Canada (Solicitor General) v. Subhaschandran

Canada (Solicitor General) v. Subhaschandran, 2005 FCA 27 (CanLII)

• Similar to Forde, described above, this case deals with the ability to appeal a stay of removal order despite the existence of ss. 72(2)(e) and 74(d) IRPA.
• Motions judge at FC adjourned Subhaschandran’s motion for stay of deportation until after the application for leave and judicial review of his negative pre-removal risk assessment was finally determined
• DOJ successfully argued that the FC motions judge had adjourned the stay motion to a time when stay matter would be moot, and in effect, granted stay without considering appropriate matters. This amounted to a refusal to exercise jurisdiction
• FCA decides that the remedy in such situations is an order requiring the motions judge to exercise jurisdiction

• This is a very narrow exception. However, one interesting aspect is in the interpretation of what qualifies as a failure to exercise jurisdiction (see El Ouardi below for one example)