Carling c. MCI, docket IMM-6354-00

                                                                                                                                  Date: 20001219

                                                                                                                      Docket: IMM-6354-00

OTTAWA, ONTARIO, DECEMBER 19, 2000

PRESENT: THE HONOURABLE MR JUSTICE BLANCHARD

BETWEEN:

                                                            GESNER CARLING

                                                                                                                                               Plaintiff

                                                                         - and -

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                           Defendant

                                            REASONS FOR ORDER AND ORDER

                               (Order delivered orally from the bench on December 15,2000)

[1]         Clearly, these urgent motions for a stay require counsel for the defendant to answer at the last minute, do not make the work of the Court any easier and do not contribute to the rendering of justice. A stay is an extraordinary measure that requires careful and thoughtful consideration by the Court. I feel it is worth referring here to the comments by Strayer J. in Vaccarino:^[1]

In my view this is the kind of situation where, on the face of the record, the Court would be justified in refusing the extraordinary procedure of an urgent hearing. Among other reasons, such last minute applications leave counsel for the respondent little or no time to receive instructions on the facts of the situation and this must be of concern to the Court in considering whether to issue the extraordinary remedy of a stay. Applicants and their counsel should be aware that waiting until the last possible moment to make these applications must therefore detract from rather than enhance, their likelihood of success.

[2]         Nevertheless, I reviewed the record. Based on the three-part test laid down in Toth v. M.E.I. (1988), 86 N.R. 302 (F.C.A.), I do not accept the plaintiff's argument. Even if it is agreed that there is a serious question, the evidence in the record does not establish that the plaintiff will suffer irreparable harm. It is true that the girl might possibly suffer some harm by having to leave the school she is attending prematurely. However, on the evidence submitted to the Court to date I have come to the conclusion that that harm is not irreparable.

[3]         As to the balance of convenience, I find that this is in the defendant's favour, as she has a duty to meet the requirements imposed on her by the Immigration Act, R.S.C. 1985, c. I-2. On this point, I accept the defendant's statements.

[4]         The application for a stay is accordingly dismissed.

                                                                       ORDER

The application for a stay is dismissed.

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

                                                 FEDERAL COURT OF CANADA

                                                              TRIAL DIVISION

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

FILE:                                                                IMM-6354-00

STYLE OF CAUSE:                                       Gesner Carling

                                                                         - and -

The Minister of Citizenship and Immigration

PLACE OF HEARING:                                 Ottawa, Ontario

DATE OF HEARING:                                   December 15, 2000

REASONS for order from the bench by:      Blanchard J.

DATED:                                                          December 19, 2000

APPEARANCES:

Daniel Drouin                                                    FOR THE APPLICANT

François Joyal FOR THE RESPONDENT

SOLICITORS OF RECORD:

Daniel Drouin                                                    FOR THE APPLICANT

Montréal, Quebec

Morris Rosenberg                                              FOR THE RESPONDENT

Deputy Attorney General of Canada