Federal Court Decisions

Date: 20070518

Docket: IMM-1986-07

Citation: 2007 FC 534

Ottawa, Ontario, May 18, 2007

PRESENT:     The Honourable Mr. Justice Barnes

BETWEEN:

PING SHI

Applicant

and

THE MINISTER OF PUBLIC SAFETY

AND EMERGENCY PREPAREDNESS

Respondent

REASONS FOR ORDER

[1]               These are my reasons for dismissing the Applicant’s motion for a stay of her removal from Canada.

[2]               The Order was issued following the submissions made by counsel for the parties and I indicated at that time that my reasons would follow. 

[3]               This motion came before the Court on the evening of May 16, 2007 and it concerned a removal order scheduled to be executed the following morning.  The Applicant entered Canada from China as a visitor in May 2004.  She made a refugee claim which was dismissed in September 2005.  She initiated a combined Humanitarian and Compassionate application and Risk Assessment in 2006 both of which were rejected. 

[4]               As early as 2005 and throughout 2006, the Applicant was being treated for a fibroid condition and, in November 2006, she had an inter-uterine device (IUD) removed.  The medical information indicates that she would benefit from further gynaecological treatment.  Apparently the details of her medical issues were not raised during the risk assessment.  Nevertheless, in April 2007 the Respondent’s file notes indicate that the Applicant was advised to submit proof of her medical condition for further consideration.  This was not done until May 10, 2007.  When this motion was filed late in the day on May 16^th, it was supported by over 150 pages of evidence much of which was directed at the situation in China for women who had breached state reproductive policies.  It was contended that the Applicant could be persecuted for having had her IUD medically removed in Canada notwithstanding that she had been married in Canada and wished to start a family here. 

[5]               The Respondent strenuously objected to the lateness of the motion and submitted that it should be dismissed because the Respondent was not in a position to respond to the evidence submitted by the Applicant.  Counsel for the Respondent pointed out that the medical issues at the heart of this motion had been well known for months and there was no valid reason for springing them at the last minute.  He pointed out that the response by the Chinese authorities to the issue of the removal in Canada of an IUD from a 41-year-old woman who wanted to start a Canadian family was, by no means, obvious.  This was an issue on which the Respondent was deprived of an opportunity to respond with the submission of relevant evidence to the Court. 

[6]               I dismissed this motion because of its lateness and because of the obvious prejudice to the Respondent if the matter was heard on the merits.  An applicant should not enjoy a strategic advantage by bringing last-minute stay motions before the Court.  This is a discretionary and extraordinary remedy the granting of which requires a meaningful record and careful consideration.  This is the very type of situation considered by the Federal Court of Appeal in El Ouardi v. Canada (Solicitor General), [2005] F.C.J. No. 189, 2005 FCA 42, where Justice Marshall Rothstein observed:

6     I am inclined to the view that, in the circumstances of this case, Blais J. was entitled to determine, as an initial issue, whether to entertain the stay motion and did not decline jurisdiction by dismissing the application on that ground. In the case of a late application for a stay, a motions judge must be given considerable leeway in dealing with the matter. In cases of late stay applications, a requirement to consider the merits could result in an automatic stay because of the need to give the Minister time to respond or the time necessary for the Court to decide the matter. Therefore, in cases of late stay applications, I doubt there is an obligation on the Court to consider the merits in all cases, especially where the application is very late as in this case. Certainly, the motions judge should consider the reason for the lateness of the application. If the Minister is involved in the circumstances giving rise to the delay, then the decision might be different than if the applicant is responsible.

7     In the present case, the facts are that the stay application could have been made on or shortly after January 7, 2005, when the appellant was advised of her scheduled removal date. In these circumstances, I tend to think that Blais J. properly exercised his discretion not to entertain the very late stay motion, that it was within his jurisdiction to do so, even though he may not have considered the merits of the application and that the matter is not appealable to this Court. However, the threshold for a serious issue is low and I do not think it would be appropriate for me, sitting on a motion for a stay pending appeal, to make a final decision on this issue.

[7]               In this case, the Respondent was in no way responsible for the lateness of this motion.  The Applicant was well aware of the likelihood of her removal by at least early March.  She failed to respond to the Respondent’s requests for medical information and I do not find the explanation of modesty to be persuasive. 

[8]               Therefore, I dismissed the Applicant’s motion for a stay of deportation.

"R. L. Barnes"

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          IMM-1986-07

STYLE OF CAUSE:                          Ping Shi v The Minister of Public Safety and

                                                            Emergency Preparedness

PLACE OF HEARING:                    Ottawa, Ontario

DATE OF HEARING:                      May 16, 2007

REASONS FOR ORDER:               The Honourable Mr. Justice Barnes

DATED:                                             May 18, 2007

APPEARANCES:

SOLICITORS OF RECORD: