Mark v. Canada (Solicitor General), 2004 FC 126

Date: 20040127

Docket: IMM-643-04

Citation: 2004 FC 126

Ottawa, Ontario, this 27^th day of January 2004

Present:           THE HONOURABLE MR. JUSTICE O'REILLY

BETWEEN:

                                                    FRANCIS ASUEKOMHE MARK

                                                        KAYODE AREMU SHONUBI

                                                                      ANN KENTOA

                                                              CHARLES IMAFIDON

                                                                                                                                                      Applicants

                                                                                 and

                                           THE SOLICITOR GENERAL OF CANADA

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 Today, the four persons named above as applicants presented me with a request to stay the execution of orders requiring their removal from Canada tomorrow. They were informed of their departure arrangements, at the earliest, four days ago (on a Friday). All of them are currently in detention. They appear to be part of a group of persons from the United States and Canada, assembled on short notice, who are being returned to Nigeria by way of a chartered aircraft.

[2]                 The materials before me are irregular. The applicants presented me with a joint application for judicial review, and a joint notice of motion and motion record. Other than their nationality and destination, the applicants have nothing in common. The respondent, understandably, objects to the form of the applicants' materials and asks me to strike their motion as an abuse of process.

[3]                 I am sympathetic to the applicants' plight. Because of the travel arrangements made by the respondent, they have had little time to contact counsel and compile the materials that would support proper stay motions. Counsel took the risk of compiling joint materials in order to put something before me that might permit consideration of their cases on an urgent basis prior to their departure.

[4]                 Because the materials before me are scant, I do not know at this point whether there are serious issues to be tried in respect of any of the applicants. Nor do I know whether any of them, or their loved ones, would suffer irreparable harm if removed from Canada. It does appear, for example, that some of the applicants have Canadian-born children. I simply do not know whether their interests have been considered by the respondent. It also appears that some of the applicants are pursuing other ongoing remedies that might permit them to remain in Canada. The applicants requested deferral of their removal, but I do not know what the response of the removal officer was.

[5]                 The respondent contends that it is severely prejudiced by the form of motion presented by the applicants. There is no doubt that the respondent is in a difficult position, having to respond to four separate fact situations and sets of legal issues, as well as a constitutional argument that the travel arrangements themselves offend principles of fairness and equality, all at once. As the respondent states: "Requiring each Applicant to commence a separate application allows the Respondent to properly prepare the evidence and submissions in a manner that is relevant to each individual Applicant". That would certainly be the better course, but I do not see how that would be possible in the time remaining before the scheduled departure of the applicants, the timing of which was determined by the respondent.

[6]                 Under the circumstances, the only fair solution is to allow the applicants to remain in Canada at least long enough to present their motions properly and to permit the respondent an opportunity to respond to them as it sees fit. I am very sensitive to the fact that this delay may well be costly and inconvenient to the respondent. However, I see no other alternative that would permit due consideration of what may be serious issues of law and personal hardship.

                                                                            ORDER

THIS COURT ORDERS that:

1.          The removal from Canada of the persons named above as applicants is stayed for a period of seven days in order to permit them an opportunity to file proper motion materials with the Court.

                                                                                                                                                               Judge

                                                                 FEDERAL COURT

                                                          SOLICITORS OF RECORD

DOCKET:                                             IMM-643-04

STYLE OF CAUSE:                           FRANCIS ASUEKOMHE MARK, KAYODE AREMU SHONUBI, ANN KENTOA, CHARLES IMAFIDON v. THE SOLICITOR GENERAL OF CANADA

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER

AND ORDER BY:                           The Honourable Mr. Justice O'Reilly

DATED:                                                January 27, 2004           

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: