Applications for Costs

Applications for Costs in the Federal Court arise in immigration litigation when one party—often the successful applicant—seeks monetary compensation for legal fees or expenses incurred during the proceedings. Although immigration Judicial Reviews rarely result in substantial cost awards, costs can be ordered in specific situations, especially where the Minister’s position has been unreasonable, where procedural fairness has been violated, or where the applicant has suffered prejudice due to government conduct. Costs may also be sought when the Minister forces unnecessary litigation, fails to follow procedural rules, or concedes late in the process. Understanding when and how to pursue costs is an important element of advanced immigration litigation strategy.

Let's have a detailed, lawyer-level explanation of Applications for Costs in immigration cases. It covers statutory authority, types of costs, timing, legal tests, drafting strategy, case law considerations, Bill of Costs filings, settlement offers, and when higher-than-usual costs may be appropriate. It is intended for litigators, advanced practitioners, and applicants seeking a deeper understanding of remedies available in Federal Court proceedings.

Legal Framework for Costs

Costs in immigration matters are governed by:

• Federal Courts Rules (Rules 400–420),
• Federal Courts Act,
• case law interpreting “reasonable and proportionate” costs,
• established Tariff items (Schedule II).

The Court has broad discretion. Costs must be fair, proportionate, and justified by the circumstances.

When Costs Arise in Immigration Matters

Costs applications appear most often in:

• Judicial Review proceedings,
• motions (stay motions, extensions, Rule 317 disclosures),
• settlements where the Minister concedes late,
• cases involving improper conduct by a party.

They may also arise after a Minister’s unreasonable refusal leads to quashing of the decision.

Types of Cost Awards

1. Tariff Costs

These follow the Court’s scale and are usually modest. They represent standard compensation based on enumerated items.

2. Lump-Sum Costs

Ordered where Tariff is inadequate or inappropriate. Lump sums may be:

• fixed amounts (e.g., $1,500, $3,000, or higher),
• awarded when the Minister behaves unreasonably or causes unnecessary expense.

3. Elevated or Solicitor-Client Costs

Rare but possible in cases involving:

• bad faith,
• abuse of process,
• gross procedural unfairness.

These are exceptional.

Situations Where Costs Are Commonly Awarded

1. Unreasonable Conduct by the Minister

• failing to disclose critical documents,
• ignoring binding case law,
• taking untenable litigation positions.

2. Late Concessions

Where the Minister concedes the case shortly before the hearing, after the applicant has already prepared for litigation.

3. Procedural Fairness Violations

• refusals made without giving applicant a chance to respond,
• undisclosed evidence improperly used by IRCC/CBSA,
• unreasonably short deadlines or arbitrary requirements.

4. Abuse of Process

Situations where government conduct frustrates the integrity of the justice system.

5. Failure to Follow Federal Court Rules

• late filing of Minister’s Record,
• incorrect service,
• non-compliance with filing requirements.

When Costs Are Less Likely

• routine refusals overturned on reasonableness grounds,
• cases involving novel legal issues,
• mixed outcomes where both parties share some responsibility,
• voluntary withdrawal by applicant without Ministerial fault.

Drafting a Strong Application for Costs

A costs application typically includes:

• Notice of Motion (if contested),
• Supporting Affidavit (explaining conduct and prejudice),
• Bill of Costs (Tariff or lump-sum request),
• Memorandum of Argument.

Key elements to argue:

• Minister’s unreasonable conduct,
• wasted preparation time,
• late concession or withdrawal,
• importance of deterrence,
• proportionality to expenses incurred.

Tariff vs. Lump Sum

Tariff Advantages

• predictable,
• consistent with Court norms,
• easy to calculate.

Tariff Disadvantages

• may undervalue actual work,
• rarely compensates actual solicitor time.

Lump Sum Advantages

• fairer in complex or urgent cases,
• reflects real cost of preparation,
• favoured when Minister’s conduct is problematic.

Bill of Costs

Applicants must submit a detailed Bill of Costs showing:

• professional time spent,
• disbursements (couriers, travel, copying),
• HST and related taxes,
• supporting invoices/receipts (if relevant).

Settlement Offers and Rule 420

Strategic settlement offers may influence costs:

• if one party rejects a reasonable offer and loses, costs may be higher,
• offers should be time-limited and on reasonable terms.

Costs After JR Is Granted

When the Court allows a JR and quashes the refusal, the applicant may request costs. The Court may award them if the Minister’s conduct warrants compensation.

Costs After Settlement or Concession

If the Minister concedes late (e.g., one week before hearing), costs are often appropriate because the applicant already incurred substantial expenses.

Exceptional Circumstances for Higher Costs

• bad faith by government officials,
• false statements or improper motives,
• intentional disregard of law,
• systemic procedural failures,
• repeated ministerial mistakes in the same file.

Role of Skilled Litigation Counsel

Pursuing costs requires:

• knowledge of Federal Courts Rules,
• experience with Tariff and lump-sum arguments,
• strategic timing,
• clear documentation of expenses and prejudice,
• careful drafting of persuasive written submissions.

In immigration litigation, cost awards not only compensate applicants but can also deter unreasonable government conduct and encourage fairer decision-making. Properly pursued, an Application for Costs can be an effective tool to protect clients and promote accountability in Canada’s immigration system.