2023 FC, 2023 FC 1508

Date: 20231114 Docket: IMM-6431-23 Citation: 2023 FC 1508 Toronto, Ontario, November 14, 2023 PRESENT: Madam Justice Go BETWEEN:ARTUR WITOLD BARCHWICApplicantandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] Mr. Artur Witold Barchwic [Applicant] seeks a stay of his removal to Poland, scheduled for November 19, 2023, until the finaldetermination of his application for leave and for judicial review [ALJR] of a decision dated May 4, 2023, by the Immigration AppealDivision [IAD] refusing the Applicant’s removal appeal [Decision].

The Applicant was found inadmissible on serious criminality undersubsection 36(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] by the Immigration Division [ID] and was issueda deportation order. [2] Having considered the materials filed by the parties and submissions by counsel, I am dismissing the application for a stay. I. Context [3] The Applicant, a 52-year-old citizen of Poland, entered Canada as a permanent resident in 2010 under a spousal sponsorship.

Sincethen, the Applicant has been convicted of 12 criminal offences, including impaired driving, assault, criminal harassment, and violationsof probation and Court orders. The assault conviction and certain violations of Court orders involved the Applicant’s former spouse.

TheApplicant’s March 23, 2020 conviction of criminal harassment meets the definition of serious criminality under subsection 36(1) of theIRPA, which eventually led to the ID’s finding that the Applicant was inadmissible. [4] Before the IAD, the Applicant sought a stay of removal based solely on humanitarian and compassionate [H&C] grounds. [5] The IAD applied the Ribic factors set out in Ribic v Canada (Minister of Employment and Immigration), [1985] I.A.B.D.

No.4 andconfirmed by the Supreme Court of Canada in Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3, and concludedthat there were insufficient H&C grounds to warrant granting special relief in the Applicant’s appeal. [6] The IAD also found that the Applicant’s case was distinguishable from Xu v Canada (Public Safety and Emergency Preparedness), (CA IRB) [Xu] which, like the case at hand, involved criminality in the context of a spousal relationship. II.

Issues and Legal Test for Obtaining a Stay [7] The only issue is whether a stay of removal should be granted in these circumstances. [8] In order to obtain a stay, the Applicant must meet the tripartite test articulated by the Supreme Court of Canada in Manitoba (AttorneyGeneral) v Metropolitan Stores (MTS) Ltd, (SCC), [1987] 1 SCR 110, RJR-MacDonald Inc v Canada (AttorneyGeneral), (SCC), [1994] 1 SCR 311 [RJR-MacDonald], and R v Canadian Broadcasting Corp, 2018 SCC 5, which isthe test to be applied to stays of removal: Toth v Canada (Minister of Employment and Immigration) (1988), (FCA),86 NR 302, 11 ACWS (3d) 440 (FCA). [9] A stay of removal is warranted only if all three elements of the test are satisfied, namely: (

i) the underlying application for judicialreview raises a serious issue; (ii) the moving party will suffer irreparable harm if the stay is not granted and the removal order isexecuted; and (iii) the balance of convenience favours the granting of the order. [10] The application of this test is highly contextual and fact-dependent. As the Supreme Court of Canada explained, "“[u]ltimately, thequestion is whether granting the injunction would be just and equitable in all the circumstances of the case”": Google Inc v EquustekSolutions Inc, 2017 SCC 34 at para 1. III. Analysis A.

Serious Issue [11] In the underlying ALJR, the Applicant challenges the Decision declining the Applicant’s H&C relief. Specifically, the Applicant

raises the following issues with respect to the Decision: a. Whether the IAD erred in its application of some of the Ribic factors to the Applicant’s situation; and b.

Whether the IAD erred in its conclusion that its previous decision in Xu did not support the Applicant’s appeal because it wasdistinguishable. [12] With respect to the Ribic factors, the Applicant takes issue with the IAD’s assessment that he has not demonstrated a likelihood ofrehabilitation in part because his history of not re-offending over the period of a year and a half (between September 2021, when hecompleted his probation, and April 2023, when the IAD appeal was heard) is relatively short.

The Applicant submits this wasunreasonable since the criminal harassment took place in March 2020, more than 3 years before the IAD hearing, and that all of his mostrecent offences were related to breaches of Court-imposed conditions which were no longer in place. [13] The Applicant submits it was unreasonable for the IAD to take one recent phone call that the Applicant made to his spouse as anindicator of the Applicant’s lack of rehabilitation.

The Applicant submits the phone call was made after the end of his probation; that hewanted to inquire about his former spouse’s health; and that his former spouse had not made any complaint about such contact. [14] The Applicant argues the IAD’s conclusion on establishment has no support in law, when the IAD noted while the Applicant hasfriends in Canada, “he does not live in close proximity to them and he communicates with them by phone or the internet”. [15] The Applicant also submits the IAD erred in failing to consider the issue of him having shelter, when it assessed the degree ofhardship he would face upon return to Poland, because the Applicant had no one in Poland to help him, which would place him in aparticularly dire situation given his struggle with alcoholism and depression. [16] Finally, while noting there are some differences in the facts of the Applicant’s case and in Xu, the Applicant submits there are verysimilar and thus warrant a similar decision, based on the principle that like cases ought to be treated alike: Canada (Minister ofCitizenship and Immigration) v Vavilov, 2019 SCC 65 at para 129.

The Applicant argues the IAD’s analysis of Xu vis-à-vis the facts ofthe current case were in error. [17] At the hearing, the Applicant emphasized that the IAD did not reasonably consider the length of time the Applicant has spent inCanada. [18] I find the Applicant has not raised a serious issue. [19] The issues raised by the Applicant with respect to the Decision, in my view, amount to a disagreement with the IAD’s weighing ofthe Ribic factors.

The Applicant’s arguments are based on his assertion that the IAD failed to consider, or give sufficient weight to suchevidence as the Applicant’s rehabilitation, his ties in the community, his alcoholism and depression, and his counselling sessions andprograms.

My review of the Decision reveals that the IAD did consider all of the evidence before finding that while some of the evidenceweighed in favour of the Applicant, the preponderance of the factors weighed against the granting of H&C relief. [20] For instance, on the issue of likelihood of rehabilitation, the IAD did consider the Applicant’s reasons for contacting his formerspouse, but noted other factors, including the probation officer’s opinion regarding the Applicant’s inability to recognize that trying tocontact his former spouse was wrong.

The IAD also weighed the evidence about the Applicant’s alcoholism but concluded that theApplicant has not established the possibility of overcoming his alcohol dependency and the consequential impact on his likelihood ofreoffending. [21] As to the Applicant’s establishment, the IAD considered the evidence about his friends in Canada, but also noted the Applicant hasno other family members in Canada, is unemployed and receives public assistance, and has limited English speaking ability.

Taking allof these factors into account, the IAD concluded the Applicant’s degree of establishment in Canada is not deep and is insufficient toconstitute a positive factor with respect to the H&C assessment. [22] Finally, contrary to the Applicant’s assertion, the IAD found the Applicant’s residence is “not insignificant and militates in favour ofgranting H&C relief” and found it to be a positive factor. [23] At the hearing, the Applicant did not address his argument concerning the IAD’s analysis of Xu. In any event, the IAD addressed theApplicant’s reliance on Xu and found it distinguishable.

I see no serious issue arising from the IAD’s reasons. [24] While I may not have weighed all the evidence in the same way as the IAD, I am unable to conclude there are serious issues arisingfrom the Decision. As such, I find the Applicant has failed to meet the first prong of the tripartite test. B.

Irreparable Harm [25] Even if I am wrong about the first branch of the test, I find that the Applicant has also failed to satisfy the test for irreparable harm. [26] Irreparable harm refers to harm which cannot be compensated in money; it is the nature rather than the magnitude of the harm,which is to be examined: RJR MacDonald, at 341. In the context of a stay of removal, the harm usually relates to the risk to theindividual(

s) of harm upon removal from Canada. It may also include specific harms that are demonstrated in regard to any personsdirectly affected by the removal, and who will be remaining in Canada: Tesoro v Canada (Minister of Citizenship and Immigration),2005 FCA 148. [27] The law requires that irreparable harm be established based on evidence, not assertions or speculation: Atwal v Canada (Citizenshipand Immigration), 2004 FCA 427 at paras 14-15. However, the test for irreparable harm is also not one of absolute certainty: Suresh vCanada (Minister of Citizenship and Immigration), (FCA), [1999] 4 FC 206 (C.A.) at para 12.

[ 28 ] The Applicant submits that he would suffer irreparable harm in that his safety and security might be at risk in Poland. Specifically, the Applicant submits: a. The Applicant suffers from alcoholism and depression and has been receiving mental health services since January 10, 2023 through the Newcomers Health and Well-being Program [Program] which has helped him with his conditions; b. The Applicant takes anti-depressant medications to help him with his depression; c. The Applicant has noticed that his mental health has started deteriorating due to his looming removal from Canada.

The Applicant has put in great efforts in recent months to improve his mental and physical state, and to refrain from alcoholism and these efforts would be largely threatened should he be returned to Poland; d. The Applicant will likely not receive quality and timely mental health support in Poland in view of the country conditions evidence with respect to the underfunded and overstretched mental health care system in that country; and e.

The potential mootness of the underlying ALJR resulting from the removal is a relevant consideration for the irreparable harm analysis: Shapti v Canada (Public Safety and Emergency Preparedness) , 2011 FCA 286 , at para 40 and Matthew v Canada (Citizenship and Immigration) , 2022 FC 924 , at para 22 . [ 29 ] As the Respondent points out, other than two anti-depression medications from January 2023, and two articles about the general conditions of the mental health system in Poland, the Applicant submits no personal evidence as to what resources he would need, nor any evidence that he could not receive medications in Poland. [ 30 ] The IAD also reviewed the Applicant’s mental health care history in Canada, and noted that the Applicant testified he is no longer in the Program because it is limited to eight sessions.

As well, the Applicant submits no further evidence with this Court to suggest that he has pursued any future counselling options as he had indicated before the IAD. [ 31 ] Without any evidence, the Applicant’s claims of irreparable harm based on the lack of available treatment and any worsening depression upon return to Poland thus become speculative. [ 32 ] Given my findings with respect to serious issues, I also find that, in this case, the potential mootness of the underlying ALJR does not amount to irreparable harm. C.

Balance of Convenience [ 33 ] In light of my findings above, the balance of convenience favours the Respondent. ORDER in IMM-6431-23 THIS COURT ORDERS that the application for a stay of removal pending the determination of the Applicant’s application for judicial review is dismissed. "Avvy Yao-Yao Go" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-6431-23 STYLE OF CAUSE: ARTUR WITOLD BARCHWIC v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: HELD VIA VIDEOCONFERENCE

DATE OF HEARING: November 14, 2023 ORDER AND reasons: GO J. DATED: November 14, 2023 APPEARANCES : Natalie Elyse Lauren Torlone Banka For The Applicant Alison Engel-Yan For The Respondent SOLICITORS OF RECORD : Natalie Elyse Lauren Torlone Banka Lewis & Associates Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent