Date: 19991201
Docket: IMM-5765-99
Ottawa, Ontario, the 1st day of December 1999
PRESENT: The Honourable Madame Justice Sharlow
BETWEEN:
ALAN JOSEPH GOODMAN,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
ORDER AND REASONS FOR ORDER
[1] The applicant Alan Joseph Goodman has been subject to a deportation order since September 25, 1997. He has been permitted to remain in Canada pending an application for landing sponsored by his spouse. That application was apparently under consideration by Ms. P. Phinn, an immigration official. A letter dated October 13, 1998 from another immigration official reads in part as follows:
| Mr. Goodman's scheduled removal to the United States on 22 October 1998 has been deferred pending a decision from Ms. Phimm [sic] regarding the sponsorship application. |
[2] On Tuesday, November 24, 1999, Mr. Goodman received a letter dated November 18, 1999 ordering him to report for deportation on December 2, 1999. At that time, he had not received any notification that a decision had been reached with respect to his application for landing.
[3] Counsel for Mr. Goodman was unable to respond until Thursday, November 26, 1999, when he contacted the responsible immigration officials to remind them of the October 13, 1998 letter. In a reply received the same day, counsel for Mr. Goodman was told that Mr. Goodman must report for deportation on December 2, 1999 as previously ordered.
[4] On Monday, November 29, 1999, this application for leave and for judicial review was commenced with respect to the removal decision. The basis of the application is that the immigration officials should be barred from acting contrary to the October 13, 1998 letter. An application for a stay of execution of the deportation order was made at the same time.
[5] In response to the stay application, counsel for the Minister provided an affidavit to which is appended a letter dated November 29, 1999, written by Ms. Phinn, stating that on that date, a decision had been made to deny Mr. Goodman's application for landing. It appears that the letter was sent by priority post on the same date to Mr. Goodman and his counsel.
[6] I infer that the November 29, 1999 letter could not possibly have been received by Mr. Goodman or his counsel until at least November 30, 1999, the day on which this stay application was commenced and heard. At the hearing, counsel for Mr. Goodman says he had not seen the November 29, 1999 letter before a copy of it was submitted in response to this application, and I accept that as true.
[7] It is argued for the Minister that the decision to remove Mr. Goodman on December 2, 1999 is not inconsistent with the October 13, 1998 letter, because the date fixed for Mr. Goodman's actual removal is after the date of the decision denying his application for landing. She says that the Minister's officials did not promise to defer the making of the removal arrangements, only the actual removal date. She argues that this removes the underpinnings of this stay application, which must necessarily fail.
[8] The material before me raises a question as to the bona fides of the November 29, 1999 decision. I am unable to determine on the material before me whether the decision is correct in law or reasonable, or whether it was improperly motivated by the fact that the removal decision was made prior to November 29, 1999.
[9] In these unusual circumstances it seems to me that I should consider the tri-partite test for a stay on the basis of the issues raised in the current application for leave and for judicial review, as well as any issues that might have been raised with respect to the negative decision set out in the November 29, 1999 letter, had Mr. Goodman been aware of it.
[10] The paucity of the record relating to the decision set out in the November 29, 1999 letter, combined with the contents of the October 13, 1998 letter, are sufficient to meet the very low standard for an arguable issue to be tried.
[11] I am satisfied that the material submitted on behalf of Mr. Goodman establishes that there is a risk of irreparable harm if Mr. Goodman is removed from Canada, and that the balance of convenience favours him. His affidavit, which is uncontradicted, indicates that he is the principal operator of a small business that supports his family and employs a number of people.
[12] Mr. Goodman has not been found to be a danger to the public in Canada, and there is nothing in the material before me to suggest that he has ever been involved in criminal activities in Canada. He was convicted of an offence in the United States in 1984, and he pled guilty to some offences in Fiji in 1999, though the evidence suggests significant mitigating circumstances. There is no suggestion that there is any risk of harm to the Minister or the general public if Mr. Goodman is allowed to remain in Canada pending the disposition of his application for judicial review.
[13] The application for a stay of the execution of the deportation order will be granted, subject to the following directions:
| (1) The stay will remain in effect until the final disposition of Court File No. IMM-5765-99. |
| (2) Any application for leave and for judicial review of the decision set out in the letter dated November 29, 1999 from P. Phinn must be served and filed on or before January 7, 2000. If that is done, the stay will remain in effect until the final disposition of that matter. |
| (3) If a leave application is filed with respect to the November 29, 1999 decision and the applicant also continues Court File No. IMM-5765-99: |
| (a) the two applications will be considered together; |
| (b) the two applications will be based on a common application record, a common respondent's record and, if needed, a common reply; |
| (c) the time limits for the steps to be taken with respect to both matters will be those applicable to the November 29, 1999 decision; |
| (d) the stay will remain in effect until the final disposition of both applications. |
| (4) The parties are at liberty to apply to any Judge for a variation of these directions. |
Costs
[14] Counsel for Mr. Goodman argues that this is an appropriate case for an order for costs against the Minister pursuant to Immigration Rule 22. Costs may be awarded under Rule 22 where an applicant is put to unnecessary trouble and expense by the way in which Ministry officials have dealt with him and the manner in which the litigation is conducted: Canada (Minister of Employment and Immigration) v. Ermeyev (1994), 83 F.T.R. 158 (T.D.).
[15] At this stage I am unable to reach any conclusion as to the propriety of the actions of Ministry officials. The question of costs is deferred for consideration by the judge who deals with the final disposition of this matter, or the application with respect to the January 29, 1999 decision, or both, as the case may be.
Karen R. Sharlow
Judge