Date: 20070518
Docket: IMM-1986-07
Citation: 2007 FC 534
Ottawa, Ontario, May 18,
2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
PING SHI
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER
[1]
These
are my reasons for dismissing the Applicant’s motion for a stay of her removal
from Canada.
[2]
The
Order was issued following the submissions made by counsel for the parties and
I indicated at that time that my reasons would follow.
[3]
This
motion came before the Court on the evening of May 16, 2007 and it concerned a
removal order scheduled to be executed the following morning. The Applicant
entered Canada from China as a visitor
in May 2004. She made a refugee claim which was dismissed in September 2005.
She initiated a combined Humanitarian and Compassionate application and Risk
Assessment in 2006 both of which were rejected.
[4]
As
early as 2005 and throughout 2006, the Applicant was being treated for a fibroid
condition and, in November 2006, she had an inter-uterine device (IUD) removed.
The medical information indicates that she would benefit from further
gynaecological treatment. Apparently the details of her medical issues were
not raised during the risk assessment. Nevertheless, in April 2007 the
Respondent’s file notes indicate that the Applicant was advised to submit proof
of her medical condition for further consideration. This was not done until May
10, 2007. When this motion was filed late in the day on May 16th,
it was supported by over 150 pages of evidence much of which was directed at
the situation in China for women who had breached state reproductive
policies. It was contended that the Applicant could be persecuted for having
had her IUD medically removed in Canada notwithstanding that she had been married
in Canada and wished
to start a family here.
[5]
The
Respondent strenuously objected to the lateness of the motion and submitted
that it should be dismissed because the Respondent was not in a position to
respond to the evidence submitted by the Applicant. Counsel for the Respondent
pointed out that the medical issues at the heart of this motion had been well
known for months and there was no valid reason for springing them at the last
minute. He pointed out that the response by the Chinese authorities to the
issue of the removal in Canada of an IUD from a 41-year-old woman who
wanted to start a Canadian family was, by no means, obvious. This was an issue
on which the Respondent was deprived of an opportunity to respond with the
submission of relevant evidence to the Court.
[6]
I
dismissed this motion because of its lateness and because of the obvious
prejudice to the Respondent if the matter was heard on the merits. An
applicant should not enjoy a strategic advantage by bringing last-minute stay
motions before the Court. This is a discretionary and extraordinary remedy the
granting of which requires a meaningful record and careful consideration. This
is the very type of situation considered by the Federal Court of Appeal in El
Ouardi v. Canada (Solicitor General), [2005]
F.C.J. No. 189, 2005 FCA 42, where Justice Marshall Rothstein observed:
6 I am inclined to the view that, in
the circumstances of this case, Blais J. was entitled to determine, as an
initial issue, whether to entertain the stay motion and did not decline
jurisdiction by dismissing the application on that ground. In the case of a
late application for a stay, a motions judge must be given considerable leeway
in dealing with the matter. In cases of late stay applications, a requirement
to consider the merits could result in an automatic stay because of the need to
give the Minister time to respond or the time necessary for the Court to decide
the matter. Therefore, in cases of late stay applications, I doubt there is an
obligation on the Court to consider the merits in all cases, especially where
the application is very late as in this case. Certainly, the motions judge
should consider the reason for the lateness of the application. If the Minister
is involved in the circumstances giving rise to the delay, then the decision
might be different than if the applicant is responsible.
7 In the present case, the facts are
that the stay application could have been made on or shortly after January 7,
2005, when the appellant was advised of her scheduled removal date. In these
circumstances, I tend to think that Blais J. properly exercised his discretion
not to entertain the very late stay motion, that it was within his jurisdiction
to do so, even though he may not have considered the merits of the application
and that the matter is not appealable to this Court. However, the threshold for
a serious issue is low and I do not think it would be appropriate for me,
sitting on a motion for a stay pending appeal, to make a final decision on this
issue.
[7]
In
this case, the Respondent was in no way responsible for the lateness of this
motion. The Applicant was well aware of the likelihood of her removal by at
least early March. She failed to respond to the Respondent’s requests for
medical information and I do not find the explanation of modesty to be
persuasive.
[8]
Therefore,
I dismissed the Applicant’s motion for a stay of deportation.
"R. L. Barnes"
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