Date: 20040510
Docket: IMM-3976-04
Neutral citation: 2004 FC 683
Toronto, Ontario, May 10th, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
WALBERT COURTENAY WILLIAMS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] I have this morning dismissed Walbert Courtney Williams' application to stay the order for his removal from Canada. These are my reasons for that decision.
[2] Mr. Williams came to Canada from Jamaica in 1975, following a family sponsorship. At the time, he was 12 years old. In 1998, Mr. Williams was convicted of importing narcotics. He was then found to be inadmissible pursuant to paragraph 27 (1) (d) of the Immigration Act, and was ordered to be deported. The Immigration Appeal Division of the Immigration and Refugee Board subsequently stayed Mr. Williams' deportation for a period of five years, on terms. One of the terms was that Mr. Williams was to report any subsequent criminal convictions to the Canada Immigration Centre.
[3] On March 10, 2003, Mr. Williams was convicted of assault with a weapon. He did not report this conviction to the Canada Immigration Centre, and, as a result, the Minister brought an application to cancel the stay of deportation and dismiss Mr. Williams' appeal. This application was granted in December of 2003.
[4] Mr. Williams then asked to have his removal deferred so as to allow him to pursue the matrimonial litigation in which he is currently involved with his former spouse. This request was denied, although Mr. Williams was given a month in which to settle his affairs. His removal is now scheduled for May 21, 2004. There is a pending application for judicial review with respect to the refusal to defer Mr. Williams' removal.
[5] Mr. Williams separated from his wife in 1995. In September of 1998, Mr. Williams' wife issued a petition for divorce. Some ten months later, Mr. Williams filed an answer and counter-petition. It appears that the principle issue in the litigation is Mr. Williams' claim to a share of the settlement proceeds from a medical negligence action in relation to the Williams' deceased son. This action resulted in a structured settlement, which evidently generates monthly payments to Ms. Williams in excess of $13,000 per month.
[6] The pace of this litigation has been glacial. The parties have only recently exchanged Affidavits of Documents. Examinations for discovery have not yet taken place, nor has the matter been listed for trial. While Mr. Williams' counsel attributes the delay to Ms. Williams' conduct, there is no evidence before me of any steps that Mr. Williams may have taken in an effort to move this litigation along.
[7] In order to grant the stay of a removal order, the onus is on an applicant to establish each of the elements of the tripartite test in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.).
[8] An elevated standard applies to a stay motion arising out of a refusal to defer an applicant's removal because the stay, if granted, effectively grants the relief sought in the underlying judicial review application: Wang v. Minister of Citizenship and Immigration, [2001] F.C.J. No. 295. Accordingly, rather than simply applying the 'serious issue' test, it is necessary to closely examine the merits of the underlying application.
[9] Mr. Williams says that a serious issues exists here as the Removal Officer fettered her discretion in rejecting his request to defer his removal until such time as his matrimonial litigation is concluded. Further, the Removal Officer failed to consider Mr. Williams' particular circumstances in deciding not to defer his removal.
[10] There is simply no merit to these submissions. A review of the decision of the Removal Officer discloses that the Officer received and considered Mr. Williams' submissions, and found that a deferral of the execution of the order was not appropriate in the circumstances of his case. I am satisfied that there is no merit to the underlying application for judicial review. As a consequence, Mr. Williams has failed to satisfy the first branch of the Toth test, and the application for a stay is dismissed.
ORDER
THIS COURT ORDERS that this application is dismissed.
"A. Mactavish"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-3976-04
STYLE OF CAUSE: WALBERT COURTENAY WILLIAMS
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 10, 2004
REASONS FOR ORDER
AND ORDER BY: MACTAVISH J.
APPEARANCES BY: Mr. Waikwa Wanyoike
For the Applicant
Ms. Marina Stefonovic
For the Respondent
SOLICITORS OF RECORD: Waikwa Wanyoike
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20040510
Docket: IMM-3976-04
BETWEEN:
WALBERT COURTENAY WILLIAMS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER