𝗧𝗵𝗲 𝗽𝗿𝗲𝗿𝗼𝗴𝗮𝘁𝗶𝘃𝗲 𝗪𝗿𝗶𝘁 𝗼𝗳 𝗠𝗮𝗻𝗱𝗮𝗺𝘂𝘀 𝗮𝗻𝗱 𝘁𝗵𝗲 𝗟𝗲𝗴𝗮𝗹 𝗧𝗲𝘀𝘁

In cases where judicial review is available usually where an action is of a public nature, involves the exercise of a statutory power, and has the requisite element of finality, the Courts may order prerogative remedies against tribunals within their respective jurisdictions.

𝘔𝘢𝘯𝘥𝘢𝘮𝘶𝘴 is used to compel the performance of a legal duty. The Federal Court may order a tribunal, or decision maker to perform a duty it has unlawfully failed to do or has unreasonably delayed in doing. For example, where a public body has a legal obligation to render a decision and has delayed in doing so, a court can grant mandamus to force that body to decide. However, mandamus cannot force a tribunal to decide a matter in a particular manner.

The legal test for 𝘮𝘢𝘯𝘥𝘢𝘮𝘶𝘴 is well-established. The Supreme Court of Canada in 𝘈𝘱𝘰𝘵𝘦𝘹 𝘷 𝘊𝘢𝘯𝘢𝘥𝘢 (𝘈𝘵𝘵𝘰𝘳𝘯𝘦𝘺 𝘎𝘦𝘯𝘦𝘳𝘢𝘭) 1994 3 SCR 1100 identified eight preconditions that must be met for an applicant to be entitled to an order of mandamus. 

In summary, these requirements are: 

1. there must be a public legal duty to act
2. the duty must be owed to the applicant; 
3. there must be a clear right to performance of that duty; 
4. where the duty sought to be enforced is discretionary, certain additional principles apply; 
5. no other adequate remedy is available to the applicant; 
6. the order sought will have some practical value or effect; 
7. there is no equitable bar to the relief sought; and 
8. on a balance of convenience an order of mandamus should be issued

Do you know that delay in permanent residence applications can live your life in limbo and may lead to delay in making important decisions.

Where there is an unreasonable delay by Citizenship and Immigration Canada to make a decision, under the third requirement, the question is whether the applicant has a clear right to performance of the duty on the part of the Minister to render a decision on an application for permanent residence. 

Generally speaking, this right is engaged only if the party seeking mandamus has satisfied all the requirements for a decision to be made, they have requested that a decision be made, and the tribunal has either expressly refused to make a decision or it has taken unreasonably long to do so.

In 𝘊𝘰𝘯𝘪𝘭𝘭𝘦 𝘷 𝘊𝘢𝘯𝘢𝘥𝘢 (𝘔𝘪𝘯𝘪𝘴𝘵𝘦𝘳 𝘰𝘧 𝘊𝘪𝘵𝘪𝘻𝘦𝘯𝘴𝘩𝘪𝘱 𝘢𝘯𝘥 𝘐𝘮𝘮𝘪𝘨𝘳𝘢𝘵𝘪𝘰𝘯), 1998 CanLII 9097, which concerned a long-delayed decision on a citizenship application, Justice Tremblay-Lamer held that three requirements must be met for delay to be considered unreasonable: (1) the delay in question has been longer than the nature of the process required, prima facie; (2) the applicant and his counsel are not responsible for the delay; and (3) the authority responsible for the delay has not provided a satisfactory justification.

In 𝘎𝘩𝘢𝘭𝘪𝘣𝘢𝘧 𝘷. 𝘊𝘢𝘯𝘢𝘥𝘢 (𝘊𝘪𝘵𝘪𝘻𝘦𝘯𝘴𝘩𝘪𝘱 𝘢𝘯𝘥 𝘐𝘮𝘮𝘪𝘨𝘳𝘢𝘵𝘪𝘰𝘯), 2023 𝘍𝘊 1408, the applicant, a 36-year-old citizen of Iran, was a civil engineer. In December 2018, he was invited to apply for admission to Canada as a permanent resident under the Express Entry federal skilled worker program. He completed his application in February 2019. The application was still pending. The applicant had been told that the delay was due to the need for security screening.

In September 2022, the applicant applied for an order in the nature of mandamus to compel the Minister to render a decision on his application for permanent residence. The respondents opposed the application on the basis that the delay in rendering a decision was reasonably explained by the need to conduct security screening, and because the balance of convenience did not favour the applicant.

The only live issue under the third requirement was whether the Minister had taken unreasonably long to make a decision. The applicant relied on evidence that, as of September 2022, IRCC’s processing time for Express Entry applications by skilled workers was 26 months. Further, the record demonstrated that none of the delay was attributable to the applicant. The determinative issue was whether the respondents had provided a satisfactory justification for the delay. The court found that they had not. 

The respondents simply made a bald assertion that the need for background and security checks increased the complexity of the application and, as a result, the amount of time required to process it. 

The Federal Court has repeatedly held that blanket statements like this are insufficient to justify delay. The respondents also submitted that the processing of the application had been delayed by the COVID-19 pandemic. Although the court could take judicial notice that the pandemic had adversely affected processing times for applications for permanent residence, the court could not take judicial notice of how the pandemic had affected the processing of this application and whether this (alone or together with other factors) justified the delay in this case.

Turning to the balance of convenience, the applicant provided affidavit evidence explaining how the delay in processing his application had left his life in limbo and led him to delay making important decisions. The court accepted that the applicant had been prejudiced by the lengthy delay in processing his application for permanent residence in Canada. 

The respondents, on the other hand, did not provide any evidence to show that they would be inconvenienced by an order directing that a decision finally be made. As a result, the court was satisfied that the balance of convenience favored the applicant. 

The court was satisfied that the applicant met all of the requirements for an order of mandamus. The application was granted, and the court ordered that a decision be rendered on the applicant’s application for permanent residence within sixty (60) days of the date of judgment without prejudice to the right of the respondents to seek an extension of the deadline.

Mandamus is a coercive power and, as such, is used cautiously by the courts. An order in mandamus is appropriate where the party requesting the order has a clear legal right to the performance of a public or statutory duty and, although that party has demanded the duty be performed, the public body has refused to act.

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