Legal procedures are often slow. “The slow wheels of justice,” as the saying goes. Within the immigration context, backlogs, delays, and lengthy processing take this saying to another level. Applications may take years. Families suffer from lengthy periods of separation while Visa Offices (some more than others) provide scant insight into their workflow. During the recent “modernization”, IRCC has added many online tools to address this perennial issue, including status bars, portals, and various means of communication. In certain situations, Officers are supposed to adhere to standard processing times.
For clients (or counsel) who reach a high level of frustration, the remedies to encourage or compel IRCC to make a decision on their applications are limited. One remedy is to request an Order of mandamus by the Federal Court of Canada. The legal test to obtain a positive decision from a Federal Court judge is onerous, as it is designed to be. The Court’s role to oversee decisions by IRCC Officers is extremely narrow. In those cases, however, where IRCC Officers have crossed that line and the legal test for the mandamus is met, the Court may also punish IRCC and award costs. It seems, the Court increasingly has an appetite to award costs, thus sending a clear message to the federal government and its Officers.
High Cost of Litigation
Access to justice has plagued the legal profession. You may have read other pieces in this space that refer to potential solutions, including contingency fee billing. In immigration, IRCC made the decision many years ago to allow Immigration Consultants to represent applicants, thus opening up the market beyond members of the Bar. Many consultants, however, use shady business practices, and their clients often become victims. These victims, or the ones who have learned a lesson, will then find counsel to fix the mess. In some cases, the result is that counsel has no other remedy than to go to Federal Court to request judicial review.
Even among immigration lawyers, the vast majority of counsel avoid Federal Court litigation. The high amount of work involved, the strict and draconian Rules of the Court and the high level of stress involved in these files leads to many counsel to avoid taking on these matters. For those of us who fight these battles, we are acutely aware of the gross imbalance between the resources of private counsel and the resources at the Department of Justice (DOJ).
In my office, we will often have a staff meeting before we agree to do this work. Everyone on staff needs to be prepared if we have to do an emergency Stay Motion or if CBSA issues a Deportation Order on a Friday afternoon while we are winding down. Many immigration boutiques simply do not have the extra bandwidth to take on this work.
Backlogs and Staffing
Another root cause of the long processing times is the significant backlogs across the system. Canada is often reported as a top destination country in the world. The number of candidates in the various queues, including the Express Entry pool, the provincial nominee pools, or the stacks of applications at Visa Offices has created a Sisyphean workload at IRCC.
Recently, here in Manitoba, the MPNP program announced that staff shortages in 2023 led to more than 2,000 nomination certificates not being issued to applicants – completely wasted. 2023 was highly unusual for the MPNP program. As I stated to CBC News, in previous years, the MPNP program has used all its certificates and, in fact, the high demand in Manitoba has led the MPNP to take and use certificates from other provinces.
I remember back in 2016, the newly appointed Premier of Manitoba promised to eliminate the backlog. Clearly, he did not have an advisor who was well-informed prior to making this promise.
As reported by the Immigration Advisory Council (I gave testimony to the IAC), the MPNP was issued 6,275 certificates in 2021 (100% allocated) and 6,367 in 2022 (100% allocated). The 9500 certificates issued in 2023 was a huge increase by IRCC to the MPNP program and, therefore, the fact that staff at MPNP were not able to process the high number is not surprising. I would argue that the fact that MPNP processed 7,348 in 2023 – almost 1,000 more applications than the previous year is a testament to good management.
The question becomes: when an application is dragging on and on, what remedies are available to counsel? Good immigration lawyers, in my view, are very reluctant to start mandamus proceedings. Even without these applications, the Court is dealing with a flood of Applications for Leave and Judicial Review (ALJR) based on the high numbers of refusals by Officers or by IRB Members. In contrast to situations that may lead to an Order of mandamus, these refusals are matters that have been decided. The individuals likely have no other remedy. The Mandamus process adds further work for the Court to urge Officers to simply do their job.
From the above, you can probably imagine that I am reluctant to proceed with Mandamus proceedings. Typically, I try to talk potential clients out of taking this action. If they insist and I can see merit, then we will help.
In my practice, typically our Mandamus files do not end up at a hearing. In 2023, every one of our Mandamus files was resolved with the assistance of the Department of Justice (DOJ), communicating the situation with their client (IRCC), and that was sufficient to get our client’s application back on track. This is likely the result of sympathetic and reasonable lawyers in the Prairie Regional Office of the DOJ as much as the facts.
Of course, many Mandamus proceedings end up before a Federal Court judge. They are then forced to spend the time to review the application history, review the 8-step legal test set out in Apotex and make a decision re the duty to perform.
Costs & Special Reasons
Increasingly, I believe Federal Court justices are expressing their frustration with the Officers at IRCC by increasing the number of decisions where costs are ordered against the government. I remember when I started in 2008, getting costs was extremely rare. Keep in mind, this is purely my anecdotal experience. If any readers are aware of any data regarding the frequency of Federal Court justices awarding costs, please add this information in the comments below.
In 2021, Steven Meurrens provided a summary of some past cases at the Court where costs were awarded or where a judge considered a costs award. For me, the He decision in 2021 from Justice Sadrehashemi stands out. This was an ALJR of a woman who was applying to work as a caregiver for two (2) children in Vancouver. The Service Canada Officer had already granted the LMIA (this is often the most difficult step) and when the matter was before the IRCC Officer, the case dragged on for more than three (3) years. To be clear, one of the children who needed care aged from 10 to 13 while they were waiting for a decision. Costs of $1,500 were awarded against IRCC.
Recently, Justice Heneghan in the Al-Mashtouli decision also awarded $3,500 to the Applicants as well as an Order of mandamus. In this decision from 2024, the Court ordered IRCC to process the application within 120 days of the judgment. Kudos to Barb Jackman (my former immigration law professor from Queen’s) and all the work done by her office to get this judgment!
Trends for 2024
In 2023, IRCC Minister Marc Miller inherited a mess and he has been making difficult decisions. From my point of view, much more work is necessary to add clarity and consistency within the immigration system. Previous efforts to publish “average” processing times and “progress bars” online have added even more confusion. I have spoken with applicants whose “progress bar” shows 99% complete for months and they have no idea what they need to do to finalize the application. I expect IRCC will be making more difficult decisions to address the high level of frustration.
On the Court side, I also expect more orders for costs to Applicants. I believe judges at the Court are also frustrated with the high level of immigration files and this is one way for them to send a message to IRCC.