Horvath v. Canada (Minister of Citizenship and Immigration), (2000) 196 F.T.R. 177 (TD)

• Judge: Muldoon, J.
• Court: Federal Court (Canada)
• Case Date: July 10, 2000
• Jurisdiction: Canada (Federal)
• Citations: (2000), 196 F.T.R. 177 (TD)

Horvath v. Can. (M.C.I.) (2000), 196 F.T.R. 177 (TD)

MLB headnote and full text

Temp. Cite: [2000] F.T.R. TBEd. NO.073

Gabor Horvath and Andrea Horvath née Vago (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-3406-00)

Indexed As: Horvath v. Canada (Minister of Citizenship and Immigration)

Federal Court of Canada

Trial Division

Muldoon, J.

October 26, 2000.

Summary:

The applicants, a married couple, were citizens of Hungary. They had two Canadian born children. The applicants brought a motion for an order staying the execution of deportation orders made against them until the later of: the finalization of an application for permanent residency made by the husband, or, the decision by the Federal Court on an application for leave and for judicial review of the decision to execute the removal of the applicants.

The Federal Court of Canada, Trial Division, dismissed the motion.

Aliens - Topic 1800

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Deportation or removal order - Stay of - The applicants moved for a stay of the execution of deportation orders made against them until the later of: the finalization of the husband's application for permanent residency, or, the decision on an application for leave and judicial review of the decision to execute the removal of the applicants - The Minister raised an objection regarding the court's jurisdiction to issue a stay based on s. 18.2 of the Federal Court Act - The Minister submitted that the Federal Court did not have the jurisdiction to issue a stay to prevent the execution of a removal order if the validity of the removal order was not in dispute - The Federal Court of Canada, Trial Division, dismissed the Minister's objection, stating that "this court has previously held that it should retain jurisdiction to relieve against maladministration of justice. This posture requires the court to review the motion on its merits" - See paragraphs 9 to 20.

Aliens - Topic 1800

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Deportation or removal order - Stay of - The applicants, a married couple, were citizens of Hungary - They had two Canadian born children - The applicants moved for a stay of the execution of deportation orders made against them until the later of: the finalization of the husband's application for permanent residency, or, the decision on an application for leave and judicial review of the decision to execute the removal of the applicants - The Federal Court of Canada, Trial Division, held that a serious issue existed where the issue of protection of the children might be validly argued at a later judicial review proceeding - See paragraph 33 - However, the court dismissed the motion for a stay where the applicants failed to show that irreparable harm would occur if they were deported and the balance of convenience favoured the Minister.

Aliens - Topic 1800

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Deportation or removal order - Stay of - The applicants, a married couple, were citizens of Hungary - They had two Canadian born children - The applicants moved for a stay of the execution of deportation orders made against them until the later of: the finalization of the husband's application for permanent residency, or, the decision on an application for leave and judicial review of the decision to execute the removal of the applicants - The applicants submitted that their removal from Canada would result in irreparable harm because their business would suffer and collapse - The Federal Court of Canada, Trial Division, held that the applicants had not established irreparable harm - The business was small and the jurisprudence demonstrated that the winding down of a business did not always constitute irreparable harm - The applicants also had skills that would permit them to earn a living in Hungary - Finally, the applicants did not need to be separated from their children because their children could accompany them back to Hungary - See paragraphs 35 to 42.

Aliens - Topic 1800

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Deportation or removal order - Stay of - The applicants moved for a stay of the execution of deportation orders made against them until the later of: the finalization of the husband's application for permanent residency (made on the same day as a direction to report for removal), or, the decision on an application for leave and judicial review of the decision to execute the removal of the applicants - The Federal Court of Canada, Trial Division, dismissed the motion - By proceeding in the manner that they did, the applicants rendered nugatory the requirement that candidates for immigration must apply from abroad unless s. 114(2) of the Immigration Act applied - The lateness of the applicants' efforts and the methods they chose to regularize their status favoured the Minister on a balance of convenience - See paragraphs 43 to 47.

Courts - Topic 4032.1

Federal Court of Canada - Jurisdiction - Trial Division - Stay of proceedings - General - [See first Aliens - Topic 1800 ].

Courts - Topic 4044

Federal Court of Canada - Jurisdiction - Trial Division - Immigration - [See first Aliens - Topic 1800 ].

Cases Noticed:

Shchelkanov v. Minister of Employment and Immigration (1994), 76 F.T.R. 151 (T.D.), not folld. [para. 11, footnote 2].

Garganis v. Canada (Minister of Citizenship and Immigration), [1999] F.T.R. Uned. 701 (T.D.), refd to. [para. 12, footnote 5].

Paul et al. v. Minister of Employment and Immigration (1993), 61 F.T.R. 111 (T.D.), refd to. [para. 12, footnote 7].

Muncan v. Canada (Minister of Citizenship and Immigration) (1997), 141 F.T.R. 241 (T.D.), refd to. [para. 15, footnote 8].

Melo v. Canada (Minister of Citizenship and Immigration) (2000), 188 F.T.R. 39 (T.D.), consd. [para. 16, footnote 9].

Bal v. Minister of Employment and Immigration, [1993] 2 F.C. 199; 63 F.T.R. 226 (T.D.), refd to. [para. 16, footnote 10].

Hosein v. Minister of Employment and Immigration (1992), 53 F.T.R. 86; 17 Imm. L.R.(2d) 125 (T.D.), consd. [para. 17, footnote 11].

Muñoz v. Canada (Minister of Citizenship and Immigration) (1995), 100 F.T.R. 201; 30 Imm. L.R.(2d) 166 (T.D.), consd. [para. 18, footnote 12].

Rizzo v. Canada (Minister of Citizenship and Immigration) (1997), 125 F.T.R. 269 (T.D.), consd. [para. 19, footnote 13].

Toth v. Minister of Employment and Immigration (1988), 86 N.R. 302; 6 Imm. L.R.(2d) 123 (F.C.A.), appld. [para. 20, footnote 14].

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; 18 C.P.C.(2d) 273; 38 D.L.R.(4th) 321, refd to. [para. 21, footnote 15].

Francis v. Canada (Minister of Citizenship and Immigration) (1999), 62 O.T.C. 303; 40 O.R.(3d) 74 (Gen. Div.), revd. (1999), 125 O.A.C. 248 (C.A.), leave to appeal granted (2000), 257 N.R. 200; 138 O.A.C. 199, refd to. [para. 22, footnote 16].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25; 177 D.L.R.(4th) 124, refd to. [para. 24, footnote 18].

Paterson v. Canada (Minister of Citizenship and Immigration) (2000), 4 Imm. L.R.(3d) 65 (F.C.T.D.), refd to. [para. 25, footnote 19].

Simoes v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 219 (T.D.), consd. [para. 27, footnote 20].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 14 Admin. L.R.(3d) 173; 174 D.L.R.(4th) 193, refd to. [para. 29, footnote 21].

Langner v. Ministre de l'Emploi et de l'Immigration et al. (1995), 184 N.R. 230 (F.C.A.), consd. [para. 30, footnote 22].

R.J.R. 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; 58 A.R. 161; 111 D.L.R.(4th) 385; 54 C.P.R.(3d) 114, refd to. [para. 33, footnote 23].

Siljanovski v. Canada (Minister of Citizenship and Immigration), [2000] F.T.R. Uned. 287 (T.D.), refd to. [para. 39, footnote 25].

Statutes Noticed:

Federal Court Act, R.S.C. 1985, c. F-7, sect. 18.2 [para. 9].

Counsel:

Irvin H. Sherman, Q.C., for the applicants;

Stephen H. Gold, for the respondent.

Solicitors of Record:

Martinello & Associates, Don Mills, Ontario, for the applicants;

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This motion was heard on July 10, 2000, at Toronto, Ontario, before Muldoon, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on October 26, 2000.