Applying for a Stay of Removal in Superior Court

 

Generally, if an applicant in Canada whose request to the Canada Border Services Agency to defer removal is unsuccessful, and the individual then wants to obtain a judicial stay of removal, the appropriate forum is the Federal Court of Canada.  In Anthonipillai v. Minister of Public Safety and Emergency Preparedness, 2013 ONSC 1231, the appellant unsuccessfully sought a stay of removal in Federal Court.  He then took the rather novel approaching of trying again in Ontario Superior Court (the “ONSJ“).

In dismissing the application, the ONSJ noted that the Supreme Court of Canada has declared that Canada’s Parliament has created a “comprehensive scheme for the review of immigration matters, with the Federal Court as an effective and appropriate forum.”  Justice Goldstein also found that Federal Court judges are better equipped than provincial court justices to deal with the complex area of immigration law, as Federal Court judges deal with immigration issues on a daily basis.

As such, unless an applicant raises a constitutional matter, the Federal Court has the exclusive jurisdiction to issue remedies regarding the decisions of visa and border officers.  Even where there is a constitutional issue, a provincial or superior court is unlikely to rule favourably with an applicant sidesteps the Federal Court because he dislikes the jurisprudence of the Federal Court.  Justice Goldstein cited the Ontario Court of Appeal (“OCA“) decision in Francis (Litigation Guardian) v. Attorney General of Canada, where the OCA noted that:

The appellants’ contention that the Federal Court is not an appropriate or effective court comes down to the submission that the Federal Court’s interpretation of the interests of the child in the context of the deportation of a parent has effectively denied the existence of the constitutional rights relied on by the appellants.

We do not agree with that reading of the case law and in any event it is irrelevant to the issue before the court. The fact that the jurisprudence of the court may not leave much hope for success does not render the court either inappropriate or ineffective. Ultimately the Federal Court and this court take their law from the Supreme Court and it can’t be assumed that a different law would be applied in the Federal Court than would be applied in the Superior Court.

Justice Goldstein also cited the ONSJ decision in Sittampalam v. Canada, where the  ONSJ said:

On his motion to continue in this court Mr. Sittampalam wishes to re-litigate issues already fully argued and decided before the Federal Court. The relief he seeks before the Superior Court of Justice is virtually identical to that which he sought before the Federal Court. Shore J. gave extensive reasons for denying the applicant an injunction preventing his removal. As I read the applicant’s materials in this court, he simply wishes to re-litigate the same issues. That indicates to me that Mr. Sittampalam is engaged in forum-shopping. Although the respondents stated that they were not relying on the principles of res judicata or issue estoppel, the Supreme Court of Canada has spoken clearly about the need for courts to scrutinize attempts by parties to re-litigate matters already decided.

Justice Goldstein concluded by noting that it would be inappropriate for the ONSJ to become an emergency stay of removal forum.


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