Date: 20071130
Docket: IMM-6175-06
Citation: 2007
FC 1247
Ottawa, Ontario, November
30, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
ROBERT
ISTVAN KOVACS & MARIA EMILIA KOVACS
Applicants
and
THE
MINISTER OF PUBLIC SAFETY & EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1]
The Applicants, Robert Istvan Kovacs and Maria
Emilia Kovacs, are subject to a valid removal order from Canada. They have a Canadian born child,
Nicolette, who has ongoing medical problems. Their removal was deferred once
due to issues related to Nicolette’s health. However, on August 11, 2006, they
received a second Direction to Report for removal to Hungary on November 28, 2006.
[2]
By letters dated November 15 and 16, 2006, the
Applicants requested a further deferral until after “an important medical
appointment . . . scheduled for February 6, 2007 [later changed to February 15,
2007]”. In a decision dated November 20, 2006, an Enforcement Officer with the
Canadian Border Services Agency refused to defer the November 28, 2006 removal.
[3]
The Applicants commenced an Application for
Leave and Judicial Review with respect to this decision and also brought a
motion for a stay of the removal until final determination of the underlying
Application for Leave and Judicial Review. The motion for a stay was granted by
Order dated November 28, 2006. Leave was subsequently granted and this Court
was scheduled to consider the Judicial Review.
[4]
Noting recent jurisprudence where the Court has
dismissed similarly-situated judicial reviews on the grounds that they were
moot (see, for example, Higgins v. Canada (Minister of
Public Safety and Emergency Preparedness), 2007 FC 377; Maruthalingam v.
Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC
823), I requested that the parties address the question of
whether this application for judicial review is now moot, given that the
scheduled date for removal has now passed and, if moot, whether the Court
should exercise its discretion to hear the matter.
[5]
Both parties acknowledge that “technically”, the
application is moot. The date for removal has passed. In this case, even the
requested deferral date of February 15, 2007 has passed. On these facts, it is
clear that there is no “live controversy or concrete dispute”, as the
“substratum” of the judicial review has disappeared (Borowski v. Canada
(Attorney General), [1989] 1 S.C.R. 342 at 354). This application is moot.
[6]
As informed by the Supreme Court of Canada in Borowski,
above, I now move to the second stage of the analysis. In spite of the
mootness, should I exercise my discretion to hear and decide the questions
raised by the judicial review? Both counsel submitted that I should hear and
decide the merits. However, in spite of very capable arguments, I am not
prepared to do so.
[7]
The first factor is the existence of an
adversarial relationship between the parties. There is no doubt that, when
viewed on a broad level, an adversarial relationship exists. The Applicants do
not want to leave Canada; the
Respondent seeks to deport them.
[8]
The second factor to be considered is the need
to promote judicial economy. The Respondent submits that a decision by this
Court on the scope of the duties of an enforcement officer could clarify the
issues and thereby reduce the need for future judicial intervention. In theory,
this is a reasonable argument. There will no doubt be cases where the Court can
provide an important precedent; in such a situation, the Court may decide to
exercise its discretion. However, this is not such a case. It appears to me
that the issue in this judicial review is simply whether the Enforcement
Officer had regard to the evidence before him. I fail to see how a decision on
the particular facts and issues in this judicial review could be of any
significant precedential value. Further, I also question what more this case
could add to the already substantial jurisprudence (see, for example, John
v. Canada (Minister of Citizenship and Immigration), 2003 FCT 420; Benitez
v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1307; Simoes
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 936
(QL)); and Munar v. Canada (Minister of Citizenship and Immigration),
2005 FC 1180).
[9]
A secondary argument on this factor is that
Nicolette’s underlying illness is ongoing. Thus, the Respondent submits, it
would be helpful to the parties for the Court to opine on the grounds upon
which Nicolette’s health problems would warrant a deferral or when an
enforcement officer, in spite of the ongoing problems, could refuse to defer
removal. The problem is that the facts of this application for judicial review
do not engage those issues. The only issue before the Enforcement
Officer was whether removal should be deferred until after the medical
appointment. My decision would be limited to whether the Enforcement Officer
properly considered the evidence in support of the deferral request beyond that
February 15, 2007 appointment. A ruling on that issue would not have any
practical side effects on the rights of the parties. If and when a further
notice of removal is served on the Applicants, they will have the right to
request a deferral based on whatever evidence they choose to put before an
officer. At that point, the officer will have the obligation to review that evidence
and exercise his or her limited discretion.
[10]
The final factor for consideration relates to
the proper role for the courts. I do not think that pronouncing a judgment in
this case would be “intruding into the role of the legislative branch” (Borowski,
above, at 362). Nevertheless, I think that this factor cautions against
intervention where a party is asking for a ruling that would be broader than
the facts before this Court.
[11]
In conclusion, I am not persuaded that I should
exercise my discretion to hear and decide this judicial review on its merits.
[12]
As has been done in a number of similar cases, I will certify the
following question:
Where an applicant has filed an
application for leave and judicial review of a decision not to defer the
implementation of a removal order outstanding against him or her, does the fact
that the applicant's removal is subsequently halted by operation of a stay
Order issued by this Court render the underlying judicial review application
moot?
ORDER
THIS COURT ORDERS that
- The application for judicial review is dismissed; and
- The following question is certified:
Where an applicant has filed an
application for leave and judicial review of a decision not to defer the
implementation of a removal order outstanding against him or her, does the fact
that the applicant's removal is subsequently halted by operation of a stay
Order issued by this Court render the underlying judicial review application
moot?
“Judith
A. Snider”
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