Canada (Attorney General) v. Telbani, (2012) 441 N.R. 173 (FCA)

• Judge: Noël, Trudel and Mainville, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: June 19, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 441 N.R. 173 (FCA);2012 FCA 188

Can. (A.G.) v. Telbani (2012), 441 N.R. 173 (FCA)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] N.R. TBEd. JL.009

Hani Al Telbani (appelant) v. Procureur Général du Canada (intimé)

(A-282-11; 2012 FCA 188; 2012 CAF 188)

Indexed As: Canada (Attorney General) v. Telbani

Federal Court of Appeal

Noël, Trudel and Mainville, JJ.A.

June 20, 2012.

Summary:

Telbani, of Palestinian origin and a permanent resident of Canada, was denied boarding on an Air Canada flight destined for Saudi Arabia. The Minister of Transport, Infrastructure and Communities had determined that he posed an immediate threat to aviation security. Telbani filed two applications for judicial review related to the decision to add his name to the "no fly list". The Attorney General of Canada applied under s. 38.04(1) of the Canada Evidence Act for a confidentiality order, seeking to protect sensitive or potentially injurious information in connection with the two applications for judicial review. Telbani moved for advance costs.

The Federal Court, in a decision reported 395 F.T.R. 10, dismissed the motion. Telbani appealed.

The Federal Court of Appeal dismissed the appeal.

Practice - Topic 7883

Costs - Funding before judgment - When interim or advance costs available - Telbani filed two judicial review applications respecting his inclusion on the "no fly list" - The Attorney General of Canada applied for non-disclosure of information (Canada Evidence Act, s. 38.04) - Telbani moved for advance costs - A motions judge held that the conditions required for advance costs were not met - Telbani appealed - The Federal Court of Appeal dismissed the appeal - The motions judge made no error in rejecting the request where the first condition of the conjunctive test for advanced costs was not met (i.e., financial inability to pay for the litigation was not established) - The appeal court also agreed with the motions judge's obiter findings that the other two conditions of the test were not met either.

Cases Noticed:

British Columbia (Minister of Forests) v. Okanagan Indian Band et al. (2003), 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 3].

Little Sisters Book and Art Emporium v. Minister of National Revenue, [2007] 1 S.C.R. 38; 356 N.R. 83; 235 B.C.A.C. 1; 388 W.A.C. 1; 2007 SCC 2, refd to. [para. 8].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 8].

Charkaoui, Re (2004), 256 F.T.R. 93; 2004 FC 900, refd to. [para. 10].

R. v. Ahmad (F.) et al. (2011), 274 O.A.C. 120; 2011 SCC 6, refd to. [para. 14].

Abou-Elmaati et al. v. Canada (Attorney General) et al. (2011), 276 O.A.C. 130; 2011 ONCA 95, refd to. [para. 14].

Counsel:

Johanne Doyon, for the appellant;

Daniel Latulippe, Luc Cadieux and Catheryne Beaudette, for the respondent.

Solicitors of Record:

Doyon & Associés Inc., Montreal, Quebec, for the appellant;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard in Montréal, Quebec, on June 19, 2012, before Noël, Trudel  and Mainville, JJ.A., of the Federal Court of Appeal. The following decision was delivered for the court on June 20, 2012, by Trudel, J.A.