Chaudhary et al. v. Ontario (Attorney General) et al., (2015) 331 O.A.C. 396 (CA)

• Judge: Weiler, J.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 10, 2015
• Jurisdiction: Ontario
• Citations: (2015), 331 O.A.C. 396 (CA);2015 ONCA 251

Chaudhary v. Ont. (A.G.) (2015), 331 O.A.C. 396 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AP.012

Amina Chaudhary, Michael Mvogo, Carmelo Bruzzese and Glory Anawa (applicant/appellants on appeal) v. Minister of Public Safety and Emergency Preparedness, Minister of Citizenship and Immigration, Attorney General of Canada, Attorney General of Ontario, and Superintendent of the Central East Correctional Centre (respondents)

(M44915; C60223; 2015 ONCA 251)

Indexed As: Chaudhary et al. v. Ontario (Attorney General) et al.

Ontario Court of Appeal

Weiler, J.A.

April 13, 2015.

Summary:

The applicant was a permanent resident of Canada. He was being detained in custody as a flight risk and a danger to the public based on an investigation of his potential inadmissibility to Canada for being a member of an organization engaged in organized criminal activity under s. 37(1)(a) of the Immigration and Refugee Protection Act. He applied for an order of habeas corpus with certiorari in aid, seeking his immediate release from custody and claiming that his continued detention was unlawful.

The Ontario Superior Court dismissed the application. The applicant appealed. He applied for an order that, pending determination of the appeal, no final deportation order was to be enforced against him.

The Ontario Court of Appeal, per Weiler, J.A., dismissed the application.

Practice - Topic 8959

Appeals - Stay of proceedings pending appeal - Considerations - The applicant was a permanent resident of Canada - He was being detained in custody as a flight risk and a danger to the public based on an investigation of his potential inadmissibility to Canada for being a member of an organization engaged in organized criminal activity under s. 37(1)(a) of the Immigration and Refugee Protection Act - He applied for an order of habeas corpus with certiorari in aid, seeking his immediate release from custody and claiming that his continued detention was unlawful - The application judge dismissed the application - The applicant appealed - He applied for an order that, pending determination of the appeal, no final deportation order was to be enforced against him - The Ontario Court of Appeal, per Weiler, J.A., dismissed the application - First, the order being sought was premature - Second, the applicant had not met the requirements for granting a stay as the appeal did not raise a serious issue to be tried.

Cases Noticed:

Ahani v. Canada (Attorney General) (2002), 155 O.A.C. 1 (C.A.), refd to. [para. 7].

Yhap v. Minister of Employment and Immigration (1989), 29 F.T.R. 223 (T.D.), refd to. [para. 10].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1, refd to. [para. 12].

Circuit World Corp. v. Lesperance et al. (1997), 104 O.A.C. 59; 33 O.R.(3d) 674 (C.A.), refd to. [para. 13].

BTR Global Opportunity Trading Ltd. et al. v. RBC Dexia Investor Services Trust (2011), 283 O.A.C. 321; 2011 ONCA 620, refd to. [para. 13].

Warren Woods Land Corp. et al. v. 1636891 Ontario Inc., [2012] O.A.C. Uned. 9; 2012 ONCA 12, refd to. [para. 13].

International Corona Resources Ltd. v. LAC Minerals Ltd. (1986), 21 C.P.C.(2d) 252 (Ont. C.A.), refd to. [para. 14].

Longley et al. v. Canada (Attorney General) (2007), 223 O.A.C. 102; 2007 ONCA 149, refd to. [para. 14].

Ogden Entertainment Services v. United Steelworkers of America, Local 440 et al. (1998), 110 O.A.C. 297; 38 O.R.(3d) 448 (C.A.), refd to. [para. 15].

Khela v. Mission Institution (Warden) et al. (2014), 455 N.R. 279; 351 B.C.A.C. 91; 599 W.A.C. 91; 2014 SCC 24, refd to. [para. 16].

Peiroo v. Minister of Employment and Immigration (1989), 34 O.A.C. 43; 69 O.R.(2d) 253 (C.A.), leave to appeal denied (1989), 104 N.R. 319 (S.C.C.), refd to. [para. 16].

Reza v. Minister of Employment and Immigration, [1994] 2 S.C.R. 394; 167 N.R. 282; 72 O.A.C. 348, refd to. [para. 16].

Baroud v. Canada (Minister of Citizenship and Immigration) et al. (1995), 77 O.A.C. 26 (C.A.), refd to. [para. 18].

Shepherd v. Minister of Employment and Immigration, [1989] O.J. No. 2056 (C.A.), leave to appeal denied [1989] 2 S.C.R. xi, refd to. [para. 19].

R. v. Zundel (E.) (2004), 186 O.A.C. 196 (C.A.), leave to appeal denied (2004), 333 N.R. 394 (S.C.C.), refd to. [para. 19].

Bembenek v. Minister of Employment and Immigration, [1991] O.J. No. 2162, refd to. [para. 20].

Kindler v. MacDonald, [1987] 3 F.C. 34; 80 N.R. 388 (F.C.A.), refd to. [para. 26].

Al Yamani v. Canada (Minister of Citizenship and Immigration) (2003), 314 N.R. 347; 2003 FCA 482, refd to. [para. 28].

Arthur v. Minister of Employment and Immigration, [1993] 1 F.C. 94; 147 N.R. 288 (F.C.A.), refd to. [para. 30].

Khalife v. Canada (Minister of Citizenship and Immigration) (2002), 225 F.T.R. 200 (T.D.), refd to. [para. 30].

R. v. Gauthier (C.) (2013), 445 N.R. 97; 360 D.L.R.(4th) 1; 2013 SCC 32, refd to. [para. 33].

Counsel:

Barbara Jackman and Rebecca Lockwood (student at law), for the applicant;

Martin Anderson and Mélissa Mathieu, for the Minister of Public Safety and Emergency Preparedness, the Minister of Citizenship and Immigration and the Attorney General of Canada.

This application was heard in Chambers, on April 10, 2015, by Weiler, J.A., of the Ontario Court of Appeal, who delivered the following endorsement on April 13, 2015.