David Cote

Following a successful habeas corpus application resulting in his release from immigration detention, the applicant sought costs on a partial indemnity basis.

The respondent opposed the quantum, arguing the applicant should have pursued judicial review in Federal Court.

The court found that the respondent had treated the matter as a test case to defend the jurisdiction of the Immigration Division, despite agreeing the applicant should be released.

The court awarded the applicant his full requested costs of $61,760.50 on a partial indemnity scale pursuant to section 24(1) of the Charter and Rule 57.01.

The applicant, a refugee claimant, sought a writ of habeas corpus to be released from immigration detention after being held for 17 months.

The detention was based on a series of alleged breaches of release conditions that were either inadvertent or based on errors by police and immigration authorities.

The Superior Court of Justice granted the application, finding that the continued detention lacked a valid purpose, was arbitrary, and violated the principles of fundamental justice under sections 7 and 9 of the Charter.

The court held that the Immigration Division's deference to the Canada Border Services Agency in determining breaches constituted procedural unfairness.