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Immigration - Removal. Slepcsik v. Canada (Citizenship and Immigration)
In Slepcsik v. Canada (Citizenship and Immigration) (Fed CA, 2026) the Federal Court of Appeal dismisses a motion to stay an immigration removal pending appeal.
Here the court considers the 'balance of convenience' element in the RJR-Macdonald stay pending appeal test, here where the respondent's interest is that of a public authority:VI. Balance of Convenience
[99] The third prong of the tripartite test requires that the court conduct an assessment of the balance of convenience. This involves a determination of which of the two parties will suffer the greatest harm should the requested stay be granted or refused (Ostrich Farms at para. 50; RJR-MacDonald at p. 342; Manitoba (Attorney General) v. Metropolitan Stores Ltd., 1987 CanLII 79 (SCC), [1987] 1 S.C.R. 110, 1987 CarswellMan 176 at para. 36).
[100] Where, as it is in the present case, the moving party applies for interim relief against a public authority, the "“interests of the public, which the agency is created to protect, must be taken into account and weighed in the balance, along with the interests of private litigants”" (Ainsley Financial Corp. v. Ontario Securities Commission, 1993 CanLII 5552 (O.N. C.T.G.D.), 14 O.R. (3d) 280 at p. 303–4, cited with approval in RJR-MacDonald at p. 343 and Ostrich Farms at para. 50). In the context of motions for stays of removals, the public interest lies in the effective administration of Canada’s immigration and refugee protection regime (Atwal at para. 19; Ghanaseharan at para. 22). Our Court has stated that "“[t]his is not simply a question of administrative convenience, but implicates the integrity and fairness of, and public confidence in, Canada’s system of immigration control”" (Ghanaseharan at para. 22). Once a removal order is enforceable, "“the foreign national against whom it is made must leave Canada immediately”" (IRPA, ss. 48(2). The Minister has a statutory duty, pursuant to subsection 48(2) of the IRPA, to enforce removal orders "“as soon as possible”". The public, therefore, has a legitimate interest in the exercise of CBSA’s statutory mandate to enforce the obligations applicable to foreign nationals in the IRPA.
[101] Where the enforcement of a statutory duty is at issue, the role of the court in assessing the balance of convenience is circumscribed – meaning one must not, as a general rule, seek to ascertain whether there is actual harm on the part of the government or enquire whether the government is functioning well (RJR-MacDonald at p. 346). The administrative agency benefits from a presumption that actions taken under the applicable statutory regime are in the public interest. The consequence of this, as Justice Heckman explains, is that "“[w]here a stay restrains the actions of an administrative agency charged with the duty of promoting or protecting the public interest and where its actions were undertaken pursuant to that responsibility, irreparable harm to the public interest is nearly always ""established”" (Ostrich Farms at para. 50).
[102] I am satisfied that there is harm to the public interest. In the context of a motion for a stay of removal, the public interest and its associated harm attract significant weight. In other words, the balance of convenience will generally favour the Minister in such cases. . Slepcsik v. Canada (Citizenship and Immigration)
In Slepcsik v. Canada (Citizenship and Immigration) (Fed CA, 2026) the Federal Court of Appeal dismisses a motion to stay an immigration removal pending appeal.
Here the court considers the RJR-Macdonald stay pending appeal test, here in the context of a motion to stay an immigration removal order:[29] As reaffirmed by the Supreme Court of Canada in Google, the applicable test for a stay or interlocutory injunction is the tripartite test set out in RJR-MacDonald. It is an exceptional equitable remedy that has been described as both flexible and drastic (Ostrich Farms at para. 82; Google at para. 23). In order to meet the requirements of the tripartite test, Mr. Slepcsik must establish that (i) there is a serious issue to be determined in his underlying appeal; (ii) he will suffer irreparable harm if the stay is not granted; and (iii) the balance of convenience favours granting the order and staying his removal (RJR-MacDonald; Toth). The Court is bound to consider each part of the tripartite test based upon the evidentiary record before it (Fortius Foundation v. Canada (National Revenue), 2022 FCA 176 at para. 15 [Fortius]).
[30] The decision as to whether to grant a stay is a discretionary one. When exercising that discretion, a court shall, in the context of applying the tripartite test, consider whether granting the stay is just and equitable in the context-specific circumstances of the case (Google at para. 25). To be clear, bearing in mind the considerations of justice and equity does not alter the strict requirements of the tripartite test, nor does it add an additional limb or prong to that test (Pak at para. 22; He v. Canada (Citizenship and Immigration), 2026 FC 517 at para. 13).
[31] It is worthwhile to emphasize that, even in the context of a removal, all three prongs of the test must be satisfied for a court to grant relief (Sheldon M. Chumir Foundation for Ethics in Leadership v. Canada (National Revenue), 2023 FCA 242 at para. 10; Western Oilfield Equipment Rentals Ltd. v. M-I L.L.C., 2020 FCA 3 at para. 7; Ahlul-Bayt Centre, Ottawa v. Canada (National Revenue), 2018 FCA 61 at para. 8 [Ahlul-Bayt]; Mohamed v. Canada (Citizenship and Immigration), 2012 FCA 112 at para. 11). A court is not permitted to grant a stay where a prong of the test has not been met (Ostrich Farms at paras. 14 and 69). In other words, the "“failure of any of the three elements of the test is fatal”" (Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 212 at para. 15; see also Canada (Heritage) v. 9616934 Canada Inc., 2023 FCA 141 at para. 11; Air Passengers Rights v. Canada (Transportation Agency), 2020 FCA 92).
[32] That is not to say, however, that the three prongs are wholly independent and unrelated. Strength in one element of the test may serve to balance a weakness in another (Ostrich Farms at para. 14). Despite the foregoing flexibility, each prong of the test must nevertheless be satisfied (ibid). As Justice Gascon explains, this inherent flexibility "“ … does not mean that one of the three compartments can be completely empty and compensated by the other two being filled to a higher level. There still needs to be something on each of the three branches, and none of the elements of the test can be entirely left aside and rescued by the other two”" (Pak at para. 24).
IV. Serious Issue
[33] For the first prong of the tripartite test, a serious issue, the threshold is generally low (RJR-MacDonald at p. 337; Fortius at para. 16). The court must be satisfied that the issue raised is "“neither vexatious nor frivolous”" based on a "“preliminary assessment of the merits”" of the underlying proceeding (RJR-MacDonald at p. 337; Fortius at para. 16). Further, "“[a] prolonged examination of the merits is generally neither necessary nor desirable”" (RJR-MacDonald at p. 337).
[34] An elevated threshold applies "“when the result of the interlocutory motion will in effect amount to a final determination of the action”" (RJR-MacDonald at p. 338; see also Baron at paras. 66–67). I agree with Mr. Slepcsik that the elevated threshold does not apply in the present motion.
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V. Irreparable Harm
[38] Mr. Slepcsik bears the burden of establishing, on a balance of probabilities, that he will suffer irreparable harm if he is returned to his country of citizenship prior to his appeal being finally determined (Fortius at para. 18; Ostrich Farms at para. 11; Atwal at para. 14).
[39] The term "“irreparable”" refers to "“the nature of the harm suffered rather than its magnitude”" (RJR-MacDonald at p. 341). Such harm "“cannot be quantified in monetary terms or cannot otherwise be cured”" (Ahlul-Bayt at para. 10; see also Fortius at para. 18; RJR-MacDonald at p. 341).
[40] It is well established that irreparable harm must always be proven – it cannot be presumed or inferred (Landry v. Abenakis of Wolinak First Nation, 2021 FCA 197 at para. 98 [Landry]; Fortius at para. 18; Ahlul-Bayt at para. 15). Our Court has repeatedly stated that in order to prove irreparable harm, the moving party "“must demonstrate in a detailed and concrete way that it will suffer real, definite, unavoidable harm—not hypothetical and speculative harm—that cannot be repaired later”" (Janssen Inc. v. Abbvie Corporation, 2014 FCA 112 at para. 24 [Janssen]; Canada (Citizenship and Immigration) v. Abdelhak, 2022 FCA 27 [Abdelhak]; Ostrich Farms at para. 46; Canada (Attorney General) v. Oshkosh Defense Canada Inc., 2018 FCA 102 at para. 24; see also Stoney First Nation v. Shotclose, 2011 FCA 232 at paras. 47–49 [Stoney First Nation]; Glooscap Heritage Society v. Canada (National Revenue), 2012 FCA 255 at para. 31 [Glooscap]).
[41] Indeed, "“assumptions, speculations, hypotheticals and arguable assertions, unsupported by evidence, carry no weight”" (Glooscap at para. 31; Ahlul-Bayt at para. 15; see also Atwal at para. 15). Rather "“[o]nly clear and compelling evidence can satisfy”" this prong of the test (Fortius at para. 18; see also Salt River First Nation #195 v. Heron, 2024 FCA 87 at paras. 8 and 15). In other words, general assertions cannot establish irreparable harm, "“detailed and specific evidence”" is required (Abdelhak at para. 17; Janssen at para. 24).
[42] This prong of the test requires evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted (Ahlul-Bayt at para. 15; Fortius at para. 18; Stoney First Nation at para. 48; Glooscap at para. 31; Gateway City Church v. Canada (National Revenue), 2013 FCA 126 at para. 16). The court must be satisfied that the evidence demonstrates "“the existence of real, definite, and unavoidable harm”" (Landry at para. 98). A "“series of possibilities”" is insufficient to demonstrate irreparable harm (Atwal at para. 14). It is equally "“not sufficient to demonstrate that irreparable harm could or [is] likely to occur; rather, it ha[s] to be shown that such harm would be suffered”" (Landry at para. 99).
[43] The rationale for this strict evidentiary requirement was explained in Stoney First Nation:It is all too easy for those seeking a stay in a case like this to enumerate problems, call them serious, and then, when describing the harm that might result, to use broad, expressive terms that essentially just assert – not demonstrate to the Court’s satisfaction – that the harm is irreparable.
(Stoney First Nation at para. 48) [44] Under ordinary circumstances, only the harm suffered by the moving party would qualify under this prong of the test (Glooscap at para. 31). There are, however, limited and modest modifications to this principle (ibid). In the context of stays of removal, one may consider not only the irreparable harm to the moving party but also to their family (Pak at para. 49; Ogierikhi et al. v. Canada (Citizenship and Immigration), 2023 FC 256 at para. 10 [Ogierikhi]; Ghanaseharan v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261 at paras. 13–14 [Ghanaseharan]).
[45] Equally in the context of stays of removal, irreparable harm implies that there would be a serious likelihood of jeopardy to the moving party’s life, security or safety, or that of their family (Mondelus v. Canada (Public Safety and Emergency Preparedness), 2011 FC 1138 at para. 73; Ogierikhi at para. 10; Golubyev v. Canada (Citizenship and Immigration), 2007 FC 395 at para. 12; Pak at para. 52).
[46] The harms and hardships that are the inherent consequences of removal cannot constitute irreparable harm for the purpose of the tripartite test – otherwise, a stay would be the norm and removal from Canada would be the exception (Palka v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 165 at para. 12 [Palka]; Ghanaseharan at paras. 13-14; Atwal at paras. 16−17; Pak at para. 52; Fortius at para. 30). Such consequences include enforced separation, hardship for the family, psychological and emotional hardship, financial loss, the loss of employment, the interruption of education, and disruption to the lives built in Canada, among others (Fortius at para. 30; Baron at para. 69; Melo v. Canada (Minister of Citizenship and Immigration), 188 F.T.R. 39 at para. 21, 2000 CanLII 15140 (F.C.) [Melo]; Ghanaseharan para. 13–14; Atwal at para. 16). There is no doubt that such consequences can be traumatic, deeply disturbing, and heartbreaking for the individuals involved. Nevertheless, and unfortunately for those facing removal, they do not constitute irreparable harm.
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[67] Second, discrimination is not necessarily persecution nor is it irreparable harm (Tulina-Litvin v. Canada (Public Safety and Emergency Preparedness), 2007 FC 105 at para. 47; Sorokin v. Canada (Public Safety and Emergency Preparedness), 2007 FC 355 at para. 6; Suryandari v. Canada (Public Safety and Emergency Preparedness), 2025 FC 1611 at para. 46; Office of the United Nations High Commissioner for Refugees. Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, UN Doc HCR/1P/4/ENG/REV.4 (Geneva, reissued February 2019), at para. 54). If that were the case, it would mean that no one of Roma ethnicity would be able to be removed to the Czech Republic, or indeed to a number of other European nations.
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C. Family Separation
[71] This Court has consistently made it clear that family separation and hardship, while heartbreaking, do not constitute irreparable harm for the purposes of a stay of removal (Fortius at para. 30; Atwal at para. 16; Melo at para. 21; Baron at paras. 57 and 69). This is the case even where the minor children are Canadian citizens (Baron at para. 57). Disruption to the family is, sadly, always a consequence of removal. If enforced separation and family disruption were to constitute irreparable harm – it would be the norm to stay removals of family members (Palka at para. 12; Ghanaseharan at para. 13).
[72] It is worth recalling that Parliament has not decided that the presence of family members in Canada, including minor children, constitutes an impediment to removal. Our Court noted this over twenty years ago, and it remains the case today (Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125 at para. 12; see also Baron at para. 57). The question of whether the involvement of a Canadian child ought to act as a bar to removal is one for Parliament, not the courts.
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[81] Mental health issues, notably anxiety or depression, do not generally amount to irreparable harm when they are tied to an impending removal (Pak at para. 63; Savage v. Canada (Public Safety and Emergency Preparedness), 2025 FC 1582 at para. 51[Savage]; Singh v. Canada (Public Safety and Emergency Preparedness), 2024 FC 650 at para. 16 [Singh]). In other words, stress, anxiety, and depression caused by the prospect of removal from Canada are an insufficient basis to establish irreparable harm, as these are inherent to removal (Palka at para. 17; Roh v. Canada (Public Safety and Emergency Preparedness), 2011 FC 1273 at para. 52 [Roh]; Bernadini v. Canada (Public Safety and Emergency Preparedness), 2022 CanLII 23894 (F.C.); Mboweni v. Canada (Public Safety and Emergency Preparedness), 2026 CanLII 41503 (F.C.) at para. 6; Mahuroof v. Canada (Public Safety and Emergency Preparedness), 2019 CanLII 36998 at para. 23 [Mahuroof]).
[82] This is the case even where the depression and/or anxiety is accompanied by suicidal ideation when these symptoms are linked to a pending removal (Savage at para. 51; Ryabinin v. Canada (Public Safety and Emergency Preparedness), 2016 FC 1118 at paras. 9–12 [Ryabinin]; Enodumwenben v. Canada (Public Safety and Emergency Preparedness), 2024 FC 1686 [Enodumwenben]; Roh at para. 52; Mufutau v. Canada (Citizenship and Immigration), 2026 CanLII 78789 (F.C.) at para. 16; Mahuroof at paras. 21–23; Jeong v. Canada (Public Safety and Emergency Preparedness), 2026 CanLII 76012 (FC) at para. 24; Haruna v. Canada (Public Safety and Emergency Preparedness), 2025 CanLII 98478 (F.C.) at para. 14; Singh v. Canada (Public Safety and Emergency Preparedness), 2026 CanLII 25722 (F.C.) at paras. 29 and 34; Chen v. Canada (Citizenship and Immigration), 2026 CanLII 33024 (F.C.) at paras. 3–7 [Chen]; Chikezie v. Canada (Citizenship and Immigration), 2025 CanLII 56951 (F.C.) at paras. 4–7; Taiwo v. Canada (Citizenship and Immigration), 2026 CanLII 52466 (F.C.); Powell v. Canada (Public Safety and Emergency Preparedness), 2025 CanLII 120416 (F.C.) at paras. 29 and 32 [Powell]; Jabed v. Canada (Citizenship and Immigration), 2026 CanLII 51907 (F.C.) at para. 34; Nwaogu v. Canada (Public Safety and Emergency Preparedness), 2025 CanLII 99174 (F.C.) at paras. 9–10; Sandhu v. Canada (Citizenship and Immigration), 2026 FC 126 at paras. 4–7); Gbadamosi v. Canada (Citizenship and Immigration), 2025 CanLII 80687 (F.C.) at paras. 31–33 [Gbadamosi]; Bastien at paras. 22–23). That being said, there are certainly instances where suicidal behaviour, even when arising from the prospect of removal, can rise to the level of irreparable harm (Tiliouine v. Canada (Public Safety and Emergency Preparedness), 2015 FC 1146 at para. 13; Pak at para. 66; Mazakian v. Canada (Public Safety and Emergency Preparedness), 2008 FC 1248, at paras. 11–29 and 33; Cabanas Alvarez v. Canada (Citizenship and Immigration), 2026 CanLII 67824 (F.C.); Mehr v. Canada (Public Safety and Emergency Preparedness), 2026 CanLII 80547 (F.C.) at paras. 32–37; Oladipupo v. Canada (Public Safety and Emergency Preparedness), 2024 FC 921 at paras. 45–46 and 50). Ultimately, it remains a question of whether there is clear, convincing and non-speculative evidence before the court that there is a serious and imminent risk of suicide.
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[88] Medical reports, such as Dr. Ghebrehariat’s report, that are prepared in anticipation of removal should be approached with caution. Indeed, the courts have consistently been cautious in treating reports and letters from clinicians which (i) are prepared on the basis of a single appointment; (ii) are prepared in the context of removal proceedings, (iii) display no evidence of concrete follow-up treatment; and/or (iv) recommend that their clients be allowed to stay in Canada (Palka at para. 17; Chehade v. Canada (Citizenship and Immigration), 2017 FC 293 at para. 15; Jeong v. Canada (Citizenship and Immigration), 2019 CanLII 21167 (F.C.); Varela Garrido v. Canada (Public Safety and Emergency Preparedness), 2022 FC 1804 at para. 17 [Varela Garrido]; Ryabinin paras. 8–11; Singh at para. 16; Mahuroof at para. 23; Chen at paras. 3–7; Sidhu v. Canada (Public Safety and Emergency Preparedness), 2026 CanLII 16784 (F.C.); Powell at paras. 27–31; Gbadamosi at para. 34; Enodumwenben). Such letters and reports have often been discounted on the basis that they are not neutral or that they amount to advocacy (Varela Garrido at para. 17; Powell at para. 30).
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VI. Balance of Convenience
[99] The third prong of the tripartite test requires that the court conduct an assessment of the balance of convenience. This involves a determination of which of the two parties will suffer the greatest harm should the requested stay be granted or refused (Ostrich Farms at para. 50; RJR-MacDonald at p. 342; Manitoba (Attorney General) v. Metropolitan Stores Ltd., 1987 CanLII 79 (SCC), [1987] 1 S.C.R. 110, 1987 CarswellMan 176 at para. 36). . Slepcsik v. Canada (Citizenship and Immigration) [stay of immigration removal]
In Slepcsik v. Canada (Citizenship and Immigration) (Fed CA, 2026) the Federal Court of Appeal dismisses a motion to stay an immigration removal pending appeal:[1] For the vast and overwhelming majority of those who are returned to their country of citizenship, removal from Canada is immensely stressful, anxiety-provoking, deeply sad, and heartbreaking. One loses their job or abandons their studies, and all health and social benefits cease. It involves enforced separation from loved ones and friends, along with being torn from the stability and comfort one may have known while in Canada. To think otherwise would be either unfeeling or naïve. As noted recently by my colleague Justice Heckman, judges do not have hearts of stone (Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency), 2025 FCA 164 at para. 80 [Ostrich Farms]). We are alive to the intensely difficult circumstances deportees face and how heart-wrenching these situations can be for all involved.
[2] Nevertheless, these are the inherent consequences of removal from Canada. A judge hearing a motion for a stay of removal has a limited and defined role, circumscribed by decades of established higher court jurisprudence. Our role is not to alleviate sadness, tragedy, and difficult circumstances. Nor is our role to stand in the way of a federal agency exercising its statutory duty or to unduly interfere with the normal administrative process prescribed by Parliament in the Immigration and Refugee Protection Act, SC 2001, c. 27 [IRPA].
[3] Rather, our role is only to step in and issue a short time-limited stay where we have been satisfied that the strict requirements of the applicable test have been met. If the test for a stay of removal is to retain any meaning at all, it must be applied only in those extraordinary circumstances that go beyond what was envisioned by Parliament when they enacted this regime. Although each case is context-specific, fairness to those receiving removal orders dictates that the judges hearing stays do their utmost to apply the test as uniformly as possible and in strict compliance with the teachings of the higher courts. To do otherwise would be to give in to the emotion of the moment – and that is not our role.
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[12] A stay is an extraordinary equitable remedy (Ostrich Farms at para. 82; Canada (Minister of Citizenship and Immigration) v. Harkat (F.C.A.), 2006 FCA 215 at para. 10 [Harkat]). It is well established that in seeking a stay of removal, the moving party "“must demonstrate special and compelling circumstances that would warrant ‘exceptional judicial intervention’”" (Ikeji v. Canada (Minister of Citizenship and Immigration), 2001 FCT 573 at para. 8; see also Pak v. Canada (Public Safety and Emergency Preparedness), 2025 FC 1898 at para. 20 [Pak]). The onus is therefore on Mr. Slepcsik to demonstrate that the extraordinary remedy of a stay of removal is warranted (Atwal v. Canada (Minister of Citizenship and Immigration), 2004 FCA 427 at para. 14 [Atwal]; Harkat at para. 10).
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II. Issue
[28] The issue before me is whether it would be just and equitable for this Court to stay the execution of Mr. Slepcsik’s removal to the Czech Republic until such time as the appeal has been determined, based on the well-established tripartite test (Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, [2017] 1 S.C.R. 824 [Google]; Toth v. Canada (Minister of Employment and Immigration), 1988 CanLII 1420 (F.C.A.), 86 N.R. 302 (F.C.A.) [Toth]; Ostrich Farms at para. 14; and RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (S.C.C.), [1994] 1 S.C.R. 311 [RJR-MacDonald]).
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