The Federal Court gives a new option to make the mandamus process flow more quickly
By: Jessye Kilburn
June 29, 2023
As a short follow up to an earlier blog post on the basics of mandamus, the Federal Court of Canada has made a common sense tweak to practice guidelines, giving applicants a new procedural option in mandamus applications.
Especially as mandamus is designed as a tool for those who have already been waiting a long time for a delayed decision, this is a welcome change to help mandamus applications proceed more quickly.
Previously, mandamus applicants had to indicate in their initial Application for Leave that they had not yet received reasons from the tribunal (e.g., IRCC or the IRB). This would trigger a rather slow procedure where the Federal Court Registry would request the tribunal to provide “reasons” under Rule 9, which really just ended up being a letter confirming that no decision had been made and no reasons exist.
This slowed down the mandamus process for applicants eager to have their delayed application decided (not to mention creating extra, often useless, work for an already overloaded Registry and tribunal).
Now, in an amendment to the Consolidated Practice Guidelines for Citizenship, Immigration and Refugee Protection Proceedings, the Court has given applicants the option to bypass this procedure (see paragraphs 55-59).
Applicants can now choose one of two options, according to paragraph 59 of the updated guidelines.
Option 1: The Application for Leave can indicate: “The Applicant has not received written reasons of the tribunal and is not seeking such reasons under Rule 9 as no decision has been rendered yet”.
This means that the applicant does not need to wait for tribunal reasons before being able to file their own evidence and arguments (the Applicant’s Record), allowing them to get their application moving more quickly. On the flip side, this will also mean that applicants need to be ready to file their evidence and arguments within 30 days of filing the initial notice. Given that mandamus applications can involve collecting a fair bit of evidence, it’s something to consider when deciding how to time the initial filing.
Option 2: The Court is also leaving open the option of using the existing procedure, where the Application for Leave indicates: “The Applicant has not received written reasons of the tribunal”.
In this case, the applicant will wait for the tribunal to confirm whether a decision has been made. Then, the Court instructs the applicant to file their evidence and arguments “within 30 days after receiving either the written reasons, or the notice under Rule 9(2)(b), as the case may be”.
From our team’s perspective: we love a common-sense tweak to procedure that can make things more efficient for applicants, as well as freeing up the Federal Court Registry’s time for dealing with other cases more quickly. We also love to see the Court giving applicants some choice in procedure so they can do what works best in their situation.
