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Abuse of Process - Administrative (3). Canada (Public Safety and Emergency Preparedness) v. Rodas Tejeda
In Canada (Public Safety and Emergency Preparedness) v. Rodas Tejeda (Fed CA, 2026) the Federal Court of Appeal considers administrative delay as an abuse of process issue:(1) Abuse of Process Generally
[50] The doctrine of abuse of process applies in various contexts and is "“rooted in a court’s inherent and residual discretion to prevent abuse of its processes”": Abrametz at para. 33, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 at para. 35; Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227 at para. 39; R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601 at p. 612; and P. M. Perell, "“A Survey of Abuse of Process”", in T. L. Archibald and R. S. Echlin, eds., Annual Review of Civil Litigation 2007 (2007), 243 at p. 243.
[51] One context where the doctrine of abuse of process may be invoked involves abusive delay in administrative proceedings. In Abrametz, the Supreme Court of Canada held that its earlier decision in Blencoe recognizes that administrative decision-makers "“…have, as a corollary to their duty to act fairly, the power to assess allegedly abusive delay”" (at para. 38). There is accordingly no reason to doubt that administrative decision-makers have authority to rule on abuse of process arguments based on delay. Indeed, this authority flows from the well-established principle that administrative tribunals must be able to control their own proceedings to ensure fairness: Prassad v. Canada (Minister of Employment and Immigration), 1989 CanLII 131 (SCC), [1989] 1 S.C.R. 560 at pp. 568–69; Lorne Sossin et al., Practice and Procedure Before Administrative Tribunals (Toronto: Thomson Reuters Canada, 2026) at § 13:1.
[52] To establish that there has been an abuse of process by reason of delay, a party must first establish that the delay that has been incurred was inordinate. This requires consideration of the time that has elapsed in context, with reference to factors such as: (1) the nature and purpose of the proceedings, (2) the length and reasons for the delay, and (3) the complexity of the facts and legal issues involved: Abrametz at paras. 50–51.
[53] If the party advancing an abuse of process argument establishes that the delay was inordinate, they must secondly establish that they have suffered significant prejudice by reason of the delay. Such prejudice may either be to the hearing process itself, which could include situations where evidence has been lost or where memories of witnesses have faded, or may be prejudice caused by the delay to the personal circumstances of the party. As Justice Lebel noted in Blencoe at paragraph 154, "“[a]busive administrative delay is wrong and it does not matter if it wrecks only your life and not your hearing”".
[54] As a third step, the court or tribunal must determine if the delay is manifestly unfair to the party raising the abuse of process allegation or otherwise brings the administration of justice into disrepute: Abrametz at para. 72.
[55] Where abuse of process by reason of delay is found, the court or tribunal may award different remedies, depending on what is appropriate in the circumstance. Among other things, these may include an award of costs, an order for an expedited hearing, an order to exclude evidence, or a stay of proceedings: Blencoe at paras. 101–02, 178–79; Abrametz at paras. 80–83; Mahjoub at paras. 206–09. At paras 56-73 the court considers the delay issue in this Immigration Division of the Immigration and Refugee Board ('ID') context.
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