Court File and Parties

Citation: Scotland v. Canada (Attorney General), 2017 ONSC 5726 Court File No.: CR-17-90000167-00MO Date: 2017-09-27 Superior Court of Justice - Ontario

Re: Ricardo Scotland, Applicant – AND – Attorney General of Canada, Respondent

Before: Justice E.M. Morgan

Counsel: Subodh Bharati and David Cote, for the Applicant Bernard Assan and Chris Ezrin, for the Respondent

Heard: Costs submissions in writing

Costs Endorsement

[1] On August 14, 2017, I issued my ruling in this application and granted an Order of habeas corpus as sought by the Applicant. Having been successful in the proceeding, the Applicant is entitled to his costs.

[2] Counsel for the Applicant has submitted a bill of costs in which he seeks $61,760.50 in fees, disbursements and HST on a partial indemnity basis. The application was argued for a full day in court. In addition to the court time and preparation for the oral hearing, the application entailed a substantial amount of legal research, the compiling of a rather voluminous record and the preparation of a factum.

[3] I am not inclined to second guess the number of hours that counsel put into this matter. The fee request of some $53,000 is not out of line with what one expects for a full day’s application in Superior Court motions court. Applicant’s counsel’s investment of time and effort into this matter paid dividends in terms of their effective advocacy and the result they achieved for their client.

[4] Counsel for the Respondent submits that the Applicant should get no more than $7,500 in costs. Their submissions essentially restate the main points that they argued on the substantive application.

[5] More specifically, Respondent’s counsel state that the Applicant should have brought a judicial review application in Federal Court rather than a habeas corpus application in Superior Court. They also submit that the Applicant had an opportunity to challenge each of the successive Immigration Division (“ID”) decisions that kept him incarcerated, that the ID had the statutory authority to make the decisions that it did, that prior to the current application the Respondent had agreed to a joint release proposal that was rejected by the ID, and that after this rejection Applicant’s counsel failed to attend at subsequent ID reviews of the Applicant’s detention but instead brought a costly habeas corpus application.

[6] What counsel for the Respondent leaves out of the analysis is that they fought this application even after having agreed that the Applicant should be released from detention, and lost. Like the Applicant, the Respondent filed application materials, a substantial amount of case law, and a factum. While I cannot fault the Respondent for responding to the application on the merits – that is what litigation is about – the Respondent did not short-circuit the process or reduce the costs of the application. Rather, the Respondent did as it was entitled to do and fully opposed the case, prompting the Applicant to fully pursue the case to its conclusion. Both sides fought a good fight, and the successful party deserves its costs.

[7] I will add here that courts across the country have determined that a court with jurisdiction under section 24(1) of the Charter to hear and determine the issue of a Charter breach also has jurisdiction under section 24(1) to award costs as part of the remedy for that breach: [R. v. Pang (1995] 1994 ABCA 371, 4 WWR 442 (Alta CA)](https://www.canlii.org/en/ab/abca/doc/1994/1994abca371/1994abca371.html). Further, while this case was not expressly taken on by the Crown as a ‘test case’, I perceive it to have been treated as such. Where government treats a court application for breach of Charter rights as a test case, there is a particularly strong argument for awarding costs to the successful applicant: R. v. Ralph, 2008 NLCA 71. Given the history of proceedings against the Applicant, this case certainly was one characterized by “‘remarkable,’ ‘exceptional’ events”, which provide yet another reason to award costs to the successful Applicant: R. v. Taylor 2008 NSCA 5, at para 48.

[8] Prior to the application being commenced, the government was of the view that the Applicant deserved to be released, and was even willing to make a joint submission to the ID and to Federal Court to that effect. When that was rejected and the Applicant brought the habeas corpus application as an effective remedial alternative, the government instructed counsel for the Respondent to oppose the Applicant’s release in an effort to shore up the ID’s jurisdiction over the matter. Accordingly, the Respondent’s position had nothing to do with justice for the Applicant – again, the Respondent was already of the view that the Applicant should be released – but had everything to do with ensuring what it viewed as the proper continuing function of the immigration adjudication system. In this respect, the Respondent’s position has all the hallmarks of a test case.

[9] Costs are discretionary under section 131 of the Courts of Justice Act. Moreover, immigration law and disputes related thereto are civil proceedings, not criminal proceedings: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 SCR 100, at para 59.

[10] For civil proceedings, the discretion to fix costs is generally to be exercised in accordance with the criteria set out in Rule 57.01 of Rules of Civil Procedure. These include “the importance of the issues”: Rule 57.01(1)(d). From the Respondent’s point of view, the issues must have been considered quite important for it to take the position it did – that is, opposing the Applicant’s quest to quash the ID detention order even though it was of the view that the Applicant himself had done nothing to deserve being in detention. From the Applicant’s point of view, of course, nothing could be more important than his liberty.

[11] Under the circumstances, therefore, the Applicant deserves the full amount that he is seeking on the partial indemnity scale. The Respondent shall pay the Applicant costs in the amount of $61,760.50, inclusive of fees, disbursements, and HST.

Morgan J.

Date: September 27, 2017