UN Human Rights Committee sought abeyance of man's removal until it considered his complaint
The Ontario Court of Appeal has held that removing a Somali national from Canada before the final determination of his motion for leave to appeal and/or appeal would cause irreparable harm, specifically the loss of his appeal rights.
In Sharif v. Canada (Public Safety and Emergency Preparedness), 2025 ONCA 711, the moving party received refugee status in 2013 while living in a refugee camp in Egypt and became a permanent resident in Canada in 2019.
The evidence showed that the moving party had been hospitalized as a psychiatric patient for mental illness numerous times and had a criminal record that included convictions for sexual assault, drug trafficking, and other serious offences.
Due to the sexual assault conviction, in October 2023, the Immigration and Refugee Board’s Immigration Division found the moving party inadmissible to Canada under s. 36(1)(a) of the Immigration and Refugee Protection Act, 2001. He thus lost his permanent resident immigration status and faced the possibility of deportation.
In an interim measures request, the United Nations Human Rights Committee (UNHRC) asked the minister of public safety and emergency preparedness to hold the moving party’s deportation in abeyance until the UNHRC could consider his complaint.
The minister of public safety decided to deport the moving party. The moving party applied for judicial review of the minister’s decision under s. 6(2) of Ontario’s Judicial Review Procedure Act, 1990.
An application judge of the Ontario Superior Court of Justice issued a pre-hearing injunction preventing the minister from deporting the moving party. Last Sept. 18, the judge dismissed the judicial review application, varied his injunction, and extended the stay of the removal for 30 days.
The moving party moved to appeal. He also sought an interim order under s. 134(2) of Ontario’s Courts of Justice Act, 1990, to halt the minister from deporting him until the resolution of his motion for leave to appeal and/or appeal, if he did obtain leave.
Deportation halted
The Court of Appeal for Ontario granted the motion and extended the application judge’s order enjoining the deportation. The appeal court ruled that the injunction should remain active until the determination of the motion for leave to appeal and/or appeal.
The appeal court addressed the tripartite test in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311.
First, the appeal court held that the moving party met the low bar of a serious issue for a trial. The appeal court noted that the judge acknowledged that the application raised substantial issues.
Second, the appeal court discussed the irreparable harm factor.
Citing Ahani v. Canada, 2002 CanLII 23586 (ON CA), the minister argued that the moving party could not rely on the outcome of a process that could only result in a report that did not bind the federal government to assert irreparable harm. The appeal court determined that this argument missed the point and misread that decision.
The appeal court found that the moving party successfully established irreparable harm, specifically the loss of his appeal rights and potential health and safety impacts, given his challenging personal circumstances. The appeal court noted that he did not need to prove that his appeal’s success would ultimately lead to a decision permitting him to remain permanently in Canada.
The appeal court said it could not assume that the UNHRC report would not affect the minister’s ultimate decision. The appeal court added that the minister might consider the report persuasive even if it was non-binding.
Third, the appeal court ruled that the balance of convenience favoured extending the injunction issued by the judge. The appeal court held that postponing the moving party’s deportation while his case proceeded would not be unduly inconvenient to the minister.
The appeal court noted that the minister’s previous delay of the moving party’s removal for alleged administrative reasons overrode the argument that his immediate deportation engaged pressing public importance and outweighed the harm he would suffer if he did not receive his appeal rights.
The appeal court added that any delay would likely be brief if the moving party did not obtain permission to appeal.
The appeal court accepted that the moving party’s criminal history was concerning. However, the appeal court pointed out that he was likely to remain in custody for the foreseeable future.
