Demystifying Costs in Judicial Review: What Happens After the Decision?

Taking an immigration decision to the Federal Court for Judicial Review is a significant step. It’s a pursuit of fairness, a challenge to unreasonable decisions, and often, the last hope for an applicant. But beyond the central question of winning or losing lies another crucial aspect: who pays for the legal fight? The issue of cost in Judicial Review is complex, governed by specific rules and shaped by the conduct of everyone involved. It’s not simply a matter of the loser paying the winner; the Court’s decision on costs tells a deeper story about justice, fairness, and accountability.

For many applicants, the fear of overwhelming legal fees can be a barrier to seeking justice. Understanding how and why the Federal Court awards costs is essential. It’s a landscape where an officer’s unreasonable conduct can lead to the government paying your fees, but where your own litigation strategy-or that of your lawyer-can have equally significant financial consequences. This is a story about what happens after the main decision is rendered, when the financial reality of litigation comes into focus.

The Legal Framework for Court Costs

The power of the Federal Court to hear a case and to award costs doesn't appear out of thin air. It is grounded in foundational legal statutes that create the court's authority and outline the procedural rules of the game.

Why Federal Courts Act (R.S.C. 1985, c. F-7) matters

The Federal Courts Act (R.S.C. 1985, c. F-7) is the backbone of the entire Judicial Review system. It establishes the Federal Court and gives it the supervisory power to review decisions made by federal bodies like Immigration, Refugees and Citizenship Canada (IRCC). This Act is what makes it possible for an applicant to challenge a visa officer's decision in the first place.

In plain language: This Act empowers the Court to step in and correct errors made by government decision-makers. It’s the ultimate source of authority for holding federal departments accountable to the law.

Why this matters in Judicial Review: When you file for Judicial Review, you are invoking the authority granted by the Federal Courts Act (R.S.C. 1985, c. F-7) . The Court's ability to scrutinize an immigration file and ultimately award costs flows directly from this foundational statute.

Why Federal Courts Rules (SOR/98-106) matter

If the Act is the 'what,' the Federal Courts Rules (SOR/98-106) are the 'how.' This comprehensive procedural code dictates every step of the litigation process, from filing an application to submitting evidence. Crucially, it contains the specific rules that govern the awarding of costs, such as Rule 400, which gives the Court broad discretion.

In plain language: These are the official rules of engagement for any case before the Federal Court. They ensure that proceedings are fair, orderly, and predictable. For costs, they provide a framework (known as Tariff B) that helps calculate the amount a successful party can recover.

Why this matters in Judicial Review: The Court's decisions on costs are not arbitrary. They are guided by the principles and specific provisions within the Federal Courts Rules (SOR/98-106) . Whether you get costs, how much you get, or even whether you have to pay, is determined by these rules.

When the Rules Meet Reality: Costs in the Federal Court

The principles outlined in the Acts and Rules come to life in real cases. Federal Court decisions reveal the nuances of how costs are awarded, showing that the outcome depends on much more than just who won the case.

The General Rule vs. Immigration Cases: The “Special Reasons” Hurdle

In most civil litigation, the loser pays a portion of the winner's costs. However, immigration law is different. In Issa v. Canada (Citizenship and Immigration), 2025 FC 1971, an applicant successfully overturned an immigration decision but was denied his legal costs. The Court was clear: winning a Judicial Review does not automatically mean the government pays your fees. The judge affirmed that under the specific immigration rules, an applicant must prove “special reasons” exist, a high threshold that goes beyond a simple error by a visa officer.

This principle was also at play in Contreras Monterroso v. Canada (Minister of Citizenship and Immigration), 2025 FC 170. The applicant's mandamus application was dismissed, and the Court confirmed that her frustration with the process did not meet the bar for "special reasons" to award costs. These cases show that a routine disagreement or officer error is simply not enough.

So, what does qualify as “special reasons”? The Court found them in The Minister of Citizenship and Immigration v. Shiyuan Shen, 2025 FC 1175, where the Minister's conduct caused significant delays and was found to be an abuse of process. Similarly, in Habibi v. Canada (Citizenship and Immigration), 2025 FC 1675, IRCC's failure to provide a satisfactory explanation for a 36-month citizenship delay was deemed unreasonable conduct, leading to a rare costs award for the applicant.

Expert insight: The lesson is clear: to get costs from the government in an immigration Judicial Review, you must show more than just a flawed decision. You need to demonstrate improper, unfair, or oppressive conduct by the government during the process.

The Impact of Conduct and Settlement Offers

The Court's discretion on costs, as granted by the Federal Courts Rules (SOR/98-106) , extends to scrutinizing the behaviour of all parties. In Matta v. Canada (Attorney General), 2025 FC 807, the applicant was partially successful in her CERB challenge. However, because she had rejected a reasonable settlement offer from the government and achieved a similar result at the hearing, the Court ordered her to pay the government's costs. The judge’s message was direct: “The Court's decisions on costs should serve to motivate litigants to accept reasonable settlement offers.”

Poor conduct can also lead to penalties. In Heidelberg Materials Canada Limited v. Toronto Port Authority Doing Business as PortsToronto, 2025 FC 674, the applicant lost its case and was ordered to pay higher costs due to its conduct, which included unnecessarily expediting the proceeding and then abandoning its own arguments at the hearing. Even when a party wins, its own misconduct can slash a costs award, as seen in Noble v Synergy Credit Union Ltd., 2025 FC 1941, where the successful respondent's award was cut by more than 70% for missing deadlines and reneging on commitments.

In a rare and serious move, the Court in Maan v. Canada (Public Safety and Emergency Preparedness), 2025 FC 1804 ordered the applicant's lawyer to *personally* pay costs for failing to show up to hearings, underscoring that professional misconduct has severe financial consequences.

Public Interest and Access to Justice

In certain cases, the Court will award elevated costs to serve broader societal goals. In Cully v. Canada (Attorney General), 2025 FC 1379, a successful Judicial Review concerning Jordan's Principle was handled by pro bono counsel. The Court awarded a substantial costs award of $34,748.60, recognizing the public importance of the case and the need to encourage lawyers to take on such files. The judge noted the “resource imbalance between the parties” and how it impacts access to justice.

This theme was echoed in Powless v. Attorney General of Canada, 2025 FC 1425, another Jordan’s Principle case, where the Court awarded elevated costs, stating that doing so is “consistent with the objective of ‘facilitating access to justice’.”

Understanding the Math: Partial Indemnity, Not Full Reimbursement

Even when costs are awarded, applicants must understand what they are getting. In EAST COAST HYDRAULICS & MACHINERY (2009) LIMITED v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 1976, 2025 FCA 208, an Assessment Officer provided a crucial clarification: costs are not based on a lawyer’s billable hours. Instead, they are calculated using set values in Tariff B of the Federal Courts Rules (SOR/98-106) . The goal is “partial indemnity,” a contribution towards legal fees, not a full reimbursement.

This is especially critical for self-represented litigants. In Goubuli Group Co., Ltd. v. Zhang, 2025 FC 687, the Court ruled that a self-represented person cannot claim for lost income or for fees paid to a lawyer for “behind-the-scenes” advice unless specifically ordered by a judge.

Key Lessons on Costs in Judicial Review

• Winning Your Case Doesn't Guarantee Costs: In immigration judicial reviews, you must prove “special reasons”-like government misconduct or abuse of process-to be awarded costs. A simple error by an officer is not enough.
• Your Conduct Matters Immensely: How you and your lawyer behave during litigation directly impacts costs. Rejecting reasonable settlement offers, causing delays, or failing to show up can lead to financial penalties, even if you win.
• Costs Are a Real Debt: If the Court orders you to pay costs, it is a legally enforceable debt that must be paid in legal tender, as confirmed in DAVID CHARLES PENNER v. HIS MAJESTY THE KING, 2025 FC 1399.
• Public Interest Can Increase an Award: If your case has broader importance for society or helps clarify the law, the Court may award elevated costs to recognize its value and encourage access to justice.
• You Won't Get Your Full Legal Bill Paid: A costs award is a partial contribution based on a court tariff, not a reimbursement of your lawyer's hourly rates. Manage your expectations accordingly.

Navigating a Judicial Review is a complex journey. While the primary goal is to achieve a just outcome on your immigration matter, understanding the dynamics of legal costs is a critical part of the process. It requires careful strategy, professional conduct, and a clear-eyed view of the rules that govern the financial consequences of going to court. With the right legal guidance, you can make informed decisions that protect both your case and your financial well-being.