Baron et al. v. Canada (Minister of Public Safety and Emergency Preparedness), (2009) 387 N.R. 278 (FCA)

• Judge: Desjardins, Nadon and Blais, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: December 01, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2009), 387 N.R. 278 (FCA);2009 FCA 81;309 DLR (4th) 411;387 NR 278;[2009] FCJ No 314 (QL);176 ACWS (3d) 490;79 Imm LR (3d) 157

Baron v. Can. (2009), 387 N.R. 278 (FCA)

MLB headnote and full text

Temp. Cite: [2009] N.R. TBEd. AP.032

Sergio Adrian Baron and Maria Fernanda Riquelme (appellants) v. The Minister of Public Safety and Emergency Preparedness (respondent)

(A-165-08; 2009 FCA 81)

Indexed As: Baron et al. v. Canada (Minister of Public Safety and Emergency Preparedness)

Federal Court of Appeal

Desjardins, Nadon and Blais, JJ.A.

March 13, 2009.

Summary:

The appellants sought a deferral of removal orders issued against them until a decision was made regarding their pending application for landing on humanitarian and compassionate (H&C) grounds. An enforcement officer refused the request. The appellants applied for judicial review of the enforcement officer's decision refusing to defer their removal. O'Keefe, J., stayed the appellants' removal from Canada until the application for judicial review was decided.

The Federal Court, in a decision reported at 324 F.T.R. 133, dismissed the application for judicial review of the enforcement officer's decision on the ground that it was moot. The court held that a decision on the merits of the application would not resolve any controversy between the parties. The court certified the following question: "Where an applicant has filed an application for leave and judicial review challenging a refusal to defer removal pending a decision on an outstanding application for landing, and a stay of removal is granted so that the person is not removed from Canada, does the fact that a decision on the underlying application for landing remains outstanding at the date the Court considers the application for judicial review maintain a 'live controversy' between the parties, or is the matter rendered moot by the passing of the scheduled removal date". The appellants appealed.

The Federal Court of Appeal dismissed the appeal. The court held that the applications judge erred in law by dismissing the judicial review application for mootness and by refusing to exercise her discretion to hear the case. However, the court also held that the enforcement officer made no reviewable error in refusing to defer the appellants' removal from Canada pending the determination of their outstanding H&C application. The court answered the certified question as follows: "Because the underlying application for landing remains outstanding at the date the Court considers the application for judicial review, there remains a 'live controversy' between the parties and, as a result, the matter is not rendered moot by the passing of the scheduled removal date". Blais, J.A., concurred in the result, but disagreed with the court's conclusion in regard to the certified question of mootness.

Administrative Law - Topic 3314

Judicial review - Bars - Impracticality or no useful purpose - The appellants sought a deferral of removal orders issued against them until a decision was made regarding their pending application for landing on humanitarian and compassionate (H&C) grounds - An enforcement officer refused the request - The appellants applied for judicial review of the enforcement officer's decision refusing to defer their removal - O'Keefe, J., stayed the appellants' removal from Canada until the application for judicial review was decided - The applications judge dismissed the application for judicial review of the enforcement officer's decision on the ground that it was moot as it would not resolve any controversy between the parties - The Federal Court of Appeal held that the applications judge erred in law by dismissing the judicial review application for mootness - The determination of the mootness issue depended on the proper characterization of the controversy that existed between the parties - The real controversy between the parties, i.e. the execution of the removal order prior to the determination of the appellants' H&C application, remained alive - The court held that "Because the underlying application for landing remains outstanding at the date the Court considers the application for judicial review, there remains a 'live controversy' between the parties and, as a result, the matter is not rendered moot by the passing of the scheduled removal date" - The court also held that, bearing in mind the factors identified in Borowski (S.C.C.), if it had found that the application was moot, it would have had no hesitation in deciding that the court ought to deal with the merits of the application - See paragraphs 26 to 46.

Aliens - Topic 1797

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Deportation or removal order - Execution of - The Federal Court of Appeal held that an enforcement officer did not err in refusing to defer the appellants' removal from Canada pending a determination of their outstanding application for landing on humanitarian and compassionate (H&C) grounds - The enforcement officer considered all of the relevant facts before her - She remarked that the appellants had been informed in 2004 that no H&C application had been filed by them, contrary to what they apparently believed, and that they waited until 2006 to make their application - As a result, she was of the view that deferral on that ground was not warranted - The enforcement officer also considered the best interests of the appellants' two Canadian born children - She was of the view that "any kind of emotional disturbance the children may suffer due to their removal from Canada will likely be one of a temporary nature" - She also noted that the children were young and that they could easily adapt to a new environment and that there was no evidence that the children could not enrol in an English medium school where they could learn English as a first or second language - Lastly, she indicated that since both parents would be present in the children's lives in Argentina and the appellants' parents also lived in Argentina, the children would have adequate emotional support and an existing support base in their new country - The enforcement officer's decision to refuse deferral of the appellants' removal was reasonable - See paragraphs 53 to 61.

Aliens - Topic 1797

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Deportation or removal order - Execution of - The Federal Court of Appeal held that an enforcement officer did not err in refusing to defer the appellants' removal from Canada pending a determination of their outstanding H&C application - The court noted that in concluding that a deferral was not warranted, the enforcement officer emphasized the fact that the appellants had failed to report for their pre- removal interviews and that it had been necessary to issue warrants against them - The court further noted that the enforcement officer could also have emphasized the fact that the appellants, in order to delay their removal, had undertaken to leave the country with their children, which undertaking they failed to respect - The court stated that "Events of this type, i.e. where persons fail to comply with the requirements of the Act or act in a way so as to prevent the enforcement thereof, should always be high on the list of relevant factors considered by an enforcement officer. ... Thus, if the conduct of the person seeking a deferral of his or her removal either discredits him or creates a precedent which encourages others to act in a similar way, it is entirely open to the enforcement officer to take those facts into consideration in determining whether deferral ought to be granted. Neither enforcement officers nor the courts, for that matter, should encourage or reward persons who do not have 'clean hands'" - See paragraphs 63 to 65.

Aliens - Topic 1800.2

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Parents of Canadian citizens - [See first Aliens - Topic 1797 ].

Aliens - Topic 1800.2

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Parents of Canadian citizens - The Federal Court of Appeal held that an enforcement officer did not err in refusing to defer the appellants' removal from Canada pending a determination of their outstanding application for landing on humanitarian and compassionate (H&C) grounds - The court rejected the appellants' argument that the enforcement officer ought to have deferred their removal pending the determination of their H&C application so as to fulfill Canada's obligations under the Convention on the Rights of the Child - The enforcement officer considered the best interests of the appellants' two Canadian born children and concluded that no serious practical impediment existed to prevent removal of their parents to Argentina - The court stated that "The fact that the appellants intend to take their children with them to Argentina and that the children might not be able to return until their parents regularize their status in Canada or until they become adults is not, in my view, an impediment to the removal of the parents. The jurisprudence of this Court has made it clear that illegal immigrants cannot avoid the execution of a valid removal order simply because they are the parents of Canadian-born children" - The officer also went further than required in her consideration of the children's best interests - An enforcement officer had no obligation to substantially review the children's best interest before executing a removal order - See paragraph 57.

Aliens - Topic 4066.1

Practice - Judicial review and appeals - Bars - [See Administrative Law - Topic 3314 ].

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - [See Administrative Law - Topic 3314 ].

Courts - Topic 4087

Federal Court of Canada - Jurisdiction - Federal Court of Appeal - "Academic" or moot matters - [See Administrative Law - Topic 3314 ].

Cases Noticed:

Higgins v. Canada (Minister of Public Safety and Emergency Preparedness), [2007] F.T.R. Uned. 247; 2007 FC 377, refd to. [para. 16].

Solmaz v. Canada (Minister of Public Safety and Emergency Preparedness), [2007] F.T.R. Uned. 422; 2007 FC 607, refd to. [para. 16].

Maruthalingam v. Canada (Minister of Public Safety and Emergency Preparedness), [2007] F.T.R. Uned. 544; 2007 FC 823, refd to. [para. 16].

Vu v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 743; 2007 FC 1109, refd to. [para. 16].

Madani v. Canada (Minister of Public Safety and Emergency Preparedness), [2007] F.T.R. Uned. 772; 2007 FC 1168, refd to. [para. 16].

Kovacs v. Canada (Minister of Public Safety & Emergency Preparedness), [2007] F.T.R. Uned. 864; 2007 FC 1247, refd to. [para. 16].

Baron et al. v. Canada (Minister of Public Safety and Emergency Preparedness) (2008), 324 F.T.R. 133; 2008 FC 341, refd to. [para. 16].

Palka v. Canada (Minister of Public Safety and Emergency Preparedness), [2008] F.T.R. Uned. 247; 2008 FC 342, refd to. [para. 16].

Gumbura v. Canada (Minister of Public Safety and Emergency Preparedness), [2008] F.T.R. Uned. 611; 2008 FC 833, refd to. [para. 16].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 20].

Toth v. Minister of Employment and Immigration (1998), 86 N.R. 302 (F.C.A.), refd to. [para. 20].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 20].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 24].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1, refd to. [para. 25].

Amsterdam v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 161; 2008 FC 244, consd. [para. 31].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82; 57 D.L.R.(4th) 231, refd to. [para. 44].

Simoes et al. v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 219 (T.D.), consd. [para. 49].

Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 682; 204 F.T.R. 5 (T.D.), consd. [para. 51].

Legault v. Canada (Minister of Citizenship and Immigration) (2002), 288 N.R. 174; 2002 FCA 125, refd to. [para. 57].

Langner v. Ministre de l'Emploi et de l'Immigration et al. (1995), 184 N.R. 230; 29 C.R.R.(2d) 184 (F.C.A.), refd to. [para. 57].

Counsel:

D. Clifford Luyt, for the appellants;

Amina Riaz, Maria Burgos and Manuel Mendelzon, for the respondent.

Solicitors of Record:

D. Clifford Luyt, Toronto, Ontario, for the appellants;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard on December 1, 2008, at Toronto, Ontario, before Desjardins, Nadon and Blais, JJ.A., of the Federal Court of Appeal. The judgment of the Court of Appeal was delivered on March 13, 2009, including the following opinions:

Nadon, J.A. (Desjardins, J.A., concurring) - see paragraphs 1 to 70;

Blais, J.A., concurring in the result - see paragraphs 71 to 89.