Date: 20071115
Docket: IMM-4700-07
Citation: 2007 FC 1189
BETWEEN:
LAURA
CAROLINA LOPEZ DE DONAIRE
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
HUGHES J.
[1]
The
Applicant is an Argentinean single mother of four children, three born in
Argentina of an abusive father, the fourth born in Canada, fathered by another
man with whom the Applicant has no further relationship but who continues to
have a relationship with the child. The Applicant is a hard working person
trying to support her children but has limited education and engages only in
low paying work. She has been ordered to be removed from Canada and seeks a
stay of that removal.
[2]
Sympathetic
as the Applicant’s situation may be, she has for almost three years avoided a
previous removal order and an outstanding warrant for her arrest. Until forced
to do so, the materials provided by her solicitors on this motion, who were
also her solicitors on the previous removal, failed to disclose these
circumstances to the Court.
[3]
The
Applicant failed in making a refugee claim and was ordered to be removed from
Canada to the United
States
which was the country from which she entered. On June 4, 2004, the Applicant,
along with her common-law partner of the time, and her three Argentine born
children brought an application for a stay of removal. The same law firm that
represents her now represented her then. The motion for stay was dismissed by
this Court on June 7, 2004.
[4]
This
Applicant failed to appear for removal on June 8, 2004 and did not report to
the authorities. A warrant for her arrest was issued. It was not until
November 3, 2007 when, after a routine traffic violation, the Applicant’s
whereabouts were discovered. She was detained and, at the time, this motion
for stay removal was heard, remains in detention. The whereabouts of her four
children remains undisclosed.
[5]
In
the motion material provided to the Court initially, no disclosure was made of
the fact of the previous failed motion to stay removal, or the arrest warrant,
or the detention or the fact that the Applicant remains in detention and the
whereabouts of her children undisclosed.
[6]
This
motion was brought some eleven days after the Applicant had been placed in
detention and heard one day before the date scheduled for removal. No
persuasive evidence has been given as to why the motion could not have been
prepared and filed two or three days after the Applicant was detained on
November 3, 2007 even though, apparently, the date scheduled for removal had
not yet been fixed.
[7]
An
applicant seeking equitable relief, such as a stay, on an interlocutory basis
such as a motion now before the Court, has a duty, as does Applicant’s counsel,
to make full and frank disclosure of all relevant facts including those facts
that may be detrimental to their case. It is immaterial whether the other side
may know of the facts, what is important is that the Court knows all relevant
facts. Here, a partial disclosure was made only in an affidavit of the
Applicant submitted moments before the hearing if this matter was scheduled to
begin and only after the Respondent had submitted its memorandum, by way of a
letter and affidavit given the short notice, disclosing the relevant facts to
the Court for the first time.
[8]
The
Applicant, in seeking a stay of removal, submits that it has had an outstanding
Humanitarian and Compassionate application for several months. This is the
second such application, the first was refused. Counsel for the Applicant says
the second is “much stronger” than the first, largely because the Applicant has
remained in Canada and become
“established” longer. This overlooks the fact that for almost the last three
years, the Applicant has avoided removal despite an outstanding arrest
warrant.
[9]
Applicant’s
counsel says that the Applicant will suffer irreparable harm if removed to Argentina via the United
States.
Argument was made that the abusive husband may seek out the Applicant in Argentina but no
substantive evidence as to a real risk of this happening has been led.
[10]
As
to the balance of convenience, no substantial basis for favouring the Applicant
has been made out. To the contrary, the failure of the Applicant and the
Applicant’s counsel to make full and frank disclosure of all relevant facts
militates against the grant of equitable relief. As Gibson J. of this Court
said in an Order dated February 9, 2007 in Haynes v. Canada (MPSEP),
IMM-354-07:
AND the Court further finding
that the Applicant approaches the Court equitable relief without providing full
disclosure with respect to her immigration history in Canada and, more
particularly, by failing to disclose that, prior to her most recent entry into
Canada, she had entered Canada on the 12th of July, 1992 on a short
term visitor’s visa, that she substantially overstayed the term of hat visa and
worked in Canada, that she was deported from Canada on the 7th of
October, 2000, that when she then returned to Canada in March 2001, she did so
illegally and only came to the attention of Canadian immigration authorities
when she was arrested on the 5th of June, 2004 resulting in the
issuance of a deportation order against her on the 17th of September
2004, with the result that the Court cannot find that the balance of
convenience favours the granting of a stay of removal in her favour over the
interests of the Respondent and of the Canadian public in general,
notwithstanding that her removal may entail substantial risk of irreparable
harm for herself and her infant child;
[11]
Therefore,
the motion for a stay is dismissed.
[12]
This
is an exceptional case in which an award of costs is warranted. I fix them at
the amount of $500.00. I am aware that the Applicant may not have the means to
pay such costs and the Respondent may not demand them. Applicant’s solicitors
may even consider paying such costs on the Applicant’s behalf since the
solicitors bear a responsibility to ensure full disclosure.
“Roger
T. Hughes”
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