Date: 20040127
Docket: IMM-643-04
Citation: 2004 FC 126
Ottawa, Ontario, this 27th day of January 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
FRANCIS ASUEKOMHE MARK
KAYODE AREMU SHONUBI
ANN KENTOA
CHARLES IMAFIDON
Applicants
and
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] Today, the four persons named above as applicants presented me with a request to stay the execution of orders requiring their removal from Canada tomorrow. They were informed of their departure arrangements, at the earliest, four days ago (on a Friday). All of them are currently in detention. They appear to be part of a group of persons from the United States and Canada, assembled on short notice, who are being returned to Nigeria by way of a chartered aircraft.
[2] The materials before me are irregular. The applicants presented me with a joint application for judicial review, and a joint notice of motion and motion record. Other than their nationality and destination, the applicants have nothing in common. The respondent, understandably, objects to the form of the applicants' materials and asks me to strike their motion as an abuse of process.
[3] I am sympathetic to the applicants' plight. Because of the travel arrangements made by the respondent, they have had little time to contact counsel and compile the materials that would support proper stay motions. Counsel took the risk of compiling joint materials in order to put something before me that might permit consideration of their cases on an urgent basis prior to their departure.
[4] Because the materials before me are scant, I do not know at this point whether there are serious issues to be tried in respect of any of the applicants. Nor do I know whether any of them, or their loved ones, would suffer irreparable harm if removed from Canada. It does appear, for example, that some of the applicants have Canadian-born children. I simply do not know whether their interests have been considered by the respondent. It also appears that some of the applicants are pursuing other ongoing remedies that might permit them to remain in Canada. The applicants requested deferral of their removal, but I do not know what the response of the removal officer was.
[5] The respondent contends that it is severely prejudiced by the form of motion presented by the applicants. There is no doubt that the respondent is in a difficult position, having to respond to four separate fact situations and sets of legal issues, as well as a constitutional argument that the travel arrangements themselves offend principles of fairness and equality, all at once. As the respondent states: "Requiring each Applicant to commence a separate application allows the Respondent to properly prepare the evidence and submissions in a manner that is relevant to each individual Applicant". That would certainly be the better course, but I do not see how that would be possible in the time remaining before the scheduled departure of the applicants, the timing of which was determined by the respondent.
[6] Under the circumstances, the only fair solution is to allow the applicants to remain in Canada at least long enough to present their motions properly and to permit the respondent an opportunity to respond to them as it sees fit. I am very sensitive to the fact that this delay may well be costly and inconvenient to the respondent. However, I see no other alternative that would permit due consideration of what may be serious issues of law and personal hardship.
ORDER
THIS COURT ORDERS that:
1. The removal from Canada of the persons named above as applicants is stayed for a period of seven days in order to permit them an opportunity to file proper motion materials with the Court.
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-643-04
STYLE OF CAUSE: FRANCIS ASUEKOMHE MARK, KAYODE AREMU SHONUBI, ANN KENTOA, CHARLES IMAFIDON v. THE SOLICITOR GENERAL OF CANADA
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice O'Reilly
DATED: January 27, 2004
WRITTEN REPRESENTATIONS BY:
SOLICITORS OF RECORD:
North York Ontario
MUNYONZWE HAMALENGWA Mississauga, Ontario |
FOR THE APPLICANTS |
DEPUTY ATTORNEY GENERAL OF CANADA Toronto, Ontario |
FOR THE RESPONDENT |