Docket: IMM-23781-24
Citation: 2026 FC 190
Ottawa, Ontario, February 10, 2026
PRESENT: The Honourable Madam Justice Kane
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BETWEEN: |
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SOLOMON YOHANES GOITOM |
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EDEN REZENE |
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YONATHAN SOLOMON YAHANNES |
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ISAAC SAMUEL SOLOMON YAHANNES |
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Applicants |
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and |
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THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS |
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Respondent |
JUDGMENT AND REASONS
[1] The Applicants, Eden Rezene, Solomon Yohanes Goitom, and their minor sons Yonathan Solomon Yahannes and Isaac Samuel Solomon Yahannes [the Minor Applicants] seek judicial review of the decision of an Inland Enforcement Officer [the Officer] of the Canada Border Services Agency [CBSA], dated December 18, 2024. The Officer refused the Applicants’ request to defer the execution of their removal order (i.e., their removal) from Canada to Sweden until July 2025, following the completion of the school year, as they had requested.
[2] The Applicants then brought a motion to this Court seeking a stay of their removal (i.e., to stop their removal) pending the determination of their Application for Leave and for Judicial Review of the Officer’s decision [the Application]. On December 23, 2024, Justice Sadrehashemi granted the Applicants’ motion finding that the Applicants had satisfied the applicable three-part test to justify a stay of the execution of their removal order [the Stay Order].
[3] The Court finds that based on well-settled law this Application is moot. The circumstances that formed the basis for the Applicants’ deferral request and the relief sought—a deferral of removal to permit the children to complete the 2024–2025 school year—have passed and, as described in more detail below, there is no practical utility to the Court considering the merits of the moot Application.
[4] The Stay Order gave the Applicants exactly what they requested of the Officer—and more. Yet, the Applicants continue to argue that this Application should nonetheless be determined so that they have the full benefit of the relief granted in the Stay Order, which is to remain in Canada until this Application is finally determined. Their submission appears to ignore that they have indeed had the full benefit of the Stay Order.
[5] The Court notes that if it were to exercise its discretion to consider the merits of the Application, despite that it is moot, the only possible outcome would be to grant the Application because—as the Applicants are well aware—the Respondent previously conceded a reviewable error in the Officer’s decision.
[6] The Court will not certify the question proposed by the Applicants. Contrary to the Applicants’ submissions, there is no uncertainty in the jurisprudence regarding mootness. The Applicants rely on cases that are not on point and ignore the relevant long standing and governing jurisprudence. Moreover, the Applicants’ submission—that if the Court were to determine the Application on its merits and certify the proposed question, they would nonetheless seek to appeal a favourable decision with the goal of settling the law and providing guidance to enforcement officers—is illogical. The law is settled, the jurisprudence provides ample guidance for enforcement officers, and the outcome on appeal for the Applicants would not change.
[7] The Court acknowledges that the Applicants were entitled to pursue their legal options to remain in Canada, as are others who seek immigration status. However, the circumstances of this case are of the type that invite criticism of Canada’s immigration system and the due process that is afforded to all those who seek status in Canada. The Applicants are citizens of Sweden who obtained refugee status in Canada by relying on false identities and false claims; they only admitted their misrepresentation several years later once the Minister of Public Safety and Emergency Preparedness [the Minister] moved to vacate their refugee status; they pursued other available applications; they were ultimately faced with a removal order; their request for a deferral of their removal was refused; and they then sought the Stay Order. The Applicants’ opposition to the Respondent’s motion for judgment, which would have set aside the Officer’s decision and allowed the Applicants, if they so chose, to seek a fresh deferral of the execution of a new removal order, to be considered by a different officer, and their pursuit of this Application, which is clearly moot, frustrates the Respondent’s statutory obligations. Their pursuit of this Application also contradicts the adult Applicants’ sworn affidavits, in which they attested that they only wanted to remain in Canada to permit their children to complete the 2024–2025 school year, after which time the family would return to Sweden where they are all citizens (along with their Canadian born son).
[8] The Court also acknowledges that where a stay of removal is granted pending the determination of an application for leave and for judicial review of the underlying decision, that application may not be determined for several months, which may surpass the actual time frame for which the deferral of executing a removal order (which is intended to be a temporary measure) was sought. This can perpetuate a cycle of deferral requests and, if refused, further motions to stay the execution of a removal order. If those motions are successful, an applicant’s time spent in Canada is extended and additional court proceedings before this Court are likely. However, if the Court were to grant a stay of the execution of a removal order, where warranted, to the fixed date or the completion of the event, as an applicant sought in their request for the deferral of removal (for example, the completion of the school year or the completion of a medical treatment), this cycle could be avoided. For example, in Iheonye v Canada (Minister of Public Safety and Emergency Preparedness), 2018 FC 375 at para 28 [Iheonye], Justice Grammond granted the applicants’ motion to stay the execution of their removal order to the end of the school year, noting that this is what the applicants asked of the removal officer and any remedy from the Court should only be granted for that same period. Justice Grammond observed at paras 30–31 (as have other judges of this Court), that by the time the application would be heard, it would be moot and that as a practical matter, if the application were considered despite being moot it “would likely be heard sometime in the fall and we would run into the same difficulty of [the child] being forced to interrupt a school year.”
The same practical matter will likely arise in the present case.
[9] Alternatively, the Court could consider expediting an application for leave and for judicial review of an underlying decision refusing to defer removal so that it is determined before the event or date requested has passed and before it becomes moot. Despite the Court’s enormous and growing workload, the Court may seek to prioritize such applications to bring finality to matters—like the present matter—that should be final. Expediting such an application, where this makes sense, is preferable to engaging the Court’s scarce resources for matters that have clearly become moot.
I. Background
[10] To better understand the Court’s concerns about this Application, further details about the background are noted.
[11] The adult Applicants are originally from Eritrea. However, they became and remain citizens of Sweden, where they previously lived. The Minor Applicants were born in Sweden. Their third son was born in Canada.
[12] In August 2016, the Applicants arrived in Canada from Sweden using their Swedish passports. They subsequently sought refugee protection using false identities and claiming that they were citizens of Eritrea. In April 2018, they were granted refugee protection based on their allegations regarding Eritrea.
A. Misrepresentation – Refugee Status Vacated
[13] In January 2022, the Minister applied to vacate the Applicants’ refugee status based on information that the Applicants were citizens of Sweden. In October 2022, at the Refugee Protection Division hearing of the application to vacate, the Applicants only then admitted their misrepresentation. Their refugee status was subsequently vacated. In January 2023, their removal order was issued.
[14] The Court notes that paragraph 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] provides:
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40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation
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40 (1) Emportent interdiction de territoire pour fausses déclarations les faits suivants :
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(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;
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a) directement ou indirectement, faire une présentation erronée sur un fait important quant à un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque d’entraîner une erreur dans l’application de la présente loi;
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[15] A finding of misrepresentation results in a bar from seeking immigration status in Canada for five years.
[16] In July 2023, the Applicants applied for permanent residence on Humanitarian and Compassionate [H&C] grounds pursuant to section 25 of the Act. Section 25 provides an exemption for applicants who are inadmissible to Canada or who do not meet other requirements of the Act. In August 2023, the Applicants applied for a Pre-Removal Risk Assessment [PRRA]. In February 2024, both applications were refused. In November 2024, the Court refused leave for judicial review of the negative H&C decision. The Applicants did not pursue an application for leave and for judicial review of their negative PRRA.
B. Direction to Report
[17] The Applicants attended removal interviews with the CBSA from May to November 2024. On November 20, 2024, the Applicants were served with their Direction to Report for removal on December 28, 2024. On December 6, 2024, the Applicants requested that the CBSA defer their removal until July 2025, to permit the children to complete the school year in Canada. On December 18, 2024, the Officer issued the decision refusing to defer the Applicants’ removal.
[18] The Applicants then filed the Application for Leave and for Judicial Review of the Officer’s decision and filed a motion to stay the execution of their removal order pending the determination of the Application.
C. Motion to Stay their Removal
[19] On December 23, 2024, Justice Sadrehashemi granted the Applicants’ motion to stay the execution of their removal pending the determination of the underlying Application.
[20] Justice Sadrehashemi found that a serious issue arose from the Officer’s failure to acknowledge that the Officer could consider the short-term best interests of children—including finishing the school year—in exercising the Officer’s limited discretion to defer removal, and also found that in the particular circumstances, the children’s inability to complete the school year in Canada would constitute irreparable harm.
D. The Respondent’s Motion for Judgment
[21] On July 16, 2025, the Respondent filed a motion for judgment pursuant to Rule 369 of the Federal Court Rules, SOR/98-106 seeking an Order to grant the Application, set aside the decision of the Officer, and allow the Applicants a further opportunity to present a new deferral request following the issuance of a new removal order, to be determined by a different officer. The Respondent conceded that the Officer erred in law; the Officer failed to appreciate that there are circumstances where the disruption of a child’s school year can warrant a deferral of removal. The Respondent also emphasized that at that time (which was already after the completion of the 2024–2025 school year) the Application was moot; the Applicants had obtained the relief sought in their deferral request, which was a deferral of removal until July 2025 to allow the children to complete the school year.
[22] The Applicants opposed the Respondent’s motion, arguing that this was an attempt to circumvent the Stay Order, which stopped the execution of their removal order until the final determination of this Application (i.e., not to only July 2025). The Applicants also argued that factual errors in the Officer’s decision should be addressed by the Court. They added that they would propose a question for certification in the Application, asserting that there was a question of general importance to be resolved.
[23] On September 23, 2025, Justice McDonald dismissed the Respondent’s motion, finding that the issues would be best resolved at the hearing of the Application, if leave were granted, with the benefit of the full evidentiary record.
[24] The Applicants have remained in Canada awaiting the determination of this Application, the children have completed the 2024–2025 school year, as they had requested, and are now more than mid-way through the 2025–2026 school year. The Court notes that in their motion seeking the Stay Order, Ms. Rezene attested that “[a]fter this dismissal [of the PRRA] we came to the understanding that we could no longer stay in Canada since it was our last resort. We acknowledged that. We just wanted our children to complete the school year. This is the reason we filed the deferral request and asked to stay here until the end of the school term.”
[25] As noted in the Respondent’s motion for judgment—and in the Court’s jurisprudence where similar issues have been addressed—if a new removal date is set by the CBSA, the Applicants could again seek a deferral of their removal. If unsuccessful, they could again seek a motion to stay the execution of their removal order. Without fixed dates for any future stay order or the expeditious determination of any subsequent applications for judicial review, the cycle will likely continue.
[26] The Applicants submit that the Application is not moot and the Court should determine it on its merits.
[27] The Applicants also seek to certify a question to permit an appeal, arguing that their proposed question is of general importance and would be dispositive.
[28] The key issue is whether the Application is moot.
[29] In the event the Court finds that the Application is not moot or exercises its discretion to hear the Application despite that it is moot, the issue would be whether the Officer’s decision is reasonable.
[30] The merits of the Officer’s decision would be reviewable on the reasonableness standard (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]). A reasonable decision is one that is “based on an internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrain on the decision maker”
(Vavilov at para 85).
[31] Whether a question should be certified is not subject to a standard of review. The Court will determine whether to certify the proposed question based on the well-established guidance from the Federal Court of Appeal.
[32] The Officer’s decision described the Applicants, their immigration history, the Officer’s mandate and limited discretion to defer removal.
[33] The Officer noted that the Applicants had fraudulently gained refugee protection in 2018 by submitting false identities and not disclosing their Swedish citizenship and continued to live under their false identities until 2022, when their refugee status was vacated and their permanent resident status was lost. The Officer noted that the Applicants’ H&C and PRRA applications were refused in February 2024 and that the Applicants had been aware since March 2024 that they would be removed from Canada.
[34] With respect to the best interests of the children, the Officer stated that potential hardship arising from the disruption of the school year is not considered by the Court to be irreparable harm (citing Baron v Canada (Public Safety and Emergency Preparedness), 2009 FCA 81 at para 69 [Baron]). (The Court notes that irreparable harm is considered as one element of the three-part test to determine whether the Court should grant a stay of a removal order). The Officer also noted that the Applicants were advised to prepare for their removal in March 2024 but caused delays in obtaining their travel documents and reenrolled their children in school in Canada in September 2024.
[35] Among other things, the Officer found that the language and cultural barriers of reintegration in Sweden did not amount to irreparable harm, again citing Federal Court jurisprudence that applies to motions for a stay of removal. The Officer noted that the Applicants, except for the Canadian-born son, lived in Sweden prior to coming to Canada and the parents could help the children adjust.
[36] The Officer concluded that: it was more than likely that the deferral request was another delay tactic by the Applicants, who are highly motivated to remain in Canada; the adult Applicants had the opportunity to leave Canada earlier so the children could start school in Sweden for the August 2024 semester, but instead created unnecessary delays; the best interests of the children were fairly assessed in the H&C decision; and, there was no risk to the children if they left Canada on December 28, 2024. As such, a deferral of the execution of the removal order was not appropriate in the circumstances.
IV. The Application is Moot
A. The Applicants’ Submissions
[37] The Applicants dispute that the Application is moot. The Applicants argue that the jurisprudence is not settled because some judges of this Court have not found that an application for leave and for judicial review is moot where the event for which the deferral of removal was sought has passed.
[38] The Applicants submit that where the Court grants a stay of execution of a removal order and exercises the discretion to do so until the determination of the underlying application for leave and for judicial review, this is an intentional decision and overrides arguments regarding mootness, in particular, when the underlying decision is a refusal to defer removal to a fixed date or event.
[39] The Applicants also submit that they remained in Canada in accordance with the Stay Order that clearly stopped the execution of their removal order until the final disposition of this Application. They seek the full benefit of the Stay Order.
[40] The Applicants argue that the Court must determine the merits of the Application to address all the errors in the Officer’s decision. Surprisingly, they argue that the Respondent did not identify the error which led the Respondent to move for judgment, and that unless the Court addresses the Applicants’ arguments, there will be no guidance to the Officer or other officers.
B. The Respondent’s Submissions
[41] The Respondent submits that the Applicants have already received the relief sought in their deferral request—a deferral of removal until July 2025 following the end of the 2024–2025 school year—which has now long passed as a result of the Stay Order. The Respondent argues that the jurisprudence governing the mootness of applications for judicial review of deferral decisions is clear and settled: once the event that underpins a deferral request passes, the judicial review of the deferral decision becomes moot (citing Sosic v Canada (Public Safety and Emergency Preparedness), 2022 FC 13 at paras 21–25 [Sosic]; Aina v Canada (Public Safety and Emergency Preparedness), 2025 FC 1188 at paras 13–17 [Aina], which in turn relies on the established jurisprudence).
C. The Application is Moot
[42] As noted, on the Respondent’s motion for judgment, the Respondent conceded that there was a reviewable error in the Officer’s decision warranting that it be set aside and that if a new request for deferral were made, that it would be determined by a different officer. The Respondent has not changed their position, and the Court would agree that the Officer erred.
[43] The Applicants now disingenuously submit that they do not know why the Respondent moved for judgment. They argue that the Officer needs to know their error and be guided with respect to all the alleged errors, as do other enforcement officers. Perhaps the Applicants have overlooked the Respondent’s motion record in preparation for this hearing. The Respondent clearly identified and conceded the reviewable error. The Court may grant an application upon finding a single reviewable error and need not address each argument or each alleged error.
[44] If the Court were to consider the Application on its merits, the Court’s reasons would not guide the Officer with respect to the Applicants’ request for a deferral, because the Officer would not determine any future deferral request by them. Nor would reasons from the Court provide any additional guidance for this Officer or other officers; there is a large body of jurisprudence to guide officers regarding the scope of their discretion in considering whether to defer removal. The Court’s reasons will not change that jurisprudence.
[45] Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC) [Borowski] remains the highest authority regarding the doctrine of mootness. An application is moot if “the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties”
(at 353). If the decision of the court will have no practical effect on such rights, the matter will be moot. As the Respondent notes, the test for mootness has two parts; first, the Court must determine whether a live controversy continues to exist between the parties or has disappeared, and second, the Court must determine whether to exercise its discretion to hear the case despite its mootness (Borowski at 353).
[46] The Court’s jurisprudence regarding mootness in the context of applications for judicial review where a stay of removal has been ordered has been guided by Baron, where the Federal Court of Appeal noted that when the events or circumstances that formed the basis for the deferral request have passed as a result of the stay of removal, an application for judicial review of a decision refusing a deferral request will be moot (Baron at paras 31–38). In Baron, the Court of Appeal endorsed the reasons of Justice Strayer (as he then was) in Amsterdam v Canada (Citizenship and Immigration), 2008 FC 244 [Amsterdam], which focused on circumstances very similar to those of the Applicants.
[47] The Court has included the relevant passages of Baron to emphasize that the Federal Court of Appeal has thoroughly addressed the issue that the Applicants claim is unsettled and has provided clear guidance, which this Court has applied and should continue to apply.
[48] In Baron, the Federal Court of Appeal noted at para 29 that the determination of mootness depends on the proper characterization of the controversy between the parties and endorsed the respondent’s submission, that:
The correct characterization of the controversy, however, is whether an applicant should be removed prior to the happening of a particular event, such as prior to the determination of a pending H & C application. It is then not the passing of the removal date which renders the judicial review application moot, but the happening of the event. This characterization of whether removal is reasonably practicable prior to the happening of the event is entirely consistent with the enforcement officer’s mandate under section 48 of the IRPA to execute a removal order as soon as reasonably practicable. It is this characterization of the controversy that the Applications Judge should have adopted, and erred in failing to do so.
[49] The Court of Appeal elaborated at paras 31–33, cited Amsterdam, described the facts of that case, and endorsed the analysis of Justice Strayer at paras 34–37:
[34] As I indicated earlier, Strayer J. believed that the application was moot. At paragraph 11 of his reasons, he said the following:
I am satisfied that the judicial review of the Enforcement Officer’s refusal to defer removal is moot due to a stay having been issued by this Court to permit the Applicant’s presence in Canada for two events which have long since passed, the very events for which delay was refused in the decision under review. The evidence put before the Court was that it was necessary that the Applicant remain in Toronto to be present at a Family Court Case Conference in the Ontario Superior Court set for July 31, 2007 and for an appointment with a specialist which, by the date of the stay hearing, had been fixed for September 27, 2007. [Emphasis added.]
[35] As I also indicated earlier, Strayer J. then went on, notwithstanding his view on the mootness issue, to deal with the merits of the application. After concluding that the enforcement officer’s decision was not unreasonable, he dealt with a request by the applicant that he certify a question very similar to the one certified in this appeal. The question read as follows [at paragraph 14]:
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 applicants’ removal is subsequently halted by operation of a stay Order issued by this Court render the underlying judicial review application moot?
[36] Strayer J. was of the view that the above question ought not to be certified. In so concluding, he gave the following explanation at paragraph 15 of his reasons:
Nevertheless, I am not prepared to certify such a question. In the first place if I did, and an appeal were taken, an answer to this question would not be determinative of this case because I have determined that the judicial review should also be dismissed on its merits apart from being moot. Secondly, with respect I do not think it is a serious question requiring an answer. There seems to be a wide measure of consensus in this Court, indicated in the cases cited above, that such a question should be answered in the affirmative. I find it hard to see how it could be otherwise: if the complaint in the judicial review is that the Enforcement Officer did not defer removal until the occurrence of some event which the Applicant considered justified the deferral, and as a result of a stay granted by this Court that event has in the meantime occurred. In such circumstances there can be no practical effect of a judicial review decision. [Emphasis added.]
[37] As I understand Strayer J.’s reasons, it is the passing of the events in respect to which the applicant was seeking a deferral of his removal, i.e. a Family Court conference and a medical appointment, which rendered the judicial review application moot. In those circumstances, as Strayer J. says above, “there can be no practical effect of a judicial review decision”. I cannot but agree with that statement in light of the facts before the learned Judge. It is clear, however, that Strayer J. did not conclude that the application before him was moot simply because the removal date had come and gone, which is the position adopted by the applications Judge.
[Emphasis added].
[50] In Baron, the Federal Court of Appeal concluded that the application before them was not moot because the controversy between the parties remained and the event for which they sought their deferral had not passed. However, the principles set out in Baron, which incorporated the analysis in Amsterdam, govern and clearly apply to the present circumstances. The Application is moot and as noted below, the question the Applicants propose for certification has been answered.
[51] More recently, in Sosic, Justice Favel applied the Baron principles and found the application to be moot, noting that the applicant had obtained the relief he had sought, and there was no practical utility to determine the application, noting at para 23:
The outcome of this application for judicial review will have no practical effect on the Applicant because the Decision was based on the Applicant’s request to defer removal to a time or event that has already happened (Adesemowo v Canada (Minister of Public Safety and Emergency Preparedness), 2018 FC 249 [Adesemowo]. […]
[52] Similarly, in Aina, Justice Conroy applied the governing jurisprudence, noting at para 17:
[17] In this case, the event for which the deferral was requested – the end of the 2024 school year – has passed. Once the event that underpins the deferral request has passed, the case law confirms that the judicial review of the deferral decision is moot: Adesemowo at para 43; Dimikj v Canada (Citizenship and Immigration), 2024 FC 2066 at paras 33-34 [Dimikj].
[53] There are several other decisions of this Court—none of which were acknowledged by the Applicants—which have also addressed the question of whether, once a stay of removal has been granted, an application for judicial review of a decision to refuse to defer the execution of a removal order is moot (see e.g., Palka v Canada (Public Safety and Emergency Preparedness), 2008 FC 342 at paras 11, 31–38 [Palka] and cases cited therein; Tovar v Canada (Citizenship and Immigration), 2015 FC 490 at para 43; and recently, Abdelsalam v Canada (Public Safety and Emergency Preparedness), 2025 FC 1918 at para 3 [Abdelsalam] where the Court found the application to be moot but exercised its discretion to determine the application on its merits and dismissed the application).
[54] In the present case, the Applicants seek judicial review of the Officer’s December 2024 decision refusing to defer their removal until shortly after the completion of the children’s school year in July 2025 (as they requested). The requested date and event (the end of the school year) has now long since passed. There would be no point in asking a different CBSA officer to redetermine a request to defer their removal to a time and event that has passed and based on circumstances that no longer exist. Dismissing the Application for mootness will result in a new removal order being issued, following which the Applicants could again seek a deferral of the execution of that new removal order based on their circumstances at that time.
V. The Court Will Not Exercise its Discretion to Consider the Merits of the Moot Application
A. The Applicants’ Submissions
[55] As noted above, the Applicants submit that the Court should address all the errors that they allege in the Officer’s decision to provide guidance to the Officer and to other officers who determine requests for a deferral of removal.
[56] The Applicants submit that the Officer erred in law by failing to acknowledge that disruption to the children’s school year could warrant a short stay of removal, and by failing to defer their removal, and also made several factual errors, including about whether they were cooperative with the CBSA, caused delays in obtaining their travel documents and failed to plan for their return to Sweden.
B. The Respondent’s Submissions
[57] The Respondent submits that the Court should not exercise its discretion to consider this moot Application. The Respondent notes that a decision on the merits will not change the parties’ relationship: the underlying adversarial context continues because the Applicants want to remain in Canada and the Respondent is obligated to enforce a valid removal order to Sweden. A decision on the merits will not result in any judicial economy: regardless of the outcome of the Application, the Applicants will have the opportunity to seek another deferral when a new removal date is set. In addition, the Applicants’ arguments focus on disputed facts and do not raise a legal issue that requires clarification.
C. The Court Will Not Consider the Merits of the Application
[58] As noted, where the Court finds an application to be moot, the second step in the mootness analysis is to determine whether the Court should exercise its discretion to nonetheless decide the matter on its merits. Borowski at 358–363 sets out the considerations to guide the Court in determining whether to exercise its discretion: whether the adversarial context continues to exist; whether there is any practical utility in deciding the matter or if it is a waste of judicial resources; and whether the Court would exceed its proper role by deciding the issue.
[59] With respect to the practical utility, in the circumstances, if the Court were to grant the Application and remit the request for a deferral of removal for redetermination, a different CBSA officer would be tasked with redetermining a request for a deferral of removal to a date and an event that has passed. If the Court were to grant the Application but not remit the request for deferral of removal to be determined by a different CBSA officer, on the basis that the date for removal or requested deferral had passed, the result would be the same as if the Court were to dismiss the matter for mootness. The Applicants would be subject to a new removal order and could again request a deferral of the execution of their new removal order. The result would be the same if the Court considered the Application on its merits and then dismissed it.
[60] This explanation of the options and their futility is not new. The Court has described it many times, notably in Palka at paras 64–70, where Justice Mactavish (as she then was) considered whether to exercise her discretion to consider a moot application and declined to do so. Justice Mactavish made the same observations noted above regarding the practical utility of determining a moot application (which in that case was a refusal to defer removal pending the determination of an H&C application):
[64] The foregoing concerns have led to very careful consideration being given as to whether the Court should exercise its discretion to decide this matter, notwithstanding that it is moot. In particular, the Court has considered whether a decision in relation to the merits of the application for judicial review would have any practical utility.
[65] In the event that the application is dismissed on its merits, the matter would be remitted to the enforcement officer to set a new date for the applicants’ removal. The applicants would then have an opportunity to present a fresh request for a deferral, based upon current evidence relating to the status of their outstanding H&C application, the health of both Ms. Palka and her father, the current situation of the child, along with evidence regarding any other considerations that may have arisen in the interim.
[66] This is precisely the same result as would occur if the Court declined to decide the matter because it is moot.
[67] If the application for judicial review were allowed, the Court could decline to remit the matter to the enforcement officer, on the basis that the date for removal had passed, and new travel arrangements would have to be made: see, for example, Samaroo v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1477, at ¶9. Once again, the consequences of this would lead to the same result as would follow were the Court to decline to decide the matter because it is moot.
[68] If the Court were to allow the application for judicial review and remit the matter to the enforcement officer for consideration on the basis of the record, any new decision would be based on dated information. This is not a desirable result.
[69] In contrast, if the enforcement officer chose to seek updated information from the applicants, once again, the applicants would be back in the same situation they would be in if the Court declined to decide the matter on the basis that it had become moot.
[70] In the circumstances, the Court declines to exercise its discretion in favour of deciding the matter.
[61] Where there is no practical utility to determining an application on its merits, the Court will therefore be cautious in exercising its discretion to do so. However, where the relevant factors support considering the merits, the Court may do so.
[62] For example, in Abdelsalam, Justice Brown found the application to be moot, exercised his discretion to address the merits, and found that the Officer had erred, yet dismissed the application for mootness. Justice Brown stated at para 4:
[4] However, I will exercise my discretion as Borowski permits, as counsel for the Applicants requests, and consider the error of law committed by the Officer in applying the tests for stays of removal used by this Court in immigration matters to the task of deferral officers acting under IRPA and its regulations. They are not the same.
[63] Justice Brown explained at para 8 that the decision was unreasonable, “because the Officer misunderstood their discretion to defer removal under s. 48(2) of
IRPA to be limited to “extreme circumstances” and because the Officer erroneously relied on Federal Court jurisprudence concerning interlocutory stays, notably jurisprudence that concerns a different legal test than the officer is to apply. As noted, that constituted a departure from constraining law which is not permitted by
Vavilov and
Canada Post.”
[64] In Abdelsalam, unlike the present case, the respondent had not previously conceded the error in the officer’s decision.
[65] In the present case, the relevant factors weigh strongly against exercising the discretion to determine the merits of this moot Application; the reasonableness of the Officer’s decision need not and will not be addressed.
[66] As repeatedly noted, the Respondent conceded that the Officer erred in law by failing to appreciate that there can be circumstances where a disruption of a child’s school year can be a basis to defer removal.
[67] In Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at paras 83–84 [Lewis], the Federal Court of Appeal clarified that it is within an enforcement officer’s limited discretion pursuant to section 48 of the Act to defer removal on the basis of the short‑term best interests of the child, and that in some cases the short term best interests have been found to include the completion of a school year. This is not in dispute and any determination of this Application on its merits would not find otherwise.
[68] In Lewis, the Federal Court of Appeal explained at para 61, “[t]hus, under the existing case law, enforcement officers may look at the short-term best interests of the children whose parent(s) are being removed from Canada but cannot engage in a full-blown H&C analysis of such children’s long-term best interests.”
The Court again noted at para 82 that the enforcement officer is only required to consider the short-term best interests of the child, adding at para 83 that such short-term best interests have been found to include the need for a child to finish the school year during the period of the requested deferral.
[69] The Applicants also rely on Baron as establishing that completion of the school year is a basis for the Officer to have deferred their removal. As noted, it is not in dispute that an enforcement officer should consider the short-term best interests of a child impacted by removal and that this may include considering the impact of disrupting the school year, however, Baron provides additional considerations regarding the discretion of enforcement officers.
[70] In Baron, the Federal Court of Appeal endorsed the factors described in Wang v Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] 3 FC 682, noting at para 51:
After a careful and thorough review of the relevant statutory provisions and jurisprudence pertaining thereto, Mr. Justice Pelletier circumscribed the boundaries of an enforcement officer’s discretion to defer. In reasons which I find myself unable to improve, he made the following points:
– There are a range of factors that can validly influence the timing of removal on even the narrowest reading of section 48, such as those factors related to making effective travel arrangements and other factors affected by those arrangements, such as children’s school years and pending births or deaths.
– The Minister is bound by law to execute a valid removal order and, consequently, any deferral policy should reflect this imperative of the Act. In considering the duty to comply with section 48, the availability of an alternate remedy, such as a right to return, should be given great consideration because it is a remedy other than failing to comply with a positive statutory obligation. In instances where applicants are successful in their H&C applications, they can be made whole by readmission.
– In order to respect the policy of the Act which imposes a positive obligation on the Minister, while allowing for some discretion with respect to the timing of a removal, deferral should be reserved for those applications where failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment. With respect to H&C applications, absent special considerations, such applications will not justify deferral unless based upon a threat to personal safety.
– Cases where the only harm suffered by the applicant will be family hardship can be remedied by readmitting the person to the country following the successful conclusion of the pending application.
I agree entirely with Mr. Justice Pelletier’s statement of the law.
[Emphasis in the original].
[71] Read in context, the reference in Baron to “children’s school years”
does not stand alone and is not determinative of the “boundaries of an enforcement officer’s discretion to defer”
.
[72] In any event, if the Officer had appreciated that the short-term best interests of the children should be considered and had appreciated that, in this context, the completion of the school year could be within their short-term best interests, the Officer would have then considered whether the circumstances justified deferral of removal. Although the Applicants argue that the Officer erred by not deferring their removal to the end of the school year, this is a separate issue that would have been within the Officer’s mandate to determine based on the evidence. As noted by Justice Grammond in Iheonye at para 19, “[t]he Federal Court of Appeal held that the need to finish a school year may constitute a valid reason to defer removal, even though it recognized that such deferral may be ordered only in narrow circumstances”
[emphasis added].
[73] In the present case, the factors do not warrant the Court exercising its discretion to consider the merits of the Application.
[74] Although an adversarial relationship between the parties continues because the Applicants appear to want to remain in Canada and the CBSA is obligated to execute a new removal order, it is not the same adversarial relationship that existed at the time of the Applicants’ request for a deferral of their removal in 2024.
[75] Contrary to the Applicants’ submission, the Respondent clearly identified the reviewable error upon which it moved for judgment to grant the Application.
[76] The other issues raised by the Applicants focus on disputed facts that would not likely have had any bearing on the Officer’s refusal. The alleged factual errors would not constitute fatal flaws in the Officer’s decision, warranting redetermination (Vavilov at paras 102, 126). Moreover, these would not arise in the context of a new deferral request. For example, whether the Applicants cooperated with the previous removal process will not be at play on any new request for deferral after new removal arrangements are made.
[77] There is no legal issue requiring clarification, no practical utility to the Court determining the Application on its merits, judicial resources have already been spent, and no judicial economy will result. The Court is not straying into a policy or legislative role by determining or not determining the merits.
VI. The Proposed Question Does Not Meet the Test for Certification
[78] The Applicants propose a question for certification to settle the allegedly unsettled jurisprudence.
[79] The Applicants submit that when the Court grants a motion to stay a removal order until the final disposition of the underlying application for leave and for judicial review, this is intentional. They note that in most cases, a final disposition will surpass the temporary timeline requested for deferral. They submit that the Stay Order should be respected, they should have the benefit of the Stay Order, and no issue of mootness arises because the Application has not been disposed of. However, the Applicants’ position overlooks the jurisprudence, which emphasizes that once the event is passed, the application is moot and overlooks the reality that the Applicants have had the full benefit of the Stay Order—and more.
[80] The Applicants submit that the determination of the following question transcends the interests of the parties, raises an issue of general importance and will be dispositive and therefore, should be certified:
Considering that this Court [referring to the Stay Order] exercised discretion to stay the removal of the Applicants pending a final determination on the underlying application for leave and judicial review challenging the decision to refuse the deferral of their removal, is it appropriate in the similar circumstances to consider the case moot because the Applicant’s [sic] requested relief of stay of removal pending the school term was already satisfied as of the date of the disposition of the underlying application for leave and judicial review?
[81] As repeatedly noted, the jurisprudence provides ample guidance to determine whether an application is moot and whether the Court should exercise the discretion to hear a moot application.
[82] First, as explained above, the question has been answered and the law is settled; once the event that underpins the deferral request passes, a judicial review of the deferral decision becomes moot. The Applicants’ bald assertion that the law is not settled is based on their extrapolation of the jurisprudence and reliance on cases that are not point. There is plenty of jurisprudence that has applied the governing Baron principles, endorsing Amsterdam, in the context of decisions refusing to defer removal.
[83] The Applicants rely on orders on stay motions, some of which have granted a stay of removal pending the determination of the application for leave and for judicial review of a decision refusing to defer removal (for example, Gunasinghe v Canada (Citizenship and Immigration), 2023 FC 1180 [Gunasinghe 1]), and others which have granted a stay of removal only until the end of the school year, where that was the request to the officer (for example, Danjuma v Canada (Public Safety and Emergency Preparedness), 2020 CanLII 12210 (FC)).
[84] However, stay orders generally have no precedential value as they are based on their specific facts and apply the law to those specific facts. The stay orders relied on by the Applicants do not shed any light on whether the duration of the stay was considered. Moreover, these orders do not suggest that the law governing mootness is unsettled.
[85] The Applicants also rely on cases where the Court has determined applications for judicial review but where the issue of mootness was not raised or considered. For example, in Monte-Tavares v Canada (Public Safety and Emergency Preparedness), 2021 FC 1257 [Monte-Tavares], Justice Sadrehashemi noted that the execution of the applicant’s removal order had been stayed to permit him to pursue an appeal of his criminal convictions. The applicant did not pursue that appeal. Justice Sadrehashemi granted the application for leave and for judicial review of the officer’s refusal decision for other reasons unrelated to the request for the deferral of removal to pursue an appeal, finding that the officer erred in assessing the short-term best interests of the children. The issue of mootness was apparently not raised and was not addressed. Monte-Tavares does not support the Applicants’ allegation that the jurisprudence is not settled.
[86] In Gunasinghe v Canada (Citizenship and Immigration), 2024 FC 1846 [Gunasinghe 2], also relied on by the Applicants, Justice Ahmed considered and dismissed the application for judicial review of an officer’s decision that refused to defer the applicant’s removal until the completion of the school year, finding the refusal to be reasonable and noting that the circumstances did not constitute the “narrow circumstances”
noted in Iheonye to warrant deferral. Although the Applicants had been granted a stay in Gunasinghe 1, the issue of mootness was not raised or addressed in Justice Ahmed’s decision.
[87] The Applicants also point to orders granting a stay motion where the Court found that the failure to consider the short-term best interests of a child is a serious issue and also constitutes irreparable harm (for example, Gunasinghe 1). As explained above, stay orders are based on the application of the law to the specific facts and the outcomes may vary; they do not have precedential value. Also as explained above, it is not in dispute that the short-term best interests of a child should be considered by an officer in determining a request for a deferral of removal (Lewis at para 82) and it is not in dispute that failure to do so may constitute a serious issue, which is one element of the three part test on a motion to the Court for a stay of the removal order. However, an applicant must also satisfy the other two elements of the three-part test, including that irreparable harm will result from removal. What constitutes irreparable harm is guided by, among other cases, Baron at para 51, and Canada (Public Safety and Emergency Preparedness) v Shpati, 2011 FCA 286 at para 43, and is a high threshold to meet, i.e., “where failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment”
. As noted above, the Federal Court of Appeal said much more in Baron regarding irreparable harm. Whether the inability to complete a school year constitutes irreparable harm must still take into account the full guidance in Baron.
[88] Moreover, the cases relied on by the Applicants do not support the view that the law regarding mootness is unsettled.
[89] Second, contrary to the Applicants’ submission, the determination of the question (which could only be a restatement of the existing jurisprudence) would not be dispositive of anything for the Applicants if they were to appeal. Given the legal error in the Officer’s decision as conceded by the Respondent, the Court could only grant the Application—and that same result could have been achieved in July 2025. It would be pointless for the Applicants to appeal a favourable decision.
[90] Similarly, seeking to appeal the Court’s dismissal of this Application for mootness would also not be dispositive of anything for the Applicants. The Applicants have had the full benefit of the Stay Order and have achieved the same outcome as if the Application were granted.
[91] Third, the question does not transcend the interests of the Applicants. As noted, the question has been answered, and the law is settled. The Applicants rejected an earlier favourable determination of the Application. The Applicants are focused on their own circumstances. If their goal is to certify a question only to pursue an appeal of a favourable outcome in order to further prolong the proceedings, this is not a justification for a proposed question.
VII. The Court Declines to Order Costs
[92] The Respondent acknowledges that in accordance with Rule 22 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, costs are not awarded in immigration proceedings unless the Court finds that there are special reasons for doing so. The Respondent argues that the high threshold for finding special reasons has been met. The Respondent submits that the Applicants’ conduct has unnecessarily and unreasonably prolonged these proceedings and seeks a nominal cost award of $100 to the Respondent.
[93] The Respondent notes that the Applicants’ have delayed the resolution of this Application by opposing the motion for judgment, pursuing a moot judicial review, and proposing a meritless question for certification. The Respondent adds that the Applicants admitted in their response to the Respondent’s motion for judgment that they were pursuing the Application to extend the benefits of the Stay Order; this is not a legitimate reason to consume scarce judicial resources.
[94] The Respondent emphasizes that the Applicants are citizens of Sweden; they face no risk upon return and there are no other impediments to their relocation. They have remained in Canada since their arrival in 2016 due to their misrepresentation, which they admitted only when confronted by the Minister’s application to vacate their status.
[95] The Court notes that in Ndungu v Canada (Citizenship and Immigration), 2011 FCA 208 at para 7, the Federal Court of Appeal cited jurisprudence where “special reasons”
to award costs were found, noting that an award of costs may be justified “where the applicant has unreasonably opposed the Minister’s motion to allow the application for judicial review, thereby prolonging the proceedings (
Chan v. Canada (Minister of Employment and Immigration) (1994), 83 F.TR. 158 (T.D.);
D’Almeida v. Canada (Minister of Citizenship and Immigration) (1999), 1 Imm. L.R. (3d) 309 (F.C.T.D.)).”
As the Respondent notes, the Applicants’ conduct in rejecting a favourable outcome in July 2025 appears to be for no other purpose than to remain in Canada, despite their attestation that they only wanted to remain until July 2025. In addition, the Applicants’ assertion that a certified question to address an issue of importance would be raised on the Application ignored the relevant and governing jurisprudence—as do the Applicants’ current arguments.
[96] The Respondent is justified in seeking costs, despite that costs are a rarity in immigration proceedings. However, the Court declines to exercise the discretion to order costs. Although the Applicants submit that the Court intentionally granted the Stay Order until the determination of this Application, there is no evidence on the record now before the Court about whether the parties made any submissions on this issue or whether the Court considered the implications of ordering the stay of removal until the completion of the school year or until the determination of this Application. In any event, the Applicants have had the benefit of the Stay Order. Although the Applicants’ opposition to the Respondent’s motion for judgment prolonged the proceeding, this Court dismissed the Respondent’s motion, finding that the issues raised should be determined on the basis of a full record. The Court has now addressed the issues based on the full record. The Court’s own orders, based on the evidence presented to the Court at that time, have contributed—at least to some extent—to prolonging this now clearly moot proceeding.
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