Applying for a Stay of Removal in Superior Court

5th Mar 2013 Comments Off on 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.

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