Virtual testimony of key witnesses and the rise of mandamus applications
Sometimes testimony by video just makes sense, and mandamus applications on the increase in immigration cases
I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.
Thomas Jefferson, from a letter to Samuel Kercheval, July 12, 1816. (Also engraved on the Thomas Jefferson Memorial in Washington)
I’ve decided to activate paid subscriptions for this newsletter. I’ve been receiving some good feedback and I’m now confident that I’m going to continue producing a newsletter on a weekly basis. For now, all content will remain free for all subscribers. However, I’m working on additional features for the newsletter and those will only be available for new subscribers. Stay tuned!
Virtual testimony
In Sanayhie v. Durham Regional Police Services Board, 2025 ONSC 287, a trial involving an alleged unlawful arrest and excessive use of force, the Police Services Board (PSB) argued that one of the officers should be allowed to testify virtually. The plaintiff objected on the basis that the officer was an important witness and that it was “critically important” for the jury to see all of the witnesses’ body language and demeanour.
In support of its request the PSB provided an affidavit from a clinical psychologist (who was also examined and cross-examined). The psychologist testified that, in her opinion, testifying in person would be harmful to the officer’s well-being and safety. The officer has been diagnosed with post-traumatic stress disorder, a major depression and a sleep disorder. His anxiety level is very high and she was worried about it becoming worse. It was her opinion that his recovery would be adversely affected if he were required to attend in court. She also testified that the officer had received two death threats and that the police had set up electronic surveillance of his home. The officer rarely leaves his home, which is the only place he feels safe.
The Rules set out the presumption of in-person testimony, with an exception based on these factors:
(a) the availability of telephone conference or video conference facilities;
(b) the general principle that evidence and argument should be presented orally in open court;
(c) the importance of the evidence to the determination of the issues in the case;
(d) the effect of a telephone conference or video conference on the court’s ability to make findings, including determinations about the credibility of witnesses;
(e) the importance in the circumstances of the case of observing the demeanour of a witness;
(f) whether a party, witness or lawyer for a party is unable to attend by a method because of infirmity, illness or any other reason;
(g) the balance of convenience between any party wishing the telephone conference or video conference and any party or parties opposing; and
(h) any other relevant matter.
The judge noted that the videoconference facilities at the courthouse were excellent. He also summarized the law on video testimony and demeanour of a witness, including the statement by Justice Mew in Chandra v. Canadian Broadcasting Corporation, 2015 ONSC 5385:
Such evidence is given orally, under oath or affirmation, and is observable “live” as it would be with the witness present in the courtroom. Questions are asked and answers are given in the usual way. The witness can be closely observed and most if not all of the visual and verbal cues that could be seen if the individual was physically present can be observed on the screen. The evidence is received by the court and heard and understood by counsel and any members of the public who may be present in the courtroom at the time.
He also referred to the comments of Justice Rutherford in Pack All Manufacturing Inc. v. Triad Plastics Inc., 2001 CanLII 7655 (ON SC):
In my experience, a trial judge can see, hear and evaluate a witness’ testimony very well, assuming the video-conference arrangements are good. Seeing the witness, full face on in colour and live in a conference facility is arguably as good or better than seeing the same witness obliquely from one side as is the case in our traditional courtrooms here in the Ottawa Court House. The demeanor of the witness can be observed, although perhaps not the full body, but then, sitting in a witness box is not significantly better in this regard.
The plaintiff submitted that anxiety was an inherent part of giving evidence at a trial. The court noted that this was not a case of normal anxiety associated with attending a trial but a “substantially increased level of anxiety” associated with a medical diagnosis of post-traumatic stress disorder, depression and sleep disorder.
The court concluded that there was no significant downside for the plaintiff in allowing the officer to attend virtually. He also concluded that there was potential harm if he was required to attend in person. The court also referred to the words of Justice Edwards in Davies v. Corporation of the Municipality of Clarington, 2015 ONSC 7353:
The Supreme Court of Canada has, in my view, sent a very clear message that it supports the move from conventional courtroom procedure imposed by traditional design into more modern and flexible approaches tailored to the needs of a particular case. In Hryniak, the court recognized that to create an environment that promotes efficient, affordable and participatory access to justice requires modern methods of adjudication. Implicitly, those modern methods of adjudication include video technology in the courtroom.
[emphasis added]
Mandamus applications on the rise
Will cutting jobs at the Immigration department lead to more successful mandamus applications?
We’re only a month into 2025 and there have already been two successful mandamus orders against Immigration, Refugees, and Citizenship Canada (IRCC). I predict more are on the way, with increasing backlogs and the impending layoffs of thousands of IRCC employees.
The test for mandamus is set out in Apotex Inc v Canada (Attorney General) (CA), 1993 CanLII 3004 (FCA). This test has been summarized in Vaziri v Canada (Minister of Citizenship and Immigration), 2006 FC 1159 (at paragraph 38). It is set out by the court in a series of nesting Roman numerals and letters that only lawyers seem to appreciate - so, I have simplified it a little bit.
There must be a public legal duty to act owed to the applicants;
The applicants must have met all the conditions required prior to performance;
The applicants must have demanded performance of the duty;
The public entity must have been given a reasonable time to comply with the demand (unless there was outright refusal)
There must be either an express refusal to act or an implied refusal through unreasonable delay;
No other adequate remedy is available;
The mandamus order must be of some practical value or effect;
There is no equitable bar to the relief sought;
mandamus is justified on a balance of convenience.
An “unreasonable delay” can be found if:
a. the delay is longer than the nature of the process requires;
b. the applicant is not responsible for the delay; and
c. the entity responsible for the delay has not provided “satisfactory justification”.
In Peng v Canada (Citizenship and Immigration), 2025 FC 2, an application for permanent residency had still not been fully processed after four years. Only two factors were contested - unreasonable delay and the balance of convenience.
The judge found that the permanent residency application had been sitting undecided for almost four years, almost triple the average processing period set out by IRCC. Although IRCC is not bound by the average processing times posted on their website, it is a factor to be considered when evaluating whether a delay has been reasonable (Jia v Canada (Citizenship and Immigration), 2014 FC 596 at para 92). The judge also held that IRCC failed to provide a satisfactory justification for the delay. In fact, IRCC had never explained to the applicant why the application remained outstanding.
IRCC argued that the delay was justified given the applicant’s “lengthy immigration history”. The applicant was denied two study permits on technical grounds in 2014. In 2019, the Applicant’s refugee claim was refused and she was denied a work permit. The judge concluded that her immigration history was not, on its face, particularly complex. The judge also agreed with the finding in Ghaddar v Canada (Citizenship and Immigration), 2023 FC 946, that pending security assessments are inadequate reasons for a delay.
The judge also found that the balance of convenience favoured the granting of mandamus. IRCC submitted that it had “an explicit statutory duty to ensure the integrity of the immigration system” and must therefore “carefully and diligently investigate potential inadmissibility.” The judge noted that the integrity of the immigration system does not rest solely on inadmissibility determinations, stating that the applicant “rightly notes” that the delay is inconsistent with the statutory objectives of family reunification, consistent standards and prompt processing, and fair and efficient procedures.
The judge set out the hardship experienced by the applicant and her mother:
[27] In this case, the Applicant and her mother have experienced “significant mental and physical hardship” due to an unreasonable delay. The delay “has…caused [the Applicant’s] career to stagnate.” The Applicant reports “insomnia,” “losing hair in clumps,” “heart palpitations,” and “breaking out into cold sweats.” She states her mother “feels very anxious” and has been unable to sleep “due to [their] lengthy separation.” The Applicant stresses that “[her] mother is [her] only living immediate family” and that, “[s]ince [she] submitted [her] application…in March 2021, [she] ha[s] been longing every day to reunite with [her] mother.”
IRCC argued that the applicant could mitigate the impact of family separation by visiting her mother on vacation or through “other measures”. The judge stated: “the ailing Applicant failing to go on vacation to visit her ailing mother is not compelling evidence of a refusal to mitigate harm”. He also agreed that vacation was not the same as family reunification.
In Donzo v Canada (Citizenship and Immigration), 2025 FC 154, the disputed factors were whether there was a clear right to performance of the duty and the balance of convenience. The government argued that the applicant had not satisfied all conditions precedent because there remained ongoing security concerns in his application. The court clarified that the existence of outstanding issues in the processing of an application does not mean that an applicant has not satisfied all the conditions precedent - he had done all that was asked of him in a timely manner, paid all of the fees, and made numerous inquiries about the status of his application.
On the balance of convenience factor, the applicant stated that the delay in processing his application has prevented him and his wife from seeing each other, which has “impacted their financial, educational and living situations, as well as key family planning decisions. They say that the lack of certainty in terms of a timeline has put their lives on hold, causing stress and anxiety”. IRCC argued that there was no indication that it had unduly delayed the processing of the application or declined to perform any legal duty in this case. IRCC stated that it had an explicit statutory duty to ensure the integrity of the immigration system and “must carefully and diligently investigate potential inadmissibility before granting a permanent resident visa”. The judge concluded:
[36] I find that in addition to the hardships faced by the Applicant and his wife, the lack of reasonable explanation for the delay further tips the balance in favour of the Applicant. Additionally, the objectives of the IRPA with respect to maintaining the integrity of the immigration system, in addition to the security inadmissibility review underway, can still be pursued despite a mandamus order (Vadiati v Canada (Citizenship and Immigration), 2024 FC 1056 at para 22).
In both decisions, the remedy was an order that a decision on the applications be issued within 90 days. This illustrates the inability of mandamus orders to address systemic backlog issues. Essentially, the individual remedy just puts the applicant at the head of the queue.
Procedural justice flops
I am starting a new category of case comments — obvious procedural fairness failures, or cases that should never have gone to judicial review. The purpose is not to embarrass decision-makers but to provide illustrations of the need to be eternally vigilant and callout the obvious breaches.
The first case in this series is Morum v Canada (Attorney General), 2025 FC 150. The case involved eligibility for the Canada Emergency Response Benefit (CERB). The Canada Revenue Agency (CRA) had some concerns about the application, and the applicant made some submissions to CRA. Justice McDonald noted that procedural fairness is not just about knowing the case to be met, it is also having a full and fair opportunity to respond to the questions or concerns of the decision maker.
The second review officer did have questions or concerns about the applicant’s information and she attempted to contact her on three occasions, as set out in the officer’s affidavit:
22. After reviewing the above listed documents and information I set out an action plan to call the Applicant and confirm that they were looking for a second review of their CERB. I wanted to ask the Applicant what she did for work, how Covid impacted her employment and request pay slips from FGL Sports for March – October 2020.
23. On June 13 and 17, 2024, I attempted to contact the Applicant via telephone three times. I was not able to reach the Applicant and therefore was unable to request further documents or information on the Applicant’s working history and how Covid impacted her employment. The documents submitted for review were insufficient.
CRA enters phone calls into a computer program called T1Case that is available across the agency. Justice McDonald noted the following relevant call log entries:
(i) Call #1 on June 13, 2024, at 9:53 am NL there was an attempt to call the Applicant but there was “no contact number on file” (emphasis added)
(ii) Call #2 on June 13, 2024, at 3:48 pm NL states “attempted to contact applicant…”.
(iii) Call #3 is on June 17, 2024, 11:36 am NL and states “attempted to contact applicant…”.
In the cross-examination of the officer’s affidavit, she confirmed that there was no contact information on file to allow her to speak directly to the applicant to request further documentation. The court concluded:
[19] Given these events, Ms. Morum was not given a fair opportunity to respond to the decision maker’s concerns. It was procedurally unfair, and frankly illogical, for the CRA to assert that they attempted to reach Ms. Morum by phone on three occasions, when, at the same time, their own records acknowledge that they did not have a contact number for her. CRA’s reliance on three failed phone calls to Ms. Morum as a basis to conclude she was not reachable – is not a fair process when the inability to reach Ms. Morum by phone is relied upon as a basis to deny the review.
There were a number of failures in handling this claim. The initial failure was to deny a claim on the basis of failed telephone calls when there was no telephone number on the file. However, the ultimate failure was CRA not conceding the judicial review application when the officer admitted in cross-examination that there was no contact information available. In my view, CRA continuing with the application is wasteful of taxpayer dollars, as well as wasteful of valuable court hearing time.
Links of interest
Irrelevant influences in the hearing room
Legal decisions are not totally arbitrary, like a lottery. However, they still fall short of the expected standards. I don’t blame legal practitioners; they simply suffer from the same errors that affect everyone else. Lawyers, however, are more vulnerable in one particular way: they undergo rigorous rational training, which makes them more likely than the average person to develop overconfidence in their thinking abilities. I teach psychology to lawyers, and I see that they are very receptive to the behavioural sciences. But I often feel they see only how others struggle to make rational decisions. This might not be so problematic in everyday life, but for those who create and enforce laws, it could lead to serious errors – ranging from the waste of limited social resources to the wrongful imprisonment of innocent people.
Both law and its application rely on implicit mental models of individual and social behaviour. Today, law is designed for a rational, enlightened view of humans, and works with a sort of legal Homo economicus. This understanding must evolve as behavioural science advances. What’s more, the psychological challenges of the law are a concern not only for lawyers; they should matter to anyone who passes through a courtroom, and especially those who make decisions there. We are all human and, before the laws of the psyche, everyone is equal.
Gladue principles in judicial discipline
… Gibbon is also important because it represents a second wave of Gladue decisions in professional or judicial discipline – and in administrative law more generally. Whereas the first wave was fundamentally about whether or not Gladue principles apply, this second wave accepts their application but grapples instead with what impact Gladue principles have in any specific case. Indeed, as noted by Erica Richler, the reasons by the Divisional Court also suggest that they would also have upheld the dissenting reasons of the JPRC Panel as reasonable. While Richler notes that “[t]hat suggestion reinforces the deference that should be given by the Court to decisions on sanction”, in my view it also demonstrates deference to, and possibly reflects flexibility around, the impact of Gladue principles in administrative law contexts generally or professional or judicial discipline more specifically. Indeed, the Divisional Court explicitly held that “both the majority and the minority identified and applied Gladue principles appropriately in the context of this case.”
[footnotes omitted]