Stay Motions

A Stay Motion before the Federal Court is one of the most urgent and consequential legal remedies in Canadian immigration litigation. When the Canada Border Services Agency (CBSA) schedules an individual for removal—whether deportation, exclusion, or departure—the only mechanism capable of stopping that removal (other than an automatic statutory stay in limited refugee contexts) is a Stay Motion. Filing a Judicial Review alone does not stop removal. The applicant must formally ask the Federal Court to issue an order preventing the government from enforcing removal until the underlying case is decided. The stakes are extremely high: removal can separate families, result in detention abroad, trigger persecution or torture, and permanently damage an individual’s ability to return to Canada.

Let's have a comprehensive, lawyer-level guide to Stay Motions, including legal standards, evidence requirements, timelines, drafting strategy, affidavits, case law principles, and common pitfalls. It is intended for counsel, litigation practitioners, and individuals facing imminent removal from Canada.

Legal Framework

Stay Motions are governed by:

• Federal Courts Act,
• Federal Courts Rules,
• IRPA (removal provisions),
• jurisprudence including the seminal case Toth.

The purpose of a stay is to preserve the applicant’s rights while the Court reviews the underlying legal issue.

The Three-Part Legal Test (“Toth Test”)

To succeed, the applicant must satisfy all three elements:

1. There Is a Serious Issue to Be Tried

The underlying case (JR, PRRA reconsideration, IAD appeal, or other proceeding) must raise credible legal issues, such as:

• unreasonable decision-making,
• procedural fairness violations,
• incorrect legal tests,
• failure to consider evidence,
• misinterpretation of country conditions.

2. Irreparable Harm

The applicant must demonstrate they would suffer harm that cannot be repaired if removed:

• risk to life or torture,
• medical harm due to lack of treatment abroad,
• persecution or targeted violence,
• family separation (especially involving children),
• loss of professional licence or livelihood,
• inability to continue litigation from abroad.

3. Balance of Convenience

This factor weighs:

• the applicant’s harm if removed,
• the government’s interest in enforcing removal,
• whether the applicant has been compliant,
• whether the case appears meritorious,
• whether a stay would undermine immigration enforcement objectives.

A strong balance of convenience favours a stay when the harm to the applicant far outweighs administrative inconvenience to the government.

When a Stay Motion Is Needed

A stay is required in situations such as:

• CBSA issues a removal date (deportation flight booked),
• PRRA refusal with imminent removal,
• failed refugee claim and 30-day removal window has expired,
• H&C refusal for individuals without status,
• inadmissibility decisions with immediate enforcement.

Timing is critical: some removals occur within 48–72 hours of notice.

Steps in Filing a Stay Motion

1. File the Underlying Judicial Review

The JR must be filed before requesting a stay. Without a JR proceeding, the Court has nothing to “stay.”

2. File the Stay Motion Record

This includes:

• Notice of Motion,
• Affidavit(s),
• Exhibits (medical, country reports, family evidence),
• Memorandum of Argument.

3. Minister’s Response

The Department of Justice (DOJ) may file written arguments opposing the stay.

4. Hearing

A Federal Court judge hears arguments via Zoom or in person. Hearings are fast-paced and highly structured.

Affidavit Evidence

The affidavit is the core of the motion. It must:

• be sworn by the applicant or supporting witnesses,
• provide detailed facts on harm, medical issues, family ties, and history,
• attach exhibits (country reports, proof of treatment, removal documents).

Affidavits must be detailed, factual, and free of speculation.

Country Conditions Evidence

Supporting documents may include:

• IRB National Documentation Packages (NDP),
• UNHCR reports,
• U.S. State Department reports,
• NGO publications,
• news reports confirming current risks.

Medical Evidence

Medical harm arguments must be supported by:

• doctor’s letters,
• specialist reports,
• proof of ongoing treatment,
• evidence that equivalent care is unavailable abroad.

Family Hardship Evidence

• immigration status of family members,
• child custody arrangements,
• school records,
• psychological reports for children.

Common Reasons Stay Motions Fail

• weak underlying JR (no serious issue),
• lack of evidence of irreparable harm,
• generic or unspecific affidavits,
• no expert medical documentation,
• delay in seeking the stay,
• bad immigration history undermining the balance of convenience.

Common Reasons Stay Motions Succeed

• clear legal errors in the underlying decision,
• well-documented humanitarian factors,
• serious and documented medical issues,
• strong country evidence of risk,
• children’s best interests clearly impacted,
• consistent immigration compliance record.

What a Stay Order Achieves

If granted, the Court orders:

• removal is paused,
• CBSA cannot deport the applicant,
• the stay remains in effect until JR is decided.

Post-Decision Strategy

If Stay Is Granted

• prepare for JR hearing,
• gather stronger evidence,
• maintain compliance with all conditions.

If Stay Is Denied

• removal may proceed immediately,
• consider emergency alternative remedies,
• evaluate new risk-based applications.

Role of Skilled Counsel

Stay Motions require:

• crisis-level urgency,
• precise legal argument,
• strong evidence packages,
• fast turnaround under extreme time pressure,
• deep familiarity with Federal Court practice.

Expert representation dramatically increases the likelihood of stopping removal and preserving a client’s legal rights, safety, and ability to remain in Canada during ongoing litigation.