Date: 20010321
Docket: IMM-1135-01
Neutral citation: 2001 FCT 209
Ottawa, Ontario, March 21, 2001
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER J.
BETWEEN:
FRANK ESTIMÉ
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
[1] The following are the reasons I rendered orally at the conclusion of the hearing of this motion, and which have been revised for grammar and legibility for publication purposes.
[2] This is an application to stay a removal order on the ground that the risk of return had not been assessed pursuant to an application under subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2.
[3] This application was filed on March 6, 2001 when the plaintiff knew since February 6 that he was to be removed on March 10.
[4] An explanation is necessary because a stay of a removal order falls within the Court's equitable jurisdiction. This means that it is a discretionary equitable remedy and one of the rules of equity is that "delay defeats equity".
[5] What then is the explanation for the delay? First, it should be noted that the plaintiff's application for refugee status was dismissed on October 2, 2000 and that it was from that date that the question of an application for permanent residence ("APR") arose. The plaintiff knew this because, according to his affidavit, he filed an application for a Certification de sélection du Québec abroad, following the rejection.
[6] Then, once again according to the plaintiff's affidavit, in January 2001, he received a summons to the office of the Minister of Citizenship and Immigration regarding his eventual departure. He contacted his lawyer who, according to him, [TRANSLATION] " did not really seem to know what I could do".
[7] The plaintiff then consulted another lawyer, who told him that he should file a visa waiver application.
[8] The plaintiff told the Court he was told it was too late to make such an application. The plaintiff's affidavit suggests that he received this advice from his first lawyer.
[9] Thus, I am being asked to believe that this lawyer:
(1) did not know what to do about a summons for an eventual removal, and
(2) gave advice which could only be described as incompetent.
[10] In February, we do not know when, the plaintiff contacted his lawyer once again to ask her to file an application for a stay.
[11] According to the plaintiff, he understood that his lawyer thought a stay would be impossible because the Immigration and Refugee Board in hearing his application for refugee status concluded that there was no credible basis for the application.
[12] It was suggested to the Court that the lawyer might have said something else, but that was what the plaintiff understood. The fact remains that no application for a stay was made when the plaintiff asked his lawyer to make the application for him.
[13] It was not until March 2 that the plaintiff consulted a lawyer who, according to the plaintiff, had the necessary knowledge to deal with the case and who, on March 6, filed an application for permanent residence pursuant to subsection 114(2) of the Act.
[14] I find that the delay in filing the application for permanent residence was not explained. It was not explained because the explanation given to me was based on an allegation of incompetence by a member of the Bar. I am not here to decide on the competence of the plaintiff's first lawyer. However, I say, as I said in Nunez v. Canada (Minister of Citizenship and Immigration), [2000] F.C.A. No. 555 (which I drew to the attention of counsel) that such allegations are easy to make and have serious consequences. I am not prepared to accept such allegations without some indication either that the lawyer in question admitted in some way or another giving the advice in question, or that action was taken with the Bar to decide whether the lawyer was professionally competent. I have no evidence before me that either of these steps was attempted.
[15] Therefore, I am not persuaded that the plaintiff is entitled to rely on this Court's equitable jurisdiction as a result of his unexplained failure to assert his rights without delay. Consequently, I will not go on to analyse his application for a stay as he is not entitled to one.
J.D. Denis Pelletier
Judge
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-1135-01
STYLE OF CAUSE: FRANK ESTIMÉ v. MCI
PLACE OF HEARING: TELECONFERENCE BETWEEN OTTAWA
AND MONTRÉAL
DATE OF HEARING: MAR. 9, 2001
REASONS FOR ORDER BY: PELLETIER J.
DATED: MAR. 21, 2001
APPEARANCES:
JOHANNE DOYON FOR THE APPLICANT
DANIEL LATULIPPE FOR THE RESPONDENT
SOLICITORS OF RECORD:
JOHANNE DOYON FOR THE APPLICANT
MONTRÉAL, QUEBEC
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada