IMM-204-07
2007 FC 712
Christopher Joel Smith (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Smith v. Canada (Minister of Citizenship and Immigration) (F.C.)
Federal Court, Gibson J.—Toronto, May 28; Ottawa, July 6, 2007.
Citizenship and Immigration — Exclusion and Removal — Removal of Permanent Residents — Applicant, permanent resident with schizophrenia acquiring extensive criminal record in Canada, found to be inadmissible, ordered removed — Motion for stay of removal, application for leave and for judicial review of Immigration Appeal Division decision, both dismissed, applicant removed to Jamaica — Applicant seeking to have these orders set aside, varied pursuant to Federal Courts Rules, rr. 399(2), (3) — Affidavit evidence before Judge hearing motion for stay stating applicant would be transported to hospital upon arrival in Jamaica — That this not done constituting new matter under r. 399(2)(a) warranting setting aside decisions on application for leave, motion for stay — Applicant ordered returned to Canada.
Practice — Judgments and Orders — Reversal or Variation — Motion pursuant to Federal Courts Rules, rr. 399(2), (3) to set aside, vary orders denying stay of applicant’s removal, dismissing leave and judicial review application — Affidavit evidence before Judge hearing motion for stay stating schizophrenic applicant would be transported to hospital upon arrival in Jamaica — Officers escorting applicant failing to ensure this was done — R. 399(2)(a) authorizing Court set aside order by reason of matter arising, discovered subsequent to making of order — Failure to transport applicant to hospital matter falling within ambit of r. 399(2)(a) — Order dismissing leave application set aside as decision would have been different in light of this matter — But for affidavit evidence, motion for stay may have been granted — Order denying stay set aside, removal invalidated — Applicant ordered returned to Canada pursuant to r. 399(3) — Motion granted.
This was a motion pursuant to subsections 399(2) and (3) of the Federal Courts Rules to set aside or vary the order of Lagacé D.J. refusing to stay the applicant’s removal, and the order of Gibson J. dismissing the applicant’s application for leave and for judicial review of a decision of the Immigration Appeal Division.
The applicant, a permanent resident of Jamaican nationality suffering from schizophrenia, acquired an extensive criminal record in Canada and as a result was found to be criminally inadmissible. A removal order was issued against him. The applicant appealed the removal order and was granted a stay of removal, but he was subsequently convicted of another offence and as a result, the Immigration Appeal Division cancelled his stay by operation of law and terminated his appeal. The applicant filed an application for leave and for judicial review of that decision, and sought to have his removal stayed pending a decision on this application. Both the motion and the application were dismissed, and the applicant was removed. The present motion sought to vary or set aside these decisions.
Held, the motion should be granted.
Paragraph 399(2)(a) of the Rules authorizes the Court to vary or set aside an order “by reason of a matter that arose or was discovered subsequent to the making of the order”. The respondent filed an affidavit before Lagacé D.J. stating that once the applicant arrived in Jamaica, he would be transported from the airport to the Kingston Public Hospital. The escorting officers’ failure to ensure that this happened was a “matter” within the meaning of paragraph 399(2)(a) that was brought to the Court’s attention in a timely manner. The order dismissing the applicant’s leave application would not have been made had the Court known about this matter. Rather, the application would have been set aside until the issue surrounding Lagacé D.J.’s order was resolved. The order dismissing the applicant’s application for leave and for judicial review was therefore set aside.
The fact that according to affidavit evidence, the applicant was supposed to be transferred to Kingston Public Hospital after his arrival in Jamaica, may well have been a factor that led Lagacé D.J. to find that the applicant would not suffer irreparable harm if he were removed. The absence of irreparable harm was a conclusive finding with respect to the applicant’s motion for a stay. But for that affidavit evidence, the motion may well have been granted. For these reasons, Lagacé D.J’s order was set aside and the motion for a stay of removal was reinstated. The setting aside of Lagacé D.J.’s order had the effect of invalidating the removal of the applicant. It was therefore ordered, pursuant to subsection 399(3) of the Rules, that the applicant be returned to Canada at the respondent’s expense on the condition that satisfactory notice be received in writing of the applicant’s continuing wish to return, of his understanding of the implications of return and of his willingness to comply with supervision throughout his return.
statutes and regulations judicially
considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].
Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.2 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 28).
Federal Courts Rules, SOR/98-106, rr. 1 (as am. by SOR/2004-283, s. 2), 399(2),(3), Tariff B (as am. idem, ss. 30, 31, 32), Column V.
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 36(1), 68(4).
cases judicially considered
distinguished:
Guzman v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 286; (1999), 174 F.T.R. 43 (T.D.).
considered:
Smith v. Canada (Minister of Citizenship and Immigration), [2005] I.A.D.D. No. 16 (QL); Smith v. Canada (Minister of Citizenship and Immigration), [2006] I.A.D.D.; No. 103 (QL); Ayangma v. Canada (2003), 313 N.R. 312; 2003 FCA 382; Procter & Gamble Pharmaceuticals Canada Inc. v. Canada (Minister of Health) (2003), 27 C.P.R. (4th ) 253; 238 F.T.R. 215; 2003 FC 911; Cassells v. Canada (Minister of Citizenship and Immigration) (1999), 171 F.T.R. 1 (F.C.T.D.) and [1999] F.C.J. No. 1155 (T.D.) (QL); affd (2000), 10 Imm. L.R. (3d) 1; 265 N.R. 209 (F.C.A.).
referred to:
Canada (Minister of Citizenship and Immigration) v. Forde (1997), 210 N.R. 194 (F.C.A.); Young v. Young, [1993] 4 S.C.R. 3; (1993), 108 D.L.R. (4th ) 193; [1993] 8 W.W.R. 513; 84 B.C.L.R. (2d) 1; 34 B.C.A.C. 161; 18 C.R.R. (2d) 41; 160 N.R. 1; 49 R.F.L. (3d) 117; 56 W.A.C. 161.
MOTION to set aside or vary orders of the Federal Court denying the applicant’s motion for a stay of removal and dismissing an application for leave and for judicial review. Motion granted.
appearances:
Mary L. F. Lam for applicant.
Martin E. Anderson and Kareena R. Wilding for respondent.
solicitors of record:
Mary L. F. Lam, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Gibson J.:
INTRODUCTION
[1]These reasons follow the hearing at Toronto on Monday, May 28, 2007 of a motion pursuant to subsections 399(2) and (3) of the Federal Courts Rules1 (the Rules) seeking the setting aside or variation of two orders of this Court.
[2]The orders at issue are the following: an order granted by the Honourable Maurice E. Lagacé, Deputy Judge, on April 4, 2007 denying a motion on behalf of the applicant for a stay of the execution of a removal order issued against him; and my order, dated April 16, 2007, in the following terms:
Extension of time to file is denied. If an extension of time to file were granted, leave would be denied. This application for leave and for judicial review is dismissed.
The underlying application for leave and for judicial review referred to in my order sought judicial review of a decision of a member of the Immigration and Refugee Board, Immigration Appeal Division, dated September 20, 2006 and apparently received by the applicant on or about October 15, 2006. The application for leave and for judicial review was filed January 15, 2007.
[3]In written representations filed on behalf of the applicant on the motion here at issue, the following relief is sought:
1. That the stay of deportation that was dismissed on April 4, 2007 be varied to grant the stay.
2. That the Minister undertake all costs and efforts to return Mr. Smith to Canada forthwith.
3. That the decision dated April 1[6], 2007 dismissing the leave application be varied to allow the leave application to proceed.
4. That costs be awarded on a solicitor‑client basis in the amount of $25,000 inclusive of GST and disbursements.
[4]Subsections 399(2) and (3) of the Rules read as follows:
399. . . .
(2) On motion, the Court may set aside or vary an order
(a) by reason of a matter that arose or was discovered subsequent to the making of the order; or
(b) where the order was obtained by fraud.
(3) Unless the Court orders otherwise, the setting aside or variance of an order under subsection (1) or (2) does not affect the validity or character of anything done or not done before the order was set aside or varied. [Emphasis added.]
It was not argued before the Court that paragraph 399(2)(b) of the Rules has any application to the facts of this matter.
BACKGROUND
[5]The applicant is a citizen of Jamaica. He entered Canada as a permanent resident some 19 years ago. He has extensive family connections in Canada. He has very limited family connections in Jamaica. He is diagnosed as suffering from hvtg schizophrenia. During his time in Canada, and apparently by relation to his illness, he acquired an extensive criminal record. He was found to be criminally inadmissible under subsection 36(1) of the Immigration and Refugee Protection Act2 (the Act) and a removal order was issued against him.
[6]The applicant appealed the removal order issued against him to the Immigration Appeal Division earlier referred to. The Immigration Appeal Division [[2005] I.A.D.D. No. 16 (QL)] granted the applicant a stay of his removal. The applicant was subsequently convicted of another offence that fell within the ambit of subsection 36(1) of the Act and, in the result, pursuant to subsection 68(4) of the Act, the stay of his removal was vacated by operation of law.
[7]The respondent moved to have the applicant’s stay and his appeal to the Immigration Appeal Division recognized as vacated. In response, the applicant filed a notice of constitutional question before the Immigration Appeal Division asserting that subsection 68(4) of the Act infringed his Charter3 rights and urged that he should be given a constitutional exemption from that subsection. The Immigration Appeal Division [[2006] I.A.D.D. No. 103 (QL)] found that it lacked the jurisdiction to decide the Charter challenge.
[8]The respondent began the process for removal of the applicant from Canada. The applicant filed a pre‑removal risk assessment application (PRRA). He was advised on December 20, 2006 that his PRRA application was refused. He was again advised of this refusal on March 29, 2007.
[9]On January 15, 2007, the applicant filed the application for leave and for judicial review of the decision of the Immigration Appeal Division that underlies the motion here at issue. To date, no judicial review has been sought of the negative PRRA decision in respect of the applicant. The applicant’s removal from Canada was scheduled for April 5, 2007. On the 30th of March, the applicant requested a deferral of his removal. His deferral request was denied. The applicant filed a motion before this Court to stay his removal from Canada pending the decision on his application for leave and for judicial review underlying this motion. Deputy Justice Lagacé’s order denying a stay followed.
[10]Shortly thereafter, and following the removal of the applicant on the 5th of April, my order denying an extension of time to file the underlying application for leave and for judicial review and, in the result, dismissing the application for leave and for judicial review, followed.
THE GROUND FOR THE MOTION BEFORE THE COURT
[11]On the motion before the Court leading to the order of Deputy Justice Lagacé, the respondent filed the affidavit of a paralegal in the Ontario Regional Office of the Department of Justice, Immigration Law Section, wherein she attested:
23. On April 3, 2007, I personally spoke with Amit Soin, the Enforcement Officer with carriage of this matter. Mr. Soin has advised me and I verily believe that the following arrangements have been made. Once the Applicant arrives in Kingston, Jamaica, [he, Mr. Smith] will be transported from the airport to the Emergency Department at the Kingston Public Hospital on North Street, where he will be seen by Dr. Reed. [Emphasis added.]
The hearing before Deputy Justice Lagacé took place on the day following the discussion between the paralegal and Mr. Soin and one day before the removal of the applicant to Jamaica.
[12]The circumstances of the applicant’s removal and the events immediately following his arrival, under escort, in Jamaica, proved to be at variance with the arrangements attested to by the paralegal. In fact, the applicant arrived in Jamaica with four days’ supply of prescription medication for the treatment of his schizophrenia. He was advised of his medical appointment at the Kingston Public Hospital, was provided with sufficient funds to cover taxi fare to that hospital and was advised to attend at the hospital. He apparently advised his escorting officers that he was a Jamaican citizen, that they were now in Jamaica and that the officers had no jurisdiction over him. The escorting officers advised Jamaican authorities at the airport of the applicant’s condition and of his appointment at the Kingston Public Hospital and were requested to assist the applicant in fulfilling that appointment.
[13]The applicant’s escorting officers returned to Canada in very short order. The applicant did not attend his appointment and did not attend at the Kingston Public Hospital for several days after his arrival in Jamaica and after his supply of prescription medication would have run out, if he had been consuming it as prescribed.
[14]In an affidavit filed on this motion, Amit Soin, the enforcement officer to whom the paralegal attests that she spoke, confirms that he and the paralegal spoke but denies that, at the time of that conversation, arrangements regarding the applicant’s removal to Jamaica had been finalized and, in particular, that he indicated to the paralegal that the applicant “[would] be transported from the airport to the Emergency Department at the Kingston Public Hospital” with the implication, which I draw from those words, that the transportation would be in the company and under the supervision of others.
[15]The totality of the evidence before the Court on this motion leads me to conclude that it was known to the officers escorting the applicant to Kingston, Jamaica, that the applicant’s conduct, under the influence of his condition, and particularly when he was not medicated in accordance with his prescription, could be erratic, unreliable and dangerous to himself and to others.
THE ISSUES
[16]I am satisfied that the issues before the Court can be briefly summarized as follows:
1. If the motion to set aside or vary my order dismissing the application for leave and for judicial review is not granted, does the Court have jurisdiction to set aside or vary Deputy Justice Lagacé’s order denying a stay of removal?
2. What is the test for the exercise of jurisdiction under subsection 399(2) of the Rules and, in particular, paragraph 399(2)(a)?
3. Is there here before the Court a matter that arose or was discovered subsequent to the making of each of the orders at issue that would justify the setting aside or variation of either or both of those orders?
4. If either or both of the orders at issue is or are set aside or varied, should that setting aside or variation affect the “validity or character” of the removal of the applicant on April 5, 2007? and
5. What relief, if any, including relief in the nature of costs, is justified?
ANALYSIS
(1) Jurisdiction
[17]Section 18.2 [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 28] of the Federal Courts Act [R.S.C., 1985, c. F-7, s. 1 (as am. idem, s. 14)] reads as follows:
18.2 On an application for judicial review, the Federal Court may make any interim orders that it considers appropriate pending the final disposition of the application.
[18]Counsel for the respondent urged that, under the foregoing section, interim relief can only be given if and while an application for judicial review, in this case an application for leave and for judicial review, is pending.4 On the facts of this matter, if the judicial review application that underlay the motion for a stay of removal that resulted in Deputy Justice Lagacé’s order here at issue stands dismissed by my order of the 16th of April, no purpose whatsoever could be served by setting aside or varying an order in the context of a proceeding that is no longer before the Court.
[19]I accept without reservation the submissions of counsel for the respondent to the effect that, on this motion, if my order dismissing the underlying application for leave and for judicial review is not itself set aside or varied, I lack jurisdiction under rule 399 to set aside or vary Deputy Justice Lagacé’s order of April 4, 2007.
(2) The test for the exercise of jurisdiction under subsection 399(2) of the rules and, in particular, paragraph 399(2)(a)
[20]In Ayangma v. Canada,5 Justice Pelletier, for the Court, wrote at paragraphs 2 and 3:
Rule 399(2)(a) authorizes the Court to vary or set aside an order: “by reason of a matter that arose or was discovered subsequent to the making of the order.”
The jurisprudence establishes three conditions which must be satisfied before the Court will intervene:
1‑the newly discovered information must be a “matter” with[in] the meaning of the Rule;
2‑the “matter” must not be one which was discoverable prior to the making of the order by the exercise of due diligence; and
3‑the “matter” must be something which would have a determining influence on the decision in question.
In the foregoing quotation, and in particular in the third condition, Justice Pelletier provides that the “matter” at issue must be something which “would have a determining influence” on the decision in question. Given that the order sought to be set aside or varied may, as here in respect of one order, have been made by a different judge from the one considering the motion, I do not read the words “would have a determining influence” as conclusive but rather as conditional as in “might have a determining influence.”
[21]In Proctor & Gamble Pharmaceuticals Canada Inc. v. Canada (Minister of Health),6 my colleague Justice Snider wrote [at paragraph 16]:
In satisfying the first part of the test, P&G must convince me that this is a new matter. The term “matter” is a word of broad import and may encompass something broader than fresh evidence. . . . “Matter” refers to an element of the relief sought as opposed to an argument raised before the court. . . . The new matter must be relevant to the facts giving rise to the original Order. . . . [Citations omitted.]
(3) Matter that arose or was discovered subsequent to the making of the order at issue
(a) My order dismissing the underlying application for leave and for judicial review
[22]The alleged “matter” arising or discovered subsequent to the making of my order dismissing the underlying application for leave and for judicial review, as with Deputy Justice Lagacé’s order denying a stay of removal, was the failure of the escorting officers, on their arrival with the applicant in Kingston, Jamaica to ensure that he was “transported from the airport to the Emergency Department at the Kingston Public Hospital on North Street, where he will be seen by Dr. Reed.” That he was not so “transported” and that he did not, at the urging of his escorts from Canada, make his own way to the Kingston Public Hospital to meet with Dr. Reed, was not in issue before the Court. I am satisfied this constitutes a “matter” within the contemplation of paragraph 399(2)(a) of the Rules. The question then arises, was it likely, or even conceivable, that Deputy Justice Lagacé relied on the undertaking by way of affidavit on this issue that was before him. In relation to my own order, the question must be whether, if I had known about the issue regarding the evidence before Deputy Justice Lagacé, would I nonetheless have reached the decision that I did.
[23]I conclude that the answer in relation to my order must be that I would not, at least at the time that I made my order, have made the order that I did. Rather, since there was no compulsion in law for me to determine the question of leave on the application for leave and for judicial review when I did, it would have been the better course of action for me to have set aside the question before me until the issue surrounding Deputy Justice Lagacé’s order was resolved. In so doing, I would have preserved the jurisdiction of this Court to deal with that controversy, if necessary, and in no way would I have prejudiced either the applicant or the respondent.
[24]I have no concern that the applicant’s known relative in Jamaica, his relatives in Canada and his counsel here in Canada acted diligently to discover and to pursue the issue of “transport” of the applicant to hospital in Kingston when it first came to their attention. Equally, I have no difficulty concluding that applicant’s counsel drew the issue to the attention of the Court in a timely manner when it first came to her attention, albeit that the Court’s attention was drawn to the matter after my order of April 16, 2007.
[25]In Guzman v. Canada (Minister of Citizenship and Immigration),7 Justice Teitelbaum considered a motion to set aside an order dismissing an application for leave and for judicial review where the order was granted solely due to counsel’s failure to understand and comply with procedural requirements. Justice Teitelbaum concluded that [at paragraph 40]:
. . .subsection 399(2) of the Rules was not meant to apply to vary or set aside a final judgment of the Court because one of the parties to the final judgment had retained the services of a lawyer who, it is subsequently found out, was not properly versed in the law or the rules of a Court. [Emphasis added.]
Absent jurisdiction under rule 399, Justice Teitelbaum went on to consider whether he had inherent jurisdiction to nonetheless set aside the final order in question. He wrote at paragraph 44 of his reasons:
Notwithstanding my finding of having inherent jurisdiction to deal with a matter involving the law of immigration because of the Federal Court’s exclusive jurisdiction in immigration matters, I am not convinced that I have the jurisdiction to set aside or vary a final judgment of the Federal Court—Trial Division.
[26]I am satisfied that the Guzman decision is distinguishable. Justice Teitelbaum found that the motion before him did not fit within the bounds of subsection 399(2) of the Rules. Absent jurisdiction under the Rules, he concluded that he had no relevant inherent jurisdiction supplementary to that provided by subsection 399(2) of the Rules. As noted above, on the facts of this matter, I am satisfied that the motion before me with regard to my order of April 16, 2007, falls four‑square within the ambit of subsection 399(2) of the Rules.
[27]In the circumstances, I conclude that I should set aside my order of April 16, 2007 by reason of a matter that was discovered and diligently brought to the attention of the Court only after my order was made.
[28]In light of my foregoing conclusion, I am satisfied that I retain jurisdiction to consider whether Deputy Justice Lagacé’s order denying a stay of removal should be set aside or varied since the underlying application for leave and for judicial review will be reinstated before the Court.
(b) Matter that arose or was discovered subsequent to the order of Deputy Justice Lagacé
[29]Deputy Justice Lagacé gave no reasons for dismissing the motion before him for a stay of removal of the applicant to Jamaica. In the normal course of such a motion the issues for consideration are whether or not the underlying application for leave and for judicial review raises a serious issue to be tried, with the existence of a serious issue being determined on a low threshold, whether or not the applicant would suffer irreparable harm through the proposed removal, bearing in mind all of the circumstances of the matter, and whether the balance of convenience as between the respondent and the applicant favours the applicant. The three considerations are conjunctive; that is to say, in order for an applicant to succeed on a motion for a stay of removal, all three considerations must weigh in favour of the applicant.
[30]As noted above, the first consideration before Deputy Justice Lagacé was whether or not the underlying application for leave and for judicial review raised a serious issue to be tried, with that question to be answered against a low threshold. I subsequently dismissed the application for leave and for judicial review flowing from a denial of an extension of time to file. That being said, I did conclude that if an extension of time to file were granted, leave would nonetheless have been denied where the issue before me on the application for leave was very similar to, but not identical to, the concept of “serious issue to be tried” on a stay of removal motion. In the absence of reasons for Deputy Justice Lagacé’s order, I will assume that Deputy Justice Lagacé might have found a serious issue to be tried, against a low threshold, and nonetheless would have rejected the motion for a stay on the critical issue of “irreparable harm” and in the light of the evidence that was before him.
[31]The applicant’s schizophrenia, his reliance on prescribed medication to control his mood swings and the interrelationship between those mood swings and the danger that he poses, not only to the public, but to himself, all impact the issue of irreparable harm.
[32]Deputy Justice Lagacé had before him the recognition of the foregoing reality and the response to that reality that the applicant would, on arrival in Kingston, Jamaica, be transported to see a Dr. Reed who would be in a position to prescribe appropriate medication to control the applicant’s mood swings and violent impulses in the absence of such medication.
[33]While I can only surmise as to the impact that such a response might have had on Deputy Justice Lagacé’s analysis on the issue of irreparable harm, I feel compelled to conclude that it would not have been ignored and would have weighed in favour of a finding that the applicant would not suffer irreparable harm from his removal to Jamaica and thus would have augured in favour of a determination against the applicant on one of the three factors for consideration, when a decision on that factor against the applicant, would in itself have been conclusive on a determination not to stay removal.
[34]For the foregoing brief reasons, once again, I conclude that I should set aside Deputy Justice Lagacé’s order on the ground that a matter that arose or was discovered subsequent to the making of his order might well have resulted in a different order.
[35]Concerns regarding appropriate diligence in discovering that the applicant was not “transported” to the hospital when he reached Kingston, Jamaica are responded to in the same manner as they were in respect of my own order.
(4) Effect on the “validity or character” of the removal
[36]Subsection 399(3) of the Rules provides that unless the Court orders otherwise, the setting aside of an order, as I have here determined should follow, does not affect the validity or character of anything done or not done before the order was set aside, unless the Court orders otherwise.
[37]I cannot conclude that there is any impact that would flow from the setting aside of my own order, dismissing the underlying application for leave and for judicial review, that is relevant. By contrast, the impact flowing from the removal of the applicant to Jamaica following Deputy Justice Lagacé’s order dismissing the motion for a stay of removal might well prove to have been profound for the applicant, his family members and for community members in Jamaica. That effect, I have concluded, might well have been attributable to a failure to effect what I take to be an undertaking included within the affidavit of a paralegal filed on the motion that was before Deputy Justice Lagacé. In the circumstances, notwithstanding that any misunderstanding that occurred between the paralegal and the enforcement officer with carriage of removal arrangements for the applicant was, I am satisfied, simply an innocent misunderstanding, and certainly not fraud within the meaning in paragraph 399(2)(b) of the Rules, I feel compelled to determine that the setting aside of the order dismissing the motion for a stay of removal must have the effect of invalidating the removal of the applicant from Canada to Jamaica.
[38]The only authority to which counsel referred me on the exercise by the Court of jurisdiction under subsection 399(3) of the Rules, in the immigration context, was Cassells v. Canada (Minister of Citizenship and Immigration)8 where Justice Sharlow, then of the Trial Division of the Federal Court of Canada, quoted from Justice Brockenshire of the Ontario Court, General Division who dealt with an earlier aspect of the same matter, which involved a deportation from Canada of an individual who, like the applicant here, was in Canada without status. Justice Brockenshire is quoted, in part, to the following effect [at paragraph 10]:
I have no doubt that immigration matters are best dealt with by the Federal Court system. But this, in my view, is not a case about immigration. It is about preserving the authority of the Courts—all of the Courts—against usurpation by well‑meaning persons in the civil service.
[39]While the factual background in Cassells is very different from the factual background before me, I am satisfied that the foregoing quotation is, in part, apt. Deputy Justice Lagacé had before him a motion seeking a deferral of execution of a removal order. While he denied that motion, I have here determined that he might well not have denied the motion but for affidavit evidence before him from a “well‑meaning” person, based on information provided by another “well‑meaning” person. By my order that will follow from these reasons, I will reinstate the motion that was before Deputy Justice Lagacé. In effect, that motion which sought and could have resulted in a stay of execution of the removal of the applicant from Canada will be brought back to life and the removal of the applicant on April 5, 2007 could have amounted to an “usurpation” of the authority of this Court if the Court had had before it accurate and complete information regarding what would transpire, and what actually transpired, when the applicant was removed to Jamaica.
[40]For the foregoing reasons, subject to terms and conditions hereinafter described, I will declare the removal of the applicant to Jamaica on April 5, 2007 to be invalid and direct the return of the applicant to Canada at the respondent’s expense.
(5) Relief
[41]Based on the foregoing analysis, the two orders of this Court that are before me, that is to say, my order of April 16, 2007 denying an extension of time to file the applicant’s application for leave and for judicial review, filed January 15, 2007 and dismissing that application, and Deputy Justice Lagacé’s order of April 4, 2007 denying the applicant’s motion for a stay of the execution of the removal order issued against him, will be set aside. The impact of the setting aside of my own order is to revive the applicant’s application for leave and for judicial review underlying this motion. Similarly, the impact of the setting aside of Deputy Justice Lagacé’s order is to revive the motion that was before him. The revival of the latter motion will be of little effect, if any, given the removal of the applicant on April 5, 2007, unless that removal is rendered invalid in accordance with subsection 399(3) of the Rules.
[42]At the close of the hearing of this motion, I advised counsel that I would set aside the orders at issue and that, if the applicant signified in writing, to the satisfaction of the Court, that he wished to return to Canada from Jamaica, that he understood the implications of return, and that he would abide by terms and conditions regarding his return and supervision throughout his return, I would declare his removal on April 5, 2007 invalid and order his return to Canada at the respondent’s expense. I invited counsel to determine whether the applicant wished to return to Canada in all of the circumstances and, if so, to provide the Court with an agreed draft order in this regard, if agreement could be reached.
[43]By fax received at the offices of the Federal Court in Toronto on June 11, 2007, counsel for the applicant provided the Court with a copy of a very informal letter dated May 28, 2007, from the applicant, in which he expresses a wish to return to Canada. He makes no reference whatsoever to agreeing to supervision during the return or to an understanding of the implications of return. Counsel’s fax implies that agreement on the terms of an order could not be reached. She suggests that an order requiring return should address the following issues:
1. that a copy of Mr. Smith’s emergency travel document used by the Minister to deport Mr. Smith be provided forthwith to applicant’s counsel so that Mr. Smith can commence a request for a valid passport…;
2. that the Minister…provide in writing a request to add any other parties to these proceedings deemed necessary;
3. that given Mr. Smith has provided his written intent to return to Canada via letter dated May 28, 2007, that the Minister commence arrangements to book a ticket for Mr. Smith to return to Canada within 7 days of receipt of a valid travel document;
4. the Minister to co‑operate fully and issue a TRP (Temporary Resident Permit) or any other document which would facilitate Mr. Smith’s re‑entry into Canada and waive any necessary processing fees associated with the same;
5. the Minister to provide an escort and nurse to accompany Mr. Smith on his flight back to Canada if deemed necessary and be responsible for all costs associated with the same;
6. the Minister to pay for all expenses related to Mr. Smith’s flight back to Canada;
7. that the return date to Canada for Mr. Smith be scheduled no later than 30 days after the receipt of a valid travel document;
Counsel also addressed the issue of costs in her fax communication.
[44]Counsel for the respondent promptly responded to the communication to the Court from counsel for the applicant indicating a continuing concern regarding the applicant’s understanding of the implications of his return to Canada and regarding appropriate arrangements to ensure the safety of the travelling public, of the applicant himself and of any escorts provided by the respondent, if the applicant is required to be returned to Canada.
[45]A teleconference involving the Court and counsel was scheduled for the 27th of June. In the interim between the scheduling of the teleconference and the 27th of June, negotiations continued between counsel and, in the view of the Court, resulted in a substantial narrowing of the areas of disagreement and concern. The teleconference itself would appear to have further narrowed the areas of concern.
[46]In the result, an order pursuant to subsection 399(3) of the Rules will go, subject to the Court receiving satisfactory notice in writing of the applicant’s continuing wish to return, of his understanding of the implications of return and of his willingness to comply with supervision throughout his return, declaring the removal of the applicant from Canada to Jamaica on April 5, 2007 to be invalid and requiring the respondent to return the applicant to Canada on terms and conditions generally to the following effect:
- first, the applicant and his counsel shall provide reasonable assurances to the respondent that the applicant continues to wish to return to Canada and understands all of the implications of any such return, including that he will have no status in Canada other than what might be provided for the sole purpose of facilitating his return, that, on his arrival in Canada, he might be detained at the discretion of the respondent and that the deportation order that underlay his removal on April 5, 2007 remains in effect unless and until otherwise ordered;9
- secondly, reasonable advice and assurances to the satisfaction of the respondent shall be provided by the applicant and his counsel to ensure the safety of the travelling public as well as of the applicant and any escorts provided by the respondent for the duration of the applicant’s travel to Canada; and
- finally, all reasonable costs and expenses, including any fees and disbursements related to the issuance of a temporary resident permit to facilitate the re‑entry of the applicant to Canada, reasonably associated with the return of the applicant to Canada, shall be borne by the respondent.
[47]Counsel for the respondent has requested that the Minister of Public Safety and Emergency Preparedness be added as a respondent to this motion. Counsel for the applicant does not object to the request. Certainly, particularly in light of the order requiring return of the applicant subject to terms and conditions, and of the fact that removal of the applicant on April 5, 2007 was implemented on behalf of the Minister of Public Safety and Emergency Preparedness, the Court is satisfied that the request of counsel for the respondent is appropriate. The Court’s order will so provide.
[48]Finally, as noted earlier in these reasons, counsel for the applicant has requested costs on a solicitor‑client basis, not simply related to this motion but for “all services rendered from April 5, 2007 to until [the Applicant] is returned to Canada.”
[49]Solicitor‑client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties.10 No such conduct on the part of the respondent is established on the evidence before the Court in this matter. As earlier noted, while the Court was misled as to the arrangements in place for removal of the applicant to Jamaica when a motion for the stay of that removal was before the Court, the evidence before the Court establishes that the misleading of the Court was inadvertent or based upon a misunderstanding arising from a telephone conversation relied on by the respondent’s affiant on the stay motion by reason of the very short interval provided to the respondent to prepare for the stay motion. While it was open to the respondent to provide a brief administrative deferral of removal to allow for a more thoughtful response to the stay motion, the respondent’s failure to provide such a delay certainly does not reach the level of reprehensible, scandalous or outrageous conduct. It does, however, justify some recognition on the issue of costs of this motion.
[50]In the result, the Court’s order will provide for costs of the motion to the applicant calculated on the basis of the mid‑range of Column V in Tariff B [as am. by SOR/2004-283, ss. 30, 31, 32] to the Federal Courts Rules.
1 SOR/98‑106 [r. 1 [as am. by SOR/2004-283, s. 2)].
2 S.C. 2001, c. 27.
3 Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, appendix II, No. 44].
4 See for example: Canada (Minister of Citizenship and Immigration) v. Forde (1997), 210 N.R. 194 (F.C.A.).
5 (2003), 313 N.R. 312 (F.C.A.).
6 (2003), 27 C.P.R. (4th) 253 (F.C.).
7 [2000] 1 F.C. 286 (T.D.).
8 (1999), 171 F.T.R. 1 (F.C.T.D.) [and [1999] F.C.J. No. 1155 (T.D.) (QL)]; affd (2000), 10 Imm. L.R. (3d) 1 (F.C.A.).
9 See Cassells v. Canada (Minister of Citizenship and Immigration), note 8.
10 See: Young v. Young, [1993] 4 S.C.R. 3, at p. 134.