90-T-726
Joan Millicent Hamilton (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: HAMILTON V. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION) (T.D.)
Trial Division, Reed J.—Ottawa, August 16, 17
and 24, 1990.
Immigration — Deportation — Application to stay execu
tion of order pending s. 18 challenge of denial of exemption
from requirement application for landed status be made out
side Canada — Allegation officials not considering psychia
trist's report — Whether Court having jurisdiction — Necessi
ty for leave — Whether serious question to be tried — On
merits, Court unprepared to grant discretionary remedy.
Federal Court jurisdiction — Trial Division — Whether
Court having jurisdiction to stay execution of deportation
order pending s. 18 challenge of denial of exemption from
requirement landed immigrant status application be made
outside Canada — Review and exposition of case law on
subject — Court probably having jurisdiction as statutory
remedy nugatory if applicant deported.
This was an application to stay execution of a deportation
order pending a section 18 challenge of the denial of an
exemption from the requirement that landed immigrant status
applications be made outside Canada. Applicant asserts a real,
subjective fear of harm if returned to Jamaica. After a deporta
tion notice was issued, applicant filed a psychiatrist's report
based on written materials furnished by her lawyer. The appli
cant had declined to meet with the psychiatrist because she was
afraid that he would spread false stories which could impair her
employment prospects. Applicant challenges the validity of the
Minister's refusal on the ground that the report was not
considered.
The issues were: (1) has the Court jurisdiction to stay a
deportation order not itself challenged; (2) must leave be
obtained; (3) can this application proceed prior to leave being
granted for the section 18 application; and (4) whether, on the
merits, a stay is justified.
Respondent relied on case law to the effect that the Court
lacks jurisdiction to grant a stay when a deportation order is
not directly in issue while applicant referred to cases holding
that the Court had an implied jurisdiction to stay an order if
the right of an appeal therefrom would otherwise be rendered
nugatory.
Held, the application should be dismissed.
The order sought to be stayed was intimately connected to
the relief asked of the Court. If applicant is deported, relief
through the subsection 114(2) process would be rendered nuga-
tory. The point at issue herein had not been resolved by the
decision of the Court of Appeal in Bhattia v. Minister of
Employment and Immigration. Counsel was probably correct
in arguing that the Court has jurisdiction to entertain this
application.
As to the necessity for leave, that had been added to the
legislation to prevent abuse of process by applicants commen
cing unmeritorious proceedings merely to procure additional
time in Canada. Accordingly, it would be unusual for the Court
to stay a deportation order without having granted leave to
commence a proceeding under section 18 or 28.
In any event, granting a stay is a discretionary remedy. It
was doubtful that there is a serious question to be tried. Had
the psychiatrist's report been made available at a much earlier
time, it could have been considered in a timely manner by the
government officials and the stay request dealt with in the
context of a section 18 leave application. Accordingly, the
Court was not prepared to exercise its discretion in applicant's
favour.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18, 28.
Immigration Act, R.S.C., 1985, c. I-2, s. 114(2).
CASES JUDICIALLY CONSIDERED
APPLIED:
Toth v. Canada (Minister of Employment & Immigra
tion) (1988), 6 Imm. L.R. (2d) 123; 86 N.R. 302
(F.C.A.); Bains v. Canada (Minister of Employment and
Immigration), 90-A-1030, Pratte J.A., order dated
7/3/90, (F.C.A.), not yet reported; Yhap v. Canada (Min-
ister of Employment and Immigration), 89-T-676, Mul-
doon J., order dated 1 2 / 1 0/89, F.C.T.D., not yet reported;
Yhap v. Canada (Minister of Employment and Immigra
tion), [1990] 1 F.C. 722 (T.D.); Bhattia v. Canada
(Minister of Employment & Immigration) (1989), 7
Imm. L.R. (2d) 63 (F.C.A.).
DISTINGUISHED:
Lodge v. Minister of Employment and Immigration,
[1979] 1 F.C. 775; (1979), 94 D.L.R. (3d) 326; 25 N.R.
437 (C.A.).
REFERRED TO:
Attorney General of Canada v. Jolly, [1975] F.C. 216;
(1975), 54 D.L.R. (3d) 277; 7 N.R. 271 (C.A.); Astudil-
lo v. Minister of Employment and Immigration (1979),
31 N.R. 121 (F.C.A.); Armson v. Canada (Minister of
Employment and Immigration) (1989), 9 Imm. L.R. (2d)
150 (F.C.A.); Attakora v. Minister of Employment and
Immigration (1987), 99 N.R. 168 (F.C.A.); Sharma v.
Minister of Employment and Immigration (1984), 55
N.R. 71 (F.C.A.).
COUNSEL:
M. Pia Zambelli for applicant.
Robert Goldstein for respondent.
SOLICITORS:
Jackman, Zambelli, Silcoff, Toronto, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
REED J.: The applicant seeks a stay of the
execution of a deportation order which has been
issued against her. The stay is sought pending
resolution of proceedings which the applicant seeks
to pursue under section 18 of the Federal Court
Act, R.S.C., 1985, c. F-7. She seeks to challenge
the validity of the Minister's refusal to recommend
that she be granted an exemption, on compassion
ate and humanitarian grounds, from certain
requirements of the Immigration Act, R.S.C.,
1985, c. I-2. She filed an application for leave to
commence proceedings pursuant to section 18 to
challenge the Minister's decision coincident with
the filing of the present application.
The applicant entered Canada in 1982 on a
visitor's visa. She remained in this country illegal
ly. In 1986, she was arrested. She made a formal
claim for refugee status. That claim was rejected.
A departure notice was subsequently issued. She
failed to comply with it. Her mother died three
days before the applicant was supposed to leave
the country pursuant to that departure notice. Her
mother's funeral was held two days after the
departure date. She made an application pursuant
to subsection 114(2) for exemption, on humani-
tarian and compassionate grounds, from the
requirement that applications for landed immi
grant status must be made from outside the coun
try. The request for consideration on that basis
appears to have commenced around April 18, 1990
(at least the letter attached to the applicant's
affidavit of August 13, 1990 carries that date).
The application was ultimately denied and a
deportation notice, which had issued on June 6,
1990, was to be executed on August 13, 1990.
The present application for a stay of the depor
tation order was brought before the Court by
notice of motion filed on August 13. A motion to
commence proceedings under section 18 of the
Federal Court Act challenging the Minister's
refusal to recommend an exemption pursuant to
subsection 114(2) was filed at the same time. The
application for a stay of the deportation order was
heard by teleconference hearings on August 16
and 17. The respondent consented to delay execu
tion of the deportation order until a decision is
rendered by the Court on the applicant's present
application.
The grounds on which the applicant sought sub
section 114(2) exemption were: that she had a very
real subjective fear of harm which would befall her
if she were returned to Jamaica; her sister is a
Canadian citizen, resident in Canada, and willing
to assist her, and is the applicant's only blood
relative. The applicant is also her sister's only
remaining relative not settled in Canada. It is clear
from the material attached to the affidavits that
the request of April 18, 1990 did not result in a
favourable decision being taken. As has been
noted, the deportation order was issued on June 6,
1990. On August 1, 1990 counsel for the applicant
sent further information to the respondent in sup
port of the application for subsection 114(2) relief.
This was a psychiatrist's assessment of the appli
cant. The psychiatrist's report reads, in part, as
follows:
Although I have not had the opportunity to examine her
directly, it is my opinion that her letters and reports show a
pattern which is consistent with a diagnosis of Delusional
(Paranoid) Disorder of the persecutory type ....
It is my opinion that she would show a deterioration in her
functioning should she have to return to Jamaica ... Her
paranoid views would likely be intensified and as a result of this
it is likely that she would isolate herself more. As well she lacks
social support in Jamaica as she has no family there, apparently
has no close friends there and has been out of the country for
several years.
As is noted in the report, the psychiatrist had
never met the applicant as of the time the report
was prepared. She refused to be interviewed by
him for fear that he would spread false stories
about her which would hurt her employment
opportunities in Canada. Thus, the psychiatrist's
assessment was prepared on the basis of extensive
written materials sent to him by counsel for the
applicant. Subsequent information on file indicates
that the applicant did meet the psychiatrist person
ally on August 13, 1990 and he, in a cryptic note,
confirmed his earlier assessment.
The applicant challenges the validity of the
Minister's refusal to recommend a subsection
114(2) exemption primarily on the ground that the
relevant officials refused to consider the psychia
trist's report. The applicant's evidence to this
effect is based on conversations which her counsel
had with officials of the Department of Employ
ment and Immigration. The relevant portions of
the affidavit of Maureen Silcoff state:
2. I am informed by the applicant's solicitor and do verily
believe it to be true that the applicant's application for humani
tarian and compassionate consideration was turned down both
by Case Review in Ottawa and the Regional Headquarters of
the Immigration Commission. I am informed by the applicant's
solicitor and do verily believe it to be true that on August 9,
1990 she spoke with Ms. Pam Cullen of the Case Review in
Ottawa who told her that the [sic] Dr. Payne's psychiatric
report did not convince her that humanitarian and compassion
ate relief was warranted.
3. I am informed by the applicant's solicitor that thereafter she
asked Mr. Craig Morrison of Regional Headquarters to review
the case and that on August 9, 1990 she spoke with Mr.
Morrison who told her that he also had refused the application,
because Dr. Payne's report did not constitute evidence that
showed that favourable consideration was warranted, because it
was just a prediction by a psychiatrist as to what might occur if
the applicant was sent back to Jamaica.
There is no doubt that decision-making bodies
are required to consider all relevant evidence
placed before them: Attorney General of Canada
v. Jolly, [1975] F.C. 216 (C.A.); Astudillo v.
Minister of Employment and Immigration (1979),
31 N.R. 121 (F.C.A.). They are to base their
findings on the evidence before them and not to
arbitrarily reject evidence which is uncontradicted
and not obviously implausible: Armson v. Canada
(Minister of Employment and Immigration)
(1989), 9 Imm. L.R. (2d) 150 (F.C.A.); Attakora
v. Minister of Employment and Immigration
(1987), 99 N.R. 168 (F.C.A.); Sharma v. Minister
of Employment and Immigration (1984), 55 N.R.
71 (F.C.A.).
Counsel classified the issues to be addressed for
the purposes of the present case as: (1) whether
the Court has jurisdiction to entertain the applica
tion for a stay of the deportation order given the
fact that the deportation order is not itself chal
lenged; (2) if there is such jurisdiction, whether
the present application can be pursued without
first obtaining leave (if leave is required counsel
indicated that she was making an application for
such, orally, coincidentally with her arguments on
the merits); (3) if there is jurisdiction, and leave is
either not needed or granted, whether this applica
tion can be proceeded with prior to leave to com
mence the main section 18 application being given;
(4) whether, in any event, there are grounds on the
merits which would justify issuing an order to stay
the deportation order (a serious question to be
tried; whether irreparable harm will be caused to
the applicant if an order is not granted; where the
balance of convenience lies): see Toth v. Canada
(Minister of Employment & Immigration) (1988),
6 Imm. L.R. (2d) 123 (F.C.A.).
The respondent's position that this Court has no
jurisdiction to issue a stay when the validity of the
deportation order is not directly in issue, is based
on the Court of Appeal decisions in Lodge v.
Minister of Employment and Immigration, [1979]
1 F.C. 775 (C.A.) and Bhattia v. Canada (Minis-
ter of Employment & Immigration) (1989), 7
Imm. L.R. (2d) 63 (F.C.A.). In the Lodge decision
it was said at pages 783-784:
An injunction will lie against a public authority to restrain
the commission of an act that is ultra vires or otherwise illegal.
See, for example, Rattenbury v. Land Settlement Board [1929]
S.C.R. 52 per Newcombe J. at p. 63: "... the court will
interfere to restrain ultra vires or illegal acts by a statutory
body"; also Le Conseil des ports nationaux v. Langelier [1969]
S.C.R. 60 at p. 75, where Martland J. speaks of the power to
restrain the commission of an act "without legal justification".
From the analysis in these and other authorities I think we may
assume for purposes of the present case that an injunction will
lie in a proper case against a Minister of the Crown who
purports to act under a statutory authority. This was expressly
held with respect to the execution of deportation orders by the
Minister of Manpower and Immigration in Carlic v. The Queen
and Minister of Manpower and Immigration (1968) 65 D.L.R.
(2d) 633, where Freedman J.A. (as he then was), delivering the
judgment of the Manitoba Court of Appeal, said at page 637:
"It may be well to point out that Courts have more than once
affirmed their right to restrain a Minister of the Crown from
the doing of acts which were either illegal or beyond statutory
power".
So long as the validity of the deportation orders in the
appellants' case has not been successfully challenged it cannot
be said that the Minister would be exceeding his statutory
authority or otherwise acting contrary to law in executing
them.
... Counsel were unable to cite to us any authority, and I have
not been able to find any, to support the use of injunction to
restrain the performance of a statutory duty on the ground that
such performance may have an adverse effect on some right
which the applicant seeks to assert in another forum. I do not
think that such a use of injunction can be recognized as a
matter of principle. It would be tantamount to a general power
to suspend the execution of administrative decisions in cases
judged to be equitable. The Court does not have that power,
even with respect to decisions that are the subject of review
before it.
Having said this, I may observe that I cannot see why the
execution of the deportation orders should make it impossible
to investigate the appellants' complaint or to afford them such
relief as section 41 of the Act may provide. From the affidavit
in support of their application for injunction their complaint
would not appear to be dependent on their personal knowledge.
[Underlining added.]
And in Bhattia, Mr. Justice Marceau stated [at
pages 64-66]:
I readily agree with the position reached by my colleagues.
However, I do so under reserve of two remarks which I shall
respectfully make in view of the influence that this decision
might have because, on the one hand, it is the first of its kind to
be rendered under the new regime introduced by the amend
ments to the Immigration Act 1976, S.C. 1976-77, c. 52, which
came into force on January 1, 1989, and, on the other hand,
because it is rendered by a panel of three Judges and not by a
single Judge as will be the case, at least in principle, from now
on.
1. My first remark goes to the very admissibility of the
application as it was presented. I seriously doubt that the Court
is entitled to order a stay of execution of a deportation order
before it is in a position to consider the application for leave to
commence a proceeding under s. 28 of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, against that deportation order,
as required by subs. 83.1(1) of the Act. My doubt rests on three
grounds.
a) The Court's power to order stay of execution of a tribu
nal's decision is an ancillary and auxiliary power which only
exists in order to protect the Court's primary power to declare
the decision itself null and void. One can hardly see how such a
secondary power could arise before the s. 28 proceedings
against the decision itself have been formally engaged, that is
to say prior to the time when the question of the validity of the
decision itself is before the Court.
b) One of the two basic conditions governing the Court's
ancillary and auxiliary power to order a stay of execution is the
existence of prima facie arguable grounds for challenging the
validity of the order. Now, this is precisely the question, and
the only one, raised in an application to commence proceedings
under s. 28. It is difficult to accept that the Court could decide,
as it would have to do here, that there are such grounds, while
at the same time holding that it is not yet ready to rule on the
application for leave to introduce the proceedings under s. 28.
c) The other underlying condition justifying the exercise of
the Court's power to grant a stay is the finding that otherwise
an eventual overturning of the impugned decision could be
rendered nugatory, the immediate execution of the decision
threatening to create an irreversible situation or to cause an
irreparable harm. In the case of an exclusion order, the possi
bility of such irreparable harm necessarily and exclusively
depends on the risk faced by the applicant if he is sent back to
where he came from, in light of the political situation there.
In making these remarks I am mindful that, in Toth v.
Canada (Minister of Employment & Immigration) (1988), 6
Imm. L.R. (2d) 123, 86 N.R. 302, this Court has previously
consented to grant a stay of execution of a deportation order
before authorizing appeal proceedings against the order itself. I
would note first that the procedure for appeal by leave at issue
in Toth was a recourse created by the Immigration Act, 1976,
itself, and thus its exercise before this Court could be seen as
having been initiated as soon as leave was sought. The recourse
involved here exists by virtue of the Federal Court Act, and the
leave required by the new immigration Act certainly forms no
integral part of it. The power to stay that the Court may have is
ancillary and auxiliary to the power vested in it by the Federal
Court Act which is not engaged until the Court has accepted to
review and possibly set aside the decision itself. But in any
event I feel that the situation resulting from the coming into
force of the major amendments to the Act is sufficiently
distinct from that existing formerly, that the authority of the
Toth case, which did not involve a claim for refugee status,
should not be seen as unreservedly binding. [Underlining
added—footnotes omitted.]
Mr. Justice Marceau's reasons were additional to
those given by the other two members of the
Court, who only found it necessary to say that,
assuming the principles enunciated in Toth
applied, those requirements had not been met by
the fact situation which existed in Bhattia.
The decision in Toth v. Canada (Minister of
Employment & Immigration) (1988), 6 Imm.
L.R. (2d) 123 (F.C.A.) was decided before
Bhattia and after Lodge. In the Toth decision, a
deportation order was stayed pending a decision
being taken on whether leave would be granted to
appeal a decision of the Immigration Appeal
Board to the Federal Court of Appeal. The princi
ple on which that decision was based was that a
refusal of a stay would render any appeal rights
which might subsequently be given nugatory [at
page 126]:
This Court decided in the case of N.B. Electric Power Comm.
v. Maritime Electric Co., [1985] 2 F.C. 13, 60 N.R. 352
(C.A.), that in cases where there exist statutory provisions
conferring a right to appeal against the order of a tribunal, that
circumstance together with the provisions of subs. 30(1) supra,
confer an implied jurisdiction on the Federal Court of Appeal
to stay the operation of that order where the appeal would
otherwise be rendered nugatory.
In this regard, Mr. Justice Stone, in the N.B. Electric Power
case, discussed at p. 27 [F.C.] of the reasons:
"the absurdity that could result if, pending an appeal, opera
tion of the order appealed from rendered it nugatory."
He went on to observe:
"Our appellate mandate would then become futile and be
reduced to mere words lacking in practical substance. The
right of a party to an `appeal' would exist only on paper for,
in reality, there would be no `appeal' to be heard, or to be
won or lost. The appeal process would be stifled. It would
not, as it should, hold out the possibility of redress to a party
invoking it. This court could not, as was intended, render an
effective result. I hardly think Parliament intended that we
be powerless to prevent such a state of affairs."
I endorse these comments by my colleague and apply them....
Counsel for the applicant argues that Lodge,
therefore, cannot be read as broadly as counsel for
the respondent contends and that it must be read
in the light of decisions such as: Toth v. Canada
(Minister of Employment & Immigration) (1988),
6 Imm. L.R. (2d) 123 (F.C.A.); Bains v. Canada
(Minister of Employment and Immigration)
(Court file no. 90-A-1030, March 7, 1990); and
Yhap v. Canada (Minister of Employment and
Immigration) (Court file no. 89-T-676, October
12, 1989 and [1990] 1 F.C. 722 (T.D.)).
The Lodge decision dealt with a situation which
was quite different from that in issue in this case
or that which was in issue in Toth, Bains or Yhap.
In the first place one of the important factors in
Lodge was that the injunction, if granted, would be
final in nature; it was not viewed as an interlocuto
ry order. Mr. Justice Le Dain wrote [at page 783]
of the remedy being sought:
It is not made in an action pending in the Federal Court. It
involves a final and not an interlocutory judgment upon the
claim for an injunction.
The principles which must be applied are those which deter
mine whether a permanent injunction should be granted to
restrain a Minister of the Crown from performing a statutory
duty. [Underlining added.]
In the present case, as was also the case in Toth,
Bains and Yhap, the deportation order which it is
sought to stay is intimately connected to the relief
sought from this Court. The relief sought by the
applicant, from the Governor in Council, pursuant
to the subsection 114(2) review, is to allow the
applicant to apply for landed immigrant status
from Buffalo, New York, rather than being
returned to Jamaica. (Initially the request had
been for permission to apply for such status from
within Canada.) If the applicant is deported to
Jamaica, the relief sought through the subsection
114(2) process would be rendered nugatory. In
such circumstances counsel may very well be right
in suggesting that the principles enunciated in
Toth apply and that the Court has authority to
issue a stay of deportation pending the outcome of
the section 18 application. Certainly the Court did
so in Yhap. And the Court of Appeal followed a
similar approach in the Bains case. In addition, as
I read the Bhattia decision I am not convinced
that Mr. Justice Marceau would have found it
appropriate to preclude a stay order being granted,
had leave already been given to commence a sec
tion 28 proceeding. As has already been noted,
while Mr. Justice Marceau wrote the reasons set
out above, the other two members of the Court of
Appeal found it necessary to say only that assum
ing the principles in Toth applied they were not
met by the factual situation which existed in the
Bhattia case. Thus the point in issue in the present
case was essentially left open.
In Bains, the Court of Appeal granted the stay
of a deportation order until the applicant's applica
tion for leave to commence judicial review pro
ceedings pursuant to section 28 of the Federal
Court Act could be heard and disposed of by that
Court. The decision which it was sought to have
reviewed in those proceedings was one by the
Immigration Appeal Board relating to the appli
cant's claim for Convention refugee status.
In Yhap, Mr. Justice Muldoon granted a stay of
a deportation order until the applicant's motion for
leave to commence a section 18 proceeding was
dealt with. The decision which it was sought to
have reviewed in that proceeding was the legal
appropriateness of the policy directives issued to
officials of the Department of Employment and
Immigration, by reference to which they were
instructed to review claims for subsection 114(2)
exemption on compassionate and humanitarian
grounds. The stay of the deportation order was
issued on October 12, 1989 (89-T-676). On
November 14, 1989 the applicants were granted
leave by the Court to commence a section 18
proceeding (T-2543-89). This culminated in a
decision of March 8, 1990 (T-2543-89) in which
the criteria being applied were held to constitute a
fettering of discretion. Thus, the decisions made by
reference thereto were considered to have been
made in the absence of a full and fair hearing and
referred back for reconsideration.
Mr. Justice Muldoon's reasons for granting the
stay of the deportation order in Yhap read [at
pages 4 and 12-13], in part:
In effect, the relief here sought by the applicants is in the
nature of an interlocutory injunction or, in the applicants'
solicitors' own expression, that which may be termed an inter
locutory or temporary prohibition. In regard to the federal
administration, paragraph 18(a) of the Federal Court Act
confers upon the Trial Division exclusive original jurisdiction to
issue, inter alia, an injunction and a writ of prohibition
"against any federal board, commission or other tribunal".
Those are the principal remedies. However, paragraph 18(b)
adds:
(b) to hear and determine any application or other proceed
ing for relief in the nature of relief contemplated by para
graph (a) .... [Emphasis not in original text.]
Therefore, in making applications for relief in the nature of
relief contemplated by paragraph 18(a), the applicants are
indeed purporting to commence proceedings under section 18—
to be precise paragraph 18(b) of the Federal Court Act. They
must accordingly, first obtain leave to do so under section 83.1
of S.C. 1988, c. 35. This apparently obvious line of reasoning
eluded the applicants' solicitors and counsel. A belated request
for such leave was made in open Court on October 6, 1989, the
return date specified in the applicants' notices of motion.
If the Minister would undertake not to remove any of the
applicants until the status of the law and the legality of the
proceedings be known, there would be no conceivable basis for
this proceeding. One may sympathize with a refugee claimant
who is ordered out of Canada according to laws of known
validity and lawful procedures, but the Court will decline to
intervene in such circumstances. On the other hand, it would be
cold comfort indeed to the applicant or any of his fellows to be
removed and then to learn that the law under which he was
processed had been declared to be invalid or the proceedings
found to be unfair or unlawful. It may be observed that recent
radical amendments to the immigration statutes, not yet con
solidated nor yet fully tested as to constitutionality, legality of
procedures or the fairness of their enforcement, accompanied
by the above noted plethora of ministerial statements and
directives, and lacunae in the regulations mean that the federal
law, whose better administration is committed to this Court, is
in what is at least perceived to be a state of imprecision and
flux.
Subsection 26(1) of the Federal Court Act runs as follows:
26. (1) The Trial Division has original jurisdiction in
respect of any matter, not allocated specifically to the Court
of Appeal, in respect of which jurisdiction has been conferred
by any Act of Parliament on the Federal Court, whether
referred to as such or as the Exchequer Court of Canada.
The cited provision is analogous to subsection 30(1) of the Act
in relation to the Appeal Division's implied jurisdiction which
was described for a unanimous bench by Mr. Justice Heald in
Toth v. Canada (Minister of Employment and Immigration)
(1988), 6 Imm. L.R. (2d) 123 (F.C.A.). Here, too, if pending
an application to the Trial Division and a section 28 application
to the Appeal Division, the operation of the process resulted in
rendering the respective proceedings nugatory, it would be
absurd, not to emphasize unjust. [Underlining added.]
On reviewing this jurisprudence, it seems to me
clear that the Lodge decision does not address the
issue. The claim for a stay in that case was based
on the assertion that such was necessary in order
to allow the applicant the opportunity to pursue a
claim before the Human Rights Commission. It
was not connected to a proceeding pending before
this Court. The present application seeks a stay of
deportation until the application for a section 18
review is disposed of. That section 18 application is
before this Court and is part of the present file. It
is similar to the situations which existed in both
Bains and Yhap.
As I read Mr. Justice Marceau's comments in
Bhattia, they indicate to me that in the light of the
new immigration procedures which now require
applicants to obtain leave of the Court before
commencing a section 18 or a section 28 applica
tion, it should be unusual for the Court to grant a
stay of a deportation order unless it had already
granted leave to commence a section 18 or a
section 28 proceeding. It is clear why this is desir
able. One of the main issues to be decided in
considering whether to grant a stay is the same or
at least similar to that which must be decided in
determining whether to grant leave: whether a
serious question to be tried exists. In addition, the
requirement that leave be obtained was added to
the legislation to prevent applicants abusing the
Court procedures by commencing proceedings
which had little legal merit, but which could be
stretched out over some considerable period of
time, thereby gaining for the applicants additional
Lime in Canada to which they were not legally
entitled. I take from Mr. Justice Marceau's com-
ments a concern that by allowing an applicant to
obtain a stay of a deportation order, before the
leave application is granted, one could potentially
be opening the door, yet again, to procedural abuse
in this regard. I hasten to add that I do not think
the present application is one which could be
classified as an abuse of the procedure.
Granting a stay of execution of an order, in a
case such as the present, however, is a discretio
nary remedy. In the light of the new leave require
ments, I would be very reluctant to exercise that
discretion, to grant a stay of a deportation order,
in the absence of leave having been given to com
mence a section 18 application, except where spe
cial and compelling circumstances can be shown to
exist. In the present case, the reason the appli
cant's motion for leave to commence a section 18
application was not filed until August 13 is
because the psychiatrist's report was not given to
the respondent until August 1. The applicant knew
as of June 6, 1990 that a deportation order had
issued against her. The request for consideration
on compassionate and humanitarian grounds had
been commenced at least by April 1990, if not
earlier. On looking at the progress of this matter,
it is clear that there is no compelling reason why
the evidence in question (the psychiatrist's report)
could not have been prepared and presented to the
respondent at a much earlier period of time. Had
this been done it could have been dealt with in a
timely fashion by the officials concerned. In that
event, it would have been possible to have the
request for a stay considered in the context of the
section 18 leave application. Consequently, even if
there is jurisdiction to grant the order sought, I
would not be prepared to exercise my discretion to
grant one in this case.
In addition, I have serious doubts about the
strength of the applicant's claim that there exists a
serious question to be tried. Certainly the com
ments of Ms. Pam Cullen that the "psychiatric's
report did not convince her" does not show that
that report was ignored as evidence. It merely
shows that it was given little weight. Also, what
weight should be given to Mr. Morrison's com
ment that "Dr. Payne's report did not constitute
evidence that showed that favourable consider
ation was warranted, because it was just a predic
tion by a psychiatrist as to what might occur if the
applicant was sent back to Jamaica" is hard to
assess. It is certainly not such a clear and flagrant
"rejection" of the evidence as I think counsel's
argument would characterize it.
In the context of the application for leave to
commence proceedings under section 18, the
respondent will have time to respond to the appli
cant's assertions and explain the procedure which
was followed more fully. That context allows for a
more considered review of the strength of the issue
which an applicant seeks to raise than is possible in
the present context. It is for that reason that I feel
some hesitation in making comments on the
strength of the applicant's case.
In any event, having come to the conclusions set
out above, I do not find it necessary to deal with
the other issues which have been raised. For the
reasons given the application will be dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.