Docket: IMM-739-16
Citation:
2016 FC 1017
Ottawa, Ontario, September 8, 2016
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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AYA MATSUBARA
MILIA MATSUBARA
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Applicants
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
[1]
Aya Matsubara and her daughter sought judicial
review of a decision of an enforcement officer with the Canada Border Services
Agency. The enforcement officer refused their request to defer their removal
from Canada pending determination of their application for permanent residence
on humanitarian and compassionate grounds [the H&C application] or,
alternatively, until the end of the daughter’s school year.
[2]
On February 19, 2016, Justice Manson granted a
stay of removal pending determination of the application for leave and judicial
review. On June 3, 2016, Justice Manson granted leave to commence the
application.
[3]
At the hearing of the application for judicial
review on September 1, 2016, counsel for the Applicants informed the Court and
the Respondent, for the first time, that the H&C application had been
approved in principle in April 2016. The parties agreed that the effect of the
approval was to vacate the removal order, thereby rendering the application for
judicial review moot (Baron v Canada (Minister of Public Safety and
Emergency Preparedness), 2009 FCA 81 at para 37; Amsterdam v Canada
(Citizenship and Immigration), 2008 FC 244 at para 11).
[4]
Counsel for the Applicants argued that this
Court should decide the case, notwithstanding that it had become moot, in order
to provide judicial guidance on the application of the Supreme Court of
Canada’s decision in Kanthasamy v Canada (Minister of Citizenship and
Immigration), 2015 SCC 61 to requests to defer removal from Canada. He made
this assertion despite the statement in the Applicants’ memorandum of fact and
law that “[t]here is no doubt that hardship plays no
role in the analysis of a child’s best interests. Even before Kanthasamy,
the jurisprudence was unanimous” (citing Williams v Canada (Minister
of Citizenship and Immigration), 2013 FC 166 and Akyol v Canada
(Minister of Citizenship and Immigration), 2014 FC 1252).
[5]
The Court retains discretion to decide moot
cases, but only in limited circumstances. The Court must consider the
fundamental role of the adversarial context in our legal system, concern for
judicial economy, and the need for the Court to demonstrate awareness of its
proper law-making function (Borowski v Canada (Attorney General), [1989]
1 SCR 342).
[6]
Deciding this case on its merits would have no
practical effect on the rights of the parties (Palka v Canada (Minister of
Citizenship and Immigration), 2008 FC 342 at paras 64-70). Furthermore,
because the H&C application is not yet resolved, the Court should refrain from
doing anything that may interfere with an ongoing process involving the
parties. This is not an appropriate case for the Court to exercise its
discretion to decide a matter that has become moot, and I decline to do so (Villafuerte
Ramirez v Canada (Minister of Public Safety & Emergency Preparedness),
2010 FC 500 at para 13; Ally v Canada (Minister of Citizenship and
Immigration), 2015 FC 560 at para 20).
[7]
The application for judicial review is
dismissed. Neither party proposed that a question be certified for appeal, and
none arises in this case.
[8]
It is regrettable that counsel for the Applicants
did not inform the Court or the Respondent that the H&C application had
been approved in principle prior to this Court’s decision to grant leave to
commence the application for judicial review in June, 2016, or the hearing of
the application on September 1, 2016. This resulted in the needless expenditure
of time and scarce judicial resources.
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