Toth v. Minister of Employment and Immigration, (1988) 86 N.R. 302 (FCA)

• Judge: Heald, Reed, JJ. and McQuaid, D.J.
• Court: Federal Court of Appeal (Canada)
• Case Date: June 21, 1988
• Jurisdiction: Canada (Federal)
• Citations: (1988), 86 N.R. 302 (FCA);1988 CanLII 1420 (FCA);86 NR 302;[1988] FCJ No 587 (QL);11 ACWS (3d) 440;[1988] ACF no 587;6 Imm LR (2d) 123

Toth v. MEI (1988), 86 N.R. 302 (FCA)

MLB headnote and full text

Joseph Toth (applicant) v. Minister of Employment and Immigration (respondent)

(No. 88-A-324)

Indexed As: Toth v. Minister of Employment and Immigration

Federal Court of Appeal

Heald, Reed, JJ. and McQuaid, D.J.

June 21, 1988.

Summary:

Toth was ordered to be deported. After the appeal period expired he applied for an extension of time for applying for leave to appeal and for leave to appeal, and sought a stay of the deportation order.

The Federal Court of Appeal granted the application for a stay after ruling that it had implied power to do so.

Aliens - Topic 1800

Exclusion and expulsion - Deportation - Deportation order - Stay of - Pending appeal to court - The Federal Court of Appeal held that it had implied power to grant a stay of proceedings pending appeal respecting execution of a deportation order - The court granted the stay upon the applicant satisfying the tri-partite test for granting a stay - See paragraphs 3 to 14 - The court held that the Immigration Act, s. 51(1)(c), authorized a stay only where the appeal is timely and could not be used to justify a late appeal - See paragraph 2.

Courts - Topic 4100.1

Federal Court of Canada - Jurisdiction - Federal Court of Appeal - Implied powers - Stay of proceedings pending appeal or review - The Federal Court of Appeal held that it had implied power to grant a stay of proceedings pending appeal respecting execution of a deportation order - See paragraphs 3 to 5.

Practice - Topic 8951

Appeals - Stay of proceedings pending appeal - Jurisdiction - [See Courts - Topic 4100.1 above].

Practice - Topic 8959

Appeals - Stay of proceedings pending appeal - Considerations - The Federal Court of Appeal held that the test for granting a stay of proceedings pending appeal was the same as for an interim injunction, requiring the appellant to demonstrate: (1) that he has raised a serious issue to be tried; (2) that he could suffer irreparable harm if no stay was granted and (3) that the balance of convenience favours the order - The court granted a stay of execution of a deportation order, even though the application for leave to appeal was late - See paragraphs 6 to 14.

Cases Noticed:

New Brunswick Electric Power Commission v. Maritime Electric Company Limited and National Energy Board, [1985] 2 F.C. 13; 60 N.R. 203, appld. [para. 3].

Mohammad v. M.E.I. (1988), 86 N.R. 300 (F.C.A.), folld. [para. 5].

Metropolitan Stores (M.T.S.) Ltd. v. Manitoba Food and Commercial Workers, Local 832, [1982] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, appld. [para. 6].

American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396, appld. [para. 6].

Apple Computer Inc. v. Minitronics of Canada et al., 8 C.P.R.(3d) 431, refd to. [para. 6].

Law Society of Alberta v. Black (1983), 69 A.R. 322; 8 D.L.R.(4th) 346 (Alta. C.A.), appld. [para. 6].

Lyle v. Minister of Employment and Immigration, [1982] 2 F.C. 821; 44 N.R. 332, refd to. [para. 8].

Clancy v. Minister of Employment and Immigration (1988), 86 N.R. 301 (F.C.A.), consd. [para. 9].

Grillas v. M.M.I. (1971), 23 D.L.R.(3d) 1, refd to. [para. 9].

Rio Hotel Ltd. v. Liquor Licensing Board, [1986] 2 S.C.R. ix., refd to. [para. 13].

Yri-York Limited et al. v. Canada (Attorney General) et al. (1988), 83 N.R. 195 (F.C.A.), refd to. [para. 13].

Statutes Noticed:

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, sect. 30(1) [para. 3].

Immigration Act, S.C. 1976-77, c. 52, sect. 51(1)(c) [para. 2].

Counsel:

B. Jackman, for the applicant;

M. Duffy, for the respondent.

Solicitors of Record:

O'Connor, Ecclestone & Kaiser, Kingston, Ontario, for the applicant;

F. Iacobucci, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This case was heard on June 2, 1988 at Toronto, Ontario, before Heald, Reed, JJ., and McQuaid, D.J., of the Federal Court of Appeal.

On June 21, 1988, Heald, J. delivered the following judgment for the Federal Court of Appeal.