Date: 20100610
Docket: IMM-2484-10
Citation: 2010 FC 625
Toronto, Ontario, June 10, 2010
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
JOTHIRAVI SITTAMPALAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION AND THE MINISTER OF PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
[1]
This
concerns a motion pursuant to section 18.2 of the Federal Courts Act and
to Rule 372(2) of the Federal Courts Rules submitted late in the afternoon
of June 8, 2010 on behalf of Jothiravi Sittampalam (the “Applicant’’) for the
stay of the enforcement of his removal scheduled for the afternoon of June 10,
2010. A special urgent oral hearing on this motion was held before me in Toronto on June 9, 2010.
The context and background
[2]
This motion
is the continuation of difficult and protracted litigation between the parties
concerning the removal of the Applicant which has been on-going for many years.
[3]
I need not
review the entire history of this litigation. I do however note the following
salient aspects which are particularly pertinent for the purposes of disposing
of this motion.
[4]
The
Applicant has been found to be inadmissible to Canada for both serious
criminality and organized criminality pursuant to paragraphs 36(1)(a) and
37(1)(a) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the “Act”), based on various criminal convictions and on a
reasonable ground to believe that he was a member and leader of the A.K. Kannan
Tamil street gang operating out of the Toronto area. This gang is said to have
been involved in numerous serious crimes affecting members of the local Tamil
community. This inadmissibility finding has been upheld by this Court and the
Federal Court of Appeal.
[5]
As a
Convention refugee, the Applicant cannot be removed from Canada unless the Minister
is of the opinion, pursuant to paragraph 115(2)(a) of the Act, that he is a
danger to the public in Canada, or pursuant to paragraph 115(2)(b)of the Act,
that he should not be allowed to remain in Canada on the basis of the nature
and severity of the acts committed.
[6]
On July 6,
2006, the Minister’s delegate issued an opinion under paragraphs 115(2)(a) and
115(2)(b) of the Act concluding that the Applicant does pose a danger to the
public in Canada and that the nature and severity of the acts he committed are
such that he should not be allowed to remain in Canada (the “danger opinion”). The
Minister’s delegate further determined that the Applicant does not face a
substantial risk of torture, a risk to life, or a risk of cruel and unusual
treatment or punishment in Sri Lanka, and that the Applicant’s humanitarian
considerations are not such as to prevent his removal from Canada (the “risk
assessment”).
[7]
The
Applicant challenged this decision in judicial review and was granted a stay of
removal pending the disposition of his application.
[8]
Justice
Snider allowed in part the judicial review of these findings of the delegate: Sittampalam
v. Canada (Minister of Citizenship and
Immigration),
2007 FC 687, 316 F.T.R. 142, [2007] F.C.J. No. 932 (QL). Justice Snider clearly
upheld the danger opinion. However, she returned the matter to the Minister’s
delegate in order to proceed with a new risk assessment. Indeed, Justice Snider
found that the Minister’s delegate had failed to consider all the evidence then
available, and had not proceeded with the balancing exercise contemplated by Suresh
v. Canada (Minister of Citizenship and
Immigration),
[2002] 1 S.C.R. 3; 2002 SCC 1.
[9]
On January
11, 2008, the Minister’s delegate issued a new risk assessment, again finding
that although there was some possibility of risk, the Applicant’s removal would
not reasonably expose him to a risk of persecution, torture, cruel or unusual
treatment or punishment in Ski Lanka. The Minister’s delegate further concluded
that the danger opinion outweighed any risk to the Applicant should he be
removed.
[10]
The
Applicant again challenged this decision in judicial review and was again
granted a stay of removal pending the disposition of his application.
[11]
Justice
Mandamin found the treatment of the evidence by the Minister’s delegate in this
new risk assessment to be flawed and unreasonable. He also found that the
balancing exercise required under Suresh had not been properly carried
out: Sittampalam v. Canada (Minister of Citizenship and
Immigration),
2009 FC 65, 340 F.T.R. 53, [2009] F.C.J. No 59 (QL).
[12]
Following
this decision of Justice Mandamin, the same delegate issued a new risk
assessment dated April 14, 2010 concluding again that the Applicant would not
be subject to a substantial risk of torture or risk to life or to cruel and
unusual treatment or punishment if he returned to Sri Lanka, and also
concluding that there was no indication that the Applicant would be more at
risk than other residents of Sri Lanka.
[13]
This third
risk assessment was again challenged by the Applicant who has submitted a still
pending application for leave and for judicial review before this Court.
[14]
Concurrently
with this leave application, the Applicant sought to obtain again a stay of his
removal pending the outcome of these new judicial proceedings.
[15]
The motion
for stay of removal was argued before Justice Shore. He refused to grant the stay
for the reasons set out in a very recent decision dated May 21, 2010: Sittampalam
v. Canada (Minister of Citizenship and Immigration
and Minister of Public Safety and Emergency Preparedness), 2010 FC 562.
[16]
Justice Shore found that the Minister’s
delegate did not ignore any evidence or fail to properly assess the evidence
submitted. Consequently he found that the Minister’s delegate had properly
carried out a new adequate risk assessment as ordered by Justice Mandamin.
[17]
Justice Shore also found that the
Applicant had not established irreparable harm since he failed to demonstrate
on a balance of probabilities that he would experience harm if returned to Sri Lanka. Finally, Justice Shore found that in light of his criminal
convictions and the danger opinion, the balance of convenience weighted heavily
in favour of the removal of the Applicant on public interest considerations.
[18]
The
Applicant sought to appeal the order of Justice Shore to the Federal Court of Appeal on
the basis of bias and challenging the merits of the decision. Justice Pelletier
refused to accept the filing of the proceedings for the following reasons dated
May 21, 2010:
Please advise Ms. Jackman that her
material is not accepted for filing. The judge who decided the matter which she
seeks to appeal did not certify a question. Under section 79, there is no right
of appeal in the absence of a certified question. As for the question of an
apprehension of bias, the basis of the allegation, as disclosed by the
affidavit evidence is unsound. It is essentially a statistical approach with no
means of controlling factors which might otherwise explain the result. This Court
can only grant interlocutory injunction if there is some matter before it over
which it has jurisdiction. That is not the case here.
[19]
Unsatisfied,
the Applicant decided to choose another forum in which to adjudicate his case
and stay his removal. Consequently, a motion was submitted in the Ontario
Superior Court of Justice to obtain a stay of removal. An interim stay was
granted for a few days, but the matter was quickly dismissed by Justice Brown
on May 28, 2010 in Sittampalam v. Canada (Attorney General), 2010 ONSC
3205 on the basis that that the Ontario Superior Court did not have
jurisdiction over the matter. In so doing, Justice Brown concluded that the
Applicant was pursuing a course of forum-shopping (at para. 31 of the
decision):
Second, 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
estopel, the Supreme Court of Canada has spoken clearly about the need for
courts to scrutinize attempts by parties to re-litigate matters already
decided.
[20]
Following
his unsuccessful attempt in securing a stay in the Ontario Superior Court, the
Applicant is now pursuing another attempt to obtain a stay of his removal before
the Federal Court.
[21]
On June 7,
2010, the Applicant’s counsel wrote to an enforcement officer seeking a
deferral of his removal alleging that new information contained in news and
related reports concerning Sri
Lanka supported
his claims, and also relying on an affidavit from a Mr. Nagalingam which is
discussed further below. The deferral was sought for the time required by the Minister’s
delegate to consider this allegedly new information.
[22]
The day
following this deferral request, on June 8, 2010, the Applicant submitted this
motion seeking anew a stay of the Applicant’s removal.
The issues
[23]
Though
numerous issues have been raised by both parties within the framework of this
motion, they can be summarized in two opposing propositions.
[24]
The
Applicant basically argues that the allegedly new evidence must be assessed by
the minister’s delegate prior to his removal in light of the novelty and
importance of this information, which directly addresses the serious risk he
will face should he be removed to Sri Lanka.
This Court should thus grant the stay since a new serious issue has now only
recently come to light: must the minister’s delegate consider new information
prior to removing the Applicant? The Applicant adds that irreparable harm and
the balance of convenience can also be reassessed anew by this Court in light
of this new serious issue and in light of the importance of the new information
addressing risk which renders moot the decision of Justice Shore on these matters.
[25]
The
Applicant’s arguments are characterized by the Respondents as a naked attempt
at judge shopping and as an abuse of the judicial process. The Respondents add
that the allegedly new information is simply a rehash of existing information
that was both before the minister’s delegate and Justice Shore, and this Court
should not entertain such a blatant abuse of process. Issue estoppel is raised.
Analysis
[26]
The entire
argument of the Applicant is premised on the assumption that the information
provided is novel, compelling and important. After carefully reviewing this
information, and as further discussed below, I find that the issues raised by
this motion and the allegedly new evidence submitted are not substantially
different from what was before Justice Shore as dealt with in his recent decision
dated May 21, 2010 pursuant to which the Applicant’s prior motion for a stay of
his removal was denied.
[27]
This
motion brought on behalf of the Applicant is a thinly disguised attempt to
overturn the above-mentioned decision of Justice Shore through a new decision by another judge
of this Court. The Applicant has been forum shopping and is now judge shopping.
[28]
The additional
news reports add little to previous reports concerning the difficult situation
in Sri Lanka. Many of these documents
predate the decision of Justice Shore and were actually submitted to him by
the Applicant.
[29]
None of
these documents are so compelling that they could result in a different risk
assessment by the minister’s delegate. This is recognized in the affidavit of
Patricia Watts submitted in support of the Applicant’s motion, and which
candidly states at paragraph 11 that notwithstanding this allegedly new
information, the minister’s delegate decision is nevertheless expected “to be
negative”.
[30]
As for the
affidavit of Mr. Nagalingam, this document is dated August 6, 2009 and was thus
available to the Applicant and his counsel prior to both the minister’s
delegate decision and the order of Justice Shore. The Applicant’s counsel states that she was not aware of
the existence of this affidavit until very recently. I have no evidence before
me nor any reason to dispute the sincerity of counsel’s statement on this
matter, however it remains a fact that Mr. Nagalingam and the Applicant were
and are represented by the same law firm. The issue is not if the affidavit was
known, but rather if it was reasonably available. In light of the circumstances
at hand, I can only conclude that this affidavit was reasonably available to
the Applicant or his counsel since at least August 2009.
[31]
Moreover,
the plight of Mr. Nagalingam was extensively discussed by both the minister’s
delegate in the risk assessment and by Justice Shore in his order, and the affidavit adds
very little to what was already known.
[32]
Consequently
the arguments based on allegedly new information are nothing more than a last
minute desperate attempt by the Applicant to seek to overturn the decision of Justice Shore by another judge of
this Court, after having failed with the Federal Court of Appeal and through
forum shopping in the Ontario Superior Court.
[33]
The words
of Justice Rothstein in Zolfiqar v. Canada (Minister of Citizenship and
Immigration),
[1998] F.C.J. No. 1790 (QL) at para. 20 are apposite in the circumstances of
this case:
The Court must maintain opened and ready access, especially in
serious cases such as applications to stay deportation orders. However, that
important purpose must not be debased by repetitious applications involving
forum shopping and judge shopping. This application is an abuse of the process.
It should not have been brought. The application is dismissed.
ORDER
THE COURT ORDERS that this motion is
denied.
“Robert M. Mainville”
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