Date: 20020730
Docket: IMM-3834-01
Neutral citation: 2002 FCT 830
Ottawa, Ontario, Tuesday the 30th day of July 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
NOOR MOHAMMAD KHORRAMI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Mr. Khorrami's application for judicial review in the nature of mandamus became moot prior to the scheduled hearing date when the Minister rendered the decision at issue in this proceeding. The sole issue before the Court, therefore, is whether in the circumstances of this case an award of costs against the Minister is warranted.
THE FACTS
[2] In a letter dated June 4, 2000, counsel for Mr. Khorrami provided submissions and evidence seeking Ministerial relief in relation to paragraph 19(1)(l) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act"). When, notwithstanding requests made by counsel and by the Canadian representative of the United Nations High Commissioner for Refugees, no decision was made, this application for judicial review was commenced on August 9, 2001. Leave was granted by order dated April 25, 2002 which set the matter for hearing on July 24, 2002.
[3] The Minister then made his decision on June 21, 2002 and that decision was communicated to Mr. Khorrami's counsel on July 17, 2002 under cover of a letter dated July 16, 2002.
[4] Counsel for Mr. Khorrami now argues that the delay in making the decision, the delay in communicating the decision and errors in the respondent's record filed in response to the leave application constitute special reasons within Rule 22 of the Federal Court Immigration Rules, 1993, SOR/93-72. That rule provides:
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22. No costs shall be awarded to or payable by any party in respect of an application or an appeal under these Rules unless the Court, for special reasons, so orders.
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22. Sauf ordonnance contraire rendue par un juge pour des raisons spéciales, la demande ou l'appel introduit en application des présentes règles ne donne pas lieu à des dépens. |
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ANALYSIS
[5] I have not been persuaded that there is sufficient evidence before the Court upon which to conclude that by itself the length of time the request for Ministerial relief was outstanding constitutes special reasons for awarding costs.
[6] No argument was made that the request for Ministerial relief was treated other than in the normal course. The tribunal record shows that the time required for the making of the decision reflected the fact that after an initial favourable recommendation was forwarded from the Toronto office of the War Crimes Unit to the Case Management Branch of the Modern War Crimes Unit in Ottawa on January 3, 2001, new information came into the possession of the War Crimes Unit that contradicted advice given by Mr. Khorrami. This necessitated a further interview which was held on October 3, 2001. No submission was made that this interview was unnecessary or that time was not required to analyse the information provided at the second interview. There was no evidence to establish that the time taken was unwarranted or excessive.
[7] As to the second ground advanced as special reasons, the 26 day delay in communicating the decision, it was argued on the Minister's behalf that this is the usual amount of time required to convey a ministerial decision through the system and then to counsel. This submission, however, fails to take into account that this decision was taken against the backdrop of pending judicial proceedings to compel the making of the decision. The order granting leave in addition to setting the hearing date gave to Mr. Khorrami the right to file a further memorandum of argument on or before June 28, 2002 and such a memorandum was prepared, served and filed on June 28, 2002.
[8] The memorandum was prepared in the belief that no decision had been made, and dealt in part with the effect of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 and Regulations on this application. The costs of preparing and serving such memorandum were thrown away in light of the fact that the decision had been made, but not communicated.
[9] While it may be that three and a half weeks is the time required to communicate a decision from a Minister to counsel for an individual, in my view, as between the parties to this proceeding it is the Minister who ought to bear any costs occasioned by that delay. I therefore find the delay in communicating the decision to constitute special reasons for awarding costs in respect of the preparation and service of the unnecessary further memorandum of argument.
[10] As to the third ground advanced, errors in the Minister's responding record, the record included the affidavit of a senior analyst in the Modern War Crimes Unit in Ottawa. In that affidavit she swore that:
The Applicant was interviewed by the Ontario Region Modern War Crimes Unit in Toronto with his counsel on June 18th, 2000. The Applicant's counsel indicated a desire to apply for Ministerial Relief and filed submissions to the Ontario Modern War Crimes Regional Unit on October 16, 2000. The submissions were forwarded to the National Headquarters Modern Modern War Crimes Unit on October 17th, 2000. The Assessment of the submissions was sent by Mr. Rob Bafaro, Hearings Officer, Modern War Crimes Unit to the National Headquarters Modern War Crimes Unit in January of 2001.
[11] It is agreed that, through no-fault of counsel, the information contained in that paragraph is not correct. Mr. Khorrami was interviewed on June 18, 1999 and not on June 18, 2000. While Mr. Khorrami's counsel did write on October 16, 2000, the initial and substantial submissions made on Mr. Khorrami's behalf were made on June 4, 2000. Indeed, the October 16, 2000 letter is a page and a half in length and deals with a request for a status report, advice that a paragraph 19(1)(l) of the Act had been found to be constitutional by the Immigration Appeal Division, a request for access to all submissions made to the decision-maker, and a request for an oral interview if credibility is to be an issue.
[12] The inaccurate evidence was repeated in the Minister's arguments in reply to the application for leave.
[13] The effect of the error was to minimize the apparent delay. On an application for mandamus the length of any delay is a relevant matter because the Court looks, among other things, to whether there has been a reasonable time to comply with the demand for the performance of the duty. See: Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.). The importance of providing accurate information in both the applicant's and the respondent's records is obvious when it is remembered that the decision as to whether to grant leave is based solely upon those written materials.
[14] Here, the practical effect of minimizing the delay was to make it imperative for a reply memorandum to be filed, drawing the error to the attention of the Court when it considered the application for leave. In that circumstance, I find special reasons exist to award to Mr. Khorrami costs in respect of the preparation and service of that reply.
[15] I fix the total costs in respect of the reply and the applicant's further memorandum of argument in the amount of $1000.00, inclusive of disbursements.
[16] Counsel posed no question for certification and no question is certified.
ORDER
[17] IT IS HEREBY ORDERED THAT:
1. The respondent shall pay to the applicant costs fixed in the amount of $1000.00.
2. No question is certified.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3834-01
STYLE OF CAUSE: Noor Mohammad Khorami v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 24, 2002
REASONS FOR ORDER
AND ORDER OF: The Honourable Madam Justice Dawson
DATED: July 30, 2002
APPEARANCES:
Mr. Micheal CraneFOR THE APPLICANT
Mr. Marcel LaroucheFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Micheal CraneFOR THE APPLICANT
Toronto, Ontario
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada