The Federal Court’s Decision in Chen v. Canada (MCI) 2023 FC 885 asks for more evidence from Applicants to demonstrate significant prejudice, but this could be a double-edged sword for Applicants. It also is arguably inconsistent with how mandamus intersects with the higher abuse of process standard.
First of all, one does not write about mandamus at Heron Law Offices without giving first the disclaimer for all folks to read the “article” by my colleague Jessye Kilburn, on mandamus. One should also acknowledge that Chen was argued by a very good law firm, who that been on the forefront of many recent mandamus decision, including huge cost awards. I highly recommend reading firm partner Lev Abramovich’s post (on Linkedin) re-hash of the Chen case here.
In Chen, Justice Aylen – who contextually it should be noted was a Prothonotary of the Federal Court prior to her appointment as a judge on 4 August 2021 – dismissed the mandamus application of a Chinese international student who was applying for PhD program which he had already begun online.
Chen had applied for a study permit on 23 December 2021 (para 4 of decision) and like many study permit holders from China these days, was subject to a long security review that commenced on January 2022 (para 5 of the decision). The Applicant did put two study permit applications forward, leading to confusion around withdrawal, but as the decision points out ultimately there were no entries into GCMS after 28 January 2023 (para 7 of the decision). The Court requested an updated and as of 9 June 2023 there was no update on security (para 10 of the decision).
Justice Aylen found that IRCC’s explanation for the delay lacking (para 18 of the decision), but found that the case for mandamus was not made out on. She writes:
[20] Notwithstanding the delay, the Applicant has been able to commence his PhD program remotely and has performed extremely well, having received numerous awards for his academic achievements. The Applicant asserts that pursuing his program remotely is difficult on his mental and physical health and is difficult due to the time difference between Vancouver and China and restrictions on internet use. He also asserts that the delay has caused him anxiety. However, I am not satisfied that this rises to the level of serious prejudice, particularly given the absence of any medical evidence in support of the assertion. Moreover, while the Applicant asserts that the delay is preventing him from progressing with his studies and potentially impacting his career path, it always remains open to him to pursue studies elsewhere and there is nothing in the evidence before me to suggest that only the program at the University of British Columbia can meet his educational objectives. Moreover, there is also no evidence that the Applicant will be unable to further defer the commencement of the in-person portion of his program. As for any potential impact that the delay may have on his career, I find that this assertion is purely speculative.
[21] While the Applicant is understandably frustrated with the amount of time that it has taken thus far to process his study permit application, the Court must carefully review a request for a writ of mandamus to ensure that an applicant satisfies all of the necessary requirements (including significant prejudice). Otherwise, the effect of granting a writ of mandamus is to permit an applicant to
“jump the queue”and have their application determined before that of others who have been patiently waiting their turn. (emphasis added)
While not explicitly stated by Justice Aylen, her judgment speaks to quite a few elements of the legal test from Apotex (re-stated in her decision in paragraph 11). The suggestion that the Applicant could find another program directly addresses the 4th branch – ‘no other adequate remedy is available to the applicant’ part of the test. Meanwhile Justice Aylen’s discussion of significant prejudice and the fact that mandamus could have the effect of queue jumping speaks to likely the 7th element of balance of convenience.
In Bidgoly v. Canada (MCI) 2022 FC 283, Justice Favel found that the proper place for the jump the queue arguments was in the 6th element of equitable bar, but ultimately found that that this argument did not hold wait given the length of time it had already been processing. Justice Favel writes:
(4) The Court finds no equitable bar to the relief sought
[43] I am also satisfied that there is no equitable bar to the relief sought. In case law cited by the Respondent, this Court found it inequitable to grant mandamus for similar requests, as mandamus would allow the applicants to
“leap-frog”over other similar applicants or“jump the queue”(Jia v Canada (Citizenship and Immigration), 2014 FC 596 at para 103 [Jia]; Mazarei v Canada (Citizenship and Immigration), 2014 FC 322 at paras 31-33 [Mazarei]). However, the circumstances of these cases are not similar to the present matter. Jia involved a large number of applications from other would-be investor class immigrants and changes in the manner in which those applications were processed. In Mazarei, there was evidence of where the applicant’s application stood in relation to other applications. Here, there is no such evidence in the record.
I would have liked a bit more explicit pronouncement from Justice Aylen on where ‘significant prejudice’ fits into the legal test for mandamus. It was also argued by the respondent in Bidgoly, with the applicant arguing demonstrating prejudice was not part of the legal test.
What is also concerning is that part of the very high standard set in the Supreme Court of Canada’s decision in Law Society of Saskatchewan vs. Abrametz 2022 SCC 29 for abuse of process, introduced significant prejudice as part of the legal test (para 72) but noted that there were other remedies and also that remedies aligned with the level of significant prejudice.
Justice Rowe writes:
(b) Mandamus
[80] Mandamus can be sought to compel administrative decision makers to carry out their duties and, in so doing, to limit delay in administrative proceedings: Blencoe, at para. 150. A party who believes he or she is facing undue delay can seek such a remedy, or an order for an expedited hearing, even before an abuse of process exists, rather than “waiting in the weeds” in the hopes of obtaining a stay at some future point: Blencoe, at para. 182. Mandamus may also be ordered as a remedy for an abuse of process if one is found.
[81] My comments here do not intend to change any of the standards applicable for obtaining an order of mandamus generally. They merely affirm that it may also be an appropriate tool to prevent and address abuse of process.
[82] Also, if used at the right moment, the remedy of an expedited hearing can protect the interests of all parties: Blencoe, at para. 182; D. J. Mullan and D. Harrington, “The Charter and Administrative Decision-Making: The Dampening Effects of Blencoe” (2002), 27 Queen’s L.J. 879 (QL), at pp. 908-9.
It is hard to see how a preventative remedy to avoid abuse of process, would ultimately have a standard that is possibly just as high or even higher than abuse of process.
The Problem of Significant Prejudice in Temporary Resident Cases
Significant prejudice, as far as I can see it, can be argued for a temporary resident [student, worker, or visitor] on three grounds: either health, finances, or family. For example, in Chen the Applicant’s prejudice was on mental health concerns that the delay was causing him.
In our affidavits, as it appears was also done in Chen, an affidavit was introduced laying out these facts. In a permanent resident application, where an Applicant is in Canada, has already completed their medical, and is unlikely to be re-assessed – adding a report from a psychologist or counsellor may not create additional concerns.
But, if you replace this with a temporary resident who is subject to having their eligibility re-opened or determined, showing potential health or financial challenges can be a direct pathway to refusal. The forms both lock in available funds an applicant has an asks them if they “have any physical or mental discorder that would require social and/or health services, other than medication, during a stay in Canada.” Arguing Canadian immigration delays leading to depression and anxiety and the requirement of counselling would fit the bill (see e.g. IMM 1294).
Speaking of bills, Applicants are asked to put an available amount of funds for their studies. It is not an unknown secret that this snapshot often is best during the pre-application process – before they have to pay off their representatives, loans, etc. It would be concerning for an applicant to have to disclose to IRCC that they are near broke two years later because of a lengthy and expensive mandmus process (see e.g. IMM 1294).
Finally, with family ties – a big portion of the application is spent showing how family ties are stronger at home or that any family ties in Canada are temporal or facilitative of compliance. If, for example, the significant prejudice requires demonstrating that a family member is having a significant health event and requires added urgency to visit – this could be interpreted as a new or enhanced pull factor.
Prejudice Should Be Part of Legal Test (Balance of Convenience), but Significant Prejudice Shouldn’t Be
Given the role of mandamus as a preventative remedy to avoid situations getting to an abuse of process, I don’t think ‘significant’ should be part of the legal test. I think proof of some sort of prejudice – short of necessarily having to go into the weeds on the seriousness of the issue – should be part of assessing whether the balance of convenience favours ordering the respondent to decide a case within a given period of time.
That prejudice, I would suggest, should be evidence an applicant can set out in affidavit evidence stating that they are experiencing a credible financial, health, or family consequence.
If IRCC were more transparent about processing times and security processes, perhaps too the jump the queue argument could be stronger. For example, we know IRCC is currently security delaying a large number of applicants for temporary resident from China – and in those circumstances delays of a year plus are not uncommon. Yet, by continuing to post unrealistic processing times (that apply probably now in less than 80% of cases), they are not doing themselves any favours in the mandamus assessment.
Ultimately, I am very concerned that mandamus in immigration becomes a higher threshold that in other areas of the law. Invariably, applicants outside Canada will be treated different than applicants in Canada when it comes to their access to remedies and the prejudice they experience. However, I think we better deal with this by adjusting expectations rather than adjusting how we apply foundational remedies.
However, I worry that arguments such as ‘they simply can study in another country’ are more reflective of general sentiments of an overloaded Court tired of temporary residents then a principle of administrative justice that we want to represent our norm.
Thoughts?
