2019 FC, 2019 FC 1262

Date: 20191004 Docket: IMM-654-19 Citation: 2019 FC 1262 Ottawa, Ontario, October 4, 2019 PRESENT: The Honourable Madam Justice Kane BETWEEN: GALINA TAGHIYEVA Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS [ 1 ] In Taghiyeva v Canada (Minister of Citizenship and Immigration) , 2019 FC 1160 , the Court granted the Application for Judicial Review of the decision of the Immigration Officer [the Application] which had refused the Applicant’s application for permanent residence on Humanitarian and Compassionate grounds [the H&C application].

The Court ordered that the H&C application be redetermined. In addition, the Court agreed that the parties could make brief written submissions on the Applicant’s request that costs be awarded to her. Counsel for the Applicant raised this issue only in oral submissions at the hearing of the Application on September 4, 2019.

Given the novelty of the Applicant’s request and that the Respondent had been taken by surprise by the submissions, the Court authorized that further written submissions could be made. [ 2 ] The Court has received and considered the written submissions and finds that costs should not be awarded against the Respondent for the reasons set out below. I.

Background [ 3 ] At the hearing of the Application, Counsel for the Applicant submitted that costs were appropriate – not because of any conduct on the part of the Immigration Officer who made the decision ‒ but because Counsel for the Respondent had not complied with the Order of Justice McVeigh dated June 6, 2019, which granted the Application for Leave for Judicial Review [the Leave Order] , and which set out the timetable to be followed leading up to the hearing of the Application on September 4, 2019 and included the direction, at paragraph 4, that: Within fifteen (15) days of receipt of this Order, the parties shall discuss the possibility of settling the application, each party shall file a statement, or a joint statement, of the outcome, and . . . [ 4 ] Counsel for the Applicant submitted that the Respondent had not complied with Justice McVeigh’s clear order to discuss the possibility of settlement because Counsel for the Respondent had not replied to the overtures made by Counsel for the Applicant to do so. [ 5 ] At the conclusion of the hearing of the Application, the Court reserved its decision; the outcome was not known to the Applicant.

The Court agreed that the Applicant and Respondent could make submissions on the issue of costs, limited to three pages.

The Court also cautioned at para 39: 39 The Court notes that Rule 22 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules , SOR/93-22 provides that “[n]o 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.” The Court also notes that the Order granting leave, which includes a paragraph indicating that within 15 days of the Order, the parties shall discuss the possibility of settlement.

This is standard wording for the Toronto Settlement Pilot Project. It is not intended to signal the Court’s view of the likely outcome of the Application for Judicial Review. Rather it is intended to encourage the parties to consider whether the Application can be settled. A. The Applicant’s Submissions [ 6 ] The Applicant submits that Orders of the Court are mandatory and that the Leave Order is no exception. In the Applicant’s view, Counsel for the Respondent was required to engage in a discussion regarding settlement and failed to do so.

The Applicant points to an unreturned phone call to Counsel for the Respondent.

The Applicant also points to Counsel for the Respondent’s failure to respond to correspondence from Counsel for the Applicant which proposed that the Respondent consent to granting the Application for Judicial Review and redetermining the H&C application within a 90 day time frame, with no costs. [ 7 ] The Applicant alleges that Counsel for the Respondent deliberately disobeyed paragraph 4 of the Leave Order and acted in bad faith, which constitutes special reasons for granting costs, as contemplated in Rule 22. [ 8 ] The Applicant also alleges that Counsel for the Respondent failed to promptly return a phone call regarding an erroneous letter from the Respondent regarding the same H&C application that was the subject of the Application.

[ 9 ] The Applicant notes that her cost submissions are not based on the immigration matter (which the Court interprets as referring to the decision-making process and the decision), but to the procedure and the " “cavalier” " attitude of Counsel for the Respondent in this litigation. [ 10 ] In response to the Respondent’s submission that Counsel for the Applicant acted improperly by orally requesting costs given that costs were not pleaded, the Applicant argues that it is a " “trite” " principle that costs follow the event and that it should not have been surprising to the Respondent that the successful party may seek costs.

B. The Respondent’s Submissions [ 11 ] Counsel for the Respondent submits that his failure to respond to the overtures of Counsel for the Applicant to discuss settlement was " “a misstep” " , which does not constitute special reasons pursuant to Rule 22 .

Counsel for the Respondent notes that the threshold for finding special reasons to order costs is a high one, not met in the present circumstances. [ 12 ] Counsel for the Respondent submits that the jurisprudence relied on by the Applicant arose in very different contexts, not immigration proceedings, and that the conduct at issue falls far short of contempt for a Court Order. [ 13 ] Counsel for the Respondent characterizes the Applicant’s correspondence proposing to settle the Application as an " “all or nothing” " approach, noting that no reasons were advanced in support of the Applicant’s position.

He submits that the intent of the Leave Order was not defeated given that there are no grounds to suggest that the hearing of the Application was not necessary. The Respondent filed a Further Memorandum of Argument which opposed granting the Application. II. Costs are not Appropriate [ 14 ] The Court notes that, in his submissions, Counsel for the Respondent apologized to the Court and to the Applicant for his failure to respond to the overtures by Counsel for the Applicant to engage in discussions regarding a possible settlement.

Despite the apology, Counsel for the Respondent went on to criticize the conduct of the Counsel for the Applicant for mischaracterizing the facts, which triggered a rebuttal by the Applicant with additional criticisms of Counsel for the Respondent.

The tone of the submissions of Counsel for the Applicant and for the Respondent and the exchange of criticism of each other’s conduct reflects a low point in professionalism and does not bode well for the success of the Pilot Project: Settlement Discussions in Proceedings under the Immigration and Refugee Protection Act . [ 15 ] In the Court’s view, the failure of Counsel to get along with each other should be addressed in other ways than awarding costs, except in far more egregious cases. [ 16 ] The issue is whether an exception to Rule 22 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules , SOR/93-22 , has been established and if so, whether the Court should exercise its discretion to order costs.

Rule 22 provides that: " 22 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. " " 22 " " Sauf ordonnance contraire rendue par un juge pour des raisons spéciales, la demande d’autorisation, la demande de contrôle judiciaire ou l’appel introduit en application des présentes règles ne donnent pas lieu à des dépens.

" [ 17 ] The threshold for establishing " “special reasons” " is high and must be assessed in the context of the particular circumstances of each case ( Dhaliwal v Canada (Minister of Citizenship and Immigration) , 2011 FC 201 at paras 29 and 30 , 384 FTR 261 [ Dhaliwal ]). [ 18 ] In Ndererehe v Canada (Minister of Citizenship and Immigration) 2007 FC 880 , 317 FTR 23 [ Ndererehe ], Justice Mosley noted that the term " “special reasons” " had not been defined, but the jurisprudence provided sufficient guidance, noting at paras 28 and 29: [28] In Johnson v.

Canada (Minister of Citizenship & Immigration) , 2005 FC 1262 , [2005] F.C.J. No. 1523 (F.C.), Justice Eleanor Dawson stated at paragraph 26 that: [s]pecial reasons may be found if one party has unnecessarily or unreasonably prolonged proceedings, or where one party has acted in a manner that may be characterized as unfair, oppressive, improper or actuated by bad faith. [29] That is, I think, an accurate statement of what was intended by the choice of the words “special reasons” in the regulation.

Something considerably out of the ordinary administrative failings or delays that may be encountered in processing refugee and visa claims. In this case, the question is not whether the respondent has acted in a manner that may be described as unfair or oppressive but whether the respondent has unnecessarily or unreasonably prolonged the proceedings.

As noted above, I believe that this matter should have been brought to a speedier conclusion. [ 19 ] In Ndererehe Justice Mosley found that in the overall circumstances of the case, special reasons did exist to award costs. [ 20 ] In Adewusi v Canada (Minister of Citizenship and Immigration) , 2012 FC 75 at para 23 , 403 FTR 258, Justice Mactavish provided some examples from the jurisprudence where the high threshold of " “special reasons” " had been met.

Consistent with the jurisprudence cited in Ndererehe , such examples included where one party has acted in a manner that may be characterized as unfair, oppressive, improper or actuated by bad faith ( ibid at para 24, citing Manivannan v Canada (Minister of Citizenship and Immigration), 2008 FC 1392 at para 51 , [2008] FCJ No 1754 (QL)) and where there is conduct that unnecessarily or unreasonably prolongs the proceedings ( ibid at para 25, citing John Doe v Canada (Minister of Citizenship and Immigration) , 2006 FC 535 at para 5 , [2006] FCJ No 674 (QL);

Johnson v Canada (Minister of Citizenship and Immigration) , 2005 FC 1262 at para 26 , [2005] FCJ No 1523 (QL); and Qin v Canada (Minister of Citizenship and Immigration) , 2002 FCT 1154 , [2002] FCJ No 1576 (QL)). [ 21 ] More recently in Ge v Canada (Citizenship and Immigration) , 2017 FC 594 , [2017] FCJ No 616 (QL) , Justice Southcott reiterated these same principles at para 40. [ 22 ] Similarly, in Balepo v Canada (Citizenship and Immigration) , 2017 FC 1104 , 286 ACWS (3d) 535, Justice Boswell reviewed the jurisprudence regarding costs in immigration proceedings and highlighted several cases, where despite serious allegations of errors and procedural irregularities by decision-makers, no costs were awarded.

Justice Boswell noted the trend in the jurisprudence at para 40: 40 By and large, the jurisprudence of this Court since Ndungu shows that in most instances requests for costs under Rule 22 are declined: see, e.g., Canada (Citizenship and Immigration) v Abidi , 2017 FC 821 , 284 ACWS (3d) 229; Nematollahi v Canada (Citizenship and Immigration) , 2017 FC 755 , 283 ACWS (3d) 162; Handasamy v Canada (Public Safety and Emergency Preparedness) , 2016 FC 1389 , 48 Imm LR (4th) 268; Ge v Canada (Citizenship and Immigration) , 2017 FC 594 , 280 ACWS (3d) 587; Faisal v Canada (Citizenship and Immigration) , 2014 FC 1078 , 467 FTR 278; Garcia v Canada (Citizenship and Immigration) , 2014 FC 871 , 245 ACWS (3d) 181; Kaba c Canada (Citoyenneté et de l'Immigration) , 2013 CF 1201 , 443 FTR 291; and Canada (Citizenship and Immigration) v B377 , 2013 FC 320 , [2013] FCJ No 522. [ 23 ] The Court notes that the jurisprudence regarding special reasons pursuant to Rule 22 tends to focus on the decision-maker and the decision process rather than on the conduct of counsel for the decision maker.

However, the same principles apply. [ 24 ] Counsel for the Applicant suggests that it is a trite principle that costs follow the event and as such, the Respondent should not have been surprised by his cost submissions at the hearing even though the Applicant did not plead costs. This is not trite law in the immigration context; costs are the exception in immigration proceedings. The Respondent’s surprise was justified.

Moreover, at the time of the hearing the outcome of the Application was not known given that the Court reserved its decision. [ 25 ] It is not disputed that Counsel for the Respondent did not respond to the phone call or letter from the Counsel for the Applicant proposing settlement. The settlement proposal was simply that the Respondent should consent to grant the judicial review and redetermine the Application.

Counsel for the Applicant now appears to suggest that the errors of the decision-maker were clear and that the Respondent refused to engage in discussions to settle the matter, which wasted resources and prolonged the determination of the Application. However, that may be an argument made with the benefit of hindsight. The Leave Order set out the timetable, including for possible settlement discussions, and for the exchange of Memorandum of Argument and the hearing of the Application. The Memoranda were filed as required and the hearing proceeded as scheduled on September 4, 2019.

The outcome was not a foregone conclusion. The Court’s Judgment was rendered on September 11, 2019. [ 26 ] In the present circumstances, I do not find that the conduct of Counsel for the Respondent was unfair, oppressive or demonstrates bad faith or that it prolonged the determination of the Application. The failure of Counsel for the Respondent to engage in at least a discussion of possible settlement is regrettable and no good excuse was provided for not responding. The mandatory language of paragraph 4 of the Leave Order was overlooked or ignored by the Respondent.

Although there may be several factors that make it challenging for counsel to adhere to a requirement to engage in settlement discussions in a short time frame, including the volume of applications for leave and for judicial review, competing priorities and deadlines, getting instructions from the client and the complexity of the issues raised, I note that Counsel for the Respondent did not raise these factors. Regardless, there is nothing to suggest that Counsel for the Respondent acted in bad faith.

The conduct complained of does not constitute " “special reasons” " to depart from Rule 22 . [ 27 ] The Court also notes that the mandatory language of paragraph 4 was included only in Leave Orders issued in certain immigration proceedings in the Toronto local office Pilot Project: Settlement Discussions in Proceedings under the Immigration and Refugee Protection Act . The very nature of a pilot project is to monitor the implementation and evaluate the benefits of the project so that it can be improved, encouraged and perhaps expanded to other locations.

The Court notes that the language of paragraph 4 of leave orders issued pursuant to the pilot project was recently amended. A Notice to the Profession dated July 4, 2019 and posted on the Federal Court’s Website clarifies the provision as follows; If leave is granted, parties shall, within 15 days of the date of the Order granting leave, consider the possibility of settling the Application, and if both agree that it is appropriate, they shall engage in settlement discussion.

Following this discussion, if any, the Respondent shall file a statement of the outcome of settlement discussions, and if settlement is reached, the parties shall immediately inform the Court and take necessary steps to discontinue the Application or request a Judgment on consent (see Annex C). Settlements, if they are to take place, are encouraged to be finalized within this 15-day ‘settlement window.’ [ 28 ] In conclusion, the Court finds that no special reasons exist to order costs in the Application. ORDER in file IMM-654-19 THIS COURT ORDERS that no costs are awarded. "Catherine M. Kane" Judge FEDERAL COURT

SOLICITORS OF RECORD DOCKET: IMM-654-19 STYLE OF CAUSE: GALINA TAGHIYEVA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION SUBMISSIONS ON COSTS CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO THIS COURT’S JUDGMENT IN 2019 FC 1160 AND SUPPLEMENTAL JUDGMENT IN 2019 FC 1262 ORDER AND REASONS KANE J. DATED: OCTOBER 4, 2019 WRITTEN SUBMISSIONS BY: Nikolay Y. Chsherbinin For The Applicant Stephen Jarvis For The Respondent SOLICITORS OF RECORD : Chsherbinin Litigation Professional Corporation Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent