Issue #177: May 4, 2025
Important cases on mandamus & remedies, a short post on procedural fairness
I thought I’d collect links to all of the newsletters analyzing the SCC’s recent statutory interpretation cases. These cases offer significant clarifications to the law of statutory interpretation that all lawyers working in administrative law should know:
I also thought I’d share a recent post I wrote on the case of Abrego Garcia in the United States, who—in violation of a court order preventing his removal—was rendered to custody in El Salvador. The case raises the central importance of procedural fairness in the law of judicial review. I use the comments of VP Vance as a foil to show how procedural fairness—a timeless aspect of the law of judicial review, and a central part of the Western legal tradition—is still important no matter the perceived importance of a particular administration’s political goals.
Meneen v Tallcree First Nation, 2025 FC 791 (May 1, 2025)
Category: Remedies.
Context: This is an application for judicial review of a decision by Chief and Council of Tallcree First Nation [TFN] to remove the applicant from his elected position as a TFN councillor. TFN had previously challenged the applicant’s nomination before the Federal Court, arguing that he was not eligible to be a candidate in the election based on residency requirements. Favel J dismissed that application, in part on the basis that TFN had to exhaust its remedies, including an appeal procedure set out in the Tallcree First Nation Election Code. The applicant then sought judicial review of his ultimate disqualification by the TFN after his victory. On the judicial review, the applicant argued, among other things, that the decision was reached in a procedurally unfair manner, and moreover, was a collateral attack on the merits of Favel J’s decision [10-11].
Issue: For our purposes, the issue is the appropriate remedy.
Holding and Analysis: In an interesting reflection on the appropriate remedy in this case, Strickland J decides to remit the decision to TFN Chief and Council for redetermination. But she does not do so easily. She notes that TFN’s conduct in this case was tantamount to a “disregard of Justice Favel’s nomination decision” [32], and agrees with the applicant that “there is a very real concern here that Chief and Council have clearly made up their minds that the Applicant must be removed from office…” [32]. Given that this is not an easy case, Strickland J takes advantage of the flexibility offered by Vavilov’s remedial discussion and remits, but “in accordance with these reasons” [33].
But she does so in a fascinating way. Strickland J outlines the procedures that TFN must follow on remittal [34]; timelines by which the redetermination must be conducted [35]; and the kicker:
[36] If, following the completion of the removal process, the Applicant is not removed from office, then he will be immediately reinstated and shall be paid, within 30 days of reinstatement, all remuneration due and owed to him from the date of his removal.
[37] If the removal process has not been commenced and concluded within four months of the date of my order, then the Applicant will be immediately reinstated and shall be paid, within 30 days of reinstatement, all remuneration due and owed to him from the date of his removal.
[38] If the Applicant is reinstated, then Chief and Council shall ensure that he is provided with the same notices, communications (including the provision to him of his Council member email address) and information, and shall be afforded the opportunity to participate in Council matters, as all other Council members.
These paras appear to contemplate a sort of delayed mandamus order. If, for example, the removal process (including, it appears, the redetermination) does not occur within the dates specified in the order, then the applicant will get the relief he sought in his notice of application [30]. This timed relief is an intriguing option.
Sharma v Canada (Citizenship and Immigration), 2025 FC 796 (May 1, 2025)
**See also recent cases discussed below**
Category: Mandamus.
Context and Analysis: This is a request for a writ of mandamus requiring a decision on the applicant’s temporary resident visa. The parties appeared to disagree over an issue that I have profiled in this newsletter several times: whether the grant of mandamus based on delay in immigration matters must be accompanied by a demonstration by the applicant of “significant prejudice” (see for example Issue #98). Some judges in the Federal Court have split on this issue, with some insisting on the “significant prejudice” threshold, and others not requiring the applicant to show such prejudice. Some recent cases have insisted that mandamus should not require this threshold: see e.g. Tousi v Canada (Citizenship and Immigration), 2025 FC 671 at paras 11-17; Majidi v Canada (Citizenship and Immigration), 2025 FC 680 at para 31.
Here, Battista J follows this line of cases, and concludes that mandamus does not require the applicant to show significant prejudice, and that in this case, mandamus should issue [4-6].
I agree that the writ of mandamus should not require a showing of significant prejudice over and above the requirements of mandamus. This requirement appears to have been ported over from the law of abuse of process based on delay in administrative law. But as both Turley J and Grant J articulated in Tousi and Majidi, respectively, mandamus is related to, but distinct from, the specific problem of abuse of process.
For one, mandamus is justified when there is a delay which has stymied the performance of a public duty without sufficient justification. There is no mention of an abuse of process overlay in the traditional mandamus requirements. Second, mandamus is temporally broader than the abuse of process doctrine requiring significant prejudice. Mandamus can be sought even before an abuse of process exists. It would, therefore, make little sense to say that mandamus requires significant prejudice to show what is, in essence an abuse of process—mandamus can exist without it.
These are particular legal reasons to favour the “preponderance” of cases that have not insisted on the abuse of process threshold (see Turley J in Tousi at para 13). As Grant J points out in Majidi, though, this does not mean that the existence or absence of prejudice from the delay is irrelevant. Indeed, the existence or absence of prejudice can inform the balance of convenience analysis in mandamus cases (Majidi, at para 29). But that is very different from requiring significant prejudice as a requirement in mandamus cases.
As it happens, this ongoing debate over the propriety of “significant prejudice” in mandamus cases is proof-positive of the strength of the bench in the Federal Courts. The cases working through this issue are all well-reasoned and the discussion of why mandamus is distinct from abuse of process/significant prejudice is well-informed in the above cases. They are worth a read.
Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own