Date: 19980914
Docket: T-1770-98
BETWEEN:
DR. GIORGIO COPELLO
Appellant
- and -
THE MINISTER OF FOREIGN AFFAIRS and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER
(Delivered from the Bench at Ottawa, Ontario, on Friday, September 11, 1998)
HUGESSEN, J.:
[1] This is an unusual case. The applicant is a diplomat accredited by the Government of Italy to the Government of Canada. On July 13 and again on August 5, 1998, he was the subject of two diplomatic notes addressed by the Minister to the Italian Ambassador. The second of those notes in effect declared him to be persona non grata. He has applied for judicial review of the second note.
[2] He alleges that both notes were based on wrong and untested information obtained by the Minister in a process which was not fair and was not in accordance with the most basic principles of natural justice. He now seeks interim relief since the second note has the effect of requiring him to leave Canada on September 15, Tuesday of next week.
[3] In matters of interim relief, the Court applies the well known three-part test asking: (1) if the applicant has raised a serious question for decision by the Court; (2) if the applicant has shown that, without the interim relief, he will suffer irreparable harm; and (3) whether the balance of inconvenience favours the applicant or the respondent. In other words, whether the applicant would be more harmed if interim relief is not granted then the respondent will be harmed if it is granted.
[4] On the first branch of that test as to whether or not there is a serious question to be tried, there is no doubt whatever that this application raises very serious and difficult questions. The application is, in my view, fraught with difficulties. There are questions that arise from the interplay of domestic and international law, questions relating to diplomatic status, to prerogative rights, and, of course, relating to the jurisdiction of this Court. The threshold, however, is a low one. The bar is not set high for an applicant to clear. I am satisfied that, notwithstanding the difficult questions that the applicant will have to face, the application itself is not frivolous or vexatious and that is enough to satisfy the first branch of the test.
[5] As to the second branch of the test, irreparable harm, the evidence though thin is uncontradicted that the applicant and his family will suffer serious harm to their personal and professional lives if they are made to leave this country on Tuesday next. That harm is by its nature not one that is compensable in damages.
[6] Finally, I turn to the third branch of the test, the balance of convenience. The only inconvenience asserted by the respondent is the assertion that the Minister will be constrained in his ability to conduct the foreign affairs of Canada if an interim order is granted. I do not accept that submission. An order permitting this applicant to remain in Canada for such time as it may take for the application for judicial review to be heard will not impair the ability of the Minister to conduct the foreign affairs of Canada. I, accordingly, am prepared to grant the application for interim relief and to order that the second note issued by the Minister which requests that the applicant be withdrawn from Canada by the Government of Italy is to be stayed pending further order of the Court. Costs will be in the cause.
"James K. Hugessen"
Judge
Ottawa, Ontario
September 14, 1998