Othmene v. Canada (Citizenship and Immigration), 2026 FC 140

JUDGMENT

UPON motion for judgment in writing filed by the Respondent Minister of Citizenship and Immigration [Minister] on January 23, 2026, under Rules 3, 4, 359 and 369 of the Federal Courts Rules, SOR/89-106 and sections 18.1(3)(b) and 18.1(4)(d) of the Federal Courts Act, RSC 1985, c F-7;

AND UPON the motion for judgment seeking an Order:

1. Allowing the application for judicial review;

2. Setting aside the decision of an Enforcement Officer of the Canada Border Services Agency, dated December 11, 2024, refusing the Applicant’s request to defer his removal from Canada;

3. Once a new removal date is scheduled, the Applicant will be provided with an opportunity to submit a new deferral request and updated submissions and evidence in support of their request;

4. If the Applicant submits a new deferral request, it will be redetermined by a different Enforcement Officer; and

5. Awarding no costs to either party.

AND UPON CONSIDERING the Minister has conceded that the deferral decision dated December 11, 2024 was unreasonable, as the Enforcement Officer erred by overlooking the evidence regarding the risk of suicide of the Applicant, Mr. Othmene, when the Enforcement Officer concluded that there was no documentary evidence of previous suicide attempts notwithstanding the existence of an affidavit before the Officer attesting to previous suicide attempts. The Minister concedes that the Enforcement Officer made the deferral decision without regard to the evidence that directly contradicts his finding, as set forth in section 18.1(4)(d) of the Federal Courts Act;

AND UPON CONSIDERING the Minister’s submission that granting the motion would not prejudice Mr. Othmene as the relief obtained via this motion is substantially similar to the relief sought in the application for leave and for judicial review and that it is in the interest of justice and judicial economy to grant the within motion as further steps in the litigation is unnecessary;

AND UPON considering that the Mr. Othmene opposed the Minister’s motion for judgment without an oral hearing;

AND UPON CONSIDERING Rule 369(2) of the Federal Court Rules, SOR/98-106 [Rules] permits a request for an oral hearing of a Rule 369 motion, but such a request must be supported by “some substantial reason” that the motion may not adequately be dealt with based on written submission and without the necessity of personal appearances. Substantial reasons have been held to include complexity, public interest, credibility issues, and urgency (see for example; Behnke v Canada (Department of External Affairs), 2000 CanLII 15883 (FC) at para 7 citing Sterritt v Canada (1995), 98 FTR 68 (Fed TD); Jones v Canada (Minister of Citizenship and Immigration), 2006 FCA 279 at para 12). Mr. Othmene has not provided any substantial reason, supported by evidence, that I cannot decide this motion based upon the parties’ written submissions without hearing oral arguments, other than the nature of the matters involved. I do not accept this as a substantial reason, as this matter is not complex;

AND UPON CONSIDERING Mr. Othmene’s written submissions in which the Applicant opposes the Minister’s motion on the grounds that:

• -The Minister only conceded one of the three errors raised within Mr. Othmene’s pleadings. As such, there are live controversies between the parties regarding the other issues, namely whether the Officer misapprehended the scope of the agreements between the Canada Border Services Agency and the attorneys general of Ontario and Québec and whether the Officer misapprehended the evidence regarding Mr. Othmene’s travel logistics (e.g. whether Mr. Othmene can be removed to Tunisia with an expired passport, and whether a single-journey travel document was issued);

• -Granting the Minister’s motion would prevent the Court from reviewing the impugned decision and providing guidance to the new decision-maker on these issues, leaving open the possibility that the new decision-maker would commit similar or the same errors;

• -It is not in the interests of justice, or the interests of both parties, to grant the Minister’s motion at this late stage of these proceedings where it is unlikely that a summary judgement economizes resources for the parties or for the Court. The oral hearing of this matter is set to proceed in less than two weeks. It is unlikely that the Judicial Administrator would be able to rededicate the timeslot to another matter. Furthermore, the parties have completed all steps contemplated by the Court’s Leave Order dated November 7, 2025. Vacating the hearing would only deprive the Court of the opportunity to ask questions to the parties;

AND UPON CONSIDERING that in Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342 at 353 [Borowski], the Supreme Court of Canada held that if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot if it fails to meet the “live controversy” test at which step the Court determines whether the “required tangible and concrete dispute has disappeared and the issues have become academic”;

AND UPON FINDING that there is no longer a live controversy between the parties despite the Minister not conceding on all of the issues for judicial review raised by Mr. Othmene (see for example Khalil v Canada (Minister of Citizenship and Immigration), 2001 FCT 1266 [Khalil] at paras 4, 7-11; Liang v Canada (Minister of Citizenship and Immigration), 2003 FCT 751 (CanLII)at paras 8-9, 15 [Liang];), as the Applicant has obtained (i) the relief sought in his deferral request and in the motion for a stay of removal; and (ii) a concession by the Respondent of the above-mentioned error in the decision, which error is sufficiently central to render the decision as a whole unreasonable. A judge is not required to address all the issues raised by the parties if one is determinative of the matter. There is no guarantee that the judge hearing the merits would make findings on all of the issues raised by Mr. Othmene;

AND UPON DECLINING my discretion to address the other outstanding issues raised by Mr. Othmene in his judicial review because I do not find that they are important enough to justify the judicial resources necessary to decide the case in a way that would have a practical effect on the rights of the parties in the circumstances of the present case: Borowski at 353, 360-361; Liang at paras 9, 11 and 13;

AND UPON RECOGNIZING that the relief requested in this motion for judgment differs from the relief sought by Mr. Othmene in his application for leave and for judicial review, in that Mr. Othmene seeks an order remitting the matter to a different Enforcement Officer;

AND UPON FINDING that ordering the Minister to redetermine the deferral decision would have no practical effect, as the removal date has passed and should his removal be rescheduled, Mr. Othmene remains at liberty to submit an updated deferral request with fresh evidence;

AND UPON FINDING that it is in the interest of justice and economy of judicial resources to grant the Minister’s motion, consistent with Rule 3 of the Federal Courts Rules that matters be resolved in the most just and expeditious manner, as an oral hearing of the application for judicial review on the merits is unnecessary in the circumstances;

THIS COURT’S JUDGMENT is that:

1. The application for judicial review is allowed.

2. The decision of an Enforcement Officer of the Canada Border Services Agency, dated December 11, 2024, refusing the Mr. Othmene’s request to defer his removal from Canada is set aside.

3. Once a new removal date is scheduled, Mr. Othmene will be provided with an opportunity to submit a new deferral request and updated submissions and evidence in support of their request as well as a copy of this Judgment.

4. If Mr. Othmene submits a new deferral request, it will be redetermined by a different officer of the Enforcement Officer in accordance with this Judgment.

5. There shall be no costs to either party.