A recent decision granting a stay against removal will be of interest to practitioners in this field.
Summary of Valle v. MCI, 2025 CanLII 37578 (FC)
In Valle v. Minister of Public Safety and Emergency Preparedness (2025 CanLII 37578), decided on April 29, 2025, Justice Angus Grant of the Federal Court granted a stay of removal for Gary Martin Reyes Valle, a Mexican citizen facing deportation on April 30, 2025. The decision hinged on the application of the tripartite test for a stay of removal, as established in RJR-MacDonald and Toth: (1) a serious issue in the underlying judicial review, (2) irreparable harm if the stay is not granted, and (3) balance of convenience favoring the applicant. Justice Grant’s analysis was undoubtedly informed by his extensive background in immigration and refugee law, including his prior roles as a private practitioner, Legal Aid Ontario counsel, and Assistant Deputy Chairperson of the Refugee Appeal Division.
Background and Context
Gary Martin Reyes Valle entered Canada in 2017 and sought refugee protection in 2022, which was refused, as was his appeal. After failing to appear for a removal interview, a warrant was issued, and he was later apprehended in 2024 following a traffic stop. His subsequent Pre-Removal Risk Assessment (PRRA) was denied, prompting a judicial review application. Valle also submitted a spousal sponsorship application for permanent residence in April 2025, sponsored by his Canadian spouse, Ms. Chanee Lashaun Williams. He has three Canadian-born children, including Ashlyn, who suffers from a serious congenital eye disease (PAX6 gene mutation), requiring ongoing medical care. Valle is the primary caregiver for Ashlyn’s medical appointments, as her mother, Ms. Lina Selene Sanchez, is unable to fulfill this role.
On April 7, 2025, Valle was served a Direction to Report for removal. His counsel requested a deferral on April 16, citing his pending spousal sponsorship and his caregiving role, particularly for Ashlyn’s scheduled eye surgery on April 21, 2025. The Canada Border Services Agency (CBSA) denied the deferral on April 23, leading to the judicial review application and the stay motion.
Justice Grant’s Findings
1. Serious Issue
Justice Grant found a serious issue in the CBSA officer’s refusal to defer removal, applying the elevated standard for reviewing deferral decisions (Baron v. Canada, 2009 FCA 81; Shpati v. Canada, 2011 FCA 286). The officer’s analysis of the short-term best interests of Valle’s children, particularly Ashlyn, was inadequate. Despite evidence that Valle was primarily responsible for Ashlyn’s medical care and that she had a surgery scheduled close to the removal date, the officer merely “noted” these interests without meaningful engagement (Ismail v. Canada, 2019 FC 845). Additionally, the officer’s characterization of Ashlyn’s condition as “chronic” lacked evidentiary support and appeared to minimize the urgency of her medical needs. This raised a serious issue regarding the officer’s exercise of discretion, which, though narrow, includes considering the short-term best interests of affected children (Galusic v. Canada, 2020 FC 223).
2. Irreparable Harm
Justice Grant concluded that Valle established irreparable harm, focusing on Ashlyn’s unstable medical condition and Valle’s critical role in her care. New evidence submitted with the stay motion indicated that Ashlyn’s April 21 surgery was postponed due to an eye infection and would be rescheduled soon. While new evidence is generally inadmissible in judicial reviews, it is permissible for assessing irreparable harm in stay motions (Alabi v. Canada, 2023 FC 841). Given the seriousness of Ashlyn’s condition, the impending surgery, and Valle’s caregiving responsibilities, Justice Grant found that removal would cause harm that could not be remedied, meeting the threshold of “real, definite, unavoidable harm” (Nagalingam v. Canada, IMM-6447-05; RJR-MacDonald). The harm extended beyond the inherent consequences of deportation, satisfying the high bar for irreparable harm in immigration cases.
3. Balance of Convenience
The balance of convenience (slightly?) favored Valle, despite his prior non-compliance with a removal interview, which led to an arrest warrant and a period of undocumented status. The respondent argued that Valle’s “unclean hands” undermined his claim for discretionary relief. However, Justice Grant applied the framework from Canada v. Thanabalasingham (2006 FCA 14), considering factors such as the seriousness of the misconduct, its impact on the proceedings, and the strength of the applicant’s case. Valle’s non-compliance was noted, but he had no other legal infractions, and the serious issue and irreparable harm weighed heavily. The public interest in enforcing removal was balanced against the prejudice to Valle and his family, particularly Ashlyn’s medical needs, tilting the scale in favor of granting the stay.
Context
Note that stays are “extraordinary” remedies requiring exceptional circumstances, with courts often reluctant to intervene. Justice Grant’s focus on the officer’s inadequate consideration of Ashlyn’s best interests reflects the court's guidance that officers have (limited) discretion to defer removal in cases involving children’s short-term interests (Williams). It's important to buttress the deferral request with well-documented submissions, which Valle’s counsel provided, including letters from Ashlyn’s mother and evidence of her medical needs. Counsel was clearly cognizant that the court accepts new evidence for irreparable harm. Counsel was also able to deal with the anticipated argument from the Respondent regarding applicants with “chequered” immigration histories; Justice Grant’s nuanced weighing of Valle’s misconduct reflects the holistic approach advocated by Justice Norris (among other jurists).
Justice Grant’s Background
Justice Grant’s expertise in immigration and refugee law, developed through private practice, Legal Aid Ontario, and leadership at the Refugee Appeal Division, likely informed his careful analysis. His experience before trial and appellate courts, including the Supreme Court, and his role in Canada’s largest administrative tribunal, undoubtedly has equip him to assess the officer’s discretion and the best interests of children in immigration proceedings. His work prior to his appointment and his academic contributions and frequent speaking engagements means a deep understanding of the nuances of immigration law and removal cases in particular.
Conclusion
Justice Grant granted the stay due to a serious issue in the officer’s failure to adequately consider Ashlyn’s short-term best interests and erroneous assessment of her condition as “chronic,” irreparable harm stemming from Valle’s role in her medical care and a pending surgery, and finally the balance of convenience favoring Valle despite his prior non-compliance. The decision highlights the importance of robust evidence and timely submissions in stay motions, as well as the court’s willingness to prioritize children’s interests in exceptional cases.
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