Date: 20020104
Docket: IMM-11-02
Neutral citation: 2002 FCT 12
BETWEEN:
VIACHISLAV SHULGATOV, INNA SHULGATOV AND VITA SHULGATOV
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicants seek to obtain a stay of the enforcement of a deportation order made against them by Immigration officials. The applicants are scheduled to be removed from Canada on January 7, 2002, at 22:52 hour. For the reasons that follow, the applicants' motion will be dismissed.
[2] Firstly, the applicants have not satisfied me that they will suffer irreparable harm should they be removed from Canada.
[3] Secondly, the balance of convenience favours the respondent who is charged by Parliament to execute deportation orders as soon as reasonably practicable.
[4] Thirdly, the applicants have failed to convince me that their judicial review application raises a serious issue.
[5] The conclusion which I have reached is premised, in part, on the ground that the applicants have failed to adduce any evidence whatsoever in support of their submissions.
[6] There is no evidence regarding the main applicant's medical condition, save for the medical report of Dr. Bril, dated May 24, 2001. However, no current medical reports were filed. In any event, Dr. Bril does not say anything concerning whether the main applicant can travel to Israel, or whether he can receive proper medical attention in that country. On the other hand, there is a memorandum in the Respondent's Record (at p. 13) from Dr. Michel Lapointe, to the effect that the main applicant can travel and that he can be treated adequately in Israel.
[7] The main applicant did not file an affidavit in support of the application for a stay. The only affidavit filed is that of Janine Kuzma, a legal assistant employed by counsel for the applicants. Ms. Kuzma's affidavit is all hearsay, and she does not state the source of her information. She simply states that "I am informed". Consequently, I have given Ms. Kuzma's affidavit very little weight.
[8] With respect to the applicants' argument based on paragraph 50(1)(a) of the Immigration Act, I am of the view that the notices of examination dated September 20 and September 25, 2001, are not orders made by a judicial body or officer in Canada.
[9] I am also of the view that the applicants have not adduced any evidence regarding the "seriousness" of the extension of time issue. Thus, I can only conclude that there are no grounds upon which time could be extended.
[10] One final comment. The decision attacked was rendered on December 12, 2001, and the main applicant was advised of that decision on that date. It appears that the applicants did not consult counsel prior to December 21, 2001. As a result, the application now before me and the judicial review application were only filed on January 2, 2002. No evidence was filed to explain why counsel was not consulted prior to December 21, 2001, and no evidence was filed to explain why the present motion could not be filed prior to January 2, 2002. There is, as I have already indicated, Ms. Kuzma's affidavit, but that affidavit is totally insufficient. One would have expected the main applicant to say something regarding these delays, but he failed to do so.
[11] For these reasons, this application for a stay will be dismissed.
Marc Nadon
JUDGE
O T T A W A, Ontario
January 4, 2002
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-11-02
STYLE OF CAUSE: VIACHISLAV SHULGATOV AND OTHERS v. MCI
APPLICANT'S MOTION HEARD BY TELECONFERENCE BETWEEN OTTAWA AND TORONTO
DATE OF HEARING: Friday, January 4, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE NADON DATED: January 4, 2002
APPEARANCES:
Mr. Nestor I.L. Woychyshyn FOR THE APPLICANT
Ms. Alexis Singer FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada
Nestor Woychyshyn FOR THE APPLICANT Toronto, Ontario