M. Motwani

The detainee applied for habeas corpus with certiorari in aid seeking release from immigration detention pending execution of a deportation order under the Immigration and Refugee Protection Act.

The Attorney General of Canada moved to stay the application under s. 106 of the Courts of Justice Act on the basis that the matter should proceed in the Federal Court.

The court held that the Federal Court was the appropriate forum because Parliament created a comprehensive statutory scheme for review of immigration detention decisions, including judicial review in that court.

The detainee already had an active Federal Court proceeding seeking similar relief, and the Federal Court possessed expertise and comparable ability to address the issues.

The Ontario Superior Court therefore exercised its discretion to decline jurisdiction and stayed the habeas corpus application.

The court considered whether to award costs to the Attorney General following proceedings involving a detained individual seeking relief relating to immigration detention.

Although the court accepted it had jurisdiction to award costs to the Attorney General, it declined to do so.

The judge found the application was not an instance of forum shopping and acknowledged the applicant’s frustrations arising from dealings with the Immigration Division.

Given the circumstances surrounding detention and the applicant’s attempt to seek relief, the court exercised its discretion not to award costs.