PRACTICE |
Cost |
Charkaoui (Re)
DES-3-03
2004 FC 900, Noël J.
23/6/04
20 pp.
Interim costs application for money to pay fees, disbursements of $19,250, plus GST, QST--Application denied as applicant unable to show met requirements of kind of application as established by Supreme Court of Canada in British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 S.C.R. 371--Applicant informed Court has no income, eligible for legal aid program of province of Quebec --Added legal aid not giving advances for fees, interim costs--Whether applicant entitled to interim costs to allow counsel to submit motion challenging abuse of process in handling PRRA (pre-removal risk assessment) application, accordingly ruling "protected person" under IRPA, ss. 112 et seq.--Federal Court's discretionary power to award costs deriving from concept of equity, formally set out in Court Rules giving Court complete discretion to award costs--Costs usually awarded to successful party at end of judgment-- Instant application for interim costs more than mere costs application--Applicant filed legal aid certificate from province of Quebec showing entitled to make use of that program to obtain legal representation--In Okanagan Indian Band LeBel J. stating three conditions to be met for Court to award interim costs: (1) party seeking interim costs genuinely cannot afford to pay for litigation, no other realistic option exists for bringing issues to trial, case unable to proceed if order not made; (2) claim prima facie meritorious i.e., at least of sufficient merit that contrary to interests of justice for opportunity to pursue case to be forfeited just because litigant lacks financial means; (3) issues raised transcend individual interests of particular litigant, of public importance, have not been resolved in previous cases--Concerning first condition, applicant and wife have very little income at their disposal that would allow them to pay costs of such litigation--Applicant can make use of legal aid program of province of Quebec to secure representation in motion for abuse of process--Right to representation by counsel of one's choice not absolute, general constitutional right, but limited right aimed at ensuring fair trial, must be analysed in terms of unique features of case --First condition not met--Since three conditions in Okanagan Indian Band cumulative, conclusion sufficient to dispose of motion at bar--Application dismissed-- Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 112.