In the recent case of Sanchez v. Canada (Citizenship and Immigration), Stratas J.A. of the Federal Court of Appeal dismissed the appellant’s motion for a stay of the appeal pending a decision by the Supreme Court of Canada. The Sanchez case raised the same issue decided in the Federal Court of Appeal’s decision in Hernandez Febles v. Canada (Minister of Citizenship and Immigration), 2012 FCA 324. The Supreme Court granted leave to appeal from that decision and the hearing took place on March 25, 2014.

In dismissing the motion for a stay, Stratas J.A. first noted that the Federal Court of Appeal will follow its decision in Febles unless the appellant demonstrates that it is “manifestly wrong” in accordance with Miller v. Canada (Attorney General), 2002 FCA 370.

Second, following Mylan Pharmaceuticals ULC v. AstraZeneca Canada Inc., 2011 FCA 312, Stratas J.A. determined that the test governing this issue is whether it is in the interest of justice to stay the appeal. He observed that granting a stay might result in a very long delay, a delay which, in his view, “would prejudice the public interest in the prompt determination of immigration proceedings” (para. 11).

In addition, Stratas J.A. noted that the appellant has other reasonable means to protect himself if the Federal Court of Appeal were to dismiss his appeal and the Supreme Court were to subsequently reverse Febles:

[12] Also as in Mylan, I note that the Supreme Court’s power to remand matters back to this Court substantially mitigates or eliminates the potential prejudice to the appellant: see subsection 43(1.1) of the Supreme Court Act, R.S.C. 1985, c. S-26 and see discussion of this power in Mylan at paragraph 24. On a motion under subsection 43(1.1), the Supreme Court has the power to “order any further proceedings that would be just in the circumstances.” One such proceeding is a remand of the matter back to this Court to consider the application of the Supreme Court’s decision in Febles to the appellant’s case.

[13] If this Court has dismissed the appeal but the Supreme Court has not yet rendered its decision in Febles, the appellant can take the precautionary step of filing a motion with the Supreme Court seeking an order under subsection 43(1.1) of the Supreme Court Act. This would keep the appellant in the litigation stream, allowing him potentially to take advantage of any change in the law wrought by the Supreme Court in Febles: on this, see Yeager v. Day, 2013 FCA 258.

The appellant having not identified any other prejudice he would suffer if the appeal were to proceed, Stratas J.A. found that it was in the interest of justice to dismiss the motion for a stay.