Federal Court clarifies best practices for urgent stay motions for removals

Applicants planning to file urgent motions should notify court and respondent in advance

Federal Court clarifies best practices for urgent stay motions for removals

The Federal Court has issued practice guidelines setting down the form and content of urgent motions seeking stays of removal from Canada, and addressing the failure of some applicants to bring such motions as soon as possible.

As per Rule 362(1) of the Federal Courts Rules, applicants should serve and file motions asking for stays of removal at least three days prior to the date provided in the notice for the hearing of the motion, where possible, to prevent the need for an avoidable urgent stay motion. However, if the three-day notice is unreasonable given the circumstances, the applicant should submit a letter notifying the court and the respondent regarding the plan to file an urgent stay motion.

This letter should include the name of the applicant, the request for a special hearing date in accordance with Rule 35(2), a satisfactory explanation for the delay, the scheduled date and time for the removal, the date that the applicant was informed of the intended removal, the underlying application for judicial review, the date and time when the motion record will be filed, the proposed hearing dates and times, and other pertinent information.

If the applicant fails to include a satisfactory explanation for the necessity of filing a last-minute motion, the court may refuse to hear the matter. If the applicant files the urgent motion after 9:00 p.m. before the removal occurring early the next day, the motion will be considered filed ex parte, which carries with it an elevated duty of full and frank disclosure.

The applicant should ensure that the stay motion and the motion record adhere to the form required by the Federal Courts Rules and should clearly address the tripartite test found in RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311 and in R. v. Canadian Broadcasting Corp., 2018 SCC 5, in the context of the specific facts and circumstances. Parties should keep their written submissions focused and should avoid irrelevant boilerplate or outdated submissions.

The applicant should include in the motion record any related and relevant prior immigration decisions and, if failing to include such related and relevant decisions, should explain the reason for the deficiency. The motion record should be succinct and condensed and should include only the portions of the application record or of other documents which are needed to support the stay motion so that the motion can be dealt with as if it is a standalone proceeding brought on an urgent basis.

The court recognized that certain cases may require over one hundred pages of materials but stressed that these situations are considered exceptional.

The court discouraged certain practices that do not align with the guidelines, such as a failure to meaningfully address at least one branch of the tripartite test and the inclusion of lengthy and detailed written representations that reference voluminous underlying application records or related proceedings. The guidelines, while specifically applicable to urgent stay motions, may also generally apply to non-urgent stay motions, the court said.

Related stories

Free newsletter

The Canadian Legal Newswire is a FREE newsletter that keeps you up to date on news and analysis about the Canadian legal scene. A separate InHouse Edition is delivered on a regular basis, providing targeted news and information of interest to in-house counsel.

Please enter your email address below to subscribe.

Recent articles & video

A tale of two masks in court: Ontario and Quebec judges rule for and against maskless speaking

Breaking barriers with next level A.I.-powered translations

Employers remain optimistic about Canada as an immigration destination

Carve-out M&A transactions need preparation, special attention for best success: Stikeman lawyers

Last call for nominations: Top 25 Most Influential Lawyers of 2021

Investment Industry Regulatory Organization of Canada implements early resolution offers

Most Read Articles

New dating app launched to help lawyers connect with people who understand the grind

How litigation is driving the corporate focus on environmental, social and governance (ESG) matters

A tale of two masks in court: Ontario and Quebec judges rule for and against maskless speaking

Tips for female litigators from a leader in the field