AMENDE VIOLET OKOJIE Applicant v. MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY, 2019 FC 880

Date: 20190702 Docket: IMM-3775-19 Citation: 2019 FC 880 Ottawa, Ontario, July 2, 2019 PRESENT: Mr. Justice Gascon BETWEEN: AMENDE VIOLET OKOJIE Applicant and MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCYPREPAREDNESS Respondents ORDER AND REASONS I. Overview [1] The applicant, Ms. Amende Violet Okojie, brings a motion to be granted an order staying an admissibility hearing scheduled to takeplace before the Canada Border Services Agency [CBSA] on July 2, 2019. Ms.

Okojie asks this Court to prohibit and suspend thescheduled admissibility hearing until the final determination of an application for leave and judicial review she filed with the Court onJune 18, 2019. [2] Ms. Okojie, a citizen of Nigeria, was found to be a Convention refugee in 2003 and she became a permanent resident of Canada in2004. However, in the following years, she returned to Nigeria a number of times and renewed her Nigerian passport on three occasions.As a result, proceedings were brought for the cessation of her refugee protection.

In December 2018, the Refugee Protection Division ofthe Immigration and Refugee Board of Canada [RPD] found that her refugee status had ceased on the basis that she voluntarily re-availedherself of the protection of her country of nationality [RPD Decision]. [3] The Minister of Public Safety and Emergency Preparedness [Minister] then began steps for the removal of Ms. Okojie from Canadaand, in January 2019, a report was prepared by an officer [Officer] pursuant to subsection 44(1) of the Immigration and RefugeeProtection Act, SC 2001, c 27 [IRPA]. The report states that Ms.

Okojie is a foreign national inadmissible pursuant to subsection 40.1(1)because her refugee protection has ceased [Report]. A delegate of the Minister [Minister’s Delegate] referred the Report for anadmissibility hearing, in accordance with subsection 44(2) of the IRPA. [4] Ms. Okojie claims that she is not a foreign national since she has not lost her permanent resident status, and that therefore subsection40.1(1) does not apply to her.

Paragraph 46(1)(c.1) of the IRPA provides that a person loses permanent resident status upon adetermination under subsection 108(2) that their refugee protection has ceased for any of the reasons described in paragraphs 108(1)(a)to (d) (which include re-availment). However, Ms.

Okojie maintains that paragraph 46(1)(c.1) does not apply to her and did not make herlose her permanent resident status, because this provision is not retroactive or retrospective in application, and the circumstances thatresulted in the cessation of her refugee status occurred prior to December 2012 when this provision came into force. [5] In her underlying application for leave and judicial review, Ms. Okojie challenges the whole process followed by the Minister on thebasis that she is not a foreign national but a permanent resident of Canada.

She is seeking three remedial orders from the Court: 1) adeclaration that she is a permanent resident of Canada and did not lose her permanent residence as a result of the operation of paragraph46(1)(c.1) of the IRPA; 2) an order prohibiting the Minister’s Delegate from commencing an admissibility interview pursuant tosubsection 44(2) of the IRPA based on the Report, as she is still a permanent resident of Canada; and 3) an order prohibiting the Ministerfrom seizing any documentation belonging to Ms.

Okojie that relates to her status as a permanent resident of Canada and from imposingher any terms and conditions that will impede the continued exercise of her rights as a permanent resident of Canada. [6] In this motion, the Court is not tasked with deciding the merits of Ms. Okojie’s underlying application, but with assessing whetherMs. Okojie satisfies the requirements of the tripartite test to be granted a stay of the pending admissibility hearing. This is the only issueto be determined. [7] Ms.

Okojie submits that she satisfies each prong of the conjunctive three-part test set forth by the Supreme Court of Canada [SCC] inRJR-MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311 [RJR-MacDonald] for the issuance ofstays and interlocutory injunctions, and applied to stays of removal in immigration matters by the Federal Court of Appeal [FCA] in Tothv Canada (Minister of Employment and Immigration) (1988), (FCA), 86 NR 302 (FCA) [Toth].

She claims that: 1) aserious issue to be tried has been raised in her underlying application; 2) she will suffer irreparable harm if the stay is not granted; and 3)the balance of convenience, which examines the harm she will suffer compared to the harm done to the Minister, as well as the public

interest, favours her. [ 8 ] The Minister responds that Ms. Okojie has not met any of the three parts of the RJR-MacDonald test. The Minister submits in particular that there is no serious issue to be tried and that Ms. Okojie’s harm is entirely speculative in nature. The Minister adds that Ms. Okojie’s motion is not about staying the carrying out of a decision made by the Minister’s Delegate at an admissibility hearing, but about prohibiting the CBSA from convoking such a hearing in the first place.

The Minister pleads that seeking such a stay or injunction at this time is premature. [ 9 ] For the reasons that follow, Ms. Okojie’s motion will be dismissed. Further to my review of the parties’ submissions and of the evidence, I am not satisfied that Ms. Okojie has met the applicable conditions for the issuance of the stay she is seeking. Even if it is assumed that Ms.

Okojie’s underlying application raises a serious issue to be tried, she has not demonstrated that she will suffer irreparable harm if the suspension is not granted and the admissibility hearing proceeds, and the balance of convenience does not tip in her favour. In addition, her motion is premature since the admissibility hearing has yet to occur and, in the absence of exceptional circumstances, the Court should not interfere with the on-going administrative process before the CBSA until this process has been completed. II. Background A. The factual context [ 10 ] Ms. Okojie is a citizen of Nigeria.

She came to Canada in 2001 and made a claim for refugee protection upon her arrival. Her refugee claim was accepted in July 2003 and she became a permanent resident of Canada in July 2004. Ms. Okojie is now married to a Canadian permanent resident, and they have two children who were born in Canada and are Canadian citizens. [ 11 ] In May 2012, Ms. Okojie was convicted of two (2) counts of fraud over $5,000 and 13 counts of use of a forged document. In July 2012, she was given a conditional sentence of nine (9) months’ house arrest, probation for 18 months and community service.

In October 2013, the CBSA advised Ms. Okojie that she may be inadmissible to Canada due to her criminal convictions. However, no admissibility hearing was held in her case at that time, and she was not determined to be inadmissible to Canada. [ 12 ] Earlier, in November 2004, Ms. Okojie had returned to Nigeria and then renewed her Nigerian passport while in Nigeria. She in fact subsequently obtained two other passports from Nigeria, prior to the coming into force of paragraph 46(1)(c.1) of the IRPA on December 15, 2012. [ 13 ] In 2015, the Minister applied to the RPD for a cessation of Ms.

Okojie’s refugee status, on the ground that she had re-availed herself of the protection of her country of citizenship, Nigeria, when she applied for and obtained new Nigerian passports. The hearing of the Minister’s application took place in October 2018. In the RPD Decision issued in December 2018, the RPD agreed with the Minister and found that Ms. Okojie had voluntarily re-availed herself of the protection of her country of nationality and that paragraph 108 (l)(

a) of the IRPA applied. The RPD thus allowed the Minister’s application pursuant to subsection 108(2) of the IRPA . It is not disputed that the alleged facts of re-availment occurred prior to the coming into force of paragraph 46(1)(c.1). [ 14 ] In early January 2019, Ms. Okojie applied for leave to commence an application for judicial review of the RPD Decision in Court file No. IMM-363-19. Leave was granted in June 2019 and the matter is set to be heard before the Court in September 2019. [ 15 ] After the RPD Decision on the cessation of her refugee status was made, Ms.

Okojie received a letter from the CBSA on March 1, 2019, advising her that she had to attend an admissibility hearing on March 16, 2019. The hearing was to be based on the Report stating that Ms. Okojie was a foreign national who was inadmissible pursuant to subsection 40.1(1) of the IRPA for having been found to have ceased to be a Convention refugee. Ms. Okojie’s counsel wrote to the CBSA and said that the Report was in error due to the fact that Ms. Okojie was still a permanent resident. Counsel maintained that Ms.

Okojie had not lost her permanent resident status because the conduct that led to the cessation of her refugee status occurred prior to the coming into force of paragraph 46(1)(c.1). The admissibility hearing scheduled for March 16, 2019 was adjourned. [ 16 ] Ms. Okojie then received a new letter from the CBSA dated June 6, 2019, again advising her to appear for an admissibility hearing, this time on July 2, 2019. This hearing is for the purpose of determining whether Ms.

Okojie “shall be authorized to enter or remain in Canada” and whether “a removal order shall be issued against [her]” based on the Report made pursuant to subsection 40.1(1) , stating that she is an inadmissible foreign national. [ 17 ] In support of her request for a stay, Ms. Okojie claims that, when she attends the admissibility hearing on July 2, 2019, the CBSA will in all likelihood make a removal order against her and will likely put her on terms and conditions which will prevent her from working or studying without authorization. Ms.

Okojie says that, since she is a permanent resident, she does not need any specific authorization to work or study at this time. [ 18 ] Ms. Okojie affirms in her affidavit that, if she is put on terms and conditions and instructed not to work without authorization, she will be forced to give up her full-time job as a registered practical nurse with Sunnybrook Health Sciences Centre. Ms. Okojie also takes independent contract work with St. Elizabeth Staffing Solutions and with Helping Hands Nursing Services, again as a registered practical nurse. Ms.

Okojie says that, since her criminal convictions, she has worked very hard to rehabilitate and improve herself, and to better her life in Canada. She completed the Canadian practical nurse registration examination in May 2014. She was then registered with the College of Nurses of Ontario [College of Nurses] as a practical nurse in June 2014. Finding employment in her line of work has been difficult because of her criminal record from 2012 and competitive market conditions, but she has been steadily employed since 2015. [ 19 ] Ms.

Okojie affirms that it would cause her irreparable harm if she is forced to give up her employment at this time, as she is the primary breadwinner for her family. She adds that even a temporary inability to work may have long-term consequences for her, as

registration with the College of Nurses is dependent on having Canadian citizenship or permanent resident status, or holding authorization to work as a nurse. Ms. Okojie also claims that, without permanent resident status or authorization to work, the College of Nurses will indicate on her records that she is “not entitled to work”. She fears that, even if her permanent resident status is confirmed or restored, the fact that she would have been previously labelled as “not entitled to work” will remain visible on her record in the future.

According to her, this is a serious impediment to employment, as employers are not able to determine the reasons behind the “not entitled to work” label, which can refer to misconduct or ongoing criminal matters. [ 20 ] Ms. Okojie further states that, if she is prohibited from studying without a study permit, she will have to stop the studies she has continued even while working full-time in order to obtain a Bachelor of Science degree in nursing at Ryerson University [Ryerson].

She says she has already delayed completion of her studies due to stress related to her immigration status and Ryerson has informed her that she cannot delay anymore. If she does not continue her studies now, she claims that she is at risk of being unable to graduate. [ 21 ] In March 2019, Ms. Okojie’s husband made an application to the Canadian immigration authorities to sponsor Ms. Okojie for permanent residence in Canada. They made this application because they were advised that the CBSA would take the position that she has lost her permanent resident status further to the cessation of her refugee status. Ms.

Okojie included an application for an open work permit as part of the sponsorship application. At the time of the hearing, Ms. Okojie and her spouse had not yet received a decision on either the sponsorship application or the open work permit application. [ 22 ] Ms. Okojie adds that she is terrified that, if a removal order is issued against her, the CBSA will start removal arrangements and deport her from Canada. B. The legislative context [ 23 ] The relevant provisions of the IRPA read as follows. [ 24 ]

Section 108 lists the circumstances under which a claim for refugee protection may be rejected or refugee protection may cease: " Cessation of Refugee Protection " " Perte de l’asile " " Rejection " " Rejet " " 108

(1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances: " " 108 (1) " " Est rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié ou de personne à protéger dans tel des cas suivants : " " (

a) the person has voluntarily reavailed themself of the protection of their country of nationality; " " a) " " il se réclame de nouveau et volontairement de la protection du pays dont il a la nationalité; " " (

b) the person has voluntarily reacquired their nationality; " " b) " " il recouvre volontairement sa nationalité; " " (

c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality; " " c) " " il acquiert une nouvelle nationalité et jouit de la protection du pays de sa nouvelle nationalité; " " (

d) the person has voluntarily become re- established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or " " d) " " il retourne volontairement s’établir dans le pays qu’il a quitté ou hors duquel il est demeuré et en raison duquel il a demandé l’asile au Canada; " " (

e) the reasons for which the person sought refugee protection have ceased to exist. " " e) " " les raisons qui lui ont fait demander l’asile n’existent plus. " " Cessation of refugee protection " " Perte de l’asile " "

(2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1). " " (2) " " L’asile visé au paragraphe 95(1) est perdu, à la demande du ministre, sur constat par la

Section de protection des réfugiés, de tels des faits mentionnés au paragraphe (1). " " Effect of decision " " Effet de la décision " "

(3) If the application is allowed, the claim of the person is deemed to be rejected. " " (3) " " Le constat est assimilé au rejet de la demande d’asile. " [ 25 ] Consequently, if a person finds himself or herself in any of the circumstances listed in subsection 108(1), he or she could lose his or her refugee status under subsection 108(2) . [ 26 ] Once refugee status is lost under subsection 108(2) ,

section 40.1 and subsection 46(1) of the IRPA bring about, respectively, inadmissibility and loss of permanent resident status. " Cessation of refugee protection — foreign national " " Perte de l’asile — étranger " " 40.1

(1) A foreign national is inadmissible on a final determination under subsection 108(2) that their refugee protection has ceased. " " 40.1 (1) " " La décision prise, en dernier ressort, au

titre du paragraphe 108(2) entraînant la perte de l’asile d’un étranger emporte son interdiction de territoire. " " Cessation of refugee protection — permanent resident " " Perte de l’asile — résident permanent "

"

(2) A permanent resident is inadmissible on a final determination that their refugee protection has ceased for any of the reasons described in paragraphs 108(1)(

a) to (d). " " (2) " " La décision prise, en dernier ressort, au

titre du paragraphe 108(2) entraînant, sur constat des faits mentionnés à l’un des alinéas 108(1)

a) à d), la perte de l’asile d’un résident permanent emporte son interdiction de territoire. " " […] " " […] " " Loss of Status " " Perte du statut " " Permanent resident " " Résident permanent " " 46

(1) A person loses permanent resident status " " 46 (1) " " Emportent perte du statut de résident permanent " " les faits suivants : " " (

a) when they become a Canadian citizen; " " a) " " l’obtention de la citoyenneté canadienne; " " (

b) on a final determination of a decision made outside of Canada that they have failed to comply with the residency obligation under

section 28; " " b) " " la confirmation en dernier ressort du constat, hors du Canada, de manquement à l’obligation de résidence; " " (

c) when a removal order made against them comes into force; " " c) " " la prise d’effet de la mesure de renvoi; " " (c.1) on a final determination under subsection 108(2) that their refugee protection has ceased for any of the reasons described in paragraphs 108(1)(

a) to (d); " " c.1) " " la décision prise, en dernier ressort, au

titre du paragraphe 108(2) entraînant, sur constat des faits mentionnés à l’un des alinéas 108(1)

a) à d), la perte de l’asile; " " (

d) on a final determination under

section 109 to vacate a decision to allow their claim for refugee protection or a final determination to vacate a decision to allow their application for protection; or " " d) " " l’annulation en dernier ressort de la décision ayant accueilli la demande d’asile ou celle d’accorder la demande de protection; " " (

e) on approval by an officer of their application to renounce their permanent resident status. " " e) " " l’acceptation par un agent de la demande de renonciation au statut de résident permanent. " " […] " " […] " [ 27 ] Paragraph 46(1)(c.1) provides that permanent residence is lost upon a positive cessation decision under paragraphs 108(1)(

a) to (d). Subsection 40.1(2) renders a permanent resident inadmissible upon a positive cessation decision, whereas subsection 40.1(1) applies to foreign nationals. A finding of cessation under paragraph 108(1)(

e) would result in the person losing refugee status only. However, a finding of cessation on the other grounds of paragraphs 108(1)(

a) to (

d) would result in the person also losing her permanent residence status by operation of paragraph 46(1) (c.1) of the IRPA . Both

section 40.1 and paragraph 46(1)(c.1) came into force on December 15, 2012. [ 28 ]

Section 44 of the IRPA governs reports on inadmissibility. When a foreign national is inadmissible, subsection 44(1) allows an officer to prepare a report for the Minister. Then, the Minister or the Minister’s representative must decide whether the report is well- founded and whether the matter should be referred for investigation ( subsection 44(2) ). " Preparation of report " " Rapport d’interdiction de territoire " " 44

(1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister. " " 44 (1) " " S’il estime que le résident permanent ou l’étranger qui se trouve au Canada est interdit de territoire, l’agent peut établir un rapport circonstancié, qu’il transmet au ministre. " " Referral or removal order " " Suivi " "

(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under

section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order. " " (2) " " S’il estime le rapport bien fondé, le ministre peut déférer l’affaire à la

Section de l’immigration pour enquête, sauf s’il s’agit d’un résident permanent interdit de territoire pour le seul motif qu’il n’a pas respecté l’obligation de résidence ou, dans les circonstances visées par les règlements, d’un étranger; il peut alors prendre une mesure de renvoi. " " Conditions " " Conditions "

"

(3) An officer or the Immigration Divisionmay impose any conditions, including thepayment of a deposit or the posting of aguarantee for compliance with the conditions,that the officer or the Division considersnecessary on a permanent resident or aforeign national who is the subject of areport, an admissibility hearing or, being inCanada, a removal order. " "(3)"" L’agent ou la

Section de l’immigrationpeut imposer les conditions qu’il estimenécessaires, notamment la remise d’unegarantie d’exécution, au résident permanentou à l’étranger qui fait l’objet d’un rapport oud’une enquête ou, étant au Canada, d’unemesure de renvoi. " "[…] " "[…] " [29] According to

section 45, the Immigration Division shall make one of the decisions listed below following an admissibility hearing: "Admissibility Hearing by the " "Immigration Division " "Enquête par la

Section de " "l’immigration ""Decision " "Décision ""45 The Immigration Division, at theconclusion of an admissibility hearing, shallmake one of the following decisions: " "45"" Après avoir procédé à une enquête, laSection de l’immigration rend telle desdécisions suivantes : ""(

a) recognize the right to enter Canada of aCanadian citizen within the meaning of theCitizenship Act, a person registered as anIndian under the Indian Act or a permanentresident; " "a)"" reconnaître le droit d’entrer au Canadaau citoyen canadien au sens de la

Loi sur lacitoyenneté, à la personne inscrite commeIndien au sens de la

Loi sur les Indiens et aurésident permanent; ""(

b) grant permanent resident status ortemporary resident status to a foreign nationalif it is satisfied that the foreign national meetsthe requirements of this Act; " "b)"" octroyer à l’étranger le statut derésident permanent ou temporaire sur preuvequ’il se conforme à la présente loi; " "(

c) authorize a permanent resident or aforeign national, with or without conditions,to enter Canada for further examination; or " "c)"" autoriser le résident permanent oul’étranger à entrer, avec ou sans conditions,au Canada pour contrôle complémentaire; ""(

d) make the applicable removal orderagainst a foreign national who has not beenauthorized to enter Canada, if it is notsatisfied that the foreign national is notinadmissible, or against a foreign nationalwho has been authorized to enter Canada or apermanent resident, if it is satisfied that theforeign national or the permanent resident isinadmissible.

" "d)"" prendre la mesure de renvoi applicablecontre l’étranger non autorisé à entrer auCanada et dont il n’est pas prouvé qu’il n’estpas interdit de territoire, ou contre l’étrangerautorisé à y entrer ou le résident permanentsur preuve qu’il est interdit de territoire. " III. Analysis A.

The test for granting a stay [30] It is trite law that, in order to succeed on a motion seeking a stay or an interlocutory injunction, the moving party must satisfy thewell-known tripartite test set out by the SCC in RJR-MacDonald and applied in the context of applications for an order staying theexecution of removal orders in Toth. The moving party must first establish, on a preliminary assessment of the merits of its case, thatthere is a serious issue to be tried; this generally means that the underlying action or application is neither frivolous nor vexatious (RJR-MacDonald at pp 334-335, 348).

Second, the moving party is required to show that it will suffer irreparable harm if the stay or injunctionis not granted. Third, the onus is on the moving party to establish that the balance of convenience, which contemplates an assessment ofwhich of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits, favours thegranting of the interlocutory relief (R v Canadian Broadcasting Corp, 2018 SCC 5 [CBC] at para 12). [31] At the outset, it is important to underline that a stay of proceedings is an extraordinary, discretionary equitable relief.

It is anexceptional remedy, and compelling circumstances are required to justify the intervention of the Court and the exercise of its discretionto grant a stay. The burden is on the moving party to demonstrate that the conditions of this exceptional remedy are met.

In Janssen Inc vAbbvie Corporation, 2014 FCA 112 [Janssen], Justice Stratas emphasized that the RJR-MacDonald test “is aimed at recognizing that thesuspension of a legally binding and effective matter – be it a court judgment, legislation, or a subordinate body’s statutory right toexercise its jurisdiction – is a most significant thing” (Janssen at para 20). [32] The RJR-MacDonald test is conjunctive and all three elements of the test must be satisfied in order to grant relief.

None of thebranches can be seen as an “optional extra” (Janssen at para 19), and a “failure of any of the three elements of the test is fatal” (Canada(Citizenship and Immigration) v Ishaq, 2015 FCA 212 [Ishaq] at para 15). That said, I acknowledge that the three prongs of the test arenot water-tight compartments, that they are somewhat interrelated and that they should not be assessed in total isolation from one another(The Regents of University of California v I-Med Pharma Inc, 2016 FC 606 at para 27, aff’d 2017 FCA 8; Merck & Co Inc v Nu-PharmInc (2000), (FC), 4 CPR (4th) 464 (FC) at para 13).

However, this does not mean that one of the three compartmentscan be completely empty and compensated by the other two being filled to a higher level. There still needs to be something in each of thethree compartments and none of the elements of the test can be entirely left aside and rescued by the other two.

[33] Moreover, it should be noted that a decision to grant or refuse a stay or an interlocutory injunction is a discretionary one (CBC atpara 27). [34] It is also important to note the pronouncement made by the SCC in Google Inc v Equustek Solutions Inc, 2017 SCC 34 [Google]. Inthat decision, Justice Abella, speaking for a majority of the SCC, described the RJR-MacDonald test as follows: [25] RJR-MacDonald Inc. v.

Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311, sets out a three-parttest for determining whether a court should exercise its discretion to grant an interlocutory injunction: is there a serious issueto be tried; would the person applying for the injunction suffer irreparable harm if the injunction were not granted; and is thebalance of convenience in favour of granting the interlocutory injunction or denying it. The fundamental question is whetherthe granting of an injunction is just and equitable in all of the circumstances of the case.

This will necessarily be context-specific. [emphasis added] [35] In that decision, the SCC thus reminded that an overarching objective animates the RJR-MacDonald test: the motion judge needs tobe satisfied that, ultimately, granting the interlocutory injunctive relief is just and equitable, taking into consideration the particularcircumstances of any given case. I am not suggesting that the SCC decision in Google has changed the well-accepted three-prong testdeveloped in RJR-MacDonald and expanded in CBC for mandatory injunctions, or that it has superimposed an additional considerationover it.

But the SCC decision in Google reinforces that, in exercising their discretion to grant a stay or an interlocutory injunction, thecourts need to be mindful of overall considerations of justice and equity, and that the RJR-MacDonald test cannot be simply boiled downto a box-ticking exercise of the three components of the test.

I must therefore assess whether, in the end, granting the stay sought by Ms.Okojie in her motion would ultimately be “just and equitable in all of the circumstances of the case”, which will “necessarily be context-specific” (Google at para 25). [36] I add that the courts have repeatedly considered that the applicable test for interlocutory injunctions is the same as the testgoverning the granting of stays of proceedings (Manitoba (AG) v Metropolitan Stores Ltd, (SCC), [1987] 1 SCR 110 atpara 30; Toronto Real Estate Board v Commissioner of Competition, 2016 FCA 204 at para 11; Janssen at paras 12-17; GlooscapHeritage Society v Canada (National Revenue), 2012 FCA 255 [Glooscap] at para 4; International Charity Association Network vCanada (National Revenue), 2008 FCA 114 at para 5).

No distinction therefore needs to be made between the principles developed forinterlocutory stays or for interlocutory injunctions, and they are equally applicable in both contexts. [37] A motion for a stay like this one ultimately turns on its facts. When all the circumstances are considered, the motion materials andthe evidence must convince me that, on a balance of probabilities, the three components of the test are met.

I underline that, as the SCCstated in FH v McDougall, 2008 SCC 53 [McDougall], there is only one standard of proof in civil cases in Canada, and that is proof on abalance of probabilities (McDougall at para 49).

In that decision, Justice Rothstein, for a unanimous court, said that "“it is inappropriateto say that there are legally recognized different levels of scrutiny of the evidence depending upon the seriousness of the case”" and thatthe only legal rule in all cases is that "“evidence must be scrutinized with care by the trial judge”" to determine whether it is more likelythan not that an alleged event occurred or is likely to occur (McDougall at para 45). Evidence "“must always be sufficiently clear,convincing and cogent to satisfy the balance of probabilities test”" (McDougall at para 46).

The requirement is no different for stays orinterlocutory injunctions. [38] In this case, I conclude that Ms. Okojie’s stay motion should be dismissed as, for the following reasons and on a balance ofprobabilities, I find that she has not met the requirements of the tripartite RJR-MacDonald/Toth test for the issuance of the exceptionalremedy she is seeking from the Court. First, Ms. Okojie’s motion is premature as it interferes with an on-going administrative process.Second, I am not satisfied that irreparable harm will arise if the admissibility hearing is not suspended as the harm feared by Ms.

Okojieis speculative. Third, I am not convinced that the balance of convenience favours Ms. Okojie in light of the public interest dimensions atstake in this case. In those circumstances, it would not be just and equitable to grant a temporary suspension of the admissibility hearingscheduled for July 2, 2019. B. The issue of prematurity [39] The Minister rightly points out that Ms. Okojie challenges an interlocutory decision to

schedule an admissibility hearing before theCBSA has even considered whether she is inadmissible and whether a removal order should be issued. At this point in time, no actionhas been taken by the CBSA beyond scheduling the admissibility hearing and, in the Minister’s view, Ms. Okojie’s motion amounts to anattempt to pre-empt the Minister’s jurisdiction to determine how cases proceed before him, contrary to his statutory mandate and to theprovisions of the IRPA. In other words, the Minister submits that Ms.

Okojie’s motion is premature. [40] In their submissions and at the hearing, neither party has referred to the previous decisions issued by this Court on motions seekingto prevent admissibility hearings from taking place or from continuing, and where this issue of prematurity was considered. They are,however, very instructive. While the analysis and the approach to the RJR-MacDonald test has varied in those precedents, they allreached the conclusion that such motions were premature because they short-circuit the established legislative framework and prevent anadministrative process from taking place.

I share the same view here. [41] I will mention three previous cases from this Court. [42] The most recent is Abdi v Canada (Public Safety and Emergency Preparedness), 2018 FC 202 [Abdi], where Justice Boswell dealtwith a motion to stay a pending admissibility hearing. After a thorough review of the case law, Justice Boswell concluded that there wasa serious issue raised in the underlying application, but he rejected the motion for prematurity without considering the remaining twoparts of the tripartite RJR-MacDonald/Toth test (Abdi at para 22).

The key consideration was that only exceptional circumstances warrantinterference with an on-going administrative process, that the admissibility hearing had yet to occur and that the ordinary administrativeprocess before the Immigration Division under subsection 44(2) of the IRPA ought to be followed (Abdi at paras 14-16, 22, citingHalifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10 [Halifax] at para 36 and Canada (Border

Services Agency) v CB Powell Limited , 2010 FCA 61 [ CB Powell ] at paras 32-33 ). [ 43 ] In Rogan v Canada (Citizenship and Immigration) , 2010 FC 532 [ Rogan ], the applicant was seeking an interim order prohibiting the resumption of his admissibility hearing pending an application for leave and judicial review of an interlocutory decision of the Immigration Division on an issue of disclosure of documents. In that decision, Justice Pinard used an analysis similar to Justice Boswell in Abdi and found that no special circumstances justified the intervention of the Court at such an early stage.

I note that, contrary to Abdi , Rogan concluded that the “serious issue” part of the RJR-MacDonald test was not met due to this prematurity problem ( Rogan at para 12 ). [ 44 ] The other decision worth mentioning is James v Canada (Minister of Employment and Immigration) , [1991] FCJ No 465 (FCTD) [ James ] , where the applicant sought an interlocutory injunction to prevent the respondent from proceeding with a “credible basis” hearing.

In dismissing the application for the injunction, Justice Rouleau stated that, even though there was at least an arguable case to proceed to trial, no injunction should be issued as the “irreparable harm” and “balance of convenience” prongs of the RJR-MacDonald test were not met because the motion was premature ( James at para 14). [ 45 ] I pause to observe that, in those three decisions, the Court dealt with the issue of prematurity either at the “serious issue to be tried” stage of the RJR-MacDonald test ( Abdi , Rogan ) or as part of the second and third prongs of the test – “irreparable harm” and “balance of convenience” – ( James ).

I do not dispute that, depending on the circumstances of each case, this question of prematurity may fit well in the analysis conducted under one or the other branches of the RJR-MacDonald test. In fact, as illustrated below in my decision, this question of prematurity permeates the assessment of each component of the tripartite RJR-MacDonald test. However, in my view, this question of prematurity essentially calls to mind the overarching exceptional and discretionary nature of interlocutory injunctive reliefs such as a stay.

Viewed under that lens, I consider that it is better to deal with it at the outset, even before considering the three elements of the RJR-MacDonald test, as it in fact goes to the essence of the remedy sought and calls into question the exercise of the Court’s discretion. This is why I address it under a separate heading.

(1) The principle of judicial non-interference [ 46 ] As Justice Boswell correctly reminded in Abdi , the principle of judicial non-interference with on-going administrative proceedings in the absence of " “exceptional circumstances” " is well established ( Abdi at para 14 ). In essence, the administrative process must be complete before an applicant can seek relief from the Court and ask a motion judge to stop such process in its tracks.

I can do no better than reproduce, as Justice Boswell did in Abdi , the passages from CB Powell where the FCA aptly summarized the rationale for this principle in the context of judicial reviews: [30] The normal rule is that parties can proceed to the court system only after all adequate remedial recourses in the administrative process have been exhausted.

The importance of this rule in Canadian administrative law is well- demonstrated by the large number of decisions of the Supreme Court of Canada on point […]. [31] Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequate alternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutory judicial reviews and the objection against premature judicial reviews.

All of these express the same concept: absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course . This means that, absent exceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue all effective remedies that are available within that process; only when the administrative process has finished or when the administrative process affords no effective remedy can they proceed to court.

Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted. [32] This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway […].

Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience […]. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge […]. [33] Courts across Canada have enforced the general principle of non-interference with ongoing administrative processes vigorously.

This is shown by the narrowness of the “exceptional circumstances” exception. Little need be said about this exception, as the parties in this appeal did not contend that there were any exceptional circumstances permitting early recourse to the courts. Suffice to say, the authorities show that very few circumstances qualify as “exceptional” and the threshold for exceptionality is high […]. Exceptional circumstances are best illustrated by the very few modern cases where courts have granted prohibition or injunction against administrative decision-makers before or during their proceedings.

Concerns about procedural fairness or bias, the presence of an important legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptional circumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised and an effective remedy to be granted […]. [T]he presence of so-called jurisdictional issues is not an exceptional circumstance justifying early recourse to courts . [citations omitted] [emphasis added] [ 47 ] This principle of judicial restraint in the context of an on-going or pending administrative proceeding was endorsed by the SCC in Halifax where Justice Cromwell, speaking for the court, stated that:

[36] […] Early judicial intervention risks depriving the reviewing court of a full record bearing on the issue; allows forjudicial imposition of a “correctness” standard with respect to legal questions that, had they been decided by the tribunal,might be entitled to deference; encourages an inefficient multiplicity of proceedings in tribunals and courts; and maycompromise carefully crafted, comprehensive legislative regimes […] Thus, reviewing courts now show more restraint inshort-circuiting the decision-making role of the tribunal, particularly when asked to review a preliminary screening decision[…]. [citations omitted] [48] Similarly, in dismissing a motion for an interim order prohibiting the resumption of an admissibility hearing, Justice Pinard said thefollowing in Rogan: [5] The practice of this Court is to not review interlocutory decisions because such review is, in the vast majority of cases,premature.

The jurisprudence makes clear that only if there are special circumstances, such as no appropriate remedy at theend of proceedings available to the applicant, should the Court exercise its jurisdiction to review the matter (Zündel v.Canada (Human Rights Commission), (FCA), [2000] 4 F.C. 255 (C.A.), at paragraph 10; Szczecka v.Canada (M.E.I.) (1993), (FCA), 116 D.L.R. (4th) 333 (F.C.A.), at paragraph 4). [6] The rationale for such restrictive access to judicial review is to avoid the unnecessary delays and expenses associatedwith breaking up a case on each and every opportunity for appeal, which would interfere with the sound administration ofjustice and ultimately bring it into disrepute (Zündel, and Szczecka, supra) […]. [49] In Rogan, the Court further noted that “there is an appropriate remedy at the end of the Immigration Division’s proceedings as theapplicant has a right to apply for leave and for judicial review from the decision which will eventually be made on the merits ofadmissibility” (Rogan at para 10). [50] It is also worth reproducing the words of Justice Rouleau in James.

In dismissing the application for an injunction seeking toprevent a “credible basis” hearing, Justice Rouleau stated: [15] This entire application is premature. No action has yet been taken that can be complained of; no credible basis hearinghas been held, no ruling has been made on the constitutional questions by the adjudicator, and no deportation order hasissued. It is conceivable that the applicant may succeed at her hearing, and the entire question will then become moot; if sheis unsuccessful, recourse may be had through the provisions of the Act allowing for review.

I am satisfied thatadministrative process should not be disrupted and delayed pending the applicant’s challenge. The public interest in havingthese hearings continue must outweigh any interest of the applicants in having an injunction issue at this stage, particularlywhen its effect would be to delay the process even further. The statutory scheme, which has not been challenged per se,ought to be enforced until and unless it is held to be invalid.

The procedure as set out in the Immigration Act has not yet beenexhausted; once the hearing has been held, then any complaints which arise can be the subject of an application for judicialreview. [51] Therefore, absent exceptional circumstances, this Court should not interfere with the on-going administrative process involving Ms.Okojie before the CBSA until after that process has been completed or until any available, effective remedies under the IRPA have beenexhausted (Abdi at para 16).

I understand that these decisions on the principle of judicial non-interference and judicial restraint wereoften made in the context of an application for judicial review of interlocutory decisions, but I am satisfied that they can be extended to asituation like this one where the moving party is asking the Court to use its discretion to issue an exceptional injunctive relief such as astay.

(2) No exceptional circumstances in this case [52] To support the early intervention of the Court at this stage, Ms. Okojie insists on the soundness of her legal arguments against theretroactivity and retrospectivity of paragraph 46(1)(c.1) of the IRPA and on the alleged absence of jurisdiction of the Officer in makingthe Report at the source of the admissibility hearing.

I am not persuaded by this argument and I do not agree that the present situation fitswith the type of exceptional circumstances identified by the FCA in CB Powell and that could justify the Court to order a stay of thepending admissibility hearing before the CBSA. [53] As stated by Justice Stratas in CB Powell, the fact that an important legal issue is at stake does not allow the Court to expand theexception to the rule against the judicial review of interlocutory administrative decisions (CB Powell at para 33; Singh v Canada (PublicSafety and Emergency Preparedness), 2017 FC 683 at para 35).

In addition, the presence of challenges raising jurisdictional groundsdoes not open the door to early recourses to the courts (CB Powell at paras 39-40): [39] When “jurisdictional” grounds are present or where “jurisdictional” determinations have been made, can a partyproceed to court for that reason alone? Put another way, is the presence of a “jurisdictional” issue, by itself, an exceptionalcircumstance that allows a party to launch a judicial review before the administrative process has been completed? [40] In my view, the answer to these questions are [sic] negative.

An affirmative answer would resurrect an approachdiscarded long ago. [54] I am mindful of the fact that, in Rogan, Justice Pinard mentioned that the "“exceptional circumstances”" exception will generallyonly apply when the tribunal’s jurisdiction (or lack thereof) is challenged upon judicial review (Rogan at paras 8-11).

However, hisdecision pre-dated CB Powell where the FCA has clarified the state of the law on jurisdictional challenges. [55] In the present case, as in CB Powell, the IRPA contains an administrative process of adjudications, hearings and appeals onadmissibility matters and loss of status, and this process must be followed until completion, unless exceptional circumstances exist. In

this administrative process, Parliament has assigned decision-making authority to the Minister and various administrative officials, not to the courts. Absent extraordinary circumstances, which are not present here, parties must exhaust their rights and remedies under this administrative process before pursuing any recourse to the courts, even on so-called “jurisdictional” issues. [ 56 ] Moreover, after attending the admissibility hearing and following the quasi-judicial administrative process through to its end, Ms. Okojie may well not be found inadmissible by the Minister’s Delegate.

The fact that the CBSA is convening an admissibility hearing does not mean that a conclusion has been rendered on her inadmissibility as a foreign national. The purpose of the admissibility hearing is to determine whether she is inadmissible, and the decision on future steps (such as a removal order) depends on the determination to be made at the admissibility hearing. Even on the issue of jurisdiction, Ms.

Okojie will be able to argue that she has not lost her permanent resident status, that the Officer had no jurisdiction to prepare a Report submitted under subsection 40.1(1) of the IRPA , and that the Minister’s Delegate therefore has no jurisdiction to make an inadmissibility determination against her. In fact, Ms. Okojie even says in her submissions that this whole question remains an open issue. [ 57 ] There is no question that it is within the jurisdiction of the CBSA and the Minister’s Delegate to determine inadmissibility. The Report does not, in and of itself, render Ms. Okojie inadmissible.

A decision further to the subsection 44(2) process set out in the IRPA is required. [ 58 ] Furthermore, Ms. Okojie will be able to commence an application for leave and judicial review of the Minister’s Delegate’s decision, whatever it may turn out to be, or of an eventual removal order, at which time the Court will have the benefit of reviewing a full record. [ 59 ] I observe that, in the parallel case relied on by Ms.

Okojie in her submissions on the serious issue to be tried – Do Me Tung v Canada (Public Safety and Emergency Preparedness) , IMM-6195-18, Order dated February 26, 2019 [ Tung ] –, the Minister’s Delegate has already issued a departure order, in which he has found that the applicant was a person described in subsection 40.1(1) of the IRPA , namely a foreign national who is inadmissible on a final determination under subsection 108(2) that her refugee protection has ceased.

In Tung , Justice Southcott found that, by raising in the underlying application for judicial review that the officer had erred in issuing a departure order without jurisdiction, in applying paragraph 46(1)(c.1) of the IRPA retroactively or retrospectively, or in failing to consider her arguments that this provision could not be so applied, the applicant had raised a serious issue in the context of her motion for a stay of removal. [ 60 ] For all those reasons, Ms.

Okojie’s motion must be dismissed for prematurity because a hearing has yet to occur and the ordinary administrative process outlined in the IRPA ought to be followed, rather than this Court pre-empting the CBSA’s and the Minister’s Delegate’s jurisdiction by way of an interlocutory relief. There are no exceptional circumstances warranting interference by the Court with the on-going administrative process now initiated before the CBSA, and where an appropriate remedy would exist at the end of the process if needed.

As rightly noted by the Minister, it is conceivable and certainly possible that the CBSA could conclude, further to the admissibility hearing, that Ms. Okojie is not inadmissible. Conversely, an application for judicial review with respect to an eventual decision of the Minister’s Delegate determining that Ms. Okojie is inadmissible to Canada under subsection 40.1(1) of the IRPA and issuing her a departure order could be made, as was done in the Tung case. In the present circumstances, I consider that it would not be appropriate to exercise my discretion in favour of the exceptional stay sought by Ms. Okojie. C.

The RJR-MacDonald requirements

(1) Serious issue to be tried [ 61 ] This finding of prematurity is sufficient to dismiss Ms. Okojie’s motion but, for completeness, I will also analyze the three requirements of the RJR-MacDonald test. [ 62 ] I turn to the first element of the tripartite test: whether the motion materials and the evidence before the Court are sufficient to satisfy me, on a balance of probabilities, that Ms. Okojie has raised a serious issue to be tried. I underline that the question here relates to the strength of Ms.

Okojie’s case in her underlying application for judicial review ( CBC at para 25 ), namely her request for declaratory and prohibitive reliefs in relation to her permanent resident status and to the

interpretation of paragraph 46(1)(c.1) of the IRPA , and the retroactivity/retrospectivity arguments she raises. [ 63 ] I remind that, in her underlying application, Ms. Okojie maintains that, since there is no transitional provision in relation to paragraph 46(1)(c.1), it does not apply to events or actions that occurred prior to December 15, 2012 when it came into force. As such, she claims she is still a permanent resident of Canada. Ms.

Okojie further submits that the Officer who has written the Report alleging that she is a foreign national is in error and that the Minister’s Delegate has no jurisdiction to make a removal order against her as she is a permanent resident and can only be the subject of a report under subsection 40.1(2). She also pleads that her argument on the presumption against retrospectivity and retroactivity is supported by the recent decision of the SCC in Tran v Canada (Public Security and Emergency Preparedness) , 2017 SCC 50 , and that explicit provisions are required for a law to be applied retrospectively.

In her submission, the cessation of her refugee status crystallized at the time of the impugned conduct, not at the time of the determination made by the RPD. These issues raise, as the detailed submissions of the parties illustrate with eloquence, complex questions of statutory

interpretation. [ 64 ] Ms. Okojie contends that there is a serious issue to be tried as, earlier this year, Justice Southcott granted leave in the Tung case raising similar issues relating to the retroactivity or retrospectivity of paragraph 46(1)(c.1), and the absence of jurisdiction of the Minister’s Delegate in issuing a departure order. A stay of removal was issued by this Court in that matter, and the application for judicial review is set to be heard on July 8, 2019. Given that leave has been granted on the very issues she raises in her own application, Ms.

Okojie pleads that the threshold of an arguable case is therefore met. Ms. Okojie argues that the first stage of the test established in RJR-MacDonald and Toth is a low threshold, requiring only a preliminary assessment of the merits to ensure that the underlying application is neither vexatious nor frivolous. Ms. Okojie submits that this low threshold applies in this case and that the successful leave for judicial review obtained in the Tung case demonstrates that this matter is neither frivolous nor vexatious.

[ 65 ] The Minister takes a totally opposite approach on the threshold to be applied at the first stage of the RJR-MacDonald/ Toth test. He submits that the heightened threshold of a “strong prima facie case” recently established by the SCC in CBC applies here. This test requires a strong likelihood of success in the underlying application. Since Ms. Okojie is seeking to stop an administrative body from exercising its jurisdiction and to prevent it from acting before a decision is actually made, the Minister claims that this highest standard developed in CBC for mandatory interlocutory injunctions should apply.

At the hearing, counsel for the Minister valiantly tried to make a parallel between the present case and the teachings of the SCC in CBC . The Minister notably argued that, since Ms. Okojie asks for the same relief in her motion (i.e., staying the inadmissibility interview set for July 2, 2019) as she asks in her underlying application (i.e., an order prohibiting the Minister’s Delegate from commencing an inadmissibility interview), the very high CBC threshold should govern the examination of the strength of Ms.

Okojie’s case at the serious issue stage. [ 66 ] Alternatively, the Minister contends that the Court should certainly take an intensive look at the merits of Ms. Okojie’s underlying application and use at least the “elevated threshold” applied to situations where a favourable decision on the interlocutory motion effectively grants the relief sought in the underlying judicial review application.

This elevated threshold was first set out by the SCC in RJR-MacDonald and has been repeatedly applied by the FCA and this Court in immigration matters, further to Wang v Canada (Minister of Citizenship and Immigration) , 2001 FCT 148 [ Wang ] and its progeny. In such circumstances, argues the Minister, the applicant is required to demonstrate that the underlying application for judicial review is likely to succeed. [ 67 ] Ms.

Okojie acknowledges that certain circumstances warrant an elevated threshold for the establishment of the serious issue where a favourable decision on the interlocutory motion effectively grants the relief sought in the underlying judicial review. However, she submits that the relief sought in her interlocutory stay will not grant the reliefs contemplated in her underlying application.

Her stay motion seeks a temporary remedy aimed at the admissibility hearing scheduled for July 2, 2019 whereas her application for judicial review seeks a permanent remedy relating to her permanent resident status as well as the prohibition of any admissibility hearings anchored in a report describing her as an inadmissible foreign national.

As such, the latter is far more reaching and a success on her stay motion would not amount to an effective final determination of her application in her favour. [ 68 ] I am not persuaded that the general, low threshold established in RJR-MacDonald is necessarily the appropriate one in the circumstances. However, given my findings on the other two branches of the RJR-MacDonald/ Toth test, I do not need to resolve this situation in my decision.

For the purpose of this stay motion, I will simply assume, without deciding, that a serious issue exists. [ 69 ] That said, in light of the extensive written and oral submissions made by the parties on the “serious issue to be tried” stage of the tripartite conjunctive test, I will nonetheless provide some remarks on two points arising from the Minister’s submissions. First, in my respectful view, CBC and the heightened threshold of a “strong prima facie case” established for mandatory interlocutory injunctions do not directly apply here.

Second, I do not believe that CBC has necessarily modified the general “elevated threshold” established by the SCC in RJR-MacDonald and frequently applied in immigration matters further to the Wang decision. I am mindful of the fact that this latter question goes beyond the scope of issues raised in this motion, and that its final resolution will be for another day. (

a) Test for mandatory injunctions [ 70 ] In CBC , the SCC examined in more detail the framework applicable for granting a mandatory interlocutory injunction – an injunction that directs the defendant to do something, as opposed to an injunction that prohibits the defendant from doing something.

The SCC held that, in such a case, the appropriate criterion for assessing the first factor of the RJR-MacDonald test is a heightened and more stringent threshold, in that the moving party must establish a " “strong prima facie case” " on the merits ( CBC at para 15 ) as opposed to simply one that is neither frivolous nor vexatious.

This is so because a mandatory injunction directs the defendant to undertake a positive course of action, such as “taking steps to restore the status quo ” or to otherwise " “put a situation back to what it should be” " ( CBC at para 15 ). [ 71 ] Establishing a strong prima facie case requires much more than an arguable case; it implies that the moving party has a high chance of success on the merits. It requires the moving party to show “a case of such merit that it is very likely to succeed at trial” ( CBC at para 17 ).

Therefore, the SCC described the first stage of the modified RJR-MacDonald tripartite test for mandatory interlocutory injunctions as follows ( CBC at para 18 ):

(1) The applicant must demonstrate a strong prima facie case that it will succeed at trial. This entails showing a strong likelihood on the law and the evidence presented that, at trial, the applicant will ultimately be successful in proving the allegations set out in the originating notice; […] [emphasis in original] [ 72 ] I do not agree with the Minister that CBC and this heightened threshold of a “strong prima facie case” can be directly imported and applied to Ms.

Okojie’s motion. [ 73 ] It is clear from the CBC decision that it relates to the very specific context of mandatory injunctions: what the SCC had to decide was the “question of just what threshold ought to be applied at the first stage where the applicant seeks a mandatory interlocutory injunction” ( CBC at para 13 ). At the hearing, the Minister suggested that the frontier between mandatory and prohibitive injunctions is sometimes hard to draw.

Indeed, in CBC , the SCC acknowledged that distinguishing a prohibitive from a mandatory injunction may be difficult, given that even prohibitive language may require a party to take positive action. However, the SCC enunciated the question to be determined by the courts in case of doubt: “the application judge should examine whether, in substance, the overall effect of the injunction would be to require the defendant to do something, or to refrain from doing something” [emphasis in original] ( CBC at para 16 ). In the present case, there is no doubt in my mind that Ms.

Okojie’s stay motion would definitely have the overall effect of refraining the Minister from conducting the admissibility hearing (as opposed to forcing him to do something), and that it does not have the main substance or even the attributes of a mandatory injunction. [ 74 ] In CBC , the SCC did not suggest that the RJR-MacDonald test was modified beyond the circumstance of a mandatory injunction ( Solomon v Garden River First Nation , 2018 FC 1284 [ Solomon ] at para 23 ). In fact, it instead affirmed that the traditional, less

searching threshold of the tripartite test continued to be applicable in other circumstances. Therefore, there are no grounds to sustain thatMs. Okojie would have to demonstrate that she meets, at the first stage of the RJR-MacDonald test, the heightened threshold of a strongprima facie case elaborated in CBC. (

b) Impact of CBC on the RJR-MacDonald test [75] The Minister also argues that, since the potentially severe consequences of granting a stay include the effective final determinationof the underlying application in Ms.

Okojie’s favour, the heightened threshold for mandatory injunctions should be retained by the Court.In other words, the Minister claims that, following CBC, the heightened threshold of a strong likelihood of success generally applies tosituations where a favourable decision on the interlocutory motion effectively grants the relief sought in the underlying judicial reviewapplication. [76] I do not agree.

I am not persuaded that, in the absence of any specific language to that effect, such an important change to theexception to the “serious issue” threshold carved out in RJR-MacDonald can be implied from the reasons of the SCC in CBC. I aminstead of the view that a distinction still needs to be drawn between the heightened threshold established by the SCC in CBC formandatory injunctions, and the elevated threshold that has existed since RJR-MacDonald with respect to situations where granting theinterlocutory relief is tantamount to granting the relief sought in the underlying application.

Contrary to what the Minister suggests, I donot believe that the two tests can be conflated and I do not read CBC as overtaking or discarding the more general elevated (and slightlyless stringent) threshold established by the SCC in RJR-MacDonald. [77] In its discussion of the “strength of the plaintiff’s case” element in RJR-MacDonald back in 1994, the SCC had specificallyidentified two exceptions to “the general rule that a judge should not engage in an extensive review of the merits” at the serious issue tobe tried stage, once the motion judge is satisfied that the underlying application is neither frivolous nor vexatious (RJR-MacDonald at pp338-339).

The SCC stated that one of those exceptions arises “when the result of the interlocutory motion will in effect amount to a finaldetermination of the action” (RJR-MacDonald at p 338). This situation, said the SCC, calls for a more extensive review of the merits atthe first stage of the analysis, and the motion judge must then “engage in an extensive review of the merits”. [78] However, in RJR-MacDonald, the SCC did not go further and did not translate this requirement to conduct an extensive review ofthe merits into a specific degree of likelihood of success in the underlying action or application.

It refrained from venturing into this area,and the SCC did not mention that this exception commanded the demonstration of a “prima facie case” or a “strong prima facie case”, ora certain specific degree of likelihood of success. In my respectful view, the SCC instead left room for a flexible approach in thosesituations where a prolonged and more extensive examination of the merits is necessary, including when the grant of the applicant’smotion would effectively give the relief sought in the underlying application for judicial review.

It left the approach open, perhapsremembering the comments made by the House of Lords in American Cyanamid Co v Ethicon Ltd, [1975] 1 All ER 504, where LordDiplock referred to the confusion created in the case law by the use of expressions such as “a probability”, “a prima facie case” or “astrong prima facie case”. [79] It is well known and not disputed that the elevated threshold elaborated by the SCC in RJR-MacDonald for situations where “theresult of the interlocutory motion will in effect amount to a final determination of the action” has frequently been applied in the contextof removal orders in immigration matters.

In Baron v Canada (Public Safety and Emergency Preparedness), 2009 FCA 81 [Baron], theFCA stated that, in such cases, the motion judge must closely examine the merits of the underlying application and identify at least oneissue that carries with it the “likelihood of success” in the application (Baron at para 66, citing Wang at para 11).

Bearing in mind thatthe standard of review of an enforcement officer’s decision is that of reasonableness, and that a removal officer has limited discretionunder the IRPA, the FCA added that an applicant must be able to put forward “quite a strong case” to succeed on a judicial review of adecision to refuse to defer removal (Baron at para 67). [80] I pause to underscore that the language of “likelihood of success” associated with the elevated threshold in immigration mattersdoes not come directly from the SCC in RJR-MacDonald, but from the decision of the FCA in Baron (Baron at para 66; see alsoMahjoub v Canada (Minister of Citizenship and Immigration), 2011 FCA 322, 2011 CarswellNat 6336 at paras 5-6).

It has beenfollowed by this Court in dozens of decisions, where it was decided that a likelihood of success on the merits has to be demonstratedwhen decisions of a removal officer are involved (see for example: Adewoyin v Canada (Citizenship and Immigration), (FC); Neto v Canada (Public Safety and Emergency Preparedness), 2018 FC 1301 at para 10; Wells v Canada (Public Safety andEmergency Preparedness), 2018 FC 1259 at para 12; Patel v Canada (Citizenship and Immigration), 2018 FC 882; Calin v Canada(Public Safety and Emergency Preparedness), 2018 FC 731 at para 18 [Calin]; Diakité v Canada (Public Safety and EmergencyPreparedness), 2017 FC 314 at para 8; Dheer v Canada (Public Safety and Emergency Preparedness), 2016 FC 1194 at paras 7-8; Tothv Canada (Public Safety and Emergency Preparedness), 2012 FC 1051 at paras 12, 24; Kelly v Canada (Public Safety and EmergencyPreparedness), 2011 FC 906 at paras 1, 3). [81] In CBC, the SCC went further than in RJR-MacDonald and established that, for mandatory interlocutory injunctions, a moreexplicit heightened threshold of a “strong prima facie case” applies, and expressly stated that a “strong likelihood” of success needs to bedemonstrated for assessing the strength of the applicant’s case at the first stage of the analysis.

This exception, said the SCC, is due tothe fact that such a mandatory injunction “directs the defendant to undertake a positive course of action, such as taking steps to restorethe status quo, or to otherwise ‘put the situation back to what it should be’, which is often costly or burdensome for the defendant andwhich equity has long been reluctant to compel” (CBC at para 15).

The analysis made by the SCC in CBC was however specificallydirected at mandatory interlocutory injunctions (CBC at para 13) [82] True, in CBC, the SCC referred to the “potentially severe consequences for a defendant which can result from a mandatoryinterlocutory injunction” and indicated that these included “the effective final determination of the action in favour of the plaintiff” (CBCat para 15). But the SCC only stated that this situation “further demand[s] what the Court described in RJR-MacDonald as an “extensivereview of the merits’ at the interlocutory stage” (CBC at para 15).

The SCC did not say that engaging in an extensive review of themerits always rhymed with searching for a strong likelihood of success. [83] In my respectful view, contrary to what the Minister argues, the RJR-MacDonald exception for situations where the result of the

interlocutory motion would amount to a final determination on the merits cannot to be equated with an automatic requirement to demonstrate a strong prima facie case or a strong likelihood of success in the underlying application or action, outside the specific context of mandatory interlocutory injunctions. This is not a conclusion that can be drawn from the language used by the SCC in RJR- MacDonald . Nor is it a conclusion that can be drawn from the language or the teachings of the SCC in CBC .

What rather transpires is that the route to follow when an interlocutory relief risks deciding the ultimate outcome of the underlying application is an adaptable approach, as elaborated by the SCC in RJR-MacDonald . [ 84 ] I accept that, in the circumstances of a particular case, this flexible approach contemplated and advocated by the SCC in RJR- MacDonald could lead a motion judge to determine, in his or her extensive review of the merits of a case, that a strong likelihood of success has to be demonstrated given the interests at stake and the impact that an interlocutory decision can have on the parties involved.

Arguably, granting at the interlocutory stage a prohibitive injunction equivalent to the final remedy sought in the underlying application could, in some cases, be as burdensome on the losing defendant as a positive mandatory obligation, and there would then be no rationale to impose a less stringent threshold than a strong prima facie case, even outside a mandatory injunction context. [ 85 ] I recognize that, since CBC , this Court has been divided on this issue.

Some decisions of the Court have considered that there are different elevated thresholds to apply (see for example: Solomon at para 23 ; Calin at paras 18-20 ).

Other decisions have taken the opposite approach and retained the “strong likelihood of success” threshold for situations where a favourable decision on the interlocutory motion effectively granted the relief sought in the underlying judicial review application (see for example: Canada (Public Safety and Emergency Preparedness) v Baniashkar , 2019 FC 729 at paras 17-18 ; Safe Workforce Inc v Canada (Attorney General) , 2019 FC 645 at paras 54-56 ; Canada (Public Safety and Emergency Preparedness) v Mohammed , 2019 FC 451 at paras 13 , 16; Canada (Public Safety and Emergency Preparedness) v Allen , 2018 FC 1194 at para 15 ; Gadwa v Joly , 2018 FC 568 at paras 25-26 ).

Each case, however, appears to turn on its particular facts. [ 86 ] In my view, the approach has to remain a flexible one, and the decision of the SCC in CBC cannot be interpreted as having modified, as a rule and in principle, the elevated threshold generally applicable when granting the interlocutory relief is tantamount to granting the relief sought in the underlying application. More particularly, in immigration matters, the

interpretation proposed by the Minister would run contrary to the approach adopted by the FCA in Baron and followed by this Court in numerous decisions, where it was decided that a “likelihood of success” has to be demonstrated for stays of removal when a decision to refuse deferral is involved.

I would add that, in the context of stays of removal, imposing (as a rule) the heightened threshold of a strong prima facie case, and the consequent need to demonstrate a strong likelihood of success, could have dire consequences for applicants seeking the suspension of a removal order and for the motion judges having to determine whether the conditions of the tripartite RJR-MacDonald test are met. [ 87 ] Both the heightened CBC threshold for mandatory interlocutory injunctions and the elevated RJR-MacDonald threshold for situations where the result of an interlocutory motion will in effect amount to a final determination of the underlying application certainly go beyond the general and less searching “serious issue to be tried” threshold otherwise applicable to do the preliminary assessment of the merits at the first stage of the RJR-MacDonald test.

While they each require the courts to take a closer look at the underlying matter, there remains, in my view, a difference of degree between these two more scrutinizing thresholds.

(2) Irreparable harm [ 88 ] I now move to the second element of the RJR-MacDonald test, irreparable harm. Under the second prong of the test, the question is whether Ms. Okojie has provided sufficiently clear, convincing and cogent evidence that, on a balance of probabilities, she will suffer irreparable harm between now and the time her underlying application for judicial review is disposed of, should the stay be denied. (

a) Legal test [ 89 ] Irreparable harm refers to the nature of the harm suffered rather than its magnitude. The irreparability of the harm is not measured by the pound. It is harm which “either cannot be quantified in monetary terms or which cannot be cured” ( RJR-MacDonald at p 341). [ 90 ] Irreparable harm is a strict test.

First, irreparable harm must flow from clear and non-speculative evidence ( United States Steel Corporation v Canada (Attorney General) , 2010 FCA 200 [ US Steel ] at para 7 ; AstraZeneca Canada Inc v Apotex Inc , 2011 FC 505 at para 56 , aff’d 2011 FCA 211 ; Aventis Pharma SA v Novopharm Ltd , 2005 FC 815 at paras 59-61 , aff’d 2005 FCA 390 ). In addition, simply claiming that irreparable harm is possible is not enough. The jurisprudence of the FCA states that “[i]t " is not sufficient to demonstrate that irreparable harm is ‘likely’ to be suffered” " ( US Steel at para 7 ).

There must be evidence that the moving party will suffer irreparable harm if the injunction or the stay is denied ( US Steel at para 7 ; Centre Ice Ltd v National Hockey League (1994), 53 CPR (3d) 34 (FCA) at p 52) . [ 91 ] The FCA has frequently insisted on the attributes and quality of the evidence needed to establish irreparable harm in the context of injunctive reliefs. The evidence must be more than a series of possibilities, speculations, or hypothetical or general assertions ( Gateway City Church v Canada (National Revenue) , 2013 FCA 126 [ Gateway City Church ] at paras 15-16 ).

" Assumptions, hypotheticals and arguable assertions unsupported by evidence carry no weight ( " Glooscap at para 31 ) " . Th " ere needs to " “be evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted” " ( Gateway City Church at para 16 , citing Glooscap at para 31 ).

It is not enough “for those seeking a stay […] to enumerate problems, call them serious, and then, when describing the harm that might result, to use broad, expressive terms that essentially just assert – not demonstrate to the Court’s satisfaction – that the harm is irreparable” ( Stoney First Nation v Shotclose , 2011 FCA 232 at para 48 ). [ 92 ] Again, the requirement of having evidence " convincing and cogent enough to satisfy the balance of probabilities " " test, " set out in McDougall , of course applies to the clear and non-speculative evidence needed for irreparable harm.

In Janssen , the FCA stated that a party seeking a suspension relief must demonstrate in a detailed and concrete way that it will suffer “real, definite, unavoidable harm – not hypothetical and speculative harm – that cannot be repaired later” ( Janssen at para 24 ). In that decision, Justice Stratas added that “it would be strange if a litigant complaining of harm it caused itself, harm it could have avoided or repaired, or harm it still can avoid or repair could get such serious relief […] [or] if vague assumptions and bald assertions, rather than detailed and specific evidence, could

support the granting of such serious relief” ( Janssen at para 24 ). [ 93 ] The question for the Court is therefore whether the harm identified by Ms. Okojie is clear, convincing and not speculative and reaches the level of irreparable harm defined by the FCA, as opposed to being simple inconvenience. (

b) Grounds of irreparable harm [ 94 ] Ms. Okojie submits that she will suffer irreparable harm in a number of ways, should she have to attend the admissibility hearing scheduled for July 2, 2019. Ms.

Okojie has identified five headings of irreparable harm: 1) she will lose the rights of a permanent resident, despite her position that she is still a permanent resident in law; 2) she will lose her right to work and her job, and her family will suffer due to the loss of her income as the main breadwinner in the family; 3) she will suffer serious long-term prejudice to her employment opportunities, due to being labelled as “not entitled to work” by the College of Nurses; 4) she will lose the right to study, will have to cease study part-way through her term, and could lose the ability to graduate from her Bachelor of Science program in nursing at Ryerson; and 5) she will suffer emotional hardship due to the threat of removal while she maintains that she is still a permanent resident of Canada. [ 95 ] Her evidence of irreparable harm is contained in her affidavit and the supporting documents attached to it. [ 96 ] Having reviewed the totality of the evidence provided by Ms.

Okojie, I am not satisfied that, on a balance of probabilities, there is the required clear and non-speculative evidence to demonstrate the irreparable harm she is alleging. In essence, her various allegations of harm are not supported by detailed and specific evidence, and they remain in the universe of speculations and hypotheticals.

This, as the FCA frequently reminded, is insufficient to meet the high threshold of irreparable harm. [ 97 ] On her claim regarding the loss of her permanent resident rights, I point out that the results of the admissibility interview are not a foregone conclusion, and that being at the hearing does not imply a given result. Ms. Okojie’s previous submissions from counsel in March 2019 have already worked and led to a postponement of the first interview date. She will once again be able to make these arguments and present her case at the admissibility hearing.

To say that her rights will be lost because of her attendance at the admissibility hearing is just speculative. As the Minister rightly says, there is no evidence allowing me to conclude that the suspension of her permanent resident status and rights she fears will result from being

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