2018 FC, 2018 FC 1226

Date: 20181206 Docket: IMM-5985-18 Citation: 2018 FC 1226 Toronto, Ontario, December 6, 2018 PRESENT: Mr. Justice Grammond BETWEEN:DALE TAFADZWA TUDUApplicantandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] The applicant, Mr. Dale Tafadzwa Tudu, brings a motion for a stay of his removal from Canada scheduled for tomorrow, December7, 2018. He asked for a deferral of his removal, because of a medical condition that would prevent him from flying.

I dismiss this motion,because the enforcement officer who dismissed his application for deferral reasonably relied on the opinion of a second doctor, whofound him fit to fly. I. Facts and Underlying Decision [2] Mr. Tudu, a citizen of Zimbabwe, came to Canada in 2001 and claimed asylum on the basis of political persecution in his homecountry. His claim was denied in 2006. [3] The record does not disclose what then happened. We only know that Mr. Tudu applied for a pre-removal risk assessment [PRRA] in2018. His application was denied on June 15, 2018. Mr.

Tudu did not file an application for leave and judicial review against thisdecision. [4] A few days later, Mr. Tudu submitted an application for relief on humanitarian and compassionate [H&C] grounds. The grounds forthat application included assertions about the risk that Mr. Tudu would incur upon his return to Zimbabwe. The evidence that supportedthat application has not been provided to me. No decision has been made on this application. [5] On October 22, 2018, Mr. Tudu was given a direction to report, indicating that his removal was scheduled for December 7, 2018. [6] On December 3, 2018, Mr.

Tudu applied for a deferral of his removal, on the basis of his medical condition. Two brief medical notesaccompanied the application. [7] On the same day, Mr. Tudu filed an application for leave and for judicial review, challenging the lack of decision regarding hisapplication for deferral. In the context of that application, he brought a motion to this Court for the stay of her removal. [8] Minutes before the hearing of this motion, an enforcement officer issued a negative decision with respect to Mr. Tudu’s applicationfor deferral. II.

Analysis [9] The Immigration and Refugee Protection Act, SC 2001, c 27, does not require a judicial authorization to remove a foreign nationalfrom Canada. In that sense, a stay of removal is an exceptional remedy, as it interferes with the normal administrative process asprescribed by Parliament in

section 48 of the Act. [10] The statutory basis for a stay of removal is found in

section 18.2 of the Federal Courts Act, RSC 1985, c F-7, which provides thatthis Court may make interim orders pending the final disposition of an application for judicial review. In granting such relief, we applythe same test as for interlocutory injunctions.

The Supreme Court of Canada recently restated the test as follows: At the first stage, the application judge is to undertake a preliminary investigation of the merits to decide whether theapplicant demonstrates a “serious question to be tried”, in the sense that the application is neither frivolous nor vexatious.The applicant must then, at the second stage, convince the court that it will suffer irreparable harm if an injunction isrefused.

Finally, the third stage of the test requires an assessment of the balance of convenience, in order to identify the partywhich would suffer greater harm from the granting or refusal of the interlocutory injunction, pending a decision on themerits. (R v Canadian Broadcasting Corp, 2018 SCC 5 at para 12, references omitted) [11] This three-pronged test is well-known. It had been set out in earlier decisions of the Supreme Court (Manitoba (Attorney General) vMetropolitan Stores Ltd., (SCC), [1987] 1 SCR 110; RJR — MacDonald Inc v Canada (Attorney General), 1994

117 (SCC), [1994] 1 SCR 311 [RJR]). It was also applied in the immigration context in Toth v Canada (Minister of Employment andImmigration), (FCA). Of course, the application of this test is highly contextual and fact-dependent. A. Serious Question to be Tried [12] In RJR, the Supreme Court stated that the "“serious question to be tried”" criterion is a relatively low threshold (RJR at 337).However, the Supreme Court also said that a more demanding test must be applied where the interim relief sought has the practical effectof deciding the underlying action (RJR at 338-339).

This is the case where an application for judicial review is brought against a decisionof an enforcement officer refusing to defer removal. In that context, a motion for stay of removal gives the applicant what he or she isasking for in the underlying application.

For that reason, the Federal Court of Appeal stated that the applicant must show "“quite a strongcase”" (Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 at paras 66-67 [Baron]), keeping inmind that the applicable standard of review on the merits is reasonableness. [13] In this case, it is not disputed that a medical condition that renders someone unfit to fly is a kind of issue that enforcement officersmay consider. In this connection, Mr. Tudu states that he was in hospital several times over the last few weeks and he provides two notesfrom his doctor.

The first note, dated October 29, 2018, reads: In my opinion, he is suffering from heart arrhythmia and needs immediate attention because it’s causing irregularities in hisheart beat. Until his treatment is complete in six months it will be dangerous and catastrophic to his livelihood if he boardsan airplane at this time. [14] The second note, dated December 3, 2018, reads: Treatment Timetable: Next 6 months I have prescribed propafenone tablets to help correct the arrhythmia and after each month I will examineprogress closely.

If no improvement occurs and a proarrythmia develops surgery will be strongly recommended. In themeantime my opinion has not changed, boarding a plane for Mr. Dale Tudu at this point in time will be very fatal andcatastrophic to his livelihood. [15] Upon receiving the application for deferral, the enforcement officer sent those notes to a doctor retained by CBSA. In his reasons,the officer quotes the conclusions of that doctor: Based on the review of all medical information to date, Mr.

Tudud [sic] has not developed any ongoing acute clinicallysignificant complication and/or clinical sequelae as a result of his reported medical history of “heart arrhythmia” that wouldrender him clinically unstable and preclude him from air travel via commercial airliner. Further, in the absence of any current objective medical evidence indicating any significant ongoing sequelae due to Mr.Tudu’s reported medical history reviewed above would not preclude him from air travel at this time. As such, based on all the medical documentation available for review and within all reasonable medical certainty, Mr.

Tuduis deemed medically fit for air travel to be repatriated to his country of origin via commercial airliner. [16] Mr. Tudu argues that the enforcement officer made a reviewable error by not explaining why he preferred the opinion of the seconddoctor, who did not examine him in person. [17] Given the urgency, the enforcement officer was not required to provide detailed reasons as to why he preferred one doctor’sopinion over the other. Quite legitimately, CBSA has put in place a procedure for the verification of the medical notes provided insupport of applications for deferral.

Enforcement officers are entitled to rely on the medical opinion that they obtain through thatprocess. [18] Moreover, the first doctor’s statement to the effect that "“boarding a plane … will be very fatal”" is not explained nor linked to Mr.Tudu’s observed medical condition. The enforcement officer was entitled to doubt the correctness of such a conclusory statement and toprefer the opinion of the doctor retained by CBSA. [19] I would add that Mr. Tudu’s late filing of an application for deferral, while he had known his removal date for weeks, did not helpin establishing the seriousness of his medical condition.

At the hearing, counsel asserted that Mr. Tudu wanted to see if his conditionimproved before burdening the system with an application for deferral. This explanation is completely unreasonable. Persons who aresubject to a removal order should ask for deferral as soon as they learn of potential grounds. Let me simply say that an applicant whowanted to deprive CBSA of an opportunity of obtaining a second medical opinion would have done exactly as Mr. Tudu did. [20] As a result, Mr. Tudu has not shown a "“strong case,”" according to the standard set in Baron. B.

Irreparable Harm [21] The second prong of the RJR test relates to irreparable harm. [22] In a case like this one, the first two prongs of the RJR test are substantially intertwined. For the reasons I gave above, I find thatMr. Tudu has not shown irreparable harm. [23] At the hearing, counsel for Mr. Tudu informed the Court that Mr. Tudu was currently in the emergency room at a hospital inLondon, Ontario. He provided a picture, which Mr. Tudu had sent to him by email, of Mr. Tudu’s hospital admission bracelet. We haveno other information as to the reasons for Mr. Tudu’s admission to the hospital.

In the absence of any further detail, I am unable to draw

any conclusion from this situation. C. Balance of Convenience [ 24 ] Given the absence of a serious question and irreparable harm, it is unnecessary to discuss the balance of convenience. [ 25 ] In conclusion, the three RJR criteria are not met and I will dismiss Mr. Tudu’s motion for a stay of his removal from Canada. ORDER in IMM-5985-18 THIS COURT ORDERS that the motion for a stay of the removal of the applicant is dismissed.

"Sébastien Grammond" Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-5985-18 STYLE OF CAUSE: DALE TAFADZWA TUDU v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: TORONTO, Ontario DATE OF HEARING: DECEMBER 6, 2018 ORDER AND REASONS: GRAMMOND J. DATED: DECEMBER 6, 2018 APPEARANCES : Robert Gertler For The Applicant Meva Motwani For The Respondent SOLICITORS OF RECORD : Gertler Law Office Barristers and Solicitors Toronto, Ontario For The Applicant Attorney General of Canada Ottawa, Ontario For The Respondent