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The test for mandamus ...

By Sharma Harsanyi Barristers & Solicitors

One of the remedies that can be granted by the Federal Court is mandamus. The Court can essentially compel the relevant decision maker/administrative tribunal to do something. Usually, this remedy is sought because the government/decision maker is refusing to do something -- such as not landing an individual despite an application for permanent residence that has been filed ... or not taking a decision. 

The Federal Court in Vaziri reiterated that mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays.[1]  The Court in Vaziri, supra, summarized the conditions precedent for a grant of mandamus:

 

The test for mandamus is set out in Apotex Inc. v. Canada (Attorney General), 1993 CanLII 3004 (F.C.A.), [1994] 1 F.C. 742 (C.A.), aff'd 1994 CanLII 47 (S.C.C.), [1994] 3 S.C.R. 1100 (and, more recently, discussed in the immigration context in Dragan v. Canada (Minister of Citizenship and Immigration), 2003 FCT 211 (CanLII), [2003] 4 F.C. 189 (T.D.), aff?d 2003 FCA 233 (CanLII), 2003 FCA 233). The eight factors are:

 

(i)              There must be a public legal duty to act; 

(ii)             The duty must be owed to the Applicants; 

(iii)           There must be a clear right to the performance of that duty,           meaning that:

          a.      The Applicants have satisfied all conditions precedent; and

          b.      There must have been:

 I.               A prior demand for performance;

II.              A reasonable time to comply with the demand, unless there was outright refusal; and

III.            An express refusal, or an implied refusal through unreasonable delay;

(iv)              No other adequate remedy is available to the Applicants;

 (v)              The Order sought must be of some practical value or effect;

(vi)              There is no equitable bar to the relief sought;

(vii)            On a balance of convenience, mandamus should lie.

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[1] Vaziri v. Canada (Minister of Citizenship and Immigration), 2006 FC 1159 (CanLII) at para.38, appealed on whether the issue was moot:  Vaziri v. Canada (Citizenship and Immigration), 2007 FCA 150 (CanLII).

The Federal Court in Manivannan[1] granted mandamus on an application for permanent residence of the overseas spouse of a protected person. The Court in Manivannan at paras. 59-60 states:

 

I do not see evidence of bad faith in this case, but there has been unreasonable delay at the visa post in Colombo. The file has been allowed to drag on for reasons that have not been adequately explained and it has required litigation before the visa post has finally provided the husband?s visa. The visa post has chosen to blame the Applicant and her husband for the delays, but the general pattern of exchanges suggests otherwise. The Applicant and her husband have provided documentation whenever it has been made clear to them what was needed.

 

As Justice Harrington pointed out in Singh (paragraph 24) this ?Court has considered undue delay in processing a claim to be a special reason which would justify costs.? In the present case I believe the record shows that there has been undue and unreasonable delay on the part of the visa post in Colombo in a situation that gave rise to significant humanitarian considerations and which has thwarted the family reunification principles that are an essential part of our immigration legislation. The Applicant has been forced to litigate in order to force a resolution to what was a relatively straight-forward application.

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[1] Manivannan v. Canada (Minister of Citizenship and Immigration), 2008 FC 1392 (CanLII).

 

 

Full post as published by Canadian Immigration Blawg on August 29, 2010 (boomark / email).