Date: 20070919
Docket: IMM-3685-07
Citation: 2007 FC 938
Ottawa, Ontario, September 19, 2007
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
CELIAFLOR
GALLARDO
Applicant
and
MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1] UPON MOTION for
an Order that the execution of the removal order against the applicant be
scheduled to take place on September 23, 2007 be stayed until such time as the
Application for Leave and Judicial Review in this matter has been disposed of;
[2] AND UPON review of the
parties’ motion records;
[3] AND UPON hearing the submissions
of counsel for the applicant and respondent on September 18, 2007 in Ottawa;
[4] The applicant Celiaflor
Gallardo seeks an order for a stay of removal order to the Philippines scheduled to take
place on September 23, 2007 until her Application for Leave and Judicial Review
has been disposed of and, if leave is granted, until such time as the judicial
review is finally disposed of by this Court.
[5] The grounds for the
applicant’s motion are irreparable harm would result if she were removed from Canada. First, her life
would be imperiled because she would not be able to afford her diabetes
medication in the Philippines. Second, her invalid mother would also suffer irreparable harm
if she, the applicant, would not be present to provide for her mother’s care.
[6] At the onset of the hearing,
the applicant’s counsel objected to an affidavit in the respondent’s motion
record which documented inquiries about the cost of diabetes medication in the Philippines. He submitted
that the respondent counsel improperly obtained an adjournment in order to make
such inquiries and further that he was caught by surprise by the affidavit.
[7] The respondent counsel
explained that the adjournment was obtained solely to allow new counsel to
become informed. Subsequent to the adjournment, respondent’s previous counsel
became aware of the proceeding and joined the new counsel as co-counsel. I
accept respondent counsel’s explanation.
[8] The affordability of the
diabetes medication is central to the issue of irreparable harm to the
applicant. It was open to applicant’s counsel to buttress the applicant’s
affidavit evidence of the cost of the diabetes medication by other inquiry but
he chose not to do so. Considering the foregoing, I accept the respondent’s
contested affidavit as evidence in this hearing.
The Test for Granting a Stay
Order
[9] The test for the granting of
a stay requires the applicant to demonstrate firstly, that she has a serious
issue to be tried; secondly, that she would suffer irreparable harm if no stay
was granted; and thirdly, that the balance of convenience favours the applicant
(Toth v. Canada (Minister of Employment and Immigration) (1998), 6 Imm
L.R. (2d) 123 (F.C.A.), [1988] F.C.J. No. 587 (QL)).
Serious Issue
[10] The test of a
“serious issue to be tried” is that the issue being raised is not frivolous, (RJR
MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 31, [1994] S.C.J. No. 17. The
matters raised by the applicant of health and care of invalid relatives
satisfies this low threshold.
Irreparable Harm
[11] The applicant stated by
affidavit that she is a Type 2 diabetic and requires a drug, Metformin, to
maintain her health. The generic equivalent in the Philippines is Humamet. The
applicant deposes that she took Humamet in the Philippines for her diabetes prior
to August 18, 2001. This diabetes medication cost 75 pesos a tablet and she
required three tablets a day. Her medication in the Philippines would cost
approximately 225 pesos per day which equates to $170.12 Canadian per month.
She did not believe she could find employment in the Philippines and thus would
not be able to afford the Humamet medication. Her husband lives in the Philippines but he is
supporting their three adult children who are in school and he could not afford
to pay for her diabetes medicine. Her father in Canada previously
assisted but cannot do so now.
[12] The respondent filed an affidavit
by Linda Noel who had made email enquiries to an official of the Department of
Health in the Philippines. The response from Agnette P. Peralta,
Director IV, Bureau of Health Devices and Technology, Department of Health, Republic of
Philippines, advised that the current Humamet cost 8.60 pesos per 500 mg and
14.25 pesos for 850 mg in the largest drug store chain in the Philippines. Further,
the generic equivalent of the medication cost 4.60 pesos per 500 mg and 7.15
pesos per 850 mg. The cost for three tablets would be 25.8 pesos per day or
13.8 pesos per day for the generic version of the drug. Thus, the cost of the
Humamet/Metformin diabetes medication per day in the Philippines is much
less than the 75 pesos per day the applicant reported she had to pay in 2001. The
cost of the Humamet/Metformin in the Philippines today is $18.90
Canadian per month or $10.20 Canadian for the generic version instead of the
$170.12 Canadian.
[13] I find the
assertion by the applicant that she or her family could not afford to buy her
diabetes medication unconvincing.
[14] The applicant lives with her
parents in Ottawa and she cares for her disabled mother. She
cooks for her parents, cleans, does the laundry, and assists her mother with
her personal hygiene. Her mother is an amputee and wheelchair bound. Her
doctor advises that having a close relative available to help would be
beneficial to her health.
[15] The applicant’s father, 77 years
of age in 2006, deposes that he has four sons in Canada, three in
Ottawa and one in Toronto. Each are married and have children. One, in
Ottawa, is disabled. He states his sons cannot assist his wife
as the applicant has.
[16] The respondent’s counsel submits
that the applicant must show that she herself would suffer irreparable harm,
citing Mosley J. in Tajram v. Canada (Minister of Citizenship and
Immigration), 2006 FC 760, [2006] F.C.J. No. 949:
I acknowledge
that as family members age and become ill, the hardships which typically
accompany separation become much more difficult and may reach the level where
they are more than the "usual consequences of deportation", as
described by Justice Evans in Tesoro. However, the test for
a stay, in my view, should focus primarily on the effect of the removal upon
the applicants themselves.
[17] The applicant’s counsel makes
reference to Samuels v. Minister of Citizenship and Immigration, 2003 FC
1349 where the heavy reliance of children 18 and 21 on their mother was a
necessary consideration; to Kahn v. Canada (Minister of Public Safety and
Emergency Preparedness), [2005] F.C.J. No. 1365 where that applicant’s wife
and children depended on the applicant for emotional and financial support in
part as a result of involvement in a serious accident, and Richards v. The
Minister of Citizenship and Immigration, (1999) IMM-7220-99 where the
applicant was the primary caregiver for her blind 72 year old grandmother. In each
of these cases, the Court recognized that harm would occur where the relatives
were heavily dependant on a applicant sole caregiver.
[18] Here, the applicant’s parents have
other family members in Canada and, more particularly,
in Ottawa. Three sons and their families live in Ottawa, the same
city as the parents. While one son is himself disabled, the others and their
families are available to help. In fact, one does help transport their mother
about, as the applicant states in her affidavit.
[19] The applicant’s mother had to
have a leg amputated as a result of her diabetes in 2003. The applicant
deposed that she had lived ‘equally’ with her brother in Toronto and her
parents in Ottawa between the years 2001 and 2006. It was in
September 2006, that the applicant began living exclusively with her parents in
Ottawa.
[20] While the family members may not
provide the same assistance as the applicant, I find that the applicant’s
mother is not in a situation where it may be said she is heavily and solely
dependant on the applicant.
The Balance of
Convenience
[21] The balance of convenience
weighs the inconvenience of the applicant should the stay be denied against the
public interest in executing the deportation order as soon as reasonably
practical. Atwal v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 427, [2004] F.C.J. No. 2118.
[22] The applicant has been in Canada without
permanent residency status. She has availed herself of administrative and
judicial processes provided by legislation in an effort to remain. The
ultimate determination was that she should return to the Philippines.
[23] I
find that the balance of convenience favours the respondent.
Conclusion
[24] For the above reasons, the application for a
stay of execution of the removal order is dismissed.
ORDER
THIS COURT ORDERS that the motion for a
stay of the execution of the removal order is dismissed.
"Leonard
S. Mandamin"
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