Jose Alberto Villafuerte Ramirez v. Canada

Counsel:

Max Berger, for the applicant.
Nina Chandy for the respondent.

ORDER

UPON MOTION on behalf of the Applicant for an Order staying the execution of the removal order issued against the Applicant, until the disposition of the Application for Leave and for Judicial Review;
AND UPON reading the material before the Court;

AND UPON hearing counsel for the parties by telephone conference;

AND UPON directing myself to the tri-partite test set out in Toth v. Canada

( Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) and R.J.R. Macdonald Inc v. Canada (Attorney General), [1994]1 S.C.R. 311;

ENDORSEMENT

I have been persuaded that a serious issue exists as to whether the enforcement officer understood that she had jurisdiction to defer removal on the basis of a pending humanitarian and compassionate application brought on a timely basis or on the basis of a pending birth (see: Baron v. Canada (Minister of Public Safety and Emergency Preparedness) 2009 FCA 81 at paragraphs 49 and 51) and then considered the material before her on that basis. Specifically, a serious issue exists as to whether proper consideration was given to deferring the applicant’s removal for six weeks until the birth of his second child.

In the unique circumstances of this case I am also satisfied that the applicant has established the existence of irreparable harm and that the balance of convenience favours granting the stay.

THEREFORE, THIS COURT HEREBY ORDERS THAT:

1. The motion for a stay of removal is allowed.
2. The applicant’s is stayed until such time as the within application is considered and finally determined by this Court.

“Eleanor R. Dawson”

Judge