PRACTICE |
Stay of Proceedings |
Tessma v. Canada (Minister of Citizenship and Immigration)
IMM-1241-03
2003 FCT 427, Hargrave P.
10/4/03
11 pp.
Motion to stay present judicial review application pending determination of earlier judicial review proceeding--Test for stay "in the interest of justice" pursuant to Federal Court Act, s. 50(1)(b)--Whether test set out in RJR--MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, should apply to mere stay "in the interest of justice", in case with two parallel proceedings--Two lines of cases: (1) those applying two-part test i.e. for stay to be granted, continuation must cause prejudice to applicant for stay and stay not unjust to party opposing it (balance of inconvenience test as set out in Mon-Oil v. Canada (1989), 27 F.T.R. 50 (F.C.T.D.)); (2) those applying tripartite test set out in RJR--MacDonald-- Two lines of cases rationalized by relying on plain wording of s. 50(1)(b)--Application of RJR--MacDonald test to motion herein--Serious issues in both actions--Turning to irreparable harm, present applicant, not by own choice, but through timetables imposed by Immigration and Refugee Protection Act and by Federal Court Act, exposed to irreparable harm--Finally, staying present proceeding would be decided convenience to applicant and no great inconvenience to respondent--Thus balance of convenience lies in favour of stay--Motion allowed--Immigration and Refugee Protection Act, S.C. 2001, c. 27--Federal Court Act, R.S.C., 1985, c. F-7, s. 50(1)(b).