Date: 19990618
Docket: IMM-3029-99
BETWEEN:
RADCLIFFE O"NEIL CARTER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This matter was heard by teleconference on June 18, 1999.
[2] Mr. Radcliffe O"Neil Carter is a citizen of Jamaica. He is also a permanent resident of Canada.
[3] He was ordered for deportation on July 22, 1998.
[4] Affidavits were provided to the Court showing that his previous counsel failed to file an appeal of the decision in July 1998 and even after the applicant was informed of the deporting order on March 22, 1999, his former counsel again failed to file an appeal.
[5] I verbally mentioned to counsel that I found unacceptable the counsel"s conduct on this file.
[6] Nevertheless, I have to determine whether the applicant has met the three criteria established by the jurisprudence when a motion for a stay is presented to the Court.
[7] Counsel for the applicant suggested that section 49.1(b) should apply and that the Court should consider that as soon as a motion for an extension of time is filed at the same time as a notice of appeal, the statutory stay provided under section 49.1(b) should apply.
[8] Unfortunately for counsel for the applicant that did a tremendous job on a very short time, I cannot agree with that particular argument, I rather consider that section 49.1(a) that applies and given that the time provided for the filing of the appeal had elapsed, the statutory obligation for a stay does not apply.
[9] Counsel for the applicant has not succeeded to convince me that there is a serious issue to be tried.
[10] Counsel for the applicant also suggested that the applicant"s child and common-law wife will suffer irreparable harm if the applicant is removed and the family unit is interdependent for finances and support.
[11] I am not convinced that the parameters established by the jurisprudence on irreparable harm are met in that case.
[12] Even though the applicant"s child and common-law spouse will probably suffer economic and psychologic hardship, I am not convinced that it constitutes irreparable harm in that case.
[13] As Justice Nadon said in Neville David Stamp v. The Minister of Citizenship and Immigration (IMM-819-97), at page 5:
What the Applicant has demonstrated is possible hardship if he were removed from Canada. Hardship, however, does not constitute irreparable harm. Further, the fact that Ms. Stephens will be deprived of the Applicant"s financial contribution does not constitute, in my view, irreparable harm. In Calderon v.Canada (Minister of Citizenship and Immigration) (1995), 92 F.T.R. 107 (F.C.T.D.) Mrs. Justice Simpson expressed her view of the meaning of irreparable harm as follows:
In Kerrutt v. Minister of Employment and Immigration (1992), 53 F.T.R. 93 (F.C.T.D.), Mr. Justice MacKay concluded that, for the purposes of a stay application, irreparable harm implies the serious likelihood of jeopardy to an applicant"s life or safety. This is a very strict test and I accept its premise that irreparable harm must be very grave and more than the unfortunate hardship associated with the breakup or relocation of the family.
I agree entirely with Simpson J. that irreparable harm is "more than the unfortunate hardship associated with the breakup or relocation of the family". The Applicant did not demonstrate that irreparable harm would follow if he were removed from Canada.
[14] I am also convinced that the balance of convenience favours the respondent that must enforce the law.
[15] The removing order is dated July 22, 1998, it is almost one year, and the respondent has the responsibility to perform his duty.
[16] For those reasons, the application for a stay is dismissed.
Pierre Blais
Judge
OTTAWA, ONTARIO
JUNE 18, 1999
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