[1] This is an application for a stay of a removal order pending appeal of the decision of Blais J. dated January 29, 2005, refusing to entertain a stay of removal application pending two judicial reviews filed in the Federal Court. Blais J. refused to entertain the stay motion before him because the motion was brought at the "last minute". The motion was faxed to the Court at about 3:30 p.m. on Saturday, January 29, 2005. The appellant is required to report to the Airport at Toronto at 10:00 a.m. and is scheduled for removal at 1:00 p.m. today, January 30, 2005.

[2] The ground for appeal is that Blais J. refused to exercise his jurisdiction. In particular, the appellant argues he was required to consider the merits of the stay motion rather than deciding not to entertain the motion solely because it was brought at the last minute. The appellant relies on Subhaschandran v. Canada (Solicitor General), 2005 FCA 27, [2005] F.C.J. No. 107, which carves out a narrow exception, based on the refusal of the motions judge to exercise jurisdiction, from the general rule that interlocutory orders of a motions judge made under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, are not appealable.

[3] The Minister argues that a late application is not properly before the Court and the Court must first decide whether to consider the matter before addressing the merits of the motion. It is argued that a late motion is prejudicial to the Minister who does not have the opportunity to prepare and file appropriate responding material.

[4] It should be noted in this case that one of the judicial reviews filed in the Federal Court is from a Pre-Removal Risk Assessment (PRRA) Decision communicated to the appellant on January 7, 2005, and that application for judicial review was filed out of time. In the January 7, 2005, communication, the appellant was told that the date for her removal was scheduled for Sunday, January 30, 2005, at 1:00 p.m. and that she was required to report to the Toronto Airport at 10:00 a.m. that day. The other judicial review is from a decision to refuse to delay the appellant's removal pending determination of a humanitarian and compassionate (H & C) application. The H & C application was filed on January 18, 2005, although the appellant has been in Canada for over four years.

[5] I will consider serious issue, irreparable harm and balance of convenience in turn.

[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.

[8] The appellant argues that her appeal will be rendered nugatory if the stay is not granted, resulting in irreparable harm. The difficulty with the argument that an appeal being rendered nugatory amounts to irreparable harm is that if it is adopted as a principle, it would apply to virtually all removal cases in which a stay is sought and would essentially deprive the Court of the discretion to decide questions of irreparable harm on the facts of each case. In some cases, the fact that an appeal is rendered nugatory will amount to irreparable harm. In others, it will not. The material indicates that the appellant's husband may apply to sponsor her return to Canada. While removal will cause hardship, it is not clear that rendering the appeal nugatory will result in irreparable harm.

[9] The appellant says that there was new evidence before the PRRA officer that was not presented in her refugee application and that the new evidence should have been taken into account in considering the risk to the appellant's life if she was removed to Morocco. The appellant suggests the new evidence was ignored. However, the reasons of the PRRA officer indicate that the evidence was considered but given little weight. The weighing of evidence is not a matter that the Court will review.

[10] It is argued that the appellant has a child in Canada, that the best interests of the child are relevant and that they were not considered in the appellant's risk assessment by the PRRA officer. I agree that the best interests of a child are to be taken into account under the Act and I assume that they will be taken into account in the appellant's H & C application. But there is no indication that the best interests of her child were raised on her risk assessment and it is not obvious to me that in the circumstances of this case, the risk assessment was the appropriate forum to have done so. For these reasons, I am of the view that the appellant has not made out a case of irreparable harm.

[11] The balance of convenience favours the Minister. The appellant has been in Canada for over four years. She could have made an H & C application long ago. She needn't have waited until twelve days before her scheduled removal to do so and she needn't have delayed until less than twenty-four hours before her scheduled removal to apply for a stay. Her application for judicial review of the PRRA decision was filed out of time and, again, she need not have waited until the day before her scheduled removal to apply for a stay.

[12] I note that counsel appearing on this stay application for the appellant only became involved yesterday and the lateness of the stay application is not attributable to her.

[13] The motion for a stay of removal pending appeal of the decision of Blais J. will be dismissed.

"Marshall Rothstein"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.: A-36-05

STYLE OF CAUSE: SAADIA EL OUARDI v. THE SOLICITOR GENERAL OF CANADA

PLACE OF HEARING: Teleconference from Ottawa, Ontario, with counsel in their respective offices in Toronto, Ontario

DATE OF HEARING: January 30, 2005

REASONS FOR ORDER

RENDERED ORALLY AT

TELECONFERENCE BY: ROTHSTEIN J.A.

APPEARANCES:

Ms. Barbara JackmanFOR THE APPELLANT

Mr. Jamie ToddFOR THE RESPONDENT

SOLICITORS ON THE RECORD:

JACKMAN & ASSOCIATESFOR THE APPELLANT

Ottawa, Ontario

John H. Sims, Q.C.FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario

FEDERAL COURT OF APPEAL

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.: A-37-05

STYLE OF CAUSE: SAADIA EL OUARDI v. THE SOLICITOR GENERAL OF CANADA

PLACE OF HEARING: Teleconference from Ottawa, Ontario with counsel in their respective offices in Toronto, Ontario

DATE OF HEARING: January 30, 2005

REASONS FOR ORDER

RENDERED ORALLY AT

TELECONFERENCE BY: ROTHSTEIN J.A.

APPEARANCES:

Ms. Barbara JackmanFOR THE APPELLANT

Mr. Jamie ToddFOR THE RESPONDENT

SOLICITORS ON THE RECORD:

JACKMAN & ASSOCIATESFOR THE APPELLANT

Ottawa, Ontario

John H. Sims, Q.C.FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario

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El Ouardi v. Canada (Solicitor General), 2005 FCA 42

Citations2005 FCA 42

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2005 FCA 42