Undue Delay as Abuse of Process: Fighting a Losing Battle at the ID?

Immigrating to Canada is a long process. Depending on the type of application submitted, it can take anywhere from a few weeks to a few years to receive a decision. Certain applications see initial movement, then find themselves in a vacuous state – not entirely refused, but not accepted either. Cases referred to the Immigration Division (ID) under s. 44(1) of the IRPA often fit in this category.

When is the time between referral to the ID and the admissibility hearing considered too long so as to constitute an abuse of process? This blog will discuss the legal test for undue delay as abuse of process and recent case law where no abuse of process was found despite lengthy delays.? ?

Test for Undue Delay as Abuse of Process

In Blencoe v. British Columbia, the Supreme Court of Canada held that a remedy is available pursuant to administrative law principles when a delay impairs the fairness of the hearing process “because, for example, memories have faded, essential witnesses have died or are unavailable, or evidence has been lost.”[1]

A court may also find that a delay amounts to an abuse of process even where the fairness of the hearing has not been compromised, such as when the delay has caused significant psychological harm to a person that would, in the circumstances of the case, bring the human rights system into disrepute, though few cases will meet this threshold.[2]

The test for abuse of process caused by undue delay in administrative proceedings was re-affirmed by the Supreme Court of Canada in Law Society of Saskatchewan v. Abrametz.[3] The Court confirmed that the test has a high threshold and that the delay must meet three criteria:

1. The delay is inordinate;
2. The delay has directly caused significant prejudice; and
3. The delay is manifestly unfair to a party or brings the administration of justice into disrepute.[4]

In the 2019 Najafi case, the Federal Court upheld Blencoe’s explanation of the meaning of ‘inordinate’:

“Whether a?delay?has become inordinate depends on the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the person concerned contributed to the?delay?or waived the?delay, and other circumstances of the case.?As previously mentioned, the determination of whether a?delay?is inordinate is not based on the length of the?delay?alone, but on contextual factors, including the nature of the various rights at stake in the proceedings, in the attempt to determine whether the community’s sense of fairness would be offended by the?delay.”[5] (emphasis added)

Trends from the Case Law

Once an individual is referred to the ID, the admissibility hearing must be heard as quickly as the circumstances and the considerations of procedural fairness and natural justice permit and without delay.[6] In reality, however, this golden standard is not being met.

• In Zhou v Canada, Mr. Zhou’s abuse of process application was refused because the ID found that the issues he raised could eventually be argued at his admissibility hearing.[7] The ID also held that the delay of six years between the preparation of the s. 44(1) report and the submission of materials in support of the Minister’s allegations was not egregious and that the Applicant had not shown that he suffered any significant prejudice from the delay.[8] ?
• In Dobson v Canada, the ID was sympathetic to Mr. Dobson for the six year delay between the s. 44(1) report and his admissibility hearing, but stated that the ID only has authority to prevent an abuse of process within its own proceedings, not in processes peripheral or external to its proceedings (e.g. by CBSA).[9]
• In Sandhu v Canada, the ID used a two-step test for abuse of process: 1) there must be a delay and 2) the delay must have created a prejudice, finding that there was no abuse of process and that even if there was a delay, prejudice was not established.[10] There was a two-year period between the time of writing the s. 44(1) report and referral to the ID. During this time, Mr. Sandhu was sent letters requesting his response to the allegations he faced, but he did not respond. The ID also pointed out that the cases Mr. Sandhu relied on for delays in moving forward with referral were a decade or longer and that the passage of time had limited the ability of the person to respond or make their case, which was not the case for Mr. Sandhu.[11]
• In Manning v Canada, the ID compared the facts to Najafi, which involved a delay of 13 years before the s. 44(1) report was referred to the ID. Here, the delay was three and half years and the ID noted that the delay did not cause Ms. Manning to be unable to present a proper and complete defence against the allegations made against her, finding no serious prejudice.[12]
• In Assaidi v Canada, Mr. Assaidi claimed that the Minister failed to contact him for 63 months and that this lack of communication amounted to a denial of natural justice.[13] He also argued that there had been adverse psychological effects on himself, his child, and his work. The ID held that the five and half years between the s. 44(1) report and the referral for an admissibility hearing was not an abuse of process, not only in comparison to quanta in case law (ranging up to 17 years where no abuse of process was found), but also because the prejudice Mr. Assaidi suffered did not constitute “prejudice of such magnitude that the public’s sense of decency and fairness is affected” as it did not directly relate to his ability to defend himself.[14]

Conclusion

With growing backlogs and changing immigration policies designed to limit entry to Canada, wait times between the issuance of s. 44(1) reports and referral to the ID are likely to increase.

The Federal Court’s recent decision in Mamut, despite agreeing that that there had been an inordinate delay in processing the Applicants’ permanent residence applications (9 years and 11 years respectively), did not find an abuse of process.[15] Justice Norris did however allow the judicial review to succeed on the issue of mandamus, suggesting that where applicants are facing unusually long delays, abuse of process may be a losing battle and to turn their minds instead to other administrative remedies.

[1] Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 at paras 101-104.

[2] Ibid at para 115.

[3] Law Society of Saskatchewan v. Abrametz, 2022 SCC 29.

[4] Ibid at para 43.

[5] Canada (Public Safety and Emergency Preparedness) v. Najafi, 2019 FC 594 at para 43 citing Blencoe at para 122.

[6] Canada (Minister of Citizenship and Immigration) v. Fox, 2009 FC 987.

[7] Zhou v Canada (Public Safety and Emergency Preparedness), 2023 CanLII 112876 (CA IRB), <https://canlii.ca/t/k1f8c> at para 5.

[8] Ibid.

[9] Dobson v Canada (Public Safety and Emergency Preparedness), 2023 CanLII 136195 (CA IRB), <https://canlii.ca/t/k36dd>.

[10] Sandhu v Canada (Public Safety and Emergency Preparedness), 2022 CanLII 91573 (CA IRB), <https://canlii.ca/t/js86n> at para 18.

[11] Ibid at para 19.

[12] Manning v Canada (Citizenship and Immigration), 2022 CanLII 39877 (CA IRB), <https://canlii.ca/t/jp7x2> at para 16.

[13] Assaidi v Canada (Public Safety and Emergency Preparedness), 2022 CanLII 61236 (CA IRB), <https://canlii.ca/t/jqfmq> at para 19. See also: Ismaili v Canada (Public Safety and Emergency Preparedness), 2017 FC 427 and Torre v Canada (Citizenship and Immigration), 2015 FC 591.

[14] Ibid at paras 24-25.

[15] Mamut v Canada (Citizenship and Immigration), 2024 FC 1593.