Applicants stay their removal from Canada so that underlying immigration application can proceed
Canada’s Federal Court dealt with proceedings involving issues of what should be considered toxic substances under environmental legislation, whether a PIPEDA report should be publicly disclosed, and how much to award as costs thrown away in preparation of a trial.
Federal Court
On Monday, the court heard Responsible Plastic Use Coalition et al v. The Minister of the Environment, T-824-21. The applicants wanted to prevent the addition of plastic manufactured items to Schedule 1 – the list of toxic substances under the Canadian Environmental Protection Act, 1999 – without a prior demonstration that these substances met certain requirements.
The applicants asked the court to require the federal ministers for health and environment and climate change to establish a review board that would scientifically assess the nature and extent of the risk presented by plastic manufactured items.
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On Tuesday, the court heard 9219-1568 Quebec Inc. et al v. Privacy Commissioner of Canada, T-853-23. This involved a judicial review application filed by certain companies, including MG Freesites, which operates adult-oriented streaming websites such as Pornhub and YouPorn.
The applicants alleged that the federal privacy commissioner conducted an investigation that lacked procedural fairness. The commissioner’s publication decision relating to the report made under s. 13 of the Personal Information Protection and Electronic Documents Act, 2000 (PIPEDA) exceeded jurisdiction, the applicants argued.
According to the applicants, the disclosure would include conclusions and recommendations appearing to regulate their extraterritorial commercial activities and challenging their collection, use, and disclosure of electronic information.
On Tuesday, the court heard Abousfian Abdelrazik v. His Majesty the King et al, T-1580-09. The federal government brought a motion to adjourn the trial so that it could file an application under s. 38 of the Canada Evidence Act, 1985.
In 2018, the Federal Court granted the motion. It recognized that the parties had months to prepare for trial, that the plaintiff expressed his intention and readiness to proceed, that Canada’s attorney general waited until the last minute to confirm that an application would be filed, and that the adjournment would prejudice the plaintiff.
In Abdelrazik v. Canada, 2019 FC 769, the Federal Court awarded the plaintiff $65,455.50 plus tax as costs in preparation of the trial that were thrown away because of the adjournment due to the tardiness of the attorney general’s decision to file the application. It was appropriate to grant the plaintiff a lump sum of 30 percent of the actual costs under r. 400(4) of the Federal Courts Rules, SOR/98-106, the court said.
Also on Tuesday, the court heard Ibrahim Jalloh v. The Minister of Citizenship and Immigration, IMM-9318-22. The applicant arrived from Sierra Leone under his father’s sponsorship in 2007. The immigration authorities found him inadmissible to Canada due to his criminal convictions, which included drug trafficking.
During a pre-removal risk assessment, the officer acknowledged the applicant’s mental health challenges and the time he spent as a child soldier. Last December, Calgary police arrested him and transferred him to the Canada Border Services Agency’s custody. He has since been under immigration detention. He moved to stay his removal from Canada.
In Jalloh v. Canada (Citizenship and Immigration), 2023 FC 18, the Federal Court granted the applicant’s motion so that he would not “return to a country where he witnessed unspeakable atrocities and where he was subject to indescribable terror that no human being, let alone a child, should have to experience.” His criminal history was not so egregious that it alone would justify dismissing the motion, the court said.
On Wednesday, the court heard Shavon McPhee v. The Minister of Citizenship and Immigration, IMM-7431-22, which also involved a stay in the context of an immigration proceeding. In McPhee v. Canada (Public Safety and Emergency Preparedness), 2023 CanLII 33036, the Federal Court agreed to stay the applicant’s removal from Canada to the Bahamas.
The court ruled that that the balance of convenience weighed in favour of staying the removal and that the applicant succeeded in raising a serious issue in the underlying application for leave and judicial review and in showing irreparable harm involving certain risks posed by a gang.
On Thursday, the court will hear Brunswick House First Nation et al v. Attorney General of Canada (representing the Minister of Crown Indigenous Relations), T-591-23. The applicants challenged the decision of the Minister of Crown-Indigenous Relations and Northern Affairs Canada to enter into the Métis Government Recognition and Self-Government Implementation Agreement with the Métis Nation of Ontario.
The minister’s decision was unlawful, incorrect, and unreasonable, the applicants claimed. The minister failed to extend procedural fairness to the First Nations and failed to comply with the duty to consult and to accommodate before arriving at the decision, they said.