Last Updated on December 9, 2016 by Steven Meurrens
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.
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.