VALIJA SINKEVICA
ANDREJS KUTIREVS
ANNA KUTIREVA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
Introduction
[1] These reasons follow the hearing on the 19th of October, 2005, at Toronto, of an application for judicial review of:
¼the course of conduct and/or non-decision of the Respondent whereby she has refused to return the passports of the Applicants back to them, process the application for permanent residence of the Applicants herein, finalize their Immigration application, and issue them immigrant visas. The course of conduct or non-decision was made by the Canadian High Commission in London, England¼
By the date of the hearing, it was not in dispute that the substantive relief sought by the Applicants had been obtained and that the application for judicial review was thus moot. The sole issue before the Court was the question of the entitlement of the Applicants to costs of the application.
Background
[2] The Applicants are citizens of Latvia, and a family consisting of a husband and wife and their two children.
[3] In late 2000, the principal Applicant, Viktors Kutirevs submitted an application for permanent residence in Canada in the class now known as the Federal Skilled Worker Class. His wife and two children were included as dependants on his application. The application was submitted to the Canadian High Commission in London, England and was processed at that location. It proceeded very slowly with the responsibility for the long processing time being divided between the Applicants themselves and the Respondent. Of central concern to the Applicants, and more will be said of this later, a significant number of communications from the Applicants' counsel in Canada addressed to the Canadian High Commission in London and, I am satisfied on the evidence before the Court, received by that office, was simply not acknowledged or responded to in any way.
[4] By mid October 2004, the situation had become somewhat critical. At or about mid October 2004, counsel for the Applicants received a request from the Visa office in London asking that the Applicants submit their passports so that immigrant visas could be inserted into the passports. The request indicated that the medical reports for the Applicants would expire on the 9th of December, 2004 and thus that immigrant visas could not be issued for any period beyond that date. The request further indicated that the Respondent would endeavour to return the passports within twenty (20) of their receipt.[1]
[5] Passports for the Applicants were sent by courier from Latvia to the Visa Office on the 22nd of October, 2004. According to the courier service tracking system, the package was received by the Visa Office in London on the 25th of October, 2004.
[6] Counsel for the Applicants communicated with the London Visa Office by fax on the 25th of November, the 29th of November and the 6th of December noting the imminent expiry of the Applicants' medical reports and the fact that the Applicants' passports had not been returned. While I am satisfied on the evidence before the Court that these communications were received at the High Commission in London, they were not acknowledged.
[7] The Applicants' medical reports expired. The application for judicial review now before the Court was filed on the 13th of December, 2004.
[8] The principal Applicant began to haunt the Canadian Embassy in Riga, Latvia and apparently dealt directly with a Receptionist/Consular Assistant there. The Tribunal Record produced to the Court following the granting of leave on the application for leave and judicial review before the Court discloses the following communications from that Receptionist/Consular Assistant, the first being directed to the Visa Office in London and dated the 16th of December, 2004, the second being directed to an Immigration Officer at the Canadian Embassy in Warsaw and dated the 23rd of December, 2004 and the third being directed to the London Visa Office with copies rather generously spread around and dated the 24th of December, 2004:
I have been contacted by Mr. Kutirevs regarding his passport, which was sent to London in the beginning of November for the Immigration Visa. The applicant claims that their lawyer has tried to contact you via fax as well, but did not succeed. The Applicant would like to get back his ppt [passport] as the processing time mentioned in the letter from London (20 days) have [sic] passed.
I am sorry to get involved, but they called us yesterday, and again today desperately requesting for an assistance.
Please advise what the applicant should be said [sic] apart from the fact that they themselves have to contact you directly.[2]
¼
Probably I should not bother you on such a case, but I myself cannot think of any better contact than you, as you have always been very responsive to Riga. Please send the message below, to which I have still not received an answer. The applicant is so desperate, he cannot do anything without the passport, neither withdraw money from his bank account nor travel. The applicant has decided to turn to the court, his lawyer has prepared all the necessary documents for him to sign. He is willing to come to the Embassy to pay the consular fee and to sign, so that we witness the signature. But how can he prove his identity, if there is no passport and if the person does not have a driver's licence? It is really stressful also for us as the applicant phones us several times a day every day requesting for the assistance.[3]
¼
This is a desperate attempt to reach somebody, who could advise. Please see below.
Thank you for your understanding during this Christmas time.[4]
It would appear that the second and third messages included copies of the first.
[9] The interventions from the Riga, Latvia Embassy finally produced some results. Under cover of a communication dated the 24th of December, 2004, the Canadian High Commission in London returned the Applicants'passports to them and advised that only limited updated medical information would be required. The Applicants apparently received their passports in early January, 2005.
[10] The CAIPS notes that form part of the Tribunal Record before the Court, in two entries each dated the 24th of December, 2004, acknowledge that "this file has fallen through the cracks."
The Application for Judicial Review
[11] As earlier indicated, the application for judicial review before the Court was filed on the 13th of December, 2004. Also as earlier noted, the relief sought regarding return of the Applicants' passports was rendered moot by the return of those passports by early January, 2005.
[12] Leave to commence the judicial review regarding the failure to complete processing of the Applicants' application for permanent residence was granted the 28th of June, 2005.
[13] Visas authorising the Applicants to take up permanent residence in Canada on or before the 30th of October, 2005, a condition accepted by the Applicants, were issued over the course of the summer of 2005 and Counsel for the Applicants acknowledged that what remained of the application for judicial review was thus rendered moot save and except that Counsel sought costs of the application given all of the circumstances.
Costs
[14] Rule 22 of the Federal Court Immigration and Refugee Protection Rules[5] reads as follows:
| 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.
|
"Special reasons", in the context of Rule 22 has been judicially interpreted. In the most recent reasons cited before the Court, Johnson v. Canada (Minister of Citizenship and Immigration)[6], my colleague, Justice Dawson wrote at paragraphs 26 and 27 of her reasons:
Both parties acknowledge that pursuant to Rule 22 of the Federal Court Immigration and Refugee Protection Rules, ¼special reasons must exist for the Court to award costs on application[s] for judicial review. Special 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.
The fact that a Tribunal has made a mistake does not by itself constitute a special reason for costs. While I find the decision of the RPD to have been perverse, that fact is insufficient to warrant granting costs to Mr. Johnson. In the present case, the Minister did not oppose the application for leave, consented to an extension of time Mr. Johnson required, and offered to consent to the decision being set aside on a timely basis after the tribunal record was delivered. In these circumstances, I find that Mr. Johnson has failed to establish the existence of special reasons that would justify an award of costs.
[15] On this matter, it was not argued before the Court that one party unnecessarily or unreasonably prolonged the proceedings. Further, it was not argued that the conduct of the Visa Office in London could be characterised as oppressive, improper or actuated by bad faith. That being said, it was forcefully urged on behalf of the Applicants that the conduct of the Visa Office, after receipt of the Applicants' passports in late October, 2004 and continuing until those passports were received back by the Applicants in early January, 2005, was unfair and perhaps unconscionable and negligent. I have great sympathy for the position of the Applicants in this regard.
[16] All of the foregoing being said, the conduct of the Respondent and his counsel, and indeed the conduct of the Visa Office in London once it realized that the Applicants' application had "fallen through the cracks", is comparable to the conduct commented on in the second paragraph from the reasons of Justice Dawson quoted above. The Applicants' passports were promptly returned once the oversight in the London Visa Office was discovered. The Respondent did not oppose the application for leave. Once leave was granted and the Tribunal Record was received, the London Visa Office would appear to have moved with reasonable, if overdue, haste to grant the Applicants' visas valid to a date satisfactory to the Applicants. In all of these circumstances, I find that the Applicants have failed to establish the existence of "special reasons" that would justify an award of costs.
Conclusion
[17] In the result, on consent, this application for judicial review will be dismissed as moot. There will be no order as to costs.
[18] Counsel was advised at the close of hearing that the foregoing would be the result. Neither Counsel recommended certification of the question. The Court is satisfied that no serious question of general importance arises that would warrant certification of a question.
" Frederick E. Gibson"
J.F.C.
Ottawa, Ontario
October 25, 2005
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-10182-04
STYLE OF CAUSE: VIKTORS KUTIREVS, VALIJA SINKEVICA,
ANDREJS KUTIREVS, ANNA KUTIREVA
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 19, 2005
REASONS FOR ORDER BY: GIBSON, J.
DATED: OCTOBER 25 2005
APPEARANCES BY:
Dan Miller For the Applicants
Sharon Stewart Guthrie For the Respondent
SOLICITORS OF RECORD:
Dan Miller
Toronto, ON For the Applicants
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent