Delay and mandamus; false promises of confidentiality
A four year delay in decision making leads to a successful mandamus application, and a warning about promising confidentiality in investigations
This week my Slaw column is out - a cautionary tale about social media posts/likes and apprehension of bias. I did a radio show featuring the drummers who performed at the Ottawa Jazz Festival as well as previewing an upcoming concert in Brockville by the Duncan Hopkins Quartet. I’ve been reading Rebecca Solnit’s book, Orwell’s Roses, and this quote from her resonated with me, as a former decision writer.
Most of writing is thinking, not typing, and thinking is sometimes best done while doing something else that engages part of you. Walking or cooking or laboring on simple or repetitive tasks can also be a way to leave the work behind so you can come back to it fresh or find unexpected points of entry into it.
- Rebecca Solnit, Orwell's Roses
Four year delay leads to successful mandamus application
The Federal Court recently issued a writ of mandamus requiring Immigration, Refugees and Citizenship Canada (IRCC) to issue a decision on a permanent residency application within 90 days. The court relied on the criteria confirmed by the Federal Court of Appeal in Apotex Inc. v. Canada (Attorney General), 1993 CanLII 3004 (FCA):
(1) There must be a public legal duty to act;
(2) The duty must be owed to the applicant;
(3) There is a clear right to performance of that duty, in particular:
(a) the applicant has satisfied all conditions precedent giving rise to the duty;
(b) there was:
(i) a prior demand for performance of the duty;
(ii) a reasonable time to comply with the demand unless refused outright; and
(iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay;
(4) No other adequate remedy is available to the applicant;
(5) The order sought will be of some practical value or effect;
(6) The Court in the exercise of its discretion finds no equitable bar to the relief sought; and
(7) On a “balance of convenience” an order in the nature of mandamus should (or should not) issue.
The IRCC stated that the average processing time for permanent residence applications based on protected person status is 25 months. The processing time in this case was more than double the average. The judge found the delay to be unreasonable and that the applicant bore no responsibility for it.
The judge also found that there was no satisfactory justification for the delay. The IRCC relied on the ongoing investigation into security concerns. The court noted that the potential ground of inadmissibility alleged in this case applied to both permanent residents and foreign nationals and the granting of permanent residency would not necessarily require that the investigation end or be shortened — if the security investigation resulted in a determination by the IRCC of inadmissibility it could take steps to remove the permanent resident status.
The court found that the balance of convenience favoured the applicant:
[21] The impact of the delay on the Applicant includes the separation of more than four years from his wife and daughter who are in Iran. His family members are experiencing mental health issues such as anxiety and depression as a result of their continuing separation as well as the insecurity that the Applicant’s wife and daughter face in Iran. I disagree with the Respondent that “the Applicant has not experienced significant prejudice;” family separation of over four years and mental health difficulties constitute significant prejudice.
[22] As discussed above, the impact of mandamus on the Respondent would not necessarily interfere with the security investigation; the Applicant will still be subject to security inadmissibility, even if he becomes a permanent resident. Admittedly, if the Applicant is determined to be inadmissible on security grounds after becoming a permanent resident, more effort will be required by the Respondent to enforce the inadmissibility. This could involve interviews, inadmissibility reports and an inadmissibility hearing. However, given the unreasonableness of the delay caused by the Respondent and the impact of the delay on the Applicant and his family, it is my opinion that it is appropriate on balance that the Respondent bears this consequence if it does materialize.
False promises of confidentiality
Justice Jolley, in Jarvis v The Toronto-Dominion Bank, 2024 CanLII 62260, has provided a warning to employers who promise confidentiality and then want to use that information to support discipline:
[10] But a promise of confidentiality does not protect the communication from disclosure (Robinson v London Life 2017 ONSC 5587 at paragraph 15). Further, in some workplace-related scenarios, confidentiality is not something an employer can or should promise. In this case, the defendant has chosen to rely on the complaints made and the conclusion of their investigation into those complaints to support its for cause termination of the plaintiff. That choice not only makes the complaints about the plaintiff relevant, it might also require the defendant to disclose the names and addresses of the complainants as persons who might reasonably be expected to have knowledge of transactions or occurrences in issue, pursuant to rule 31.06(2). An employer that intends to rely on complaints made to it about another employee to support a termination for cause will need to think carefully before assuring complainants that their complaints can and will be kept confidential.
Links of interest
An overview of Adam Gopnik’s book, The Real Work: On the Mystery of Mastery:
Mastery comes from breaking down skills and rebuilding them into a greater whole. Gopnik writes, “If you surrender to allow the simple pattern to imprint itself on your mind, an inordinate gift will blossom. At least, that is the promise of mastery. Repetition and perseverance are disproportionately rewarded in the real world of real work.”
UK law firm turns four-day week pilot into permanent fixture:
Ms King said “careful implementation” involved explaining to clients that you were available for longer hours Monday to Thursday, but on Friday another team member could help.
“It’s about setting expectations of ourselves and sticking to them, and explaining them to clients. This has been fundamental to our success.”
PCO admits to failing to check appointee’s social media aliases
Shuttle Mediation: Some Benefits and Pitfalls (Part 2: The Pitfalls)
The ‘How’ vs. the ‘What’ in Plain Language
Training opportunities
On occasion, I will provide links to skills training for adjudicators - leave a comment or send me a DM if you know of training opportunities.
Effective Decision Writing for Administrative Adjudicators, offered by SOAR and OsgoodPD (online, September 16)
Plain Language: Building Results, offered by the Foundation of Administrative Justice (online, September 9, 10 and 11)
Get Faster, Get Fairer - Improving Case Management and Your Process, offered by the Foundation of Administrative Justice (webinar, September 12)
Awards and scholarships
Every year, the Society of Ontario Adjudicators and Regulators (SOAR) provides a scholarship to a law student who “demonstrates a commitment to the administrative justice system”. Students must show, in a written essay, how their studies have led them (or will lead them) to embrace the practice of administrative law.
The 2024 SOAR Medal Committee is now accepting nominations until October 25, 2024. To be eligible for the award, an individual must meet the following criteria:
Consistent outstanding service and achievement or exceptional leadership dedicated to advancing excellence in the fieldof administrative justice, above and beyond the successful completion of day-to-day responsibilities; or
A singular accomplishment of particular significance to the administrative justice community.
Off to the beach
The Adjudicator’s Toolkit will be off next week, but back on July 26.
