Date: 20000630
Docket: IMM-3218-00
Ottawa, Ontario, this 30th day of June 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
THEERTHALINGAM MURUGAPPAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] Mr. Theerthalingam Murugappah ("the applicant") is a 58-year-old man who fled Sri Lanka in 1996 as a result of persecution by those who say they wish to liberate him. He followed his two children to Canada. They have both been accepted as convention refugees by the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board. Mr. Murugappah was not accepted as a refugee because the CCRD found that he had an internal flight alternative in Colombo. Mr. Murugappah now faces deportation, a prospect which makes him suicidal according to the report of a consulting psychologist.
[2] But Mr. Murugappah has not done all that he could to secure his future in Canada. He arrived in Canada in November 1996; the CRDD rejected his refugee claim in June 1997. No application for leave from the decision of the CRDD was made. No application for a Post-Determination risk assessment was made. No application for inland processing of his application for permanent resident status on humanitarian and compassionate grounds ("H & C application") was made until April 20, 2000, which is after he was called in for a pre-removal interview on April 12, 2000. His explanation for this puzzling inactivity is that he was advised by friends that he simply had to wait three years to be granted landed immigrant status. He now knows this was bad advice.
[3] Mr. Murugappah has now retained Mr. Waldman who has filed an H & C application on the basis of sponsorship by Mr. Murugappah"s son. Apart from his wife, whose fate is unknown, he has no family in Sri Lanka and he has lost what property he had there. Mr. Michael Crane, an immigration lawyer who filed an affidavit in support of the application for a stay, says that he believes that Mr. Murugappah"s chances of success on his H & C application are very good. But this may be all for nought if he is deported. The processing of his application is expected to take at least two years. Quite apart from the risk of self inflicted injury, there is reason to believe that life would be very difficult for him in Sri Lanka.
[4] His counsel asked the Removal Officer to defer removal pending a risk assessment because the CRDD no longer believes that northern Tamils have an internal flight alternative in Colombo. The current documentary evidence suggests that they are forced to leave after a very brief stay. The Removal Officer agreed to have a risk assessment performed. She referred the matter to a Post Convention Determination Officer ("PCDO") who, on June 22, 2000, provided a report in which he concluded that the applicant would not be at risk if he returned to Colombo. On that basis, the Removal Officer has refused to defer removal. It is this decision which is the subject of an application for judicial review.
[5] Before dealing with the substance of the application, it was necessary to address a procedural issue. The material originally filed by Mr. Waldman in support of the application included the affidavit of Ricardo Aguirre, an associate in Mr. Waldman"s office. I brought to counsel"s attention the recent decision of my colleague O"Keefe J. in Shipdock Amsterdam B.V. v. Cast Group Inc. , [2000] F.C.J. No. 295, in which he decided that counsel should not appear on a matter in which he/she has deposed an affidavit or in which a partner or associate of counsel has deposed an affidavit.
| [6] There is a difference between the practice in the Ontario courts and the practice in the courts in those provinces which have adopted the Canadian Bar Association Code of Professional Conduct ("the Code of Professional Conduct"). The Code of Professional Conduct contains a prohibition on appearing in a matter in which an affidavit has been deposed by a partner or associate of counsel pleading the matter. See Bilson v. University of Saskatchewan , [1984] 4 W.W.R. 238 (Sask C.A.) where the following appears: |
| The Canadian Bar Association Code of Professional Conduct, provides (c. VIII, R. 3): |
| 3. The lawyer should not submit his own affidavit to or testify before a tribunal in any proceedings in which he appears as advocate, save as permitted by local rules or practice or as to purely formal or uncontroverted matters. This also applies to the lawyer's partners and associates: generally speaking they should not testify in such proceedings except as to merely formal matters. Nor should the lawyer express his personal opinions or beliefs, or assert as fact anything that is properly subject to legal proof, cross-examination or challenge. He must not make himself in effect an unsworn witness or put his own credibility in issue. If the lawyer is a necessary witness he should testify and the conduct of the case should be entrusted to another lawyer. The lawyer who was a witness in the proceedings should not appear as advocate in any appeal from the decision in those proceedings. (The italics are mine.) |
| Mr. Beckman suggested the rule was more honoured in its breach than in its observance: and that may be so. But we are of the opinion that so long as it remains part of the profession's code of conduct it should be adhered to. Indeed, this court referred recently to the rule in R. v. Ironchild (1984), 30 Sask. R. 269, and, (for the express purpose of providing future guidance to the profession in this respect) referred to a number of cases in which the rule arose and was either applied or commented upon. Mr. Beckman, after having an opportunity to reflect on it, acknowledged that the rule was clear, and then requested the case be adjourned to permit the university to instruct other counsel. |
[7] The Ontario practice is represented by the decision in Essa (Township) v. Guergis (1993), 22 C.P.C. (3d) 63 (Ont. Div. Ct), (1993) 15 O.R. (3d) 573, (1993), 52 C.P.R. (3d) 372 in which reference is made to the following comments of Mr. Justice Rosenberg in Planned Insurance Portfolios Co. v. Crown Life Insurance Co. (1989), 68 O.R. (2d) 271 (H.C.), (1989) 58 D.L.R. (4th) 106:
| All counsel acknowledge that the local practice in Ontario is that lawyers frequently appear on motions where their partners have filed affidavits even when the matters are extremely controversial and where there has been long and contentious cross-examination on the affidavits. |
[8] The Court in Essa, supra, then referred to the Bilson case, supra, and attributed the difference in practice to the difference between the Code of Professional Conduct and the Law Society of Upper Canada"s Code of Conduct; which omits the references to partners and associates in its rules. Referring to submissions that the omission was deliberate, the Court commented:
| Counsel for the LSUC on this appeal produced material indicating this was in fact so. He produced an extract from a report from the committee established by the LSUC to consider the matter which expressed concerns about the CBA code on that point. The CBA code was adopted in 1974. The LSUC adopted but amended the code in 1976. |
[9] The Court resolved the issue by confirming the Ontario practice, saying:
| I accept the submissions of LSUC counsel that courts should be reluctant to adopt the CBA code in preference to the LSUC rules in such circumstances. |
[10] The position taken by O"Keefe J. has been previously taken in this Court. In IBM Corp. v. Printech Ribbons Inc. , [1994] 1 F.C. 692, (1993) 69 F.T.R. 197, Nadon J. conducted an exhaustive review of the jurisprudence on the point and concluded that the practice of allowing counsel to act in cases where affidavits had been deposed by their partners or associates should be discouraged, even in Ontario. However, Nadon J. went on to note that parties were entitled to counsel of their choice and that an order removing counsel should only be made in the most serious of cases.
[11] Applications for orders removing counsel will have to be dealt with on their merits as they arise. In this case, it was possible for counsel to put the evidence before the Court through an unrelated witness, Mr. Crane, and an adjournment was granted for that purpose.
[12] The Court was advised that the adoption of this position would create serious inconvenience in many cases. Since Rule 82 allows the Court to permit a lawyer to act in a matter in which he/she has deposed an affidavit, it seems implicit in the rule that the Court could permit a lawyer to act in a case where a partner or associate has deposed the affidavit. However, it is not to be assumed that this power would be used simply to accord with local practice. The Court might well require counsel to show why the evidence cannot come from another source and how the mischief sought to be avoided by the rule, as set out in IBM Corp v. Printech, supra, will be avoided in the particular case.
[13] The test for the issuance of a stay is the presence of a serious issue to be tried in the underlying judicial review application, irreparable harm if the stay is not granted and the balance of convenience.1 The question in this case is serious issue to be tried. Underlying this application is the fact that the CRDD accepted that the applicant was subject to persecution in Sri Lanka but found him not to be a convention refugee on the basis that he had an internal flight alternative in Colombo. Since deciding the applicant"s case, the CRDD has now decided that Colombo is no longer an internal flight alternative for northern Tamils2. The conclusion which appears to flow from this is that the applicant will be persecuted upon his return to Sri Lanka. That persecution is sufficient to satisfy the requirement of irreparable harm.
[14] The issue to be argued in the application for judicial review is whether the Court of Appeal"s decision in Haghighi v. Canada (Minister of Citizenship and Immigration ), [2000] F.C.J. No. 854, requires the Removal Officer to show the PCDO"s risk assessement to the applicant and to allow him to comment on it before the Removal Officer decides whether or not deferral will be granted. In a separate Notice of Application on which no material was filed due to the late date at which the PCDO"s opinion was rendered, counsel attacks the PCDO"s opinion itself as being made in disregard of the evidence before the PCDO. The motion for a stay was dealt with on the basis of the original motion and the material filed in support of it.
[15] Haghighi, supra, is authority for the proposition that where an H & C application is based in part at least on a fear of persecution, an officer processing the H & C application must show the applicant a negative risk assessment for the purpose of allowing the applicant to respond to it before the H & C officer makes his/her decision. Evans J.A. came to the conclusion he did by applying a contextual analysis to the H & C Officer"s discretion. In order for Haghighi, supra, to apply to these facts, it must be found that a Removal Officer has a discretion to exercise to which a contextual analysis can be applied. A Removal Officer is directed by section 48 of the Immigration Act, R.S.C. 1985 c. I-3, to effect removals "as soon as reasonably practicable". In Saini v. Canada (Minister of Citizenship and Immigration ), [1998] 4 F.C. 325, (1998) 150 F.T.R. 148, Gibson J. decided that a Removal Officer had discretion to defer a removal pending receipt of a risk assessment in a case where risk of torture was alleged. In Simoes v. M.C.I unreported docket no. IMM-2664-00, Nadon J. found that there is a certain discretion in the Removal Officer to defer removal but that it does not extend to such issues as the best interests of an applicant"s children. In this case, there is a risk of persecution arising from the absence of refuge in Colombo and risk of harm from the applicant himself, both of which are analogous to the risk of torture. To that extent, the contextual analysis in Haghighi, supra, may have application to these facts.
[16] I do not have to decide whether an application of the contextual analysis in Haghighi, supra, will result in the conclusion that the Removal Officer was bound to share the PCDO"s opinion with counsel. I simply have to decide whether the question is one which is not frivolous or vexatious which is the test for determining a serious issue3. I find that it is a serious issue.
[17] I have already found that irreparable harm has been established. The balance of convenience favours the applicant given the unsettled state of affairs in Sri Lanka and the presence of the applicant"s remaining family in Canada.
[18] I pause here to note that a stay, like an injunction, is an equitable remedy and therefore discretionary. It is a matter of concern to the Court that this applicant could sit on his rights, have no recourse to the remedies available to him over a period of three years and then throw himself at the mercy of the Court when the system finally catches up to him. Were it not for the applicant"s emotional condition and the serious risk of persecution in Sri Lanka, I would not exercise my discretion to grant him the stay he seeks because he has failed to pursue his rights in a timely fashion. However, given the risk to the applicant, I order that execution of the removal order with respect to the applicant is to be deferred until his application for leave for judicial review is decided and if leave is granted, until his application for judicial review has been finally disposed of.
ORDER
It is hereby ordered that the execution of the removal order with respect to Theerthalingam Murugappah is stayed until his application for leave for judicial review is decided and, if leave is granted, his application for judicial review is finally disposed of.
"J.D. Denis Pelletier"
Judge
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1 Toth v. M.C.I. [1988] F.C.J. No. 587
2 I was provided with a decision of the CRDD which came to that conclusion. I accept on its face counsel"s submission that this is the CRDD"s position at the present.
3 R.J.R. - MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311