Stay of Removals -Deferral Requests and the Federal Court

Practitioners should be alert to the increasing rate of removals by the Canada Border Services Agency (CBSA), as more deferral requests and Federal Court stay applications will likely follow. A thorough discussion of these issues appears in Inadmissibility and Remedies (co-authored with Aris Daghighian and published by Emond), but here are the basics.

 

Record Scratch -How did we get here?

An individual facing an enforceable removal order from Canada may seek a judicial stay from the Federal Court as a last resort when all other statutory, regulatory, or logistical impediments to removal have been exhausted. Under section 48 of the Immigration and Refugee Protection Act, removal orders become enforceable once all appeal periods and other statutory bars are exhausted. While removals must be carried out “as soon as possible,” officers do retain limited discretion to defer.

 

A judicial stay of removal typically arises in two scenarios: (1) a removals officer refuses a deferral request, prompting a challenge via an application for leave and judicial review, or (2) a decision imposing or confirming a removal order is being contested at the Court, and a stay is required to pause enforcement pending resolution of that underlying challenge.

 

A deferral request can be made once travel arrangements have been made. Counsel should submit detailed, well-supported requests to the removals officer. 

 

Unlike other area of immigration practice, representation is limited to self-representation or hiring a lawyer, and the stay aims to maintain the status quo ante until the underlying judicial review is decided.

 

The Test

The Federal Court applies the well-established tripartite test from Toth v Canada to determine whether to grant a stay, an "extraordinary" remedy requiring judicial intervention:

1. Serious Issue: The applicant must demonstrate a reviewable error in the underlying decision (e.g., the PRRA refusal or deferral denial). While generally a low threshold, it’s higher when challenging a deferral refusal.
2. Irreparable Harm: The applicant must prove, on a balance of probabilities, that refusal of the stay would cause harm that cannot be remedied later—beyond the inherent difficulties of deportation. This harm must be real, definite, and supported by credible, non-speculative evidence.
3. Balance of Convenience: The court weighs the applicant’s prejudice (e.g., family separation or loss of remedy) against the public interest in enforcing valid removal laws. The applicant’s conduct may tip the scales against them.

All three elements must be satisfied, though strengths in one area may offset weaknesses in another, reflecting a holistic approach.

 

Key Case Law and Insights

• Justice Zinn: In Williams v Canada (2010 FC 274), Zinn outlined three categories of deferral discretion for removals officers: (1) logistics or travel-related issues (e.g., flight cancellations); (2) factors impacted by travel (e.g., a child’s school year or a pending birth); and (3) processes under the Immigration and Refugee Protection Act (IRPA) that could invalidate the removal order (e.g., the JR of an IAD, PRRA or Humanitarian and Compassionate (H&C) application succeeds and there's a pathway back to 'status'). Zinn’s practical advice for practitioners (Notes for Presentation, 2012) emphasizes full disclosure of the client’s history, focusing on the strongest argument, and addressing all test branches—especially balance of convenience—while filing promptly to avoid last-minute motions, which the court discourages per its 2021 Practice Guidelines.
• Justice Norris: In Kambasaya v Canada (2021 FC 664), Norris clarified irreparable harm as harm that cannot be undone focusing on its nature, not magnitude. He stressed the need for "clear and non-speculative evidence" of "real probability" of harm, rejecting unsubstantiated claims. Norris also framed the test holistically: the branches interplay to assess "remedial injustice," asking whether it’s more equitable for the applicant or the state to bear the risk of an adverse outcome.
• Other Notable Cases: Shpati v Canada (2010 FC 367, Harrington J) distinguishes PRRA stays (where removal nullifies the remedy) from H&C stays (less likely to succeed absent risk to safety). Etienne v Canada (2015 FC 415) supports irreparable harm arguments based on unassessed risks to the country of removal. Tesoro v Canada (2005 FCA 148, Evans J) broadens irreparable harm to include family separation, contrasting with stricter views (e.g., Qureshi v Canada, 2007 FC 97, Shore J) limiting it to the applicant’s personal harm.

"Show Me the Facts and I’ll Show You the Law"

The maxim encapsulates the unpredictable, fact-driven nature of stay applications. As noted, in my text and prior papers on the topic, success and failure depend not just on the specific facts, but also on the identity or ideology of the presiding justice. Practitioners must tailor arguments to the unique circumstances—e.g., new risks (Etienne), family impacts (Tesoro), or prejudice or impact to a process that may well result in reversion to status (Kambasaya)—knowing the law’s application shifts with the evidence presented.

 

Practical Implications Amid Increased CBSA Enforcement

With the CBSA ramping up removals, practitioners must act swiftly and decisively understanding the limits of a removal officer's discretion and the jurisprudence at play. The Federal Court’s guidelines stress timely filing, and success hinges on mastering case law, presenting compelling facts, and managing client expectations given the "hit or miss" nature of outcomes.