Federal Court Decisions

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Date: 20040303

Docket: T-1893-03

Citation: 2004 FC 315

Toronto, Ontario, March 3rd, 2004

Present:           The Honourable Mr. Justice O'Reilly                                    

BETWEEN:

                                                                     LEVI EZURIKE

                                                                                                                                                       Applicant

                                                                                 and

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER


[1]                 Mr. Levi Ezurike has asked me to order that he be restored to his position in the federal public service while he pursues an application for judicial review in this Court. He had agreed to the terms of settlement with his employer on February 28, 2003, after having lodged a complaint under the Canadian Human Rights Act. In that settlement, Mr. Ezurike had agreed to retire voluntarily. He later resiled from that aspect of the settlement. Still, the minutes of settlement were approved by the Canadian Human Rights Commission. Mr. Ezurike then asked his employer not to enforce the settlement while he sought judicial review of the Commission's decision. The employer made no commitment not to do so. In due course, Mr. Ezurike was asked to leave the workplace under circumstances he says were embarrassing.

[2]                 Mr. Ezurike has characterized his request as a motion for a stay of the implementation of the minutes of settlement. Yet, as described, the employer has already taken steps to implement that agreement. I find it difficult to view Mr. Ezurike's motion as a request to prevent execution of the terms of his settlement. It is too late for that. Such a request might have been timely and appropriate after the Commission approved the settlement and while Mr. Ezurike was still in his job. However, he is now asking me to order his employer to allow him back into the workplace.

[3]                 As the Respondent points out, the relief sought by Mr. Ezurike is really more in the nature of a mandatory injunction against the Crown. The test for such a remedy is far more strict than the test for a stay of execution. I need not make a definitive finding on this issue since I am not satisfied that Mr. Ezurike has met the lower test for a stay in any case.

[4]                 To obtain a stay, an applicant must show a serious issue to be tried, irreparable harm and the balance of convenience in his or her favour: RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.

[5]                 Mr. Ezurike has presented a number of arguments that he says amount to serious issues arising in his application for judicial review. I am prepared to accept that Mr. Ezurike has satisfied the first branch of the test for a stay.


[6]                 However, I am not satisfied that Mr. Ezurike will suffer irreparable harm. "Irreparable harm" means harm that cannot be cured or compensated in damages. Mr. Ezurike says he will suffer irreparable harm because he has absolutely no recourse to any remedy in civil damages at common law, under statute, through his discrimination complaint, his collective agreement or otherwise. It is not clear to me, however, that he is totally bereft of remedies, particularly if he succeeds in his judicial review. He also argues that the damage inflicted on his reputation by his employer's conduct amounts to irreparable harm. Mr. Ezurike may have been embarrassed by his employer's request to leave the workplace. Again, however, I am not persuaded that any injury he may have suffered is of a nature or degree that cannot be cured or compensated by way of money damages.

[7]                 Accordingly, I must dismiss this motion.         

                                                                            ORDER

THIS COURT ORDERS that this motion is dismissed.

"James W. O'Reilly"                  

line

                                                                                                                                                               J.F.C.                          


                                                                 FEDERAL COURT

                             NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             T-1893-03

                                                                                   

STYLE OF CAUSE:                           LEVI EZURIKE    

                                                                                                                                                         Applicant

and

THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                     Respondent

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       MARCH 1, 2004

REASONS FOR ORDER

AND ORDER BY:                              O'REILLY, J.

DATED:                                                MARCH 3, 2004

APPEARANCES BY:                       

Mr. Davies Bagambiire

Mr Steve Flaherty                                  For the Applicant

Mr. Christopher Leafloor                    For the Respondent

SOLICITORS OF RECORD:         

Mr Davies Bagambiire

Mr Steve Flaherty

Barristers and Solicitors

Toronto, Ontario                                    For the Applicant

Morris Rosenberg         

Deputy Attorney General of Canada For the Respondent


FEDERAL COURT

TRIAL DIVISION

                                                              Date: 20040301

                               Docket: T-1893-03

BETWEEN:

LEVI EZURIKE

                                                                       Applicant

and

THE ATTORNEY GENERAL OF CANADA

                                                                 Respondent

                                                   

REASONS FOR ORDER

AND ORDER

                                                   


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