Staying Removal at Federal Court

The Federal Court of Canada can provide interlocutory stays, including staying removal.

There is a three-stage test to be applied when considering an application for an interlocutory injunction.

A court must determine that there is a serious issue or question to be tried, that the applicant would suffer irreparable harm if the injunction were to be refused, and that the balance of convenience (assessed by examining which of the parties will suffer the greater harm from granting or refusing the injunction) rests with the applicant.

As well, it is important to note that a stay of removal is an equitable remedy that is typically only available to an individual who has not committed an inequity.

Irreparable Harm

The Supreme Court of Canada describes ‘irreparable harm’ as follow:

“Irreparable” refers to the nature of the harm suffered rather than its magnitude.  It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.

In other words, harm which can be avoided, or if unavoidable can be cured, is not irreparable harm.

Irreparable harm is often the deciding factor in an interlocutory motion.  In British Columbia Civil Liberties Association v. Canada (Citizenship and Immigration), for example, the Federal Court found that there was no irreparable harm for Canadian citizens facing loss of their citizenship. The reason for this was because there was (and as of writing is) currently a consolidated Federal Court proceeding through which anyone who files an Application for Leave to Commence Judicial Review will receive an automatic stay.  As Justice Zinn noted:

Here, as the Moving Parties admit, the harm to anyone in receipt of a Notice of Intent to Revoke Citizenship is avoidable. They need merely file an application to this Court for leave and judicial review of that revocation notice and they are granted an automatic stay. To date, many have done so.

If now or in the future there are persons in receipt of a Notice of Intent to Revoke Citizenship who through ignorance or lack of resources fail to challenge that decision in this Court, does that change the harm from an avoidable one to an unavoidable one? I think not.



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.