Kaplan v. Canada (Minister of Citizenship and Immigration), 2003 FC 1521

Date: 20031223

Docket: IMM-10085-03

Citation: 2003 FC 1521

Ottawa, Ontario, this 23^rd day of December, 2003

Present:           THE HONOURABLE MR. JUSTICE O'REILLY

BETWEEN:

                                                                     ISTER KAPLAN

                                                                     YANA KAPLAN

                                                                                                                                              APPLICANTS

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                           RESPONDENT

                                               REASONS FOR ORDER AND ORDER

[1]                 Ms. Ister Kaplan and her daughter, Yana, have asked me to stay the execution of an order requiring their removal from Canada to their native Israel on December 27, 2003.

[2]                 Ms. Kaplan is pregnant (about 31 weeks). She asked an enforcement officer at Citizenship and Immigration Canada to delay her departure until her child is born. She has had some minor problems during her pregnancy and is worried about being separated from her spouse when she delivers. A perinatologist advised her that she "would be better off avoiding long flights" due to signs of superficial vein thrombosis and an episode of second-trimester bleeding. A psychiatrist found her to be stressed and depressed. She submitted these medical opinions to the enforcement officer who, in turn, passed them to a medical officer for review and advice. The medical officer considered the opinions and concluded that there was no specific reason why Ms. Kaplan could not fly on December 27^th. The enforcement officer refused to postpone her flight.

[3]                 I conclude that Ms. Kaplan has not satisfied the legal test for a stay. Specifically, I am not persuaded that there is a serious legal issue that arises in her case.

[4]                 Ms. Kaplan argues that the enforcement officer had a duty to weigh the medical opinions she supplied against the opinion of the Minister's medical officer. In particular, he should have responded to the perinatologist's opinion that Ms. Kaplan should avoid long flights. She suggests that, in effect, she is being forced to disobey her doctor's medical advice.

[5]                 I would first note that the perinatologist's opinion was not categorical. He simply said that her condition would provide "a good reason" not to take a long flight. Further, in my view, the enforcement officer acted correctly in the circumstances. In fact, in response to previous medical information Ms. Kaplan submitted, the officer had already obtained an opinion from a medical officer. He also invited Ms. Kaplan to provide further information. When she did so, he again sought advice from a medical officer. There is no evidence that the enforcement officer ignored the evidence put before him or fettered his limited discretion to defer Ms. Kaplan's removal. Indeed, he had already deferred her removal once in order to permit Yana to finish her school term.

[6]                 I cannot find a serious legal issue here, especially in light of the elevated standard that applies to a stay motion arising from a refusal to defer an applicant's removal: Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] F.C.J. No. 295 (QL) (T.D.).

[7]                 Accordingly, I must dismiss this motion.

                                                                            ORDER

THIS COURT ORDERS that:

1.          The motion is dismissed.

                                                                                                                                     "James W. O'Reilly"          

                                                                                                                                                               Judge             

                                                                 FEDERAL COURT

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             IMM-10085-03

STYLE OF CAUSE:                           ISTER KAPLAN, YANA KAPLAN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

MOTION DEALT WITH VIA TELECONFERENCE

REASONS FOR ORDER

AND ORDER BY:                           THE HONOURABLE MR. JUSTICE O'REILLY

DATED:                                                DECEMBER 23, 2003

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: