Date: 20010802
Docket : IMM-2955-01
2001 FCT 851
Ottawa, Ontario, August 2, 2001
Present : The Honourable Mr. Justice Muldoon
Between:
ANTHONY WILLIAMS,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER and ORDER
[1] The applicant has applied for a stay of the decision of M. Danby, Enforcement Officer, made on June 14, 2001, and communicated to the applicant on the same day, wherein she, M. Danby refused to defer the removal of the applicant pending his submission of an H & C application.
[2] This application was heard as a matter of emergency by telephone on Friday, June 15, 2001, and both parties' counsel sought extra time for the submission of written arguments which, when granted, did not exactly suit the Court's convenience.
[3] The respondent's counsel was swift and assertive in admonishing the Court that it is without jurisdiction to grant a stay or deferral of this, or any, applicant's removal. Such an admonition is quite a different submission from advising the Court to be slow or reluctant in staying a removal order in light of the Minister's well-known duty to see to a removal execution.
[4] The respondent's counsel's admonition is and has been surely laid to rest by the Federal Court of Appeal's unanimous judgment in Toth v. M.E.I. (1988) 86 N.R. 302, which is different from a judgment of the same Court with mostly the same counsel reported in [1989] 1 F.C. 535, decided about four months after the first above-named Toth case. The earlier Toth case is not mentioned in the later, although the two panels of judges had one in common and both decisions involved the stay of a removal order.
[5] That portion of the earlier Toth decision which lays to rest the respondent's admonition to this Court in the present case, resides in this passage on p. 305 of (1988) 86 N.R. :
[6] Having concluded that this court does have jurisdiction to grant the stay asked for herein, it becomes necessary to determine the appropriate tests to be applied in the exercise of that jurisdiction. In the decision of the Supreme Court of Canada in the case of Metropolitan Stores (M.T.S.) Ltd. v. Manitoba Food and Commercial Workers, Local 832, [1982] 1 S.C.R. 110">[1982] 1 S.C.R. 110; 73 N.R. 341; 46 Man. R. (2d) 241. Beetz, J., speaking for the court stated at p. 127 S.C.R. :
"A stay of proceedings and an interlocutory injunction are remedies of the same nature. In the absence of a different test prescribed by statute, they have sufficient characteristics in common to be governed by the same rules and the courts have rightly tended to apply to the granting of interlocutory stay the principles which they follow with respect to interlocutory injunctions."
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. 936 (Compare : Apple Computer Inc. v. Minitronics of Canada et al., 8 C.P.R. (3d) 431. See also : Law Society of Alberta v. Black (1983), 69 A.R. 322; 8 D.L.R. (4th) 346 (Alta. C.A.), at 349 D.L.R.). 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."
In light of the foregoing, this Court ought now to consider the case as it has been presented.
[6] The jurisprudence of this Court shows that it is necessary only to demonstrate that applicant's case is neither frivolous nor vexatious, in order to obtain a stay of removal. This principle is illustrated in Turbo Resources Ltd. v. Petro-Canada Inc., [1989] 2 F.C. 451, a unanimous decision of the Court of Appeal.
[7] The expulsion from Canada of a person who has lived herein peaceably for 20 years, has been gainfully employed and has friends and relations residing here is inherently a serious question. The story is not all one-sided : the applicant was not at first diligent to regularize his status; and failed to report his various addresses, a condition of his performance bond of 1987; being an over-staying visitor, he became as the respondent's counsel put it, a "scofflaw", which hardly curries favour. This Court is a Court of law and equity and can surely count to the applicant's credit that he is not a criminal offender nor any species of terrorist or war criminal. It would surely be proper and lawful to give the applicant the opportunity to be assessed "for reasons of public policy or compassionate or humanitarian considerations". Those are Parliament's words, not a judge's, or counsel's words. Parliament said what it meant, and meant what it said. Therefore the respondent and her servants and agents should be trusted to obey the law as Parliament enacted it, in disposition of that serious question.
[8] In the Turbo Resources (supra) case Mr. Justice Stone is reported at pp. 466-67 as follows:
In determining the appropriate threshold test to be applied here, I think the objects of an interlocutory injunction should be borne in mind. Lord Diplock described those objects in American Cyanamid when, at page 406, he says:
The object of an interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favour at the trial. The court must weigh one need against another and determine where "the balance of convenience" lies.
And later, at page 407, he returns to the subject by noting that the lower Courts in that case had neglected the advice of the Court of Appeal in Hubbard v. Vosper, [1972] 2 Q.B. 84 which had, in his words, "deprecated any attempt to fetter the discretion of the court by laying down any rules which would have the effect of limiting the flexibility of the remedy as a means of achieving the objects that I have indicated above." In Vosper, Lord Denning had pointed out at page 96, that the "remedy by interlocutory injunction is so useful that it should be kept flexible and discretionary" and that it "must not be made the subject of strict rules." At page 98, Lord Justice Megaw added the view that each case "must be decided on a basis of fairness, justice and common sense in relation to the whole issues of fact and law which are relevant to the particular case." In Canada, the need to maintain flexibility in the granting of interlocutory injunctions has been recognized by our courts, notably by the Court of Appeal for Ontario in Chitel et al. v. Rothbart et al. [1982), 69 C.P.R. (2d) 62m at page 72, the British Columbia Court of Appeal in B.C. (A.G.) v. Wale, [(B.C. (A.G.) v. Wale) (1986) 9 B.C.L.R. (2d) 333 (C.A.)], and the Supreme Court of Canada in Metropolitan Stores[[1987] 1 S.C.R. 110]at page 128.
In this case, although the respondent is duty-bound to execute the removal order, the balance of convenience tips in the applicant's favour for he is well established, albeit without proper status.
[9] As to the factor of irreparable harm, this Court finds that such would be worked upon the applicant by expulsion, in terms of his time in Canada and his otherwise law abiding and productive life in Canada. This country is not in the least obliged to receive a"scofflaw" such as the applicant, but if he were expelled he could probably never regain his social and economic advantages which he has achieved here.
[10] There is nothing wrong, morally or legally, in permitting the applicant to have execution of his removal order stayed until after he has taken his chances with an assessment on "public policy, or compassionate or humanitarian considerations." So be it.
O R D E R
The application is allowed; M. Danby's decision made on June 14, 2001, to remove the applicant to Jamaica, is hereby quashed and its execution is stayed; and the respondent is ordered to accord to the applicant a proper statutory review for disposition of his application for landing within Canada.
Judge
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