Eberhardt v. Canada (Minister of Public Safety and Emergency Preparedness), (2013) 441 F.T.R. 170 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: July 18, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 441 F.T.R. 170 (FC);2013 FC 1077

Eberhardt v. Can. (2013), 441 F.T.R. 170 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. MY.042

Richard Lee Eberhardt (applicant) v. The Minister of Public Safety and Emergency Preparedness (respondent)

(IMM-828-13; 2013 FC 1077; 2013 CF 1077)

Indexed As: Eberhardt v. Canada (Minister of Public Safety and Emergency Preparedness)

Federal Court

Russell, J.

October 24, 2013.

Summary:

Eberhardt was a United States citizen who lived in Canada with his 13 year old daughter, who was a Canadian citizen. A delegate of the Minister of Public Safety and Emergency Preparedness made an exclusion order against Eberhardt because he entered Canada without a permanent residence visa intending to remain in Canada on a permanent basis. Eberhardt applied for judicial review.

The Federal Court dismissed the application.

Aliens - Topic 1616

Exclusion and expulsion - Immigration - Deportation - Deportation hearing (inquiry or admissibility hearing) - Procedure (incl. procedural fairness) - Eberhardt was a United States citizen who lived in Canada with his 13 year old Canadian daughter - Eberhardt was the sole custodial parent and means of support for his daughter - He maintained a home in Canada so that his daughter could remain close to her mother, who was also a Canadian citizen and had substance abuse issues - A delegate of the Minister of Public Safety and Emergency Preparedness made an exclusion order against Eberhardt because he entered Canada without a permanent residence visa intending to remain in Canada on a permanent basis - Eberhardt applied for judicial review - The Federal Court dismissed the application and rejected Eberhardt's argument that immigration officials were obliged to assist him to identify and avail himself of any options he might have to avoid deportation - There was no such legal obligation - It was up to Eberhardt to seek whatever advice he needed - Eberhardt had been told numerous times over the years by immigration authorities that he needed to apply for permanent residence - The court also rejected the suggestion that the delegate was under a legal obligation to consider humanitarian and compassionate (H&C) factors such as the best interests of Eberhardt's daughter - The proceedings before the delegate were not an H&C application and the delegate had limited discretion.

Aliens - Topic 1800.2

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Parents of Canadian citizens - [See Aliens - Topic 1616 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 16].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour) (2003), 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 17].

Sketchley v. Canada (Attorney General) (2005), 344 N.R. 257; 2005 FCA 404, refd to. [para. 17].

Rhoades v. Canada (Minister of Public Safety and Emergency Preparedness), [2005] F.T.R. Uned. A48; 2005 FC 986, refd to. [para. 18].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 19].

Granger v. Canada Employment and Immigration Commission, [1986] 3 F.C. 70; 69 N.R. 212 (F.C.A.), refd to. [para. 29].

Cha v. Canada (Minister of Citizenship and Immigration) (2007), 349 N.R. 233; 2006 FCA 126, refd to. [para. 30].

Lasin v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 844; 2005 FC 1356, refd to. [para. 31].

De Araujo v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 294; 2009 FC 515, refd to. [para. 32].

Ruiz Loranca et al. v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 860; 2008 FC 1186, refd to. [para. 32].

Alleti v. Canada (Ministre de la Citoyenneté et de l'Immigration) (1998), 147 F.T.R. 310 (T.D.), refd to. [para. 35].

Rosenberry v. Canada (Minister of Citizenship and Immigration) (2010), 374 F.T.R. 116; 2010 FC 882, refd to. [para. 59].

Laissi v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 429 F.T.R. 314; 2013 FC 393, refd to. [para. 59].

Counsel:

Richard L. Eberhardt, on his own behalf, for the applicant;

François Paradis, for the respondent.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent.

This application for judicial review was heard at Vancouver, British Columbia, on July 18, 2013, before Russell, J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on October 24, 2013.