Date: 20040303
Docket: T-1893-03
Citation: 2004 FC 315
Toronto, Ontario, March 3rd, 2004
Present: The Honourable Mr. Justice O'Reilly
BETWEEN:
LEVI EZURIKE
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Levi Ezurike has asked me to order that he be restored to his position in the federal public service while he pursues an application for judicial review in this Court. He had agreed to the terms of settlement with his employer on February 28, 2003, after having lodged a complaint under the Canadian Human Rights Act. In that settlement, Mr. Ezurike had agreed to retire voluntarily. He later resiled from that aspect of the settlement. Still, the minutes of settlement were approved by the Canadian Human Rights Commission. Mr. Ezurike then asked his employer not to enforce the settlement while he sought judicial review of the Commission's decision. The employer made no commitment not to do so. In due course, Mr. Ezurike was asked to leave the workplace under circumstances he says were embarrassing.
[2] Mr. Ezurike has characterized his request as a motion for a stay of the implementation of the minutes of settlement. Yet, as described, the employer has already taken steps to implement that agreement. I find it difficult to view Mr. Ezurike's motion as a request to prevent execution of the terms of his settlement. It is too late for that. Such a request might have been timely and appropriate after the Commission approved the settlement and while Mr. Ezurike was still in his job. However, he is now asking me to order his employer to allow him back into the workplace.
[3] As the Respondent points out, the relief sought by Mr. Ezurike is really more in the nature of a mandatory injunction against the Crown. The test for such a remedy is far more strict than the test for a stay of execution. I need not make a definitive finding on this issue since I am not satisfied that Mr. Ezurike has met the lower test for a stay in any case.
[4] To obtain a stay, an applicant must show a serious issue to be tried, irreparable harm and the balance of convenience in his or her favour: RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.
[5] Mr. Ezurike has presented a number of arguments that he says amount to serious issues arising in his application for judicial review. I am prepared to accept that Mr. Ezurike has satisfied the first branch of the test for a stay.
[6] However, I am not satisfied that Mr. Ezurike will suffer irreparable harm. "Irreparable harm" means harm that cannot be cured or compensated in damages. Mr. Ezurike says he will suffer irreparable harm because he has absolutely no recourse to any remedy in civil damages at common law, under statute, through his discrimination complaint, his collective agreement or otherwise. It is not clear to me, however, that he is totally bereft of remedies, particularly if he succeeds in his judicial review. He also argues that the damage inflicted on his reputation by his employer's conduct amounts to irreparable harm. Mr. Ezurike may have been embarrassed by his employer's request to leave the workplace. Again, however, I am not persuaded that any injury he may have suffered is of a nature or degree that cannot be cured or compensated by way of money damages.
[7] Accordingly, I must dismiss this motion.
ORDER
THIS COURT ORDERS that this motion is dismissed.
"James W. O'Reilly"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1893-03
STYLE OF CAUSE: LEVI EZURIKE
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 1, 2004
REASONS FOR ORDER
AND ORDER BY: O'REILLY, J.
DATED: MARCH 3, 2004
APPEARANCES BY:
Mr. Davies Bagambiire
Mr Steve Flaherty For the Applicant
Mr. Christopher Leafloor For the Respondent
SOLICITORS OF RECORD:
Mr Davies Bagambiire
Mr Steve Flaherty
Barristers and Solicitors
Toronto, Ontario For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
TRIAL DIVISION
Date: 20040301
Docket: T-1893-03
BETWEEN:
LEVI EZURIKE
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
AND ORDER
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