Date: 20051007
Docket: IMM-6049-05
Citation: 2005 FC 1374
BETWEEN:
DAHAGONIYA H. MEDAWATTE
RATHNAYAKA INDRAWATHIE MENIKE
DAHAGONIYA KUSH ISURAKA MEDAWATTE
Applicants
- and -
THE MINISTER FOR PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER
(Delivered Orally from the Bench on October 7, 2005)
HARRINGTON J.
[1] I heard a very hard case about an hour ago. The Medawattes have been ill-served by their former lawyer. They have been ordered to leave Canada in a few days' time. If their lawyer had done what he was supposed to have done, which was to file an application permitting them to remain in Canada while they applied for permanent resident status on the basis of humanitarian and compassionate grounds, that decision would have been rendered by now. It is not for the Court to say whether or not the application would have been successful.
[2] The Medawattes are failed refugee claimants from Sri Lanka. Following the decision that they were not Convention refugees, they requested a pre-risk removal assessment ("PRRA"). That assessment was also against them.
[3] Concurrent with their PRRA they filed a humanitarian and compassionate ("H & C") application; or at least they thought they did. They paid the prescribed fees at the bank in July 2004. The government has had their money since then. They took the receipt to their lawyer, filled in all the forms, paid him his fee and obtained a receipt.
[4] The lawyer did nothing with respect to the H & C application; he did not file it; did nothing!
[5] When the negative PRRA decision was handed down this February, the Medawattes together with the lawyer attended at the officer's office. At that time, removals to Sri Lanka were suspended because of the tsunami, a suspension which was only lifted about a month ago. They mentioned their pending H & C application. The officer said she knew nothing about it but, naturally, believed them. After all, this was a representation made by a member of the Law Society of British Columbia. She said the Medawattes would not be removed until the H & C application was decided.
[6] Not long ago, the fateful knock on the door came. The Medawattes were told to report for their removal. To their shock and horror, they learned that there was no pending H & C application. It had never been filed. They fired their lawyer and hired a new one who helped them file a complaint with the Law Society. She also asked for a stay of the removal.
[7] The removals officer was given a great deal of material, made notes to file, and wrote to them saying that he had considered everything but was not going to defer the removal. His decision is under an application for leave and for judicial review, but is still enforceable unless stayed.
[8] It is well established that, in order to obtain a stay, the Applicants must show a serious issue in the underlying application, irreparable harm if the stay were not granted, and that the balance of convenience is in their favour.
[9] The Minister is understandably very sympathetic to the Medawattes' case but points out that the situation was not of her doing. It was their own lawyer who led them astray and, in any event, it was already decided in the PRRA that they would not be at risk if returned to Sri Lanka.
[10] There is a great deal of jurisprudence in these matters to the effect that a party must suffer the consequences of his or her own counsel. I subscribe to that view. If a case has been poorly prepared; if relevant jurisprudence was not brought to the attention of the Court in a civil case; if there was a bad choice in witness selection, the consequences fall on that party. Is there a difference, however, between malfeasance and non-feasance? In this case, it is not a question of a lawyer doing something poorly. He did not do something he should have done. In Andreoli v. Canada (Minister of Citizenship and Immigration) 2004 FC 1111; 2004 F.C.J. 1349 (QL), the applicants' refugee claim was ordered abandoned because the interpreter in their lawyer's office failed to provide the authorities with a change of address. I found in that case the board in deciding that the applicants were the authors of their own misfortune was punishing them for the carelessness of a third party. I found that to dismiss that application would be to disregard the principles of natural justice. I said:
I issue this order keeping in mind the words of Lord Denning in Doyle v. Olby (Ironmongers) Ltd. (1969) 2 All E.R. 119, who at page 121 stated:
We never allow a client to suffer for the mistake of his counsel if we can possibly help it. We will always seek to rectify it as far as we can. We will correct it whenever we are able to do so without injustice to the other side. Sometimes the error has seriously affected the course of the evidence, in which case we can at best order a new trial.
This is not a case where counsel poorly pleaded their case on the merits. Rather, it involved a matter that had never been heard because of an administrative error which occurred at counsel's office.
[11] That case was not decided in the context of the tripartite test for a stay. Although the discretion of a removals officer under section 48 of IRPA is narrow, it has been established that factors outside travel arrangements may be relevant, such as school years (Wang v. Canada (Minister of Citizenship and Immigration) [2001] 3 F.C. 682). In Simoës v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 219, Nadon J. as he then was, stated that a removals officer may consider "pending H & C applications which were brought on a timely basis but have yet to be resolved due to backlogs in the system."
[12] Although this is not quite the case here, there are children in school who have lost the language of their homeland and the H & C application would have been decided by now.
[13] In my opinion, there is a serious underlying issue, there is evidence of irreparable harm and the balance of convenience definitely favours the Applicants. The irreparable harm is that if the H & C application is granted, the effect of children being removed from school in Canada and going to Sri Lanka to be educated in another language, only to come back here in a matter of months or a year could prove devastating.
[14] The removal order is stayed pending the final outcome of the application for leave and for judicial review of the decision of the removals officer.
[15] In the interim, the Medawattes should file their H & C application forthwith. I would also urge the Minister of Citizenship and Immigration to process the application with the utmost dispatch. The Medawattes are either entitled to stay on humanitarian and compassionate grounds or they are not. If they are not, the sooner they return home the better for their children.
(Sgd.) "Sean Harrington"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6049-05
STYLE OF CAUSE: DAHAGONIYA H. MEDAWATTE et al.
- and -
THE MINISTER FOR PUBLIC SAFETY
AND EMERGENCY PREPARDNESS
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: October 7, 2005
REASONS FOR ORDER AND ORDER: HARRINGTON J.
DATED: October 7, 2005
APPEARANCES:
Ms. Nicole Hainer FOR APPLICANTS
Mr. Jonathan Shapiro FOR RESPONDENT
SOLICITORS OF RECORD:
Elgin, Cannon & Associates FOR APPLICANTS
Vancouver, BC
Mr. John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada