Toth v. Canada

Toth v. Canada (Minister of Employment and Immigration), 1988 CanLII 1420 (FCA)

• This is a seminal case which incorporated the three-part test for injunctive relief from American Cyanamid Co and Metropolitan Stores into stays of removal in the immigration context
• There is a serious issue – could attack validity of deportation order, etc.
• Irreparable harm: As noted supra, the evidence is to the effect that if the applicant is deported now, there is a reasonable likelihood that the family business will fail and that his immediate family as well as others who are dependent on the family business for their livelihood will suffer. I think that at least a portion of this potential harm is irreparable and not compensable in damages
• Facts of the case:

o a) that the applicant is a permanent resident of Canada;
o b) that the applicant was born in Hungary in 1952, moved to England at the age of three and from there to Canada at the age of fifteen and has lived in Canada continuously since 1967;
o c) that his parents and family are law abiding people and over the years have built up a viable concrete pumping business, his father has recently taken a heart attack and the applicant is now the mainstay of that business;
o d) that between 1971 and 1983, the applicant engaged in a number of criminal offences, which resulted from drug addiction;
o e) that since February of 1985, the applicant has been law abiding, assisting in the family business and supporting his wife and two children;
o f) that he has obtained treatment and counselling for his drug problem and has overcome that problem;
o g) that the concrete pumping business is extremely busy at this time of the year and if the applicant is deported at this time, there is reasonable likelihood that the family business will fail, having regard to the father’s poor health and inability to manage the business; and
o h) that the applicant’s wife and children would suffer great hardship in the event of his deportation.
• Balance of convenience in applicant’s favour