Haughton v. Canada (Public Safety and Emergency Preparedness), 2025 FC 15

Date: 20250102

Docket: IMM-24407-24

Citation: 2025 FC 15

Ottawa, Ontario, January 2, 2025

PRESENT: Madam Justice Azmudeh

BETWEEN:

ODEAN LEON HAUGHTON

Applicant

and

THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

Respondent

ORDER AND REASONS

UPON MOTION on behalf of the Applicant, Odean Leon Haughton, for an Order staying his removal from Canada to Jamaica, now scheduled for January 3, 2025, pending the determination of his spousal sponsorship application filed on July 22, 2024;

AND UPON CONSIDERING the relevant factual background to this matter, which may be summarized as follows;

1. The Applicant is a citizen of Jamaica. He arrived in Canada on or about May 20, 2021, and was issued a work permit valid until December 15, 2021;
2. The Applicant did not comply with the conditions of his work permit, no longer reporting to his employer as of September 2021. Nor did he apply for an extension of his work permit. He stayed beyond the permit’s period of validity, and on March 7, 2023, an exclusion order was issued against him;
3. On 14 April 2023, he was removal-ready and received a Pre Removal Risk Assessment [PRRA] application, which was rejected on December 13, 2023;
4. In the interim, the Applicant engaged in a romantic relationship with his current spouse and married her in January 2024;
5. After initially filing an incomplete spousal sponsorship application, he filed an amended version on July 22, 2024. This application is currently pending;
6. Since the Applicant’s spousal application was submitted after he was already removal-ready, the Applicant does not automatically benefit from a stay under “the public policy to facilitate processing in accordance with the Regulations of the Spouse or Common-law Partner in Canada Class” [Public Policy] under subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA];
7. On or about December 13, 2024, the Applicant learned that he has to leave Canada on January 3, 2025. He requested a deferral of his decision until the resolution of the sponsorship application;
8. On December 20, 2024, the Canada Border Services Agency [CBSA] rejected the deferral request [first deferral]. Through his counsel, the Applicant made a further deferral request on December 27^th, which was decided on December 30, 2024 [second deferral];
9. The parties rely on both decisions refusing to defer removal to advance their arguments;

AND UPON CONSIDERING that for this Court to grant the motion, the Applicant must meet the requirements of a tripartite test set out by the Federal Court of Appeal in Toth v Canada (Minister of Citizenship and Immigration), 86 NR 302, 1988 CanLII 1420 (FCA) [Toth], and by the Supreme Court of Canada in both RJR-MacDonald Inc v Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311 [RJR] and in R v Canadian Broadcasting Corp, 2018 SCC 5 at paragraph 12, namely (1) that there be a serious issue to be tried i.e., an issue that is not frivolous nor vexatious, (2) that the Applicant suffer irreparable harm by reason of removal, and (3) that the balance of convenience lie in the Applicant’s favour;

AND UPON CONSIDERING that on the serious issue branch of the test, in a case such as this, the Applicant must demonstrate a “likelihood of success” or “quite a strong case” in regard to the underlying application for leave and judicial review (Wang v Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] 3 FC 682 [Wang]; Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 at para 67 [Baron]; Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para 43 [Lewis]);

AND UPON CONSIDERING that on the irreparable harm branch of the test, the Applicant must present clear, convincing, and non-speculative evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless the stay is granted. Such harm must be forward-looking. Further, harm must constitute more than a series of possibilities and may not be based on mere assumptions, speculation, or hypotheticals and contingencies (Glooscap Heritage Society v. Canada (National Revenue), 2012 FCA 255 at para 31; Atwal v Canada (Minister of Citizenship and Immigration), 2004 FCA 427 at para 14; Ledshumanan v Canada (Public Safety and Emergency Preparedness), 2021 FC 1463 at paras 54–55);

AND UPON CONSIDERING that on the balance of convenience branch of the test, the public’s interest that the IRPA be enforced in an efficient, expeditious, and fair manner must also be considered. Section 48 of the Act provides that the removal order must be enforced “as soon as possible.” That public interest must be weighed against the potential harm to the applicant if a stay is not granted (Ibrahima v Canada (Public Safety and Emergency Preparedness), 2011 FC 607 at paras 66–68);

AND UPON CONSIDERING that the test for obtaining an Order staying removal from Canada is a conjunctive three-part test; all three parts of the test must be met on the balance of probabilities;

AND UPON CONSIDERING that a stay is a form of equitable relief requiring the exercise of the Court’s discretion having regard to all the relevant circumstances;

AND UPON CONSIDERING all the evidence and submissions advanced on behalf of the parties via videoconference, on January 2, 2025, the Court’s disposition of this motion is made for the following reasons:

1. At the outset, the Applicant has acknowledged his history of non-compliance with Canadian immigration law, which has been detailed in the summarized facts above;

2. In considering whether to exercise my discretion to dismiss this application based on the “clean hands” doctrine, I am guided by the relevant factors set out by the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v Thanabalasingham, 2006 FCA 14 at paragraph 10. These factors include, but are not limited to (i) the seriousness of the applicant’s misconduct and the extent to which it undermines the proceeding; (ii) the need to deter others from similar conduct; (iii) the nature of the alleged administrative unlawfulness and the apparent strength of the case; and (iv) the importance of the individual rights affected and (v) the likely impact upon the applicant if the impugned administrative action is allowed to stand;

3. While the Respondent initially urged this Court to not hear the case because of the Applicant’s history of non-compliance, the Respondent has now opted against pursuing the issue outside of the “balance of convenience” part of the relevant stay test. The Court will accordingly address the issue below, within that analytical context;

4. However, before doing so, it is worth clarifying that I do not find that the Applicant’s non-compliance outweighs the fact that he has ultimately met the high threshold required of this case. While this history of non-compliance has been duly weighed against him within the framework applicable to this stay, it has not resulted in an abuse of judicial or administrative processes;

5. Serious issue

6. The threshold to establish a serious issue to be determined is typically low. As confirmed by the Federal Court of Appeal in Harkat v Canada (Minister of Citizenship and Immigration), 2006 FCA 215 at paragraph 11, the Applicant must simply establish that the underlying application is not frivolous or vexatious;

7. However, a higher threshold applies in a case such as this. Where the stay is requested following a refusal to defer removal, the Applicant must demonstrate a “likelihood of success” or “quite a strong case” in regard to the underlying application for leave and judicial review (see Wang; Baronat para 67; Lewis at para 43);

8. I understand that the discretion of the officer deciding the deferral application is limited, and that the CBSA has a duty to enforce the removal order in a timely fashion, as per the application of section 48 of IRPA. However, the Applicant was requesting a deferral of approximately eight months, by when the sponsorship application should be decided, and he had presented evidence on the best interests of the child. This is consistent with the first deferral’s understanding that “the deferral of removal is a temporary measure intended to alleviate exceptional circumstances”;

9. The Applicant had provided evidence of his wife’s circumstances, including evidence of her very limited resources, lack of support from family and friends, and her (almost exclusive) reliance on the Applicant. He also underscored the full dependence of their newborn daughter;

10. The first deferral decision largely focuses on the fact that the Applicant does not qualify to enjoy an automatic stay under the Public Policy, and how, in the absence of such a procedural protection, the existence of a pending sponsorship application is no impediment to removal;

11. The second deferral decision broadly repeats the first, despite the Applicant’s considerable evidence of his wife’s dire situation and considerable dependence on him at the time of this sponsorship application being processed;

12. For the sake of comprehensiveness, I have reproduced below the relevant portions of the reasons in the first and second deferral;

First Deferral

Second Deferral

Best interest of child

It is appreciated that Mr. Haughton wishes to remain in Canada in the best interest of his child. I note that his baby was only recently born and that he wishes to remain to support his wife in caring for their baby.

As Canadian citizens Mr. Haughton’s wife and baby will continue to be entitled to social programs such as health care, federal/provincial/municipal programs and my look into community supports to assist them in this period. Their daughter will continue to have the love and support of her mother and Mr. Haughton may continue his emotional support via all means available to him. They may consider in-person visits when able and consider all of their options for legalizing Mr. Haughton’s status in Canada moving forward.

Counsel is also requesting a deferral of removal based on Odean Leon HAUGHTON’s child Naomi Sage Haughton who will continue to remain in the care of her mother, Carla Nicole Visocchi, post his removal.

The deferral decision dated 20DEC2024 has considered the best interest of the child and spouse. I have read the additional submissions and have also considered the best interest of Odean Leon HAUGHTON’s family and the disruption of routine and daily life.

It is important to state that I am empathetic to how the removals process impacts families both individually and as a family unit. It is appreciated that the preference is for the family to be together and acknowledge that this is a challenging time for the family. While I am sensitive to the family’s circumstances, it should be understood that separation of family members is an unfortunate yet inherent result of the removal process. Often an inevitable consequence of enforcement of a removal order is hardship, such as separation and disruption of family life but that does not constitute irreparable harm. Moreover, there is insufficient evidence in front of me to show that Odean Leon HAUGHTON cannot return to Canada after an overseas spousal application for Permanent Residency is submitted and processed.

12. What these reasons showcase is a failure to properly appreciate the Applicant’s role in the newborn’s life, which they deem to be trivial at best. The officer who refused the second deferral was privy to extensive evidence submitted by the Applicant’s spouse, in which she outlined both her complete lack of outside support and her specific needs in relation to her newborn child. Yet they deemed available state resources to be sufficient in the circumstances, effectively reducing the Applicant’s role as a husband and father to nothing. Their analysis amounts to a series of generalities on the sad yet inherently difficult consequences of removal that would seem to befall any deportee, which, even if accurate in their strictest sense, do not actually engage with the evidence presented in this case. There is a failure to account for the particularity of the Applicant’s circumstances; the spouse’s individual hardship and the evidence presented in support thereof were all but ignored. This is a very serious issue;

13. The second deferral was unresponsive to the evidence the Applicant had presented on the imminent detrimental effect of his absence to his wife’s ability to care for the child. This directly affects the best interests of the child;

14. To this effect, it is worth emphasizing exactly why the reasons were unresponsive, and why this matters in the present context (see generally Banovic v Canada (Citizenship and Immigration), 2024 FC 1990 at para 67). Administrative decision-makers are expected to be responsive to the central issues presented to them in the parties’ submissions (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 127 [Vavilov]). This is especially the case the “more important the decision is to the lives of those affected and the greater its impact on that person or those persons” (Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 at para 25; Vavilov at para 133). Of course, one cannot expect administrative decision-makers to respond to every argument submitted to them. However, the core issue is that “a decision-maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision-maker was actually alert and sensitive to the matter before it” (Vavilov at para 128). Abiding by a “culture of justification” means guarding against such a failure (Vavilov at para 14);

15. The reasons were unresponsive to the evidence presented because the decision-maker only engaged with it at the most general of levels. The officer here repeated a cascade of generalities on the “inherent” consequences of deportation, and then invited the mother to apply for social services. The problem here is that the officer was satisfied with repeating phrases that could readily apply to any case, and completely ignored the wife’s submissions on the Applicant’s non-financial contributions. Failing to engage with potentially determinative evidence is what makes the reasons potentially unreasonable (Vavilov at paras 126–128);

16. I accordingly find that the Applicant has a high likelihood of success on the underlying judicial review, and has met the higher burden associated with establishing the serious issue in this case;

17. At this juncture, it seems necessary to note the guidance available to me in Bonil Acevedo v Canada (Public Safety and Emergency Preparedness), 2007 FC 401 at paragraph 25, wherein Justice Shore reiterated that even if removal officers lack the discretion to make a full determination on the best interest of the child, they have the discretion to defer removal until such time that the best interest of the child is fully considered. At all times, but especially in cases such as these, administrative decision-makers should be careful to not eschew the powers they were intended to have (Al-Lamy v Canada (Citizenship and Immigration), 2024 FC 1621 at para 11);

B. Irreparable harm

18. On the issue of irreparable harm, the parties rely on the jurisprudence of this Court, with which I agree and I will follow, to argue that when there is “real, definite” evidence of death and serious harm, irreparable harm is made out. He also relies on other cases to argue that this Court has occasionally recognized that irreparable harm is established when the removal of the Applicant will have a significant detrimental impact on the financial, emotional and practical situation of his wife and child. I agree with him, and find that his circumstances are analogous to those in Awale v Canada (Public Safety and Emergency Preparedness), 2020 FC 1138 at paragraphs 31–32, citing Ismail v Canada (Public Safety and Emergency Preparedness), 2019 FC 845 at paragraph 16 (see also the discussion in Galusic v Canada (Public Safety and Emergency Preparedness), 2020 FC 223 at paras 22–42). For clarity’s sake, I will reproduce the relevant paragraphs here below:

[31] The Applicant’s wife is pregnant with twins, who are due to arrive on or around April 2, 2021. The evidence shows that the Applicant’s wife spent a week in hospital for treatment of vomiting and nausea associated with her pregnancy. There is no evidence of any ongoing medical treatment beyond the usual monitoring during pregnancy. Although the Applicant’s wife has been able to find employment, she works as a casual Personal Care Worker, and her earnings from late August to late November of this year amount to just over $2,200. The Applicant has been employed full-time since 2018, and the evidence is consistent with the conclusion that he is the main income earner for the family.

[32] These considerations are determinative in regard to irreparable harm. The removal of the Applicant now will have a significantly detrimental impact on the financial, emotional, and practical situation of his wife and unborn children between now and the birth of the twins, and the immediate aftermath as the family adjusts to life with two babies; it will also thereby have a significantly negative impact on the Applicant (see Ismail v Canada (Public Safety and Emergency Preparedness), 2019 FC 845 at para 16, and the discussion in Galusic v Canada (Public Safety and Emergency Preparedness), 2020 FC 223 at paras 22–42).

19. The Applicant adduced sworn evidence regarding how his wife relies on him for financial, emotional and physical support, which are needed for not only her emotional health, but also for the baby’s. I find that the ability of his wife and child to apply for available social services does not eliminate or even reduce the Applicant’s emotional support. It is well established that irreparable harm is generally a harm that cannot be quantified in monetary terms or that could not be cured for some other reason even if it could be quantified. The officers’ invitation to the wife and baby to rely on social services would at best only alleviate their financial needs, but would not remotely address the emotional and physical support that the Applicant provides and that the wife’s particular circumstances require;

20. The Respondent argued that the removal officer’s limited discretion to assess the best interest of the child is only with respect to the child’s short-term interest (Lewisat para 61). I agree, and this is what the Applicant had also requested in the context of his approximately eight-month stay request;

21. I also note that in Ganeshalingam v Canada (Public Safety and Emergency Preparedness), 2023 FC 1129, this Court found the effects on the Canadian citizen spouse and Canadian children to be relevant factors to assess for irreparable harm. The Applicant had adduced extensive evidence of his crucial role to the continued survival of his post-partum wife and baby. This is well beyond the normal consequences of any removal (Barrios v. Canada (Public Safety and Emergency Preparedness), 2024 CanLII 114241 (FC)).

22. The removal of the Applicant prior to the final determination of his Application for leave and judicial review of the deferral decisions would potentially render his Application moot (Solis Perez v Canada (Citizenship and Immigration), 2009 FCA 171 at para 5). I acknowledge that the Respondent argued that it is open for the Applicant’s wife to apply from overseas. Given the immediate needs of the family that the Applicant fulfills, the eventual processing of an overseas application does not negate the more imminent nature of the irreparable harm in question;

23. I find that in this case, the second part of the test, i.e., the irreparable harm, is rationally connected to the serious question to be tried. I find that the loss of the right to seek a meaningful and effective remedy in the underlying proceeding amounts to irreparable harm in this case.

C. Balance of convenience

24. On the final element of this test, the Applicant claims that the balance of convenience leans in his favour, for dismissing the stay would deprive him of the right to a meaningful remedy, and he is the party who would suffer a greater harm from an unfavourable decision by this Court (SKGO v Canada (Citizenship and Immigration), 2023 FC 83 at para 15);

25. To meet this third part of the test, the Applicant must establish that the harm he would suffer if the stay is refused would be greater than the harm the Respondent would suffer if the stay is granted, assessed in the context of the interests that will be affected by the Court’s decision. This weighing exercise is neither scientific nor precise (Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2020 FCA 181 at para 17 [Canadian Council for Refugees]). Yet it resides at the heart of the determination of what is just and equitable in the particular circumstances of the case at hand;

26. In assessing the balance of convenience, in addition to the Applicant’s private interests, the public interest must be taken into account, since this is a case involving the actions of a public authority (RJR-MacDonald at 350). As the Respondent submitted, the Applicant is subject to a valid and enforceable removal order. It was made pursuant to statutory and regulatory authority. It is therefore presumed to be in the public interest. Further, under subsection 48(2) of the IRPA,a removal order “must be enforced as soon as possible” once it is enforceable. It is also presumed that an action that suspends the effect of the order (as would an interlocutory stay) would be detrimental to the public interest (RJR-MacDonald at 346, 348–49). Whether this is sufficient to defeat a request for an interlocutory stay in a given case will, of course, depend on all the circumstances of the case. This can also depend on how long the effect of the deportation order would be suspended (Canadian Council for Refugeesat para 27);

27. In the case at hand, the Applicant has established that there is a serious issue and that he and his family will suffer irreparable harm if the deferral is not granted. His immigration law non-compliance was mainly his lack of status, which while significant, has not resulted in undermining any of the proceedings. At the hearing, counsel for the Applicant added that that the Applicant had continued with unauthorized employment to support his family. This displays a certain disregard for Canadian immigration law, and I agree that the Applicant cannot benefit from it. This weighs negatively against him. However, I find that it does not outweigh the two decision-maker’s disregard of the best interest of the child, which includes his significant non-financial contribution. In any event, counsel for the Respondent did not argue that the work without authorization contributed to a lack of clean hands, but that he had not provided the evidence of this to the officer, and that it cannot be raised for the first time at judicial review.

28. The other instances of non-compliance include the fact that after a few months of working for his employer, he stopped and this triggered the issuance of an exclusion order. He also did not report for a while, which was followed by a long history of full compliance, with the exception of one on November 4, 2024, four days after his baby was born. The signature sheet from Immigration Bond Reporting Centre shows that he reported and signed the next day, on November 5, 2024. There is no suggestion that any of the Respondent’s steps were delayed or frustrated by the Applicant’s actions or inaction. The fact that he had faced criminal charges at one point, which were later withdrawn when he entered into a peace bond, cannot be interpreted as evidence of evading the justice system either;

29. In determining whether the applicant is entitled to this relief, the fundamental question is whether the granting of a stay is just and equitable in all of the circumstances of the case. This will necessarily be a context-specific determination (Google Inc v Equustek Solutions Inc, 2017 SCC 34 at para 25). I find that the totality of the evidence and the fact that he has met the first two prongs of the Toth test tip the balance in his favour.

THIS COURT ORDERS THAT:

1. The Applicant’s motion to stay him removal is granted. His removal will be stayed until his spousal sponsorship application is decided.

2. There is no order as to costs.

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“Negar Azmudeh”

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Judge

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:

IMM-24407-24

STYLE OF CAUSE:

ODEAN LEON HAUGHTON V THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

PLACE OF HEARING:

HELD BY VIDEOCONFERENCE

DATE OF HEARING:

JANUARY 2, 2025

ORDER AND REASONS:

azmudeh j.

DATED:

JANUARY 2, 2025

APPEARANCES:

Kareem Ibrahim

For The Applicant

Sarah Merredew

For The Respondents

SOLICITORS OF RECORD:

Kareem Ibrahim Law Corporation Barrister & Solicitor Toronto, Ontario

For The Applicant

Attorney General of Canada Toronto, Ontario

For The Respondents