When you are facing removal from Canada and have a pending legal challenge, a stay of removal motion may be your most urgent legal remedy. This guide explains the legal test for obtaining a stay, statutory stays, and practical considerations for anyone facing deportation while their case is still before the courts.
What Is a Stay of Removal?
A stay of removal is a court order that temporarily halts your removal from Canada. It is typically sought in connection with a pending judicial review application at the Federal Court. Without a stay, you could be removed from Canada before the Court has a chance to decide whether the underlying immigration decision was lawful.
The Toth Test: Three Requirements
The legal test for a stay of removal was established in Toth v. Minister of Employment and Immigration (1988) and requires the applicant to satisfy three elements.
Serious question to be tried: You must show that your judicial review application raises a genuine legal issue that is not frivolous or vexatious. This is a relatively low threshold — you do not need to prove you will win, only that there is a real question worth examining.
Irreparable harm: You must demonstrate that you will suffer harm that cannot be compensated by damages or remedied if you are removed. In immigration cases, irreparable harm often includes risk of persecution or violence in the country of removal, separation from Canadian citizen or permanent resident family members (especially children), and disruption of ongoing medical treatment not available in the destination country. The harm must be personal and specific to your circumstances — generalized country conditions alone may not be sufficient.
Balance of convenience: The Court weighs whether the harm to you from removal outweighs the public interest in enforcing removal orders. While the government has a legitimate interest in enforcing immigration law, the Court recognizes that removing someone before their legal challenge is heard can render the judicial review meaningless.
Statutory Stays Under Regulation 231
In certain situations, filing a legal challenge triggers an automatic statutory stay of removal. Under Regulation 231 of the Immigration and Refugee Protection Regulations, a stay is automatically in effect when a refugee claimant files an appeal to the RAD, or when a permanent resident or protected person files an appeal to the IAD. In these cases, you do not need to bring a separate motion — removal cannot proceed while the appeal is pending.
However, statutory stays do not apply to Federal Court judicial review applications. If your remedy is judicial review rather than an appeal, you must bring a stay motion separately.
Timing and Procedure
Stay motions are urgent and time-sensitive. You must file the motion before your scheduled removal date, ideally with enough time for the Court to consider it. The motion is typically decided on the papers, though urgent circumstances may warrant a hearing by telephone. The Federal Court has duty judges available to hear emergency motions, including on weekends and holidays when removal is imminent.
Do Not Wait Until the Last Minute
If you have received a removal order and believe you have grounds to challenge the underlying decision, contact BridgePoint Law immediately. Stay motions require careful preparation, and delays can be fatal to your case.
