James v. Canada (Public Safety and Emergency Preparedness), 2009 FC 280

 

 

Date: 20090318

Docket: IMM-695-09

Citation: 2009 FC 280

Ottawa, Ontario, this 18^th day of March 2009

Present:          The Honourable Orville Frenette

BETWEEN:

AVIS CASANDRA JAMES

KESBURN LENIS DURRANT

ATESHA ALCENIA DURRANT

NASHBORN ANTHONIA JAMES

 

Applicants

(Responding parties in this motion)

 

and

 

THE MINISTER OF PUBLIC SAFETY

AND EMERGENCY PREPAREDNESS

Respondent

(Moving party in this motion)

 

 

 

REASONS FOR ORDER AND ORDER

 

 

[1]               This is a motion pursuant to Rules 369 and 397(1) and (2) of the Federal Courts Rules, 1998, SOR/98-106, for reconsideration of a stay of a removal order I made on February 16, 2009.

[2]               The respondent submits that the Order of February 16, 2009 was made without jurisdiction because it was made in an underlying application for leave and for judicial review of a negative Pre-Removal Risk Assessment (“PRRA”) decision and invoking the pending H&C application.

 

[3]               The respondent alleges the application for leave and for judicial review of the PRRA application was not the underlying application since it was made in a separate file and there was no discussion of granting a delay of deferral pending the outcome, were leave granted, of the H&C application.

 

[4]               The applicants take no position on the motion in question, but state: “However, if the motion is not granted or a question of general significance is certified, the applicants reserve the right to file additional materials.”

 

[5]               The file reveals that there was an underlying PRRA application for leave, made in another file (IMM-496-09, on February 5, 2009) and an H&C application for leave and judicial review. But here, the applicants’ motion was to obtain leave for judicial review of the removal officer’s decision of February 13, 2009, refusing a deferral until leave and judicial review of the negative PRRA and H&C decisions.

 

[6]               Therefore I do not agree that the Court acted without jurisdiction. However, I believe the conclusion of the stay order could be clearer. Rule 397 of the Federal Courts Rules, 1998 is broad enough to authorize an amendment of an Order.

 

[7]               The Order should have been to grant a deferral request until leave and judicial review of the removal officer’s negative decision of February 13, 2009, is disposed of.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ORDER

 

 

            Therefore the Court orders that paragraph 3 of my Order of February 16, 2009 is now amended to read:

3.                Grants the deferral request against the removal order which is stayed until leave and the application for judicial review of the removal officer’s decision of February 13, 2009 is disposed of.

 

 

 

No questions are certified.

 

 

 

 

“Orville Frenette”

 

 

 

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                          IMM-695-09

 

STYLE OF CAUSE:                          AVIS CASANDRA JAMES, KESBURN LENIS DURRANT, ATESHA ALCENIA DURRANT, NASHBORN ANTHONIA JAMES v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

 

MOTION IN WRITING PURSUANT TO RULE 369

 

REASONS FOR ORDER

AND ORDER:                                   The Honourable Orville Frenette, Deputy Judge

 

DATED:                                             March 18, 2009

 

 

 

SOLICITORS OF RECORD:

 

Solomon Orjiwuru                                            FOR THE APPLICANTS (Responding parties in this

Barrister & Solicitor                                          motion)

Toronto, Ontario

 

Alexis Singer                                                    FOR THE RESPONDENT (Moving party in this

Department of Justice                                       motion)

Toronto, Ontario