Many people who are subject to a removal order and have a scheduled date for removal believe that they can simply file an “appeal” with the Federal Court to stop their removal. This is not technically correct.
The procedure is called a Motion for a Stay of Removal. It is an application for interlocutory relief brought in connection with an underlying Application for Leave and for Judicial Review. A stay motion is generally based on an actual decision that is being challenged by judicial review—for example, a negative Pre-Removal Risk Assessment (PRRA) decision or, in appropriate circumstances, a decision refusing to defer removal. The Federal Court has emphasized that there must be an actual decision underlying the stay motion.
In other words, a person cannot normally bring a stay motion simply because a removal order is in force. There must be an underlying decision or matter that is properly subject to judicial review.
How can you obtain a stay of removal?
The Federal Court applies a three-part test to a motion for a stay of removal. The applicant must establish:
- There is a serious issue to be tried in the underlying application for judicial review;
- The applicant will suffer irreparable harm if the stay is not granted and the removal takes place; and
- The balance of convenience favours granting the stay.
This is commonly referred to in immigration cases as the Toth test, based on Toth v. Canada (Minister of Employment and Immigration), and derives from the Supreme Court of Canada's decision in RJR—MacDonald Inc. v. Canada (Attorney General).
All three branches of the test must be satisfied.
| Branch of the test | What has to be shown | Typical evidence |
|---|---|---|
| 1. Serious issue | A genuine, reviewable problem with the decision being challenged — not frivolous or vexatious | The decision, its reasons, and the evidence the officer had or ignored |
| 1a. Refusal to defer | A likelihood of success — a higher bar | A detailed argument on why the deferral refusal was unreasonable |
| 2. Irreparable harm | Harm that is likely, specific and cannot be repaired later | Risk evidence, medical records, evidence about children, school or family |
| 3. Balance of convenience | That a temporary stay causes limited prejudice to the Minister | Compliance history, absence of criminality, the stage of the judicial review |
1. Serious issue to be tried
In the usual case, the threshold for establishing a serious issue is relatively low. Generally, the applicant must identify an issue in the underlying judicial review that is neither frivolous nor vexatious. The Court does not normally conduct a detailed examination of the merits at this stage.
The question, therefore, is whether there is a legitimate issue with the decision being challenged.
For example, the Court may consider whether the decision-maker:
- failed to consider relevant evidence;
- made a material factual error;
- misunderstood or misapplied the law;
- failed to provide adequate reasons;
- breached procedural fairness or the principles of natural justice; or
- reached a conclusion that may be unreasonable in light of the evidence and the applicable law.
However, simply disagreeing with an immigration officer's decision is not sufficient. The applicant must identify a genuine legal or reviewable issue that can properly be raised in the underlying judicial review.
An important exception: refusal to defer removal
Where the underlying decision is a refusal to defer removal, the threshold is higher.
The reason is that a stay of removal in that situation may effectively provide the applicant with the very relief being sought in the underlying judicial review. The Federal Court has therefore held that a more extensive examination of the merits may be required, and the applicant must demonstrate a likelihood of success rather than merely showing that the application is not frivolous or vexatious.
Accordingly, a motion based on a refusal to defer removal requires particularly careful preparation of the arguments concerning the underlying decision.
A deferral request is made to the Canada Border Services Agency before the removal date, and an officer’s discretion to defer is narrow. How that request works, and what it can realistically achieve, is covered in our article on deferral of removal.
2. Irreparable harm
The second branch requires the applicant to demonstrate that they will suffer irreparable harm if the stay is not granted and they are removed from Canada.
Irreparable harm is harm that cannot adequately be remedied later. The evidence must establish that the harm is likely to occur and cannot be merely speculative. The Federal Court has emphasized that irreparable harm is a fact-specific inquiry.
Depending on the circumstances, the evidence may concern matters such as:
- a serious risk of harm upon removal;
- disruption of important family relationships;
- circumstances involving children;
- significant and irreversible disruption to education;
- serious medical or other personal consequences; or
- other consequences that cannot realistically be repaired if removal occurs before the judicial review is determined.
The evidence must be specific to the applicant's circumstances. Simply stating that removal will cause hardship is generally not enough.
3. Balance of convenience
The final branch requires the Court to consider the interests of both sides and determine where the balance of convenience lies.
The Court weighs the harm that the applicant may suffer if removed against the interests of the Minister and the administration of Canada's immigration system if the removal is temporarily suspended.
This part of the test is often overlooked. The applicant should explain why granting a temporary stay will not cause a significant prejudice to the Minister or undermine the administration of the immigration system.
For example, where the applicant has no criminality or other circumstances that would weigh heavily against a stay, counsel may argue that maintaining the status quo until the Court determines the judicial review causes limited prejudice to the Minister.
On the other hand, the Court will consider factors that may favour the Minister, including criminality or other conduct that is relevant to the public interest. The balance of convenience is therefore highly dependent on the facts of each case.
What happens if the stay is granted?
A stay of removal is generally intended to preserve the status quo while the underlying judicial review proceeding is determined. It does not mean that the applicant has won the judicial review.
If the Federal Court ultimately grants the judicial review, the Court may set aside the decision under review and send the matter back for redetermination. The Court's role is generally to review the legality and reasonableness of the decision-making process rather than simply substitute its own decision for that of the immigration decision-maker.
If the judicial review is unsuccessful, the stay will not provide permanent protection from removal, and the applicant may ultimately be required to leave Canada.
When removal is stayed without a motion
Not every stay comes from a motion. The Immigration and Refugee Protection Regulations stay a removal order automatically in some situations. Under section 231, for example, filing an application for leave and judicial review of a Refugee Appeal Division decision that rejects a refugee claim stays the removal order until the Federal Court process ends — subject to exceptions set out in the same section, including for designated foreign nationals, for people inadmissible on grounds of serious criminality, and where only an extension of time is being sought. Where no automatic stay applies, a motion is the way to ask the Court to stop a scheduled removal.
The decision underlying a stay motion is often a negative pre-removal risk assessment. What that assessment looks at is set out in our article on what a pre-removal risk assessment considers.
Timing is critical
A person facing removal should not wait until the last moment to consider a stay of removal.
The Federal Court's current practice guidelines require the parties to address all three branches of the test and emphasize that the motion record must contain the evidence necessary for the Court to decide the stay motion. The Court also cautions against relying simply on the materials filed in the underlying judicial review.
A stay motion can therefore require significant preparation, including evidence addressing the underlying decision, the specific risk of irreparable harm, and the balance of convenience.
A stay of removal is an important but exceptional judicial remedy. Whether it is available and whether it has a reasonable prospect of success depends on the particular decision being challenged, the evidence, the circumstances of the applicant, and the strength of the underlying judicial review.
Angelina Shuster is a licensed paralegal. Karb Law assists people facing removal orders and the decisions that lead to them, and a removal date and the decision behind it can be reviewed through a free assessment.
This article is general information, not legal advice. Whether a stay is available depends on the decision being challenged and the evidence in each case.
