Creed v. Canada
(Solicitor General)


[1996] F.C.J. No.1207 (F.C.T.D.)

    This was an application for a costs award by the inmate C made in relation to an earlier finding, on consent by both parties, that the conviction of C for a disciplinary offence be quashed. C alleged that there were special reasons to justify not only the awarding of costs under Rule 1618 but also the awarding of such costs on a solicitor-client basis. C claimed that a paragraph of the respondent's affidavit, sworn by an officer of the Crown in response to the inmate's affidavit, contained a statement which was misleading, improper and made in bad faith. The paragraph referred to a conversation that the officer claimed had taken place with the inmate in the course of the disciplinary hearing, but which was not recorded, and, which C alleged, never took place. The officer was not cross-examined on his affidavit. After the respondent's record was filed and served, no further steps were taken in the judicial review and the respondent consented to an order quashing the decision.
    Richard J. dismissed this application, holding that this was not a case for the award of costs under Rule 1618. Richard J. stipulated that here the truth of the averment made by the officer in his affidavit concerning a conversation which he may or may not have had with the inmate has not been tested under cross-examination, has not been argued on the merits, and has not necessitated a hearing for judicial review by reason of the respondent resisting the application.
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