Canada (Citizenship and Immigration Canada), 2013 FC 828

Costs ordered when a visa officer completely almost rewrote the reasons for refusal in an affidavit.

[28]           Not only is the affidavit not admitted, this is the type of case which justifies a cost award. The case law confirms that where there are special reasons, costs may be awarded. Special reasons would include, but in no way be limited to, situations where a party acted in an unfair, oppressive or improper manner or acted in bad faith.

[29]           The Respondent’s behaviour on this issue was so improper, so disingenuous that costs of $1,000 will be awarded. The Applicant requested more but the costs of dealing with this issue is better reflected in the $1,000 award. It is hoped that such tactics will not be repeated.

Cekaj v. Canada (Citizenship and Immigration Canada), 2014 FC 661

Costs ordered where the Respondent did not file a Certified Tribunal Record, or opposed Leave, but appeared at the hearing.

I find that the respondent’s conduct in appearing before this Court without having filed any Record to be unacceptable. Such an action not only forces the applicant and the Court to participate in a hearing that may have been unnecessary as the application for leave to commence an application for judicial review was unopposed, it also deprives the Court of having the benefit of arguments from both parties.

Euro Railings Ltd. v. Canada (Employment and Social Development), 2015 FC 507

Costs ordered to “to indicate to the Respondent the Court’s concern for its filing post-decision evidence.”

Paragraphs 2-4 of this decision state:

To say that outlining the facts in this case is a challenge is to downplay the word “challenge”. The Certified Tribunal Record can only be described as a mess. Its inadequacy was compounded by its incompleteness remedied only recently when the Officer found documents behind a cabinet.

The record in this case was sufficiently deficient that the Respondent, without leave of the Court, filed both an affidavit from the Officer purporting to explain the reasons for her decision and an affidavit from the Officer’s supervisor [Director] in part explaining the program as she saw it and the duties of an officer assessing labour markets. Both affidavits are submitted to buttress the Officer’s decision – to make up for the obvious deficiencies in it.

The Applicant was rightly concerned that the Respondent was trying to manipulate the process of judicial review. At the hearing I ordered the Director’s affidavit struck from the record as improper evidence in a judicial review. I neglected to similarly strike the Officer’s affidavit for the same reason. The final judgment will do so.

Chandrakantbhai Patel v. Canada (Citizenship and Immigration), 2015 FC 900

Costs ordered in a missed e-mail case where there was no evidence that CIC ever sent the e-mail, but CIC persisted in the judicial review.

The Respondent should not have opposed the Applicant’s application for judicial review. The Applicant presented clear evidence that he did not receive the alleged e-mail or letter requesting the additional documentation. Since no copy of this alleged e-mail could be found, the Respondent should have recognized that this e-mail or letter was not properly sent as soon as the Applicant’s representative advised the visa office that no letter or e-mail was received. If the application had been re-opened as requested by the Applicant and as this Court has exhorted the Respondent to do on several occasions (Caglayan at paragraphs 22-23; Patel at paragraph 23; Trivedi at paragraph 59), this hearing before the Court would not have been necessary. For this reason there are special circumstances to award legal costs to the Applicant (see Dhoot v Canada (Citizenship and Immigration), 2006 FC 1295 at paragraph 19, 57 Imm LR (3d) 153). Furthermore, this case is not like Trivedi or Grenville; the former involved a somewhat novel causation issue, and in the latter no clear precedent governed the result. In contrast, the result in this case was dictated by Ilahi and Ghaloghlyan. Accordingly, costs shall be awarded to the Applicant in a fixed lump sum of $3,000.00, inclusive of all disbursements and taxes.

Obafemi v. Canada (Citizenship and Immigration), 2021 FC 886

Costs of $2,500 ordered due to IRCC not settling a matter when it was clear that there was a blatant mistake of fact in a refusal regarding whether an applicant committed misrepresentation.

Carrero v. Canada (Citizenshp and Immigration), 2021 FC 891

Costs of $62,793 ordered due to unexplained delays in a Quebec application that was ultimately cancelled by provincial legislation.  Justice Bell wrote:

I have considered carefully whether I should award solicitor client costs. I am satisfied that the Respondent has displayed reprehensible conduct. Two (2) years of the delay are unexplained and led to serious consequences. During those two (2) years, the law of Québec changed to the detriment of the Applicant and his daughter. The Respondent knew or ought to have known the Québec law was, in 2019, in the process of being amended. The Respondent knew or ought to have known that many, if not all, of its clients, including the Applicant, who intended to settle in Québec, would be negatively impacted by those amendments. Given the close collaboration that is required between the Province of Québec and the Government of Canada on matters of immigration, I consider it highly inappropriate and reprehensible that the Respondent failed to take steps to ensure its clients, such as the Applicant, had their matters attended to without delay. I am not suggesting applications for permanent resident status in Québec should have been fast-tracked in the face of potential changes to legislation. However, they should have been processed in a reasonable manner, without unnecessary and unexplained delays. In the event I had before me any evidence the government of Canada collaborated with the government of Québec to delay such applications until Bill 9 came into force, the outcome of this judicial review would be much different. Such evidence, if it existed, would speak to the total failure of the Québec government and the Canadian government to treat people fairly, according to existing law.

He v. Canada (Citizenship and Immigration), 2021 FC 1027

Costs of $1,500 awarded after a caregiver work permit was refused and set aside for essentially the same reason twice.