Court of Appeal for Ontario

Date: 2025-10-17

Docket: M56358 (COA-25-OM-0366)

Motion Judge: Dawe J.A.

Between

Mahir Yahya Sharif Applicant (Moving Party)

and

Minister of Public Safety and Emergency Preparedness Respondent (Responding Party)

Counsel

Dahlia Shuhaibar and Jessica Chandrashekar, for the moving party

Bernard Assan and Nicola Shahbaz, for the responding party

Heard: October 14, 2025

Reasons for Decision

[1] Mahir Yahya Sharif is fighting the Canadian government's efforts to deport him to Somalia. He is currently seeking leave in this court to appeal a decision of the Superior Court of Justice that denied his application under s. 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 for judicial review of a decision by the Minister of Public Safety and Emergency Preparedness ("the Minister"). Specifically, Mr. Sharif challenges the Minister's decision to remove him from Canada to Somalia in the face of an "Interim Measures Request" ("IMR") from the United Nations Human Rights Committee ("the UNHRC"), which requested that the Minister place Mr. Sharif's removal in abeyance pending the UNHRC's consideration of his complaint.

[2] The motion before me is a request by Mr. Sharif for an interim order under s. 134(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, enjoining the Minister from deporting him to Somalia pending the determination of his motion for leave to appeal and, if leave is granted, the determination of the appeal on its merits.

[3] At the conclusion of the hearing, I advised that I was granting the motion and making the order sought, and would release written reasons. These are those reasons.

A. Background and Procedural History

[4] Mr. Sharif is now 26 years old and is a Somali national. He and his mother were granted refugee status in 2013 while living in a refugee camp in Egypt. They were resettled in Canada as permanent residents in 2019.

[5] There is evidence that Mr. Sharif is affected by a major mental illness, which has led to him being hospitalized as a psychiatric patient on multiple occasions. He has a record of criminal convictions for serious offences, including sexual assault and drug trafficking. The sexual assault conviction, for an offence Mr. Sharif committed while hospitalized as a psychiatric patient, resulted in a finding by the Immigration Division of the Immigration and Refugee Board in October 2023 that Mr. Sharif was inadmissible to Canada under s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. As a result, Mr. Sharif lost his permanent resident immigration status and now faces deportation to Somalia.

[6] The application judge made a pre-hearing order enjoining the Minister from removing Mr. Sharif from Canada. In his reasons dismissing the application for judicial review, released on September 18, 2025, he varied the injunction by extending the stay of removal for 30 days "in order to allow the applicant to seek a stay of his removal pending appeal or further proceedings, if so advised": Sharif v. Minister of Public Safety and Emergency Preparedness, 2025 ONSC 5221, at para. 52. This extended injunction would have expired at the end of this week.

[7] The Minister opposed Mr. Sharif's request to extend the injunction.

B. The Test for Extending the Injunction

[8] The parties agreed that since the order Mr. Sharif seeks is in the nature of an injunction, I must apply the three-part test established by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334. This test requires the court to determine whether making the order is in the interests of justice, considering the following three factors:

(1) a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried;

(2) it must be determined whether the applicant would suffer irreparable harm if the application were refused; and

(3) an assessment of the balance of inconvenience must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

1. Serious Issue to Be Tried

[9] The first branch of the RJR-MacDonald test establishes a low threshold: RJR-MacDonald, at p. 337. The moving party must establish only that its case "is neither vexatious nor frivolous": RJR-MacDonald, at p. 337. In the context of a stay or an injunction pending an appeal, the judge hearing the motion "should not extensively review the merits of the appeal": Circuit World Corp. v. Lesperance, 33 O.R. (3d) 674, at p. 677. "A prolonged examination of the merits is generally neither necessary nor desirable": RJR-MacDonald, at p. 338.

[10] I am satisfied that Mr. Sharif has cleared this low bar. In their factum, counsel for the Minister mounted a spirited defence of the application judge's reasons, arguing at length that he made no error. This may be, but it is not my task to decide whether Mr. Sharif's application for leave to appeal is likely to be granted or, if leave is granted, whether his appeal is likely to succeed. It is enough that I find that his leave application and proposed appeal are not vexatious or frivolous.

[11] Although the application judge dismissed Mr. Sharif's application for judicial review, he acknowledged in his reasons that it raised "substantial issues": Sharif v. Minister of Public Safety and Emergency Preparedness, at para. 18. I agree with this assessment.

2. Irreparable Harm

[12] If the injunction made by the application judge had not been extended, Mr. Sharif would likely have been deported to Somalia before his motion for leave to appeal and/or his appeal could be decided, rendering them moot.

[13] The Minister argued in his factum that Mr. Sharif nevertheless has not established irreparable harm. Essentially, the main thrust of the Minister's argument was that since the IMR does not create a "binding or enforceable obligation on Canada", Mr. Sharif cannot demonstrate that he will not be deported anyway, even if his appeal is allowed and his case is remitted to the Minister for reconsideration.

[14] Citing Feldman J.A.'s decision in Ahani v. Canada (Attorney General), 155 O.A.C. 1, at para. 25, the Minister argued that Mr. Sharif "cannot rely on the outcome of a process that can only lead 'to a non-binding report to the government of Canada' as a basis for irreparable harm."

[15] In my view, this argument misses the point, and is also based on a misreading of Ahani.

[16] The irreparable harm Mr. Sharif will suffer if he is deported before his motion for leave to appeal and/or appeal are finally determined is the loss of his appeal rights. Mr. Sharif does not have to establish that if his appeal is successful this will ultimately lead to him being allowed to permanently remain in Canada.

[17] Moreover, I cannot assume that the UNHRC's report will necessarily have no effect on the Minister's ultimate decision. Even if the report is not binding, the Minister might still find it persuasive. The application judge noted that "the Minister's practice … is normally to accede to IMR requests", and that the Minister had acknowledged in submissions that "Canada typically pauses removal on receipt of an IMR": Sharif v. Minister of Public Safety and Emergency Preparedness, at paras. 21, 44. This ordinary practice suggests that the Minister does not always ignore the UNHRC's views, even if he is not bound by them.

[18] Finally, the Minister's reliance on Ahani is misplaced, since in that case Feldman J.A. expressly found that deporting the appellant before his appeal was heard and decided would cause him irreparable harm. As she explained at para. 30:

The issue is whether the appellant will suffer irreparable harm if he is deported before his appeal is heard by this court. Since the remedy sought by this proceeding is an injunction preventing the appellant from being deported pending receipt by the government of the report from the Human Rights Committee, his immediate deportation will in effect end this proceeding. In that sense, he will suffer irreparable consequences if he is deported.

[19] This analysis applies equally here. While it is unnecessary for me to go further, I would add that I am far less sanguine than the Minister that deporting Mr. Sharif to Somalia would not irreparably affect his health and safety, given his challenging personal circumstances.

3. Balance of Convenience

[20] The Minister argued that the balance of convenience "heavily favours the Minister", relying on Federal Court and the Federal Court of Appeal jurisprudence that treats findings of criminality as invariably tipping the scales in favour of immediate deportation. The Minister also argues further, citing an earlier decision of the Federal Court in Sharif v. Canada (Citizenship and Immigration), 2025 FC 1152, that:

Regardless, this part of the test is res judicata as Justice Duchesne of the Federal Court already found the balance of convenience "weighs heavily in the Respondent's favour" in light of the "Applicant's multiple convictions and participation in serious criminality, both in and out of correctional psychiatric establishments".

[21] Federal Court decisions are not binding on me. In any event, Duchesne J. reached his conclusion about the balance of convenience in a different factual and legal context. In the case before the Federal Court, Mr. Sharif was seeking a stay of his deportation pending judicial review of the determination that he presented a danger to the Canadian public. This was a different determination by a different government official than the decision at issue in the present case.

[22] Duchesne J. also found that Mr. Sharif's application for judicial review in the Federal Court did not raise a serious question to be tried, and that he had also not met his burden of establishing irreparable harm if he were deported. These findings understandably affected his assessment of the balance of convenience.

[23] Since I reached opposite conclusions on the first two prongs of the RJR-MacDonald test in the context of this case, which involves an appeal from a different judicial review application of a different governmental decision, I did not consider Duchesne J.'s analysis of the third prong to be either apposite or persuasive.

[24] I was satisfied that the balance of convenience in this case favours extending the injunction made by the application judge.

[25] Mr. Sharif will suffer irreparable harm if he is deported before his motion for leave to appeal and, if leave is granted, his appeal, can be heard and decided. Conversely, the Minister will not be unduly inconvenienced if Mr. Sharif's deportation is postponed while his case proceeds in this court. If leave to appeal is not granted, any delay is likely to be relatively brief. While Mr. Sharif's history of criminality is troubling, he is presently in custody and is likely to remain in detention for the foreseeable future. As the application judge noted in his reasons, "the Minister had previously delayed Mr. Sharif's removal on two occasions for what were described as administrative reasons": Sharif v. Minister of Public Safety and Emergency Preparedness, at para. 18. This undercuts the Minister's argument that Mr. Sharif's immediate deportation is of such pressing public importance that it outweighs the harm he would suffer if he were effectively denied his right to appeal.

C. Disposition

[26] For these reasons, I granted Mr. Sharif's motion and extended the order made by the application judge enjoining the Minister from deporting Mr. Sharif to Somalia. This injunction will now remain in effect until Mr. Sharif's motion for leave to appeal is decided by a panel and, if leave is granted, until his appeal is heard and decided by this court.

[27] At the conclusion of the hearing of the motion, counsel for the Minister requested that I set an expedited schedule for perfecting the leave application. However, after a recess he obtained instructions that the Minister is now consenting to leave being granted, while reserving the right to cross-appeal. In light of this, counsel for Mr. Sharif will serve and file their motion record and factum by October 24, 2025; and counsel for the Minister will serve and file their response consenting to the motion by October 27, 2025.

J. Dawe J.A.