El Ouardi v. Canada

El Ouardi v. Canada

El Ouardi v. Canada (Solicitor General), 2005 FCA 42 (CanLII)


• This is a stay of removal application pending appeal of Blais J’s (FC) decision to not entertain a last minute application for a stay of removal (i.e. to not hear the case on its merits)

o Applicant had initially sought a stay of removal from Blais J on the basis that there was a pending JR of her PRRA decision (late-filed) and a pending JR of an officer’s refusal to delay her removal pending an H&C decision

• The appeal in the underlying stay of removal is grounded in Subhaschandran (described above), that Blais J refused to exercise jurisdiction

• Rothstein JA has to go through serious issue, irreparable harm, and balance of convenience

• In deciding whether there is a serious issue, he basically has to go through the merits of the underlying appeal of the original stay motion (e.g. whether Blais J refused to exercise jurisdiction in a manner similar to Subhaschandran). He indicates his belief that Blais J’s refusal to entertain a very late stay application (less than 24 hours prior to a scheduled removal that the applicant had known about for almost a month) was proper and did not amount to a failure to exercise jurisdiction. For that reason, he didn’t think the matter was appealable to the FCA or that there was a serious issue to litigate.

• Nevertheless, he indicated that he would not decide the “serious issue” prong of the test, and instead moved on to irreparable harm and balance of convenience

• With respect to irreparable harm, the PRRA officer did take account of new evidence, just didn’t give it much weight. Doesn’t appear to be any risk. If rendering an appeal nugatory always resulted in irreparable harm, there would effectively be irreparable harm in all stay applications. Sometimes rendering an appeal nugatory results in irreparable harm, sometimes it does not.

• Balance of convenience favours Minister. This stay application was filed very late, at the last minute. Applicant could have made H & C application earlier, as had been here for four years. Also PRRA JR was filed late.