Q.A. v. Canada (Citizenship and Immigration)

Q.A. v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2011-03-23
Neutral citation
2011 FC 357
File numbers
IMM-6220-09
Decision Content
Federal Court
Cour fédérale
Date: 20110323
Docket: IMM-6220-09
Citation: 2011 FC 357
Ottawa
,
Ontario
, March 23, 2011
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
Q.A.
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In a motion pursuant to Rule 369, the Respondent (Applicant on this motion) seeks to have the Court reconsider its order of February 11, 2011 in which the Court quashed the decision to refuse deferral of removal. The Court also set aside the removal order without prejudice to issuing a new removal order.
The Respondent also invokes Rule 397.
[2] The Respondent’s complaint is that the Court quashed not only the deferral decision but the removal order upon which the deferral decision was based. The Respondent argues that the Court has no jurisdiction to make such an order.
[3] Rule 397 has no application here. The decision to quash and the basis is well set out in the Reasons, nothing was overlooked or accidentally omitted nor were there clerical mistakes, errors or omissions.
[4] Rule 399(1) has no application as well as this was not an ex parte order nor one made in the absence of a party. Rule 399(2) has even less relevance as there was nothing new arising subsequent to the order nor was there any fraud in obtaining the order.
[5] This is one of those rare occasions where the whole substrata of the removal order has disappeared and where the deferral decision had no basis.
[6] The Court has the jurisdiction under s. 18.1 to make the order quashing the deferral decision as both primary and also as ancillary relief. The alternative flowing from the Court’s decision was to leave in place an order which ceased to have any factual support. This would then lead to multiple and wasteful subsequent proceedings to enforce or to enjoin, or defer execution of an infirmed removal order. This would then lead to matters of res judicata and issue estoppel, which if not prejudicial to one or more parties, would be an unwarranted drain on judicial economy. In the exercise of the Court’s discretionary powers, it was necessary to ensure that any removal order was factually grounded.
[7] The Respondent is free to issue a new removal order unburdened by the infirmities of the previous process. The Respondent suffers no prejudice.
[8] Therefore, even if this Court had jurisdiction to reconsider its decision through some creative use of Rules 47 and 50, it would not do so. The situation in this case is unique and the result turns on its special facts.
[9] Therefore, this motion is dismissed without costs.
ORDER
THIS COURT ORDERS that the motion is dismissed without costs.
“Michael L. Phelan”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6220-09
STYLE OF CAUSE: Q.A.
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
MOTION IN WRITING CONSIDERED AT
OTTAWA ,
ONTARIO
PURSUANT TO RULE 369
REASONS FOR ORDER
AND ORDER: Phelan J.
DATED: March 23, 2011
WRITTEN REPRESENTATIONS BY:
Mr. Michael Battista
FOR THE APPLICANT
Ms. Jocelyn Espejo Clarke
FOR THE RESPONDENT
SOLICITORS OF RECORD:
JORDAN BATTISTA LLP
Barristers & Solicitors
Toronto
,
Ontario
FOR THE APPLICANT
MR. MYLES J. KIRVAN
Deputy Attorney General of
Canada
Toronto
,
Ontario
FOR THE RESPONDENT