Immigration and Refugees Law
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Can you recover legal costs if you win an immigration judicial review or mandamus case? Usually not. Rule 22 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules provides that no costs are awarded in immigration applications for leave and judicial review unless the Court, for special reasons, orders otherwise. There is no fixed definition of special reasons, but courts have found them where a party’s conduct unnecessarily or unreasonably prolonged the proceeding, or was unfair, oppressive, improper or in bad faith—situations that sometimes arise in mandamus cases involving long, unexplained delay. Pax Law Corporation advises clients on whether a costs request is realistic.
| Topic | Rule | Authority |
|---|---|---|
| Default position | No costs to either side | Federal Courts Citizenship, Immigration and Refugee Protection Rules, r 22 |
| Exception | “Special reasons” (no exhaustive definition) | r 22; Ndungu v Canada (Citizenship and Immigration), 2011 FCA 208 |
| Typical special reasons | Unfair, oppressive or improper conduct; conduct that unnecessarily or unreasonably prolongs proceedings; bad faith | Ndungu; Johnson v Canada (MCI), 2005 FC 1262 |
| Winning alone | Not enough to justify costs | Consistent Federal Court case law |
Most Federal Court litigation follows the rule that the losing party pays a portion of the winner’s legal costs. Immigration judicial reviews are different. Rule 22 creates a no-costs regime so that applicants are not deterred from seeking review out of fear of an adverse award, and so that the government is not routinely ordered to pay either. The result is that each party normally bears its own legal fees, whatever the outcome.
In Ndungu v Canada (Citizenship and Immigration), 2011 FCA 208, the Federal Court of Appeal noted that there is no statutory or judicial definition of “special reasons” and reviewed non-exhaustive examples, such as a party unreasonably prolonging the proceedings. The Federal Court has also described special reasons as arising where a party’s conduct may be characterized as unfair, oppressive, improper or actuated by bad faith (Johnson v Canada (Minister of Citizenship and Immigration), 2005 FC 1262). The threshold is high, and each case turns on its facts.
Examples that courts have considered include:
A mandamus application asks the Federal Court to order IRCC to make a decision that has been unreasonably delayed. Because mandamus cases sometimes reveal unexplained inaction, they are among the cases where costs are more often argued. Still, many mandamus applications end when IRCC makes a decision after the case is filed, and the Court may then decline costs because the matter has become moot. A costs request should be made clearly and supported by evidence of the delay and of the government’s conduct.
Costs should be requested in the application and in the memorandum of argument, with specific reasons why the case is exceptional. Applicants should document every follow-up with IRCC, any webform responses, and the timeline of the file. Requesting costs without a factual basis is unlikely to succeed.
Generally not. Costs require special reasons under Rule 22.
The same no-costs rule applies, so an adverse costs award is uncommon, although it is possible if special reasons exist.
They are argued more often in delay cases, but an award still depends on special reasons in the particular file.
To discuss a judicial review or mandamus application, contact Pax Law Corporation.
The information presented is for informational and educational purposes only and may not be accurate. This information does not replace getting legal advice from a qualified, practicing lawyer. If you are facing a legal dilemma, you should make an appointment and consult with one of our licensed and practicing lawyers.
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