Trube v. Canada (Solicitor General), 2004 FC 758

Date: 20040525

Docket: IMM-4668-04

Citation: 2004 FC 758

BETWEEN:

JENNIFER LYNN TRUBE (Née Hill)

                                                                                                                                            Applicant

                                                                         - and -

                                        THE SOLICITOR GENERAL OF CANADA

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

O'KEEFE J.

[1]                This is a motion by the applicant for an order staying her removal from Canada which is scheduled for May 25, 2004 at 11:00 a.m.

[2]                The applicant is a citizen of the United States who came to Canada in 1998.

[3]                The applicant is the mother of a five year old Canadian born child. The applicant and the father of the child are separated.

[4]                The applicant's daughter is currently in the custody of her paternal grandparents and the applicant has visitation rights.

[5]                Both the applicant and her husband are drug addicted.

[6]                The applicant has a criminal court appearance on June 17, 2004.

[7]                The applicant also has a pending family law application.

[8]                The applicant's daughter is with the paternal grandparents as a result of a voluntary agreement between the grandparents and the Children's Aid Society.

[9]                The applicant is currently in a drug rehabilitation program and is by all reports, doing well.

[10]            The applicant has plans to become a parent for her daughter again.

[11]            On May 21, 2004, the respondent refused to defer the applicant's removal from Canada.

[12]            The applicant has made a humanitarian and compassionate ("H & C") application.

[13]            An application for leave for judicial review and for judicial review of the respondent's refusal to defer the applicant's removal has been filed.

Issue

[14]            Should a stay be granted?

Analysis and Decision

[15]            It is now accepted that a removals officer has some discretion and may, in certain circumstances, stay the removal of an applicant (see Wang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 295 (QL), 2001 FCT 148).

[16]            In order to obtain a stay, the applicant must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), at page 305:

This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396. . . . .As stated by Kerans J.A. in the Black case supra:

The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly, that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties favours the order.

The applicant must meet all three branches of the tri-partite test.

[17]            Serious Issue

I am satisfied that the applicant has raised a serious issue to be tried and that is whether or

not the criminal proceedings caused subsection 50(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 to apply.

[18]            Irreparable Harm

I am satisfied that irreparable harm would result for the applicant if she is compelled to go from bi-weekly visits with her five year old daughter to perhaps no visits at all, depending on whether or not the applicant would be allowed to re-enter Canada. The pattern of visits has been in operation and there is no indication that both the applicant and her daughter are not benefiting from this relationship.

[19]            Balance of Convenience

The applicant's criminal activity is a negative factor for her, however, her probation officer's report is very positive. The applicant has not been found guilty of the current charge. The applicant does not appear to be a security threat or a danger to the public and her progress

with her treatment has been good. The respondent can remove the applicant if her judicial review application is not successful. The balance of convenience favours the applicant.

                                                       "John A. O'Keefe"              

                                                                           J.F.C.                     

Ottawa, Ontario

May 25, 2004

                         FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:      IMM-4668-04

STYLE OF CAUSE:                           Jennifer Lynn Trube (Née Hill) v. SGC

PLACE OF HEARING:                     Ottawa, Ontario

DATE OF HEARING:                       Tuesday, May 25, 2004

REASONS FOR ORDER and ORDER : The Honourable Mr. Justice O'Keefe

DATED:         Tuesday, May 25, 2004

APPEARANCES:

Mr. Michael Crane                                            FOR APPLICANT

Mr. Gordon Lee                                                FOR RESPONDENT

SOLICITORS OF RECORD:

Michael Crane                                                   FOR APPLICANT

Toronto, Ontario

Morris Rosenberg                                             FOR RESPONDENT

Toronto, Ontario