Last reviewed: April 14, 2026 — by Natalie Ningjing Zhang, Principal Lawyer, BridgePoint Law Professional Corporation. General information only, not legal advice for any particular case.
Quick answer
If the Canada Border Services Agency has issued you a removal order and scheduled a removal date, filing a Federal Court judicial review of the underlying decision does not, by itself, stop the removal. To halt removal while your case is litigated you usually need a stay of removal — either a statutory stay under section 231 of the Immigration and Refugee Protection Regulations, or a judicial stay granted by the Federal Court on an urgent motion. Judicial stays are decided on the tri-partite Toth test: (1) serious issue to be tried, (2) irreparable harm if removal proceeds, and (3) balance of convenience in favour of staying removal. Stay motions are filed on short notice — sometimes within days or hours of a removal date — and they succeed far more often when the underlying case has been set up properly well in advance.
Who can be removed, and when
Under IRPA, enforceable removal orders come in three types: departure orders (voluntary departure within 30 days, or the order automatically becomes a deportation order), exclusion orders (time-limited bar on return), and deportation orders (indefinite bar on return without the Minister’s authorization to return). CBSA scheduling of a removal is done by Inland Enforcement officers once removals are enforceable. You are entitled to a Pre-Removal Risk Assessment (PRRA) one year after your last negative determination in most cases, but outside that window CBSA can move quickly — often within weeks — and a stay motion becomes the only live litigation tool.
Statutory stays under section 231
The Immigration and Refugee Protection Regulations automatically stay removal in defined situations, most importantly: while an application for leave and for judicial review is pending of a RAD decision (if leave is granted), while certain appeals are before the IAD, while a PRRA application is pending after acceptance for processing, and in narrow other cases. If you fall into a statutory stay, no motion is needed — but you should still verify with CBSA and get the stay documented, because enforcement officers do occasionally move to remove people who are in fact covered.
The Toth test for judicial stays
When no statutory stay applies, the Federal Court may grant a judicial stay on motion. The governing test is from Toth v. Canada (Minister of Employment and Immigration), (1988) 86 N.R. 302 (F.C.A.), and is applied today through the lens of the Supreme Court’s later articulations in RJR-MacDonald and R v. Canadian Broadcasting Corp.. The applicant must establish:
1. Serious issue to be tried. The threshold is modest — the underlying application for judicial review must not be frivolous or vexatious. In most cases this is not where stay motions are lost.
2. Irreparable harm. This is the hardest element. The harm must be real, particularized, and not compensable in damages. Generic evidence that removal to a country with poor conditions will cause hardship is rarely enough. Stays succeed where the applicant shows specific and credible harm — a pending life-saving medical treatment that cannot be obtained in the destination country, personalized risk from a named state or non-state actor, serious disruption to the best interests of a Canadian child, or destruction of a functioning family unit — and backs it up with affidavit evidence.
3. Balance of convenience. The Minister has a statutory interest in enforcing removal orders. That interest is weighty but not absolute. Where the serious-issue bar is clearly met and irreparable harm is well-documented, the balance usually tips in favour of a short stay to let the underlying JR be decided.
How the motion is filed
A stay motion is filed in the Federal Court on an expedited basis. The package typically includes: a notice of motion; a detailed affidavit from the applicant (and usually from family members or bondspersons); the underlying application for leave and for judicial review (if not already filed, the stay motion and the ALJR go together); any country-conditions or medical evidence; a written memorandum of fact and law; and a request for an urgent hearing. Where removal is imminent, counsel will contact the Court’s duty judge and Justice Canada counsel to coordinate a hearing date that actually happens before the removal flight.
What strong stay motions look like
Winning stay motions share a few consistent features. They are filed early enough that the Court has time to read and schedule. The affidavit evidence is specific and first-person, not boilerplate. The irreparable-harm evidence is independently corroborated — medical letters from named treating physicians, country-conditions reports tied to named locations or named individuals, child-welfare evidence from a psychologist or social worker, and documentary support for any claim about family breakdown. The underlying JR is already drafted, not simply promised. Counsel does not wait until the day before the removal flight to draft the motion record.
What does not work
Stay motions routinely fail when the applicant waited too long to file, when the irreparable-harm showing is generic, when the evidence is limited to the applicant’s own statements without any corroboration, or when the underlying JR is frivolous. Stays are an extraordinary remedy, and the Court treats them that way. “I don’t want to go home” is not irreparable harm. “Conditions in my country are bad” is not irreparable harm without evidence of individualized risk.
Removal date strategy
As soon as a CBSA direction to report arrives, the clock is running. You should: (a) save the direction to report and any email correspondence; (b) calendar the removal date; (c) identify which decision is being challenged (the most recent negative decision, which is often the PRRA refusal or the RAD dismissal, rather than the original claim refusal); (d) retain counsel immediately; and (e) do not leave Canada voluntarily, as leaving before the stay is heard will moot the motion. If there is a deferral request pending with CBSA Inland Enforcement and it is refused, the refusal itself can be the decision under review, which opens a different and sometimes more effective line of stay argument.
What to bring to your first consultation
For a stay-of-removal consult we need: the CBSA direction to report and any correspondence about the removal date; all prior immigration decisions (claim refusal, RAD decision, PRRA decision, any H&C refusal); medical records if the stay will rely on medical grounds; country-conditions evidence you or counsel have already gathered; evidence of Canadian establishment and family ties; and contact information for anyone who can provide a supporting affidavit. Consults for stays are worked on the same day or next day, not next week.
Why BridgePoint Law
BridgePoint Law acts in Federal Court stay-of-removal motions and underlying judicial reviews across Canada, including cases out of Toronto, Montreal, Vancouver, Calgary, and Ottawa. Principal lawyer Natalie Ningjing Zhang is a member of the Law Society of Ontario, the Canadian Bar Association, the OBA Citizenship and Immigration Section (East), and the Canadian Immigration Lawyers Association, and works in English, Mandarin, and Cantonese.
Next steps
If you have a removal date, call immediately. Stay motions live or die on preparation time, and every day matters.
Call: +1 (613) 777-0992 | Email: info@bridgepointlaw.ca | Immigration Litigation practice | Federal Court judicial review guide
Frequently asked questions
Does filing a Federal Court judicial review stop my removal?
No. An application for leave and for judicial review does not automatically halt removal. You need either a statutory stay under regulation 231 or a judicial stay from the Federal Court on an urgent motion.
What is the Toth test?
The three-part test for a judicial stay of removal: (1) serious issue to be tried, (2) irreparable harm if removal proceeds, and (3) balance of convenience favouring a stay. All three elements must be established.
What counts as irreparable harm?
Specific, particularized harm that cannot be compensated in damages. Examples that have succeeded: a pending life-saving treatment unavailable in the destination country; documented personalized risk to a named individual; serious disruption to the best interests of a Canadian child; destruction of a functioning family unit. Generic hardship rarely suffices.
How long does a stay last if granted?
Usually until the underlying judicial review is decided. The stay is a bridge, not a final resolution, and the applicant still has to win the underlying JR to stay in Canada.
Can I file a stay without a lawyer?
Technically yes, but stay motions are one of the most technical procedures in the Federal Court. Counsel drafting the motion record is strongly recommended.
What should I do on the day of my removal if the stay has not yet been heard?
Report as directed by CBSA and tell the officer that a stay motion is pending before the Federal Court. Do not leave Canada voluntarily before the motion is heard — doing so will almost certainly moot the motion.