[1] Before us are an appeal by the Minister of Citizenship and Immigration (the "Minister") and a cross-appeal by the respondent from a decision rendered on July 20, 2004 by O'Reilly J. of the Federal Court.

[2] These proceedings arise by reason of the Minister's decision to seek, pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29, revocation of the respondent's citizenship on the grounds that he made false statements to Canadian authorities concerning his national origin and his activities during the Second World War.

[3] On July 20, 2004, O'Reilly J., who was designated on March 3, 2004 as the Trial Judge for these proceedings, allowed an application by the Minister under rules 271 and 272 of the Federal Court Rules, 1998, and ordered the issuance of a commission for the taking of the evidence of 12 witnesses in Italy.

[4] The Minister's application, which led to the above-noted order, was heard on July 8, 2004, at the same time as a motion brought on by the respondent for an order compelling the Minister to pay all of his legal fees and disbursements in connection with the taking of commission evidence in Italy and the forthcoming trial.

[5] Although he refused to order the Minister to pay the respondent's trial legal fees, the Judge ordered the payment of his reasonable counsel fees and expenses insofar as they pertained to the taking of the commission evidence in Italy.

[6] The Minister's appeal is directed at that part of the Judge's order which obliges him to pay counsel fees incurred in connection with the commission evidence. As to the respondent's cross-appeal, it challenges the Judge's refusal to order the Minister to pay his counsel fees for the trial.

[7] I begin with the Minister's appeal. It is clear from the Judge's order that it was made on the basis of rules 271 and 272. At paragraph 10 of his Reasons, O'Reilly J. sets forth his reasons for making the order sought by the respondent:

[10] However, I will grant Mr. Seifert partial relief. Taking commission evidence outside the country is an extraordinary procedure. The Court, in its discretion, grants such orders only in special circumstances and where the proper administration of justice requires it. It has a broad discretion to decide the terms and conditions under which commission evidence may be taken and, in particular, may give directions regarding "the time, place, manner and costs" of the procedure (Rule 217(3) of the Federal Court Rules, 1998, SOR/98-106. I also consider the taking of commission evidence to be a particularly significant part of these proceedings, for which it is necessary that Mr. Seifert be represented by counsel who is prepared and in a position to conduct proper examination. My role as fact-finder will be assisted by able counsel on both sides.

[8] As appears from the above passage, the Judge was of the view that taking commission evidence outside of Canada was an extraordinary matter and that rule 271(3) gave him broad discretion to make an order as to costs. The Judge then states that the presence of Mr. Christie, counsel for the respondent, would greatly assist his role as fact-finder in these proceedings. The Judge's statement appears to assume that without his order, Mr. Seifert would not be represented by counsel at the commission.

[9] The specific issue on this appeal is whether the words "costs of the examination" found in Rule 271(3) allow a judge to make an order of counsel fees on the taking of commission evidence.

[10] The Minister submits that the words "costs of the examination" found in rule 271(3) mean the extra costs of taking evidence out of court and in this case, taking evidence in Italy, such as accommodation, foreign assistance, travel costs, services of interpreters and stenographers, etc., rather than costs going to counsel fees. In the Minister's view, costs in the context of rule 271(3) mean "expenses" and do not include counsel fees.

[11] In my view, the position taken by the Minister is well-founded. I am satisfied that the words "costs of the examination" found in rule 271(3) cannot be read so as to include counsel fees. I reach this conclusion for the following reasons.

[12] I start with the proposition that rules 271 and 272 are not rules pertaining to the awarding of costs between parties. These rules, as is obvious from a plain reading of their texts, are concerned with the taking of trial evidence outside of the courtroom. Rule 272 deals specifically with evidence to be taken outside of Canada, and provides for the issuance by the Court of a commission under the seal of the Court. Rules 271 and 272 read as follows:

271. (1) On motion, the Court may order the examination for trial of a person out of court.

(2) In making an order under subsection (1), the Court may consider

(a) the expected absence of the person at the time of trial;

(b) the age or any infirmity of the person;

(c) the distance the person resides from the place of trial; and

(d) the expense of having the person attend the trial.

(3) In an order under subsection (1), or on the subsequent motion of a party, the Court may give directions regarding the time, place, manner and costs of the examination, notice to be given to the person being examined and to other parties, the attendance of witnesses and the production of requested documents or material. [Emphasis Added]

(4) On motion, the Court may order the further examination, before the Court or before a person designated by the Court, of any witness examined under subsection (1), and if such an examination is not conducted, the Court may refuse to admit the evidence of that witness.

272. (1) Where an examination under rule 271 is to be made outside Canada, the Court may order the issuance of a commission under the seal of the Court, letters rogatory, a letter of request or any other document necessary for the examination in Form 272A, 272B or 272C, as the case may be.

(2) A person authorized under subsection (1) to take the examination of a witness in a jurisdiction outside Canada shall, unless the parties agree otherwise or the Court orders otherwise, take the examination in a manner that is binding on the witness under the law of that jurisdiction.

271. (1) La Cour peut, sur requête, ordonner qu'une personne soit interrogée hors cour en vue de l'instruction.

(2) La Cour peut tenir compte des facteurs suivant lorsqu'elle rend l'ordonnance visée au paragraphe (1) :

a) l'absence prévue de la personne au moment de l'instruction;

b) l'âge ou l'infirmité de la personne;

c) la distance qui sépare la résidence de la personne du lieu de l'instruction;d) les frais qu'occasionnerait la présence de celle-ci à l'instruction.

(3) Dans l'ordonnance rendue en vertu du paragraphe (1) ou sur requête subséquente d'une partie, la Cour peut donner des directives au sujet des date, heure, lieu et frais de l'interrogatoire, de la façon de procéder, de l'avis à donner à la personne à interroger et aux autres parties, de la comparution des témoins et de la production des documents on éléments matériels demandés. [Le souligné est le mien]

(4) La Cour peut, sur requête, ordonner qu'un témoin interrogé en application du paragraphe (1) subisse un interrogatoire supplémentaire devant elle ou la personne qu'elle désigne à cette fin, si l'interrogatoire n'a pas lieu, la Cour peut refuser d'admettre la déposition de ce témoin.

272. (1) Lorsque l'interrogatoire visé à la règle 271 doit se faire à l'étranger, la Cour peut ordonner à cette fin, selon les formules 272A, 272B ou 272C, la délivrance d'une commission rogatoire sous son sceau, de lettres rogatoires, d'une lettre de demande ou de tout autre document nécessaire.

(2) À moins que les parties n'en convienne autrement ou que la Cour n'en ordonne autrement, la personne autorisée en vertu du paragraphe (1) à interroger un témoin dans un pays autre que le Canada procède à cet interrogatoire d'une manière qui lie le témoin selon le droit de ce pays.

[13] Following consideration of the factors set out in rule 271(2), a Judge may order the examination for trial of a person out of court. In making such an order, a Judge may, pursuant to rule 271(3), give directions regarding, inter alia, the "costs of the examination".

[14] The power to award costs generally between parties is found in rules 400 and following, entitled "Awarding of Costs Between Parties" and, in the French version, "Adjudication des dépens entre parties". Rule 400(1) provides that the Court is to have full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid. Rule 400(3) enumerates those factors which a judge may consider in making an award of costs. Finally, rule 400(6) entitles the Court to make an award of costs appropriate in the circumstances of the case.

[15] In the French version of rules 400 and following, the word "dépens" is the equivalent of the word "costs" found in the English version. "Costs" and "dépens", in the context of rules 400 and following, clearly include counsel fees. However, the French version of rule 271(3) does not use the word "dépens", but rather the word "frais". The English version, as I have already indicated, uses the word "costs".

[16] The relevant words which appear in rule 271(3) are "costs of the examination" and "frais de l'interrogatoire". These words, in my view, must be read in their entire context. Specifically, rule 271(3) provides that a judge, in making an order for the taking of commission evidence, is to give directions "regarding the time, place, manner and costs of the examination." This can only mean, in my view, that a judge may give directions pertaining to the mechanics of the taking of that examination, i.e. practical matters that arise by reason of the taking of evidence outside of the courtroom and, in the case of rule 272, outside of Canada. It is obvious that arrangements must be made which are going to require the outlay of monies and that these matters must be dealt with in advance. For example, a commissioner, where the designated commissioner is not the judge hearing the trial, will have to be retained, stenographers and interpreters may have to be retained, premises might have to be rented, hotels will have to be booked for the participants and travel arrangements will have to be made.

[17] Consequently, it is imperative that these matters be dealt with prior to the issuance of the commission. That is why the rule allows a judge to give directions regarding the time, the place, the manner and the costs of the examination. In most instances, unless the parties agree otherwise, one would expect the Court to direct that the moving party advance all of the expenses which will have to be incurred in the taking of the evidence outside of the country. Needless to say, unless the parties agree otherwise, the party advancing the funds for the aforesaid expenses will be entitled, at the end of the day, if successful, to claim these expenses as part of its taxable costs, which will be dealt with by the Court pursuant to rules 400 and following.

[18] I should point out that the Minister does not challenge that part of the Judge's Order which provides that he is to pay for the reasonable travelling and hotel expenses of counsel for the respondent.

[19] Consequently, in my view, the wording of rule 271(3) militates against an interpretation of the word "costs" which would include counsel fees. The word "costs" cannot be dissociated from the expression "costs of the examination" which, in my view, explains why the word "frais" was used in the French version ("les frais de l'interrogatoire"). The word "frais" is defined as follows in the Dictionnaire de la langue française - Petit Robert, 1967, revu, corrigé, mis-à-jour 1983:

1. Dépenses occasionnées par une opération quelconque ÷ coût, débours, dépense. Frais de déplacement, d'habillement, Faire beaucoup de frais, de grants frais pour réparer une maison.

5. Dépenses occasionnées par l'accomplissement d'un acte juridique ou d'une formalité prescrite par la loi. Frais d'enregistrement, frais de vente, frais de jugement.

In the French version, the meaning of "frais" is clearly in the nature of practical expenses associated with an examination outside of the courtroom.

[20] The use of the word "frais" in the French version of rule 271(3) and the fact that the words "costs" and "frais" are linked to the words "of the examination" and "de l'interrogatoire" satisfy me that rule 271(3) does not allow a judge to make an award of counsel fees. Further, the fact that the word "dépens" used in rules 400 and following does not appear in the French version of rule 271(3) supports the interpretation of rule 271(3) which I propose.

[21] I am therefore of the view that the words "costs of the examination" and "frais de l'interrogatoire" signify the expenses arising from the taking of commission evidence. The rule does not, in my view, purport to give the power to a judge to make an award of counsel fees. The rule simply allows the Court to deal with those practical matters which arise from the fact that the trial evidence will not be taken in the courtroom.

[22] I therefore conclude that the learned Judge could not make the order he made pursuant to rule 271(3).

[23] The respondent argues that if O'Reilly J. erred in ordering the Minister to pay his counsel fees in connection with the taking of commission evidence on the basis of rule 271(3), he nonetheless could have made the order under rule 400. He submits that the taking of commission evidence abroad is "an extraordinary remedy" and "unique and unusual", which justifies an interim award for counsel costs appropriate in the circumstances.

[24] In reply, the Minister points out the traditional purpose of costs is to compensate a successful party at the conclusion of litigation. Although conceding that rule 400 allows the Court to make interim costs orders, including counsel fees, the Minister submits that such an award is not justified in the present matter. The power to make such an order is found at Rule 400(6)(a), which provides as follows:

400. (6) Notwithstanding any other provision of these Rules, the Court may

(a) award or refuse costs in respect of a particular issue or step in a proceeding;

400. (6) Malgré toute autre disposition des présentes règles, la Cour peut :

a) adjuger ou refuser d'adjuger les dépens à l'égard d'une question litigieuse ou d'une procédure particulières;

[25] The test to be applied for the making of an award of interim costs was set out by the Supreme Court of Canada in British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 S.C.R. 371. In that case, LeBel J. sets forth the requirements which must be met to justify an award of interim costs. With regard to interim costs awards generally, Le Bel J. writes:

[35] There are several conditions that the case law identifies as relevant to the exercise of this power, all of which must be present for an interim costs order to be granted. The party seeking the order must be impecunious to the extent that, without such an order, that party would be deprived of the opportunity to proceed with the case. The claimant must establish a prima facie case of sufficient merit to warrant pursuit. And there must be special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate.

In cases of public interest litigation, Le Bel J. sets out slightly more specific criteria:

[40] 1. The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial--in short, the litigation would be unable to proceed if the order were not made.

2. The claim to be adjudicated is prima facie meritorious; that is, the claim is at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means.

3. The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases.

If these requirements are met, then an award of interim costs may be made. LeBel J. puts it as follows at paragraph 41 of his Reasons:

41 These are necessary conditions that must be met for an award of interim costs to be available in cases of this type. The fact that they are met in a particular case is not necessarily sufficient to establish that such an award should be made; that determination is in the discretion of the court. If all three conditions are established, courts have a narrow jurisdiction to order that the impecunious party's costs be paid prospectively. Such orders should be carefully fashioned and reviewed over the course of the proceedings to ensure that concerns about access to justice are balanced against the need to encourage the reasonable and efficient conduct of litigation, which is also one of the purposes of costs awards. When making these decisions courts must also be mindful of the position of defendants. The award of interim costs must not impose an unfair burden on them. In the context of public interest litigation judges must be particularly sensitive to the position of private litigants who may, in some ways, be caught in the crossfire of disputes which, essentially, involve the relationship between the claimants and certain public authorities, or the effect of laws of general application. Within these parameters, it is a matter of the trial court's discretion to determine whether the case is such that the interests of justice would be best served by making the order.

[Emphasis Added]

[26] In addressing the public interest litigation criteria, the Minister submits that the respondent has not met the first and third requirements. Regarding financial means, the Minister submits that the respondent has not demonstrated that he is impecunious, since he was denied legal aid and his wife owns a mortgage-free home valued in excess of $280,000. The Minister points to the Reasons for Order of O'Reilly J., where, at paragraph 9, the Judge concludes that "... I have no evidence that Mr. Seifert cannot afford to be represented in these proceedings". Regarding the third requirement, the Minister submits that the conduct of a reference hearing, i.e. taking commission evidence, is far from exceptional and is a fact-finding exercise which concerns the individual litigant and does not raise issues of public importance.

[27] In response, the respondent states that he faces criminal-like charges in this civil proceeding, without the protections afforded to accused persons. He asserts that the case does present unique issues, and that it is of public importance.

[28] In my view, on either the general or the public interest litigation criteria, there was no basis for making an award of interim costs under rule 400(6). On the Judge's own finding that "... I have no evidence that Mr. Seifert cannot afford to be represented in these proceedings, which are estimated to last a maximum of 8 weeks (including the 10 days in Italy)", I cannot see how one could justify an order of interim costs. I would also point out that the Judge did not make such an order in the present matter. Rather, he appears to have made a final order concerning the costs relating to the taking of commission evidence. His Order, although it does not so expressly state, appears to be a final order, i.e. an award of costs in any event of the cause.

[29] I would also add that I find it difficult to understand the Judge's rationale in allowing counsel fees to the respondent with respect to the taking of commission evidence, but not in regard to the trial. His decision appears to be based on his view that the taking of commission evidence constituted "an extraordinary procedure". In my view, there is nothing extraordinary in this procedure, which exists simply to allow a party to take evidence outside of the courtroom, when such an order is justified. Whether the witnesses are examined in court or somewhere else does not, in my respectful view, render the taking of that evidence "extraordinary".

[30] One last point. The Minister submits that by reason of the Order rendered by Hugessen J. on March 5, 2003, the respondent was estopped from seeking an order of state funding. Hugessen J.'s Order of March 5, 2003, is brief and I hereby reproduce it:

1. The defendant moves, purportedly pursuant to Rule 220, for an order obliging the plaintiff or the Crown to make provision for the anticipated costs of his defence to these citizenship revocation proceedings and, pending such provision, for a stay.

2. Disregarding the fact that Rule 220 is manifestly inapplicable in the circumstances, and assuming, without deciding, that the Court has the power to make the order sought, I decline to do so.

3. First, in the absence fo any express statutory authority, the only source for the grant of an order of the type sought would lie in the Charter. It is now well established that citizenship revocation proceedings are purely civil in nature and that a defendant's Charter rights are not engaged thereby. See Canada (Secretary of State) v. Luitjens (1982), 142 N.R. 173 (F.C.A.).

4. Second, and even more important, the evidence simply does not establish that the defendant is incapable of retaining and paying for counsel of his own choice. His request for legal aid was refused by the British Columbia authorities on the ground that his available assets exceeded the eligibility limit. Although he has, in recent years, transferred his interest in it to his wife, a transfer which I consider to be irrelevant for these purposes, the couple's home is unencumbered and has an assessed municipal valuation in excess of $280,000. Each of them is also in receipt of a steady, albeit modest pension income. The defendant has failed to meet the burden of proof of impecuniosity lying upon him.

5. The motion is dismissed.

[31] The respondent did not appeal Hugessen J.'s Order and consequently, I am of the view that he was estopped from raising this matter unless there was new evidence which had not been available for presentation before Hugessen J. In Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, the Supreme Court of Canada, as per Arbour J. at paragraph 52, indicated when relitigation of an issue already decided might be possible:

52 In contrast, proper review by way of appeal increases confidence in the ultimate result and affirms both the authority of the process as well as the finality of the result. It is therefore apparent that from the system's point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk, supra, at para. 80.

[Emphasis Added]

[32] In the present matter, the respondent did not adduce any evidence which could not have been adduced before Hugessen J. in March of 2003, nor has he adduced any evidence which could lead us to conclude that the issue before Hugessen J. should be relitigated. Consequently, it was not open to the respondent to seek an interim cost order before O'Reilly J.

[33] I now turn to the respondent's cross-appeal. Briefly put, the respondent's position is that O'Reilly J. should have ordered the Minister to pay all of the reasonable counsel fees and disbursements that he will be incurring during the forthcoming trial.

[34] I conclude that the cross-appeal cannot succeed. As I have already indicated, the Judge could not make an order of interim costs pursuant to rule 400(6), as the respondent does not meet the requirements enunciated by the Supreme Court of Canada in British Columbia (Minister of Forests) v. Okanagan Indian Band, supra, for such an order. As I have also indicated, the respondent is estopped from seeking such an order by reason of his failure to appeal Hugessen J.'s Order of March 5, 2003.

[35] For these reasons, I would allow the Minister's appeal with costs and dismiss the respondent's cross-appeal with costs. Rendering the judgment which ought to have been rendered, I would dismiss the respondent's application for counsel fees on the taking of commission evidence and I would, accordingly, modify O'Reilly J.'s Order dated July 20, 2004. Specifically, paragraph 4 of that Order should now read as follows:

The plaintiff shall pay the defendant's reasonable disbursements for the proceedings on commission.

"M. Nadon"

J.A.

"I agree.

A,M. Linden"

"I agree.

J. Edgar Sexton"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-399-04

STYLE OF CAUSE: M.C.I. v. MICHAEL SEIFERT

PLACE OF HEARING: Calgary, Alberta

DATE OF HEARING: September 21, 2004

REASONS FOR JUDGMENT: Nadon J.A.

CONCURRED IN BY: Linden J.A.

Sexton J.A.

DATED: October 14, 2004

APPEARANCES:

Barry Brucker

FOR THE APPELLANT

Douglas H. Christie

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Morris Rosenberg

Deputy Attorney General of Canada

FOR THE APPELLANT

Douglas H. Christie

Barrister & Solicitor

FOR THE RESPONDENT

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