Docket: IMM-3019-11
Citation: 2011 FC 1499
Ottawa, Ontario, December 22,
2011
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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DELORIS PHILLIPS, VANESSA PHILLIPS AND
DESRON PHILLIPS
(BY HIS LITIGATION GUARDIAN
DELORIS PHILLIPS)
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Applicants
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and
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review brought under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] seeking to set aside a
decision of Inland Enforcement Officer C. Annamunthodo [the officer] of the
Canada Border Services Agency [CBSA], who refused the Applicants’ request for a
deferral of their removal pending the completion of a civil litigation matter
which could take more than two years to resolve depending on the circumstances
that the litigation may reveal.
I. Background
[2]
The
Applicants, Ms. Deloris Phillips [the principal Applicant] and her two children
Vanessa and Desron Phillips, arrived in Canada in August
2001 from Saint
Vincent and the Grenadines. The principal Applicant, invoking an abusive
partner in her home country, initiated a refugee claim for herself and her
children in January of 2003. The application was rejected in July of 2003 and
the subsequent application for leave to commence judicial review was also denied
in October of the same year.
[3]
When
the principal Applicant failed to appear for her pre-removal interview in
December of 2005, an arrest warrant was issued against her. After moving and
failing to notify immigration of her change of address, the principal Applicant
was eventually arrested and detained on December 8, 2010 and released five days
later on a performance and cash bond.
[4]
While
in detention, the principal Applicant was notified she may apply for a
pre-removal risk assessment [PRRA], but a negative PRRA decision was delivered
on February 19, 2011 and leave to commence judicial review of the PRRA decision
was denied on May 4, 2011.
[5]
In
a final attempt to postpone their removal, scheduled for May 13, 2011, the Applicants
requested a deferral on May 3, 2011. The officer refused the application on May
4, 2011, but the subsequent motion for an order to stay the execution of
removal order was granted on May 12, 2011, pending the hearing of the application
for leave and for judicial review of the officer’s decision, which was granted
on September 27, 2011.
II. Impugned
Decision
[6]
The
deferral request consisted of a letter from the Applicants’ lawyer, an
affidavit from the principal Applicant, and attached exhibits: a statement of
claim and two additional letters from the Applicants’ lawyer.
[7]
The
May 3, 2011 letter requested a deferral from removal until an ongoing litigation
matter arising from injuries suffered by Desron Phillips on November 4, 2009
could be concluded. The letter indicates that if Desron and his mother were to
leave Canada at this time, the claim for damages against the owner and landlord
of a property where Desron was injured could not proceed and that significant
injustice would result if a deferral was not granted (Application Record [AR]
at 14 and 17).
[8]
An
affidavit from the principal Applicant explained that on November 4, 2009,
Desron was in the family’s apartment making something to eat “when the
cupboards over the counter fell down onto him,” that the principal Applicant
never imagined that “the cupboard would actually fall on [her] child,” and that
a “portion of the cupboard” tore through his arm, leaving him hospitalized and
then bedridden at home for a month (AR at 20, Affidavit of Deloris Phillips
[ADP] at para 5).
[9]
The
Applicants retained a personal injury lawyer who sent a letter to the owner of
the apartment, but the letter went unanswered. As a result, on February 8,
2010, the Applicants filed a $100,000 claim against the owner (AR at 21, ADP at
paras 7 and 8). Incidentally, I note the Applicants’ statement of claim provides
a slightly varied description of the November incident in that it was not “cupboards”
that fell down on Desron, but rather a “cupboard door” (AR at 27, Statement of
Claim at para 4).
[10]
The
principal Applicant explained in her affidavit that she was appointed
litigation guardian for her son and that as a result, she was required to be
present for all of her son’s litigation related meetings, court dates, and
procedures. She also indicated that examinations for discovery were scheduled
for July 5, 2011 and their attendance was mandatory (AR at 21, ADP at paras 9
and 10).
[11]
The
principal Applicant explains that when she notified her lawyer of their
imminent removal from Canada, he told her it was imperative that they be
physically present in Canada and that if they were not, their claim
would be at an end. When she enquired as to whether there were any alternatives
to continue the litigation should she be removed, her lawyer indicated they
were at a critical stage in the litigation and that removal at this point would
be both disastrous and irreparable to their claim (AR at 21, ADP at para 11).
In support, the principal Applicant referred to a letter from her lawyer stating
that her presence in Canada “is required for her to complete the above
claim and to act as litigation guardian for her son” (AR at 35).
[12]
As
a consequence of the claim being dropped, according to the principal Applicant,
Desron would not be able to receive compensation for the trauma which he was
forced to endure, that they would not be compensated for the time and money
poured into the litigation, and that Desron would be unable to receive any
reconstructive surgery or therapy which could potentially form part of a
settlement (AR at 21, ADP at para 12).
[13]
In
the deferral notes and decision, the officer notes that the CBSA has an
obligation under subsection 48(2) of IRPA to enforce removal orders as soon as
a negative PRRA decision is delivered, providing there are no impediments to
removal. The officer notes that “involvement in mediation or a civil court
proceeding does not, in and of itself, constitute a stay of removal nor is it
an impediment to removal” and that there was no evidence submitted as to any
decision, injunction or stay issued by a provincial court preventing removal
(AR at 3). Finally, there was no evidence submitted that the Applicants’
presence was required for medical examination, depositions, or trial, nor any
indication that their lawyer could not continue to represent them in their
civil proceedings after their departure from Canada. As a
result, the officer concluded that there was no impediment to removal and
deferral of removal was not warranted (AR at 7).
III. Position of the
Parties
[14]
The
Applicants raise two issues. First, they argue that the officer ignored the
duty imposed by Ramada v Canada (Solicitor General), 2005 FC
1112 at para 3, [2005] FCJ 1384 [Ramada], to properly consider the
“exigent personal circumstances” of the Applicants, particularly those of
sixteen year old Desron. Though the officer was made specifically aware that
the interests of a child were at stake, the decision makes no mention of the
fact Desron is a minor and appears not to consider his interests from this
perspective. Second, the Applicants argue that the officer did not understand
the ramifications upon their litigation claim if they were to be removed. He
failed to consider that their claim would be dismissed if they were to leave Canada, noting only
that there was no evidence their lawyer could not continue to represent them.
[15]
The
Respondent submits that in Johnson v Canada (Solicitor
General),
2004 FC 1286 at para 8, [2004] FCJ 1572 [Johnson], this Court has
recognized a pending lawsuit is not a bar to removal. In addition, the Rules
of Civil Procedure, RRO 1990, Reg 194 [Rules of Civil Procedure],
most notably rules 34 and 36, allow for lawsuits to be conducted from abroad. The
Respondent also argues that the completion of the lawsuit for damages does not
fall within the category of “exigent personal circumstances,” invoking instead
broader “best interest of the child” considerations which are more
appropriately dealt with in an application for permanent residence based on
humanitarian and compassionate grounds. Finally, should it be necessary for the
Applicants to offer testimony as witnesses in their injury claim, the Respondent
notes that they are free to apply for a Minister’s permit pursuant to section
24 of IRPA so as to enter Canada.
IV. Issue and Standard of Review
[16]
The
Court must determine whether the officer erred in refusing to defer the Applicants’
removal. The applicable standard of review to such an analysis is that of
reasonableness (Baron v Canada (Minister of Public
Safety and Emergency Preparedness), 2009 FCA 81 at para 25, [2009] FCJ 314 [Baron]).
As a result, the decision will stand if the officer’s conclusion falls within a
range “of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir
v New
Brunswick,
2008 SCC 9 at
para 47, [2008] 1 S.C.R. 190).
V. Analysis
[17]
The
removal order made against the Applicants must be enforced “as soon as is
reasonably practicable” (Subsection 48(2) of IRPA) and there is no doubt the
officer’s discretion to defer removal is limited (Baron, above at para
49; Simoes v Canada (Minister of
Citizenship and Immigration), 187 FTR 219 at para 12, [2000] FCJ 936, [Simoes]).
[18]
In
Wang v Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001]
3 FC 682 [Wang], reasons adopted by the Federal Court of Appeal in Baron,
above, this Court made clear that a deportation order is mandatory and the
Minister is bound by law to execute it. The Court further stipulated that an
alternative remedy should weigh heavily in the balance against deferral. In
fact, it has been stated that deferral should be reserved for cases where the failure to
defer will expose the applicants to the risk of death, extreme sanction or
inhumane treatment (Wang, above, at paras 45 and 48; Baron,
above, at para 51).
[19]
Nevertheless,
it has been recognized that in deciding when it is “reasonably practicable” for a
removal order to be executed, the officer may consider various factors such as
illness, children’s school years, pending births or deaths, lack of proper
travel documents, other impediments to traveling, and pending H&C
applications that were brought on a timely basis (Simoes, above at para
12; Baron, above, at para 51; Ramada, above, at para 3).
[20]
In a
more recent decision, one at the heart of the Applicants’ argument, this Court
has stated the officer “must consider whether exigent personal
circumstances, particularly those involving children, justify delay [emphasis
added]” (Ramada, above, at para 3). The Applicants argue that Desron’s
pending injury claim is precisely this sort of exigent personal circumstance.
While the officer determined otherwise, the Applicants argue the officer did
not take into consideration Desron’s age and status as a minor since this is
not explicitly mentioned in the decision. As a result, the Applicants are of
the view the officer failed to properly consider whether the claim was an
exigent personal circumstance. My colleague Justice Donald Rennie agreed that at
the very least, this was an issue that deserved to be tried.
[21]
After
examining the issue closely however, I must disagree with the Applicants’
assertion. The documents presented to the officer made it clear that Desron was
a minor and that the principal Applicant was her son’s litigation guardian. That
the officer did not explicitly refer to Desron as a minor does not mean the officer
was not aware of the situation or did not take it into consideration when
rendering the decision. In addition, I note that the officer did quote from the
Applicants’ lawyer’s letter which informed the officer that the principal Applicant
was acting as litigation guardian for her son. Lastly, I fail to see what would
have been obtained further by explicitly referring to Desron as a minor.
[22]
Having
determined the officer properly considered the issue raised in the deferral
request, I am left to examine whether the officer’s conclusion itself was
reasonable. In light of the facts before me and the jurisprudence of this
court, I believe the decision not to grant deferral was reasonable. For one,
this Court has previously rejected an ongoing lawsuit as a cause for deferral.
In Johnson, above, Justice Von Finckenstein stated that he found it
difficult to accept that the launching of a lawsuit could be a bar to
deportation proceedings: “If I were to hold otherwise, any Applicant could
commence a civil action to avoid removal.” (Johnson, above, at para 8). While
the Applicants’ claim is not a lawsuit against the Crown, as it was in that
case, the same logic prevails. Citing Gosczyniak v Lewis, [2001] OJ 3622,
16 Imm LR (3d) 74 [Gosczyniak], Justice Von Finckenstein added that
lawsuits against the Crown could continue even if the plaintiff had residence
abroad.
[23]
Indeed,
that decision and a review of the Rules of Civil Procedure, specifically
rules 34 and 36, confirm that discoveries and the taking of evidence before
trial can be conducted outside of Ontario. The Applicants offered
no explanation as to why such provisions could not be employed in this case.
The Applicants also failed to explain why the injury claim would consequently
be at an end or why their removal would be both disastrous and irreparable to
their claim, as alleged in the affidavit submitted to the officer (AR at 21,
ADP at para 11).
[24]
The
Applicants argue the consequence to their claim would be that they would not be
present for medical examinations and that they could not attend the settlement
conference or the trial and that they could not be called as witnesses.
However, the Applicants and their counsel can take appropriate steps to conduct
a medical examination beforehand. Their presence is also not strictly required
at the settlement conference or at trial. In Gosczyniak, above, Justice
Templeton of the Ontario Superior Court of Justice noted that there are
provisions in place for the plaintiff to seek leave to re-enter the country,
that there was no credible evidence that the plaintiff would be unable to
instruct counsel from abroad, and that the plaintiff was not barred from
prosecuting this case although a resident elsewhere (Gosczyniak, above,
at para 67). Should these conclusions not apply to the present case, the
Applicants remain free to apply for a Minister’s permit to re-enter Canada.
[25]
The
fact is, there is an alternative to deferral – applying for a Minister’s permit
to enter Canada under section 24 of IRPA or employing the Rules of Civil
Procedure to pursue the litigation claim from abroad – and this weighs
heavily in the balance against deferral (Wang, above, at paras 45 and 48; Baron,
above, at para 51). Because this is also not a case where the failure to
defer will expose the applicants to the risk of death, extreme sanction or
inhumane treatment (Wang, above, at paras 45 and 48; Baron,
above, at para 51), I must conclude that the officer’s decision to refuse
deferral falls within a range of possible, acceptable outcomes, defensible in
respect of the facts and law. As a result, the officer’s decision must stand.
[26]
Finally,
I end by referring to the comments of Chief Justice Blais of the Federal Court
of Appeal in Baron, above, at para 80:
While
enforcement officers are granted the discretion to fix new removal dates, they
are not intended to defer removal to an indeterminate date. On the facts before
us, the date of the decision on the H&C application was unknown and
unlikely to be imminent, and thus, the enforcement officer was being asked to
delay removal indeterminately. An indeterminate deferral was simply not within
the enforcement officer's powers.
Likewise, the date of the Applicant’s trial was
unknown and unlikely to be imminent – estimates offered by counsel as evidence
before the officer varied, suggesting trial could take place more than two
years after discovery, itself scheduled for July 5, 2011 (AR at 32-34, and 35).
I agree with the Chief Justice’s view expressed in Baron, above, that an
indeterminate deferral of the sort should not be within the enforcement
officer’s powers in this case.
[27]
No
question for certification arises and none was suggested by the parties.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is dismissed. No
question is certified.
“Simon
Noël”
________________________
Judge
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