May 6, 2015

Federal Court – “Special Reasons” for Cost Awards

In proceedings under the Immigration and Refugee Protection Act, costs may be awarded on a solicitor-client basis (i.e., to cover some of the costs of litigation) only where the Court finds there are “special reasons” for costs to be awarded.  The Courts rarely find that special reasons exist warranting an award of costs. The Federal Court of Appeal in Ndungu v. Canada, 2011 FCA 208 provided the following examples of when costs may be awarded:

(1)   applications brought by the Minister to establish a “test case” or where the applicant had been treated as a “lead case” by a tribunal;

(2)  against the applicant when the applicant opposes the Minister’s motion to allow the judicial review;

(3)  where a party takes inconsistent positions as before the Federal Court and Federal Court of Appeal;

(4)  where a tribunal circumvents an Order of the Court;

(5)  where a tribunal engages in conduct which is misleading or abusive;

(6)  where a tribunal issues a decision only after an unreasonable and unjustified delay; and

(7)  where the Minister opposes an obviously meritorious application for judicial review.

Even where conduct may be characterised in these manners, costs are still generally not awarded. For example, unreasonable and unjustified delay is found to happen in nearly every application for mandamus which is allowed by the Court, but only rarely are costs awarded against the tribunal. Similarly, the Minister regularly opposes applications which an applicant believes is meritorious and for which the Court allows the application; yet, costs are not regularly awarded.

“Special reasons” require conduct outside the realm of regular conduct. This is not to say that costs should not be requested when the above types of conduct are apparent, but that it is not enough to merely argue that a decision is unreasonably and unjustifiably delayed; more is required, such as demonstrating the actual unfairness or prejudice that was caused by that delay: Bageerathan v. Canada, 2009 FC 513. In Sandhu v. Canada, 2006 FC 941, the Court approved an award of costs for misleading conduct:

[14]     The initial position of the Respondent was that the Applicant had not proven that the post-interview documents had been received by the Respondent’s officials. It was a disingenuous submission devoid of any truth. It was made at a time when there was no doubt that the Respondent had received the material; and if the Respondent’s evidence is to be believed, the material had been considered and rejected.

[15]     It is evident that the submission was designed to cast blame on the Applicant where there was none and to cause the Court to dismiss the application for judicial review. If it had had that effect, it would have misled the Court…

[…] 

[18]     In a nutshell, the Respondent’s conduct was misleading to the Applicant and to the Court. It is simply unacceptable.

Recently a new “special reason” for the award of costs has been found. In Euro Railings Ltd v. Canada, 2015 FC 507, an incomplete Certified Tribunal Record was provided to the parties and to the Court. The Minister later sought to add the missing documents – which had been found behind the Officer’s cabinet – by affidavit. The Court was clear that it did not find that the Minister had acted in bad faith or with malice, but suggested that incompetence may have been the cause of this conduct. In awarding costs, the Court stated: “In the normal course, costs would not be granted. However, to indicate to the Respondent the Court’s concern for its filing post-decision evidence, the partial award of $2,500.00 will be ordered.” This suggests that an abuse of the Court’s processes, even if not meant or intended to be misleading, could result in an award of costs.

It is quite possible that counsel do not seek an award of costs as often as might be advisable. It is advisable to allow for this application in the initiating application to the Court, even if it is not pursued. While rarely awarded, it is significant that only a small percentage of applications result in an actual judicial review hearing. If, after getting leave and without a settlement being offered, the applicant is able to succeed on judicial review, it is worth examining the conduct of the Minister and/or tribunal. Costs may be appropriate and while not regularly awarded, they cannot be awarded if they are not requested.