Date: 20021108
Docket: A-614-02
Neutral citation: 2002 FCA 442
PRESENT: NADON J.A.
BETWEEN:
RICHARD CONDO
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Ottawa, Ontario, on November 5, 2002.
Order delivered at Ottawa, Ontario, on November 8, 2002.
REASONS FOR ORDER BY: NADON J.A.
Date: 20021108
Docket: A-614-02
Neutral citation: 2002 FCA 442
Present: NADON J.A.
BETWEEN:
RICHARD CONDO
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
[1] The appellant seeks a stay of a decision of Blais J. dated November 4, 2002. The learned judge refused, in the exercise of his discretion, to grant the appellant a stay of execution of a sentence imposed upon him on October 28, 2002 by the Correctional Service of Canada ("CSC").
[2] Although he was satisfied that the appellant's judicial review application, filed on October 29, 2002, raised a serious issue, Blais J. was not convinced that the appellant would suffer irreparable harm if the stay was not granted. He was also the view that the balance of convenience favoured the respondent.
[3] In the present matter, the appellant had to convince me that he met the tripartite test elaborated by the Supreme Court in R.J.R. - Macdonald Inc. v. Canada (A.G.), [1994] 1 SCR 311. With respect to the first part of the test, i.e. whether the appeal raises a serious question, the respondent, both in his written representations and his oral submissions before me, conceded that there was a serious issue. That concession, however, appears to have been made in respect of the issues which arise from the October 28, 2000 decision of CSC and not in regard to the issues which arise from Blais J.'s decision.
[4] I should point out that both sides appeared to be under a misconception in regard to the first branch of the test in that they argued the serious issue in relation to the judicial review application. In other words, they concentrated their efforts on the issues which arise from the decision of CSC. This approach is plainly wrong as the serious issue part of the tripartite test is whether the appeal raises a serious issue, i.e. whether Blais J., in the exercise of his discretion, made an error in concluding against to the appellant on the irreparable harm and balance of convenience issues.
[5] In any event, I am prepared to accept, for the present purposes, that the appeal raises a serious question. With respect to the second and third parts of the tripartite test, i.e. whether the appellant will suffer irreparable ham if I do not grant a stay and whether the balance of convenience lies in his favour, I have come to the conclusion that the balance of convenience favours the respondent and in that regard I make mine the comments made by Blais J. at paragraphs 22 to 24 of his reasons. Consequently, I need not address the issue of irreparable harm.
[6] For these reasons, this application shall be dismissed without costs.
"M. Nadon" J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-614-02
STYLE OF CAUSE:
RICHARD CONDO and ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: NOVEMBER 5, 2002
REASONS FOR ORDER : NADON J.A.
DATED: NOVEMBER 8, 2002
APPEARANCES:
Ms. Diane Magas FOR THE APPELLANT
Mr. Sébastien Gagné FOR THE RESPONDENT
SOLICITORS OF RECORD:
Magas Law Office
Ottawa, Ontario FOR THE APPELLANT
Mr. Morris A. Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT