Revisiting Toth V. Canada in the Context of Stay of Removal Orders
Eduardo, a Regulated Canadian Immigration Consultant (RCIC), faces a unique challenge with his client. A competent lawyer helps his client in the judicial review (JR) process. Eduardo knows that the case’s outcome is critical. Meanwhile, he is hoping for a stay of the removal order. He reflected on the Toth v. Canada decision and its potential impact. Could it influence his client’s ability to stay in Canada during the JR process?
Some basic terms
Before delving into the impact of Toth v. Canada on removal orders, let’s first clarify some key legal terms.
Removal Order
In Canadian law, a removal order requires a person to leave Canada. Of course, authorities issue this order for reasons like overstaying a visa or having a criminal conviction. Different types include Departure Orders, Exclusion Orders, and Deportation Orders. Nonetheless, each type has unique legal consequences and affects the person’s ability to return to Canada.
Stay of a Removal Order
A temporary stay of a removal order represents a legal decision to suspend the enforcement of a removal order in Canada. Typically, this stay allows individuals to remain in Canada while they appeal the removal order or seek judicial review. Consequently, the stay provides a crucial pause, preventing immediate removal until the legal case concludes.
Federal Court and Federal Court of Appeal
The Federal Court and Federal Court of Appeal in Canada handle judicial reviews and appeals related to federal issues, including immigration and refugee decisions. However, their role goes beyond this. Here is a brief explanation for each:
- Federal Court of Canada: This Court was established to replace the Exchequer Court in 1971. It has jurisdiction over lawsuits against the federal government and specializes in intellectual property, maritime law, federal-provincial disputes, and civil terrorism-related cases. The Federal Court also reviews the decisions of federal agencies and officials. In certain specialized areas, it shares concurrent jurisdiction with provincial superior courts. Before 2003, the Federal Court of Canada comprised the Trial Division and the Court of Appeal. The Federal Courts Act of 2003 restructured these divisions into two separate courts: the Federal Court and the Federal Court of Appeal.
- Federal Court of Appeal: This Court reviews the decisions of the Federal Court and supervises the formal decisions of federal tribunals. It is the highest Court for about 95% of all cases in Canada. The Federal Court of Appeal has the authority to hear appeals from decisions of both the Federal Court and the Tax Court of Canada. Decisions made by the Federal Court of Appeal can be appealed to the Supreme Court of Canada, but this requires special permission (leave).
Judicial Review
In Canada, judicial review refers to a court’s examination of an administrative decision. Therefore, this process checks if the decision is reasonable. In immigration matters, judicial review often involves scrutinizing decisions made by immigration officials or tribunals to ensure they align with legal standards. Federal Court of Canada is in charge of running JR proceedings related to immigration matters. See section 72 of the Immigration and Refugee Protection Act (IRPA) for more information.
Interlocutory Injunction
An interlocutory injunction in Canadian law is a temporary court order. It stops a party from taking specific actions until the Court reaches a final decision. Consequently, in immigration cases, this injunction might temporarily prevent an individual’s removal from Canada. It serves to maintain the current situation while the legal process unfolds. The RJR-MacDonald case, decided by the Supreme Court of Canada in 1994, is highly significant in Canadian law, particularly regarding interlocutory injunctions. The Toth v. Canada, a 1988 Federal Court of Appeal decision, precedes RJR-MacDonald. Moreover, it focuses on removal orders. Therefore, this article explores Toth v. Canada. However, I’ll explore RJR-MacDonald v. Canada in a future article.
The stay of removal orders because of judicial review under R231
Section 231 of IRPR outlines the conditions under which a judicial review process can lead to a stay of removal orders in Canada. Understanding this section is essential before delving into the implications of the Toth v. Canada case.
Overview of IRPR Section 231
Section 231 of the IRPR pertains to the stay of removal orders when a subject has applied for judicial review regarding a decision by the Refugee Appeal Division (RAD). The Minister could initiate the JR process. However, it is more common for the claimant to file a JR when they face the rejection of their claim by RAD (Refugee Appeal Division).
Key Provisions of the Section
- Automatic Stay: Upon applying for leave for judicial review against a RAD decision under section 72 of IRPA, an automatic stay of the removal order is triggered. This is crucial as it ensures the individual is not removed from Canada while their case is under judicial review.
- Duration of Stay: The stay continues until one of several events occurs. Here are some examples:
- The Federal Court refuses the application for leave.
- The Federal Court grants the leave but dismisses the JR and doesn’t certify a question for appeal.
- Despite certifying a question, the parties do not file an appeal.
- The Federal Court of Appeal dismisses the appeal, and the parties do not file an appeal to the Supreme Court.
- In cases where the Supreme Court of Canada gets involved, if an application for leave to appeal is refused or if an appeal is dismissed.
- Exception for Designated Foreign Nationals: Unfortunately, designated foreign nationals may not enjoy a stay of removal because of JR applications.
IRPR Section 231 provides a critical safeguard for individuals seeking judicial review of RAD decisions. However, it falls short in other circumstances. Consequently, we have to turn our attention to Toth v. Canada.
Shaping stay of removal orders in Toth v. Canada
In the landmark case Toth v. Canada (1988), the Federal Court of Appeal (FCA) established critical precedents regarding the stay of removal orders in Canadian immigration law. This case is pivotal for legal professionals navigating the complexities of immigration procedures, especially when addressing the legal status of individuals undergoing removal proceedings.
Critical Aspects of Toth v. Canada
Joseph Toth, the applicant in this case, faced deportation following a series of criminal offences and subsequent recovery from drug addiction. His case hinged on the issue of whether the FCA could grant a stay of the deportation order issued in 1971. The FCA, drawing upon the Supreme Court of Canada’s guidance in the Attorney General of Manitoba v. Metropolitan Stores case, applied the American Cyanamid test, which involves three key components: the seriousness of the issue, the potential for irreparable harm, and the balance of convenience.
Toth’s case raised two severe legal questions. First, the validity of his deportation order was questioned due to changes in the law between the Immigration Act of 1952 and the Immigration Act of 1976. Second, there was the issue of the continuing equitable jurisdiction of the Immigration Appeal Board. The FCA found that Toth had raised sufficiently serious issues warranting further examination.
The irreparable harm test was also met. The evidence suggested that Toth’s deportation could lead to the failure of his family’s business and significant hardship for his family. Finally, the FCA weighed the balance of convenience in favour of Toth, considering the potential impact on his family and business against the statutory duty to enforce the deportation order.
Impact on Stay of Removal Orders
Toth v. Canada is significant for its interpretation of the FCA’s jurisdiction to grant stays of deportation. The decision confirmed the Court’s power to grant a stay in situations where an appeal could moot the issue, setting a precedent for future cases. This case emphasizes the importance of assessing each situation’s unique circumstances and the potential for irreparable harm when considering stays of removal orders.
For practitioners, Toth v. Canada is a critical reference point for arguing stays of removal in immigration cases. It highlights the need to thoroughly evaluate the seriousness of the legal issues, the potential for irreparable harm, and the balance of convenience. This case underscores the Court’s willingness to intervene in removal proceedings when these criteria are met, ensuring a fair and equitable process for individuals facing deportation.
Understanding the tripartite test in Toth v. Canada
In the landmark case of Toth v. Canada, the Federal Court of Appeal outlined a crucial tripartite test for determining the issuance of a stay of a removal order. This test, also known as the Toth Test, considers three key factors: the presence of a serious issue to be tried, the potential for irreparable harm, and the balance of convenience.
Serious Issue Test
The “serious issue” test requires the applicant to demonstrate that the case raises a substantial and not frivolous legal question. However, this test does not require a detailed examination of the case’s merits but rather a preliminary assessment of whether a severe issue exists.
Irreparable Harm
The irreparable harm factor requires the applicant to demonstrate that if the stay is not granted, they will suffer harm that damages or other legal remedies cannot adequately remedy.
Balance of Convenience
Finally, the balance of convenience test involves assessing which party would suffer more significant harm from granting or refusing the remedy, pending a decision on the merits.
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Disclaimer: I am an RCIC, not a lawyer. This article is for informational purposes and does not constitute legal advice. For legal advice, always contact a licensed lawyer.
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Al ParsaiAl Parsai, LLM, MA, RCIC-IRB
Regulated Canadian Immigration Consultant
Adjunct Professor – Queen’s University – Faculty of Law
Ashton College Instructor – Immigration Consulting
Author – 88 Tips on Immigration to Canada
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