Chen v Canada (Citizenship and Immigration), 2023 FC 885 (June 23, 2023)
Context: Mandamus
Context: This is an application for mandamus directing Immigration, Refugees and Citizenship Canada to decide on the applicant’s study permit. The applicant’s argument centred around the delay in the grant of his permit.
Issue: Should the writ be granted?
Holding: No.
Analysis: Though the Court denies the writ in these circumstances—unsurprising given the high bar for the grant of mandamus—the Court has some interesting things to say about the delay in this case. The Court notes that the government’s “explanation for the delay is lacking” [18]. The government relied on two explanations for the delay: (1) the pandemic; (2) forthcoming security checks. But the Court was not impressed:
[18] I am satisfied that the Respondent’s explanation for the delay is lacking. Simply pointing to the impact of the pandemic, with no evidence of the pandemic’s actual impact on the Applicant’s application, is not sufficient. Moreover, a blanket assertion that security checks are pending without more (such as particulars as to what renders the Applicant’s case relatively more complex, what specific security considerations related to the Applicant have contributed to the delay or evidence of inquiries or follow-ups with security partners on the status of their security checks) is also not enough to reasonably explain the delay [see Almuhtadi v Canada (Minister of Citizenship and Immigration), 2021 FC 712; Bidgoly, supra; Samideh v Canada (Minister of Citizenship and Immigration), 2023 FC 854].
Nonetheless, the Court dismisses the application for mandamus, in part because while there is an explanation lacking for the delay, the applicant was able to start his study program, and any consequential impact on him because the delay is speculative [see para 20].
Perhaps successful mandamus applications will be more common in a world where immigration officials seem chronically backed up, and where these delays have a prejudicial impact on an applicant. Sometimes these applications may work. Consider the recent case of Samideh v Canada (Citizenship and Immigration), 2023 FC 854. There, the Court found that mandamus was warranted in the context of an unreasonable delay in rendering a final decision on a permanent residence application. The government’s excuse there—again, security checks—was not sufficient alone to justify an unreasonable delay, especially where it fails to explain what about an applicant’s case is complex from a security perspective. “Just trust us” is not enough, especially where an applicant “remains in limbo, with no understanding as to what has caused many years of delay in the processing of [a] permanent residence application” (Samideh, at para 40).
As far as it goes, the government’s delays in processing routine immigration applications could open it up to more successful mandamus applications. This shouldn’t be true as a matter of course and across the board—mandamus is an extraordinary and discretionary remedy for good reason. But where delays are significant, no justification is offered, and there is an evidentiary connection to a prejudicial impact, mandamus may be open.
Law Society of Ontario v Schulz, 2023 ONSC 3943 (July 4, 2023)
Category: Procedural fairness
Context: The Law Society Tribunal found that the Respondent had engaged in conduct unbecoming a licensee and his licence was suspended, in relation to his criminal conviction for possession of child pornography. The Appeal Division upheld the penalty, and rejected the Law Society’s argument on appeal that the hearing panel was improperly constituted because of the absence of a lay adjudicator on the panel. A lay adjudicator is required under s.1(2) of O Reg 167/07.
Issue: Is there a problem of procedural fairness, given that there was no lay adjudicator on the panel?
Holding: [40] In summary, the Appeal Division erred in law in finding that the composition of the hearing panel did not give rise to a lack of jurisdiction and in failing to remit the matter to a properly constituted panel.
Analysis: I think this decision reaches the right result—this is a classic failure to fulfill a statutory precedent, an issue that we formerly might have considered “jurisdictional.” . There is also an eloquent defense of the important of laypersons on tribunals of this sort, especially in a case with these facts [26-29].
The Law Society tried to avoid the result by pointing to other provisions of the regulation that invest a discretion in the Tribunal to depart from its mandatory requirements in certain circumstances [25]. But as the Court rightly notes, there was no evidence in the record that the Tribunal Chair exercised this discretion [31]. Contrary to the Appeal Division’s conclusion that the Chair has no obligation to keep a record of cases where the discretion is exercised, the Court says that “the Chair must provide the basis for the exercise of discretion” [33]. While this basis need not be extensive, it must be present—perhaps in an agenda sent to parties prior to a hearing [35]. This fits like a glove with the general move towards a culture of justification in Canadian administrative law.
Interestingly, the Court frames this as an issue of procedural fairness. It does so because the composition of the Tribunal—particularly where, as here, the crime of child pornography creates cascading exploitative harms to others—raises "an issue as to the fairness of the proceeding from a public interest perspective” [39]. I suppose this is one way to view the issue. But given the Court’s primary finding that the discretion was not exercised according to law, the issue of fairness can also be described as a run-of-the-mill failure of interpretation. More fodder for the debate over the line between procedure and substance…
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.