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Equity - Mandamus. Benison v. Canada (Royal Canadian Mounted Police External Review Committee)
In Benison v. Canada (Royal Canadian Mounted Police External Review Committee) (Fed CA, 2026) the Federal Court of Appeal considered an appeal, here brought against the dismissal of a JR seeking "orders of mandamus to (1) compel the RCMP External Review Committee [ERC] to complete its review of the appeals they had filed of certain internal RCMP decisions within 30 calendar days of the Decision and (2) to publish and report on the service standards that apply to the review of every appeal file before it".
Here the court considered the seventh ('equitable bar') element of the conjunctive (all required) Apotex mandamus test:IX. EQUITABLE BARS TO MANDAMUS
[136] In assessing the balance of convenience, the Federal Court combined the seventh and eighth Apotex criteria into a single question: "“Does the balance of convenience favour issuing the ""mandamus order, and in this context, is there any equitable bar to the relief sought”" (Decision at para. 35).
[137] The Court held that a mandamus order would require the ERC to disregard other files in order to process the applicants’ files and "“as a result, members facing more severe sanctions could be leap-frogged by the Applicants”" (Decision at para. 97). This would "“undermine the priority system and delay issuing [findings and recommendations] for more pressing appeals”" (Decision at para. 100).
[138] In coming to this conclusion, the Federal Court relied on the determination in Jia that issuing an order of mandamus would be inequitable because it would leap-frog the successful applicants over others who had not sought relief:[M]andamus is an equitable remedy; the Court must therefore be satisfied that it is equitable in the circumstances to make the requested order as the Court of Appeal held in the Apotex case. Here, it would not be equitable to grant the requested relief—even if there had been a basis for doing so—as such relief would leap-frog the applicants over other [Immigrant Investor Program] applicants, who have not made applications to the Court. Just as my colleagues, Justices Phelan, Tremblay-Lamer and Annis held in Agama, at paragraphs 20–21; Mobasher, at paragraph 23; and Mazarei, at paragraph 33, I also believe that this concern represents an additional reason why an award of mandamus is not appropriate in these present cases.
(Jia at para. 103) [139] I have great reservations about the soundness of elevating any deviation from the rule that appeals should be processed in the order in which they were filed to an absolute equitable bar to issuing a writ of mandamus. In any event, even if Jia and the decisions upon which it relied [the Jia line of decisions] are sound, the Federal Court erred in relying on it in the circumstances of this case. I begin with a brief review of the cases cited by the Federal Court in Jia.
A. The Jia line of decisions
[140] In Jia, the Federal Court relied on three decisions to find an equitable bar to issuing an order of mandamus that would require that the applications of the individuals seeking mandamus be processed before the previously-filed applications of other individuals not party to the mandamus application: Agama v. Canada (Minister of Citizenship and Immigration), 2013 FC 135 [Agama]; Mazarei v. Canada (Minister of Citizenship and Immigration), 2014 FC 322 [Mazarei]; and Mobasher v. Canada (Minister of Citizenship and Immigration), 2014 FC 399 [Mobasher].
[141] Ms. Agama had filed an application for a permanent resident visa under the Skilled Workers Class for a specific National Occupation Classification. The Minister had issued instructions establishing an annual cap of five hundred such applications to be considered for processing. Ms. Agama’s application was rejected because she had filed it almost two months after the cap was reached. Ms. Agama sought an order of mandamus against the Minister. She argued that the Minister’s failure to accurately — and in real time — post on its website the number of applications filed and to announce that the cap had been reached created a legitimate expectation that the cap had not been reached, resulting in a breach of her right to procedural fairness. The Federal Court found that Ms. Agama had not established that she had a legitimate expectation. In obiter, it noted at paragraph 21 that, even if Ms. Agama’s position were founded, it would not be equitable to grant her relief without addressing the situation of others who had filed applications after the cap was reached but before Ms. Agama, and whose applications would thus have priority. Notably, Ms. Agama’s application for mandamus was not based on unreasonable delay.
[142] In Mazarei, a group of applicants for permanent residence in the Quebec Investor class, alleging unreasonable delay in the processing of their applications, sought an order of mandamus to compel the Minister to make a final decision within one year. The Federal Court found that the delay experienced by the applicants was not unreasonable because there was a satisfactory justification. Due to extraordinary circumstances caused by world events, the caseload of the specific visa office processing the applications had substantially increased when files were transferred there from two other embassies. The visa office had prioritized the processing of applications in other categories and staff resources had been dedicated to training additional staff. Having found that the delay was not unreasonable and that there was no reason to believe that their applications would not eventually be processed and accepted, the Court, citing Agama, nevertheless commented on the impact of issuing the order of mandamus on individuals who had applied for permanent residence earlier but had not sought mandamus:[31] Finally, it must be noted that maintaining the integrity of the system requires consideration of the inequitable impact of allowing a mandamus application on other applications for permanent residence.
[32] The evidence indicates that the applicant’s application was preceded by 519 to 523 applications for permanent residence as of June 4, 2013. If his application were allowed, in essence the applicant would be allowed to “jump the queue,” thereby violating the fundamental rule of fairness by which the processing of applications occurs in order of the date of their filing. [143] Finally, in Mobasher, the Federal Court decided that delays experienced by an applicant for permanent residence under the investor category were not unreasonable because there was a satisfactory explanation for the delay: the Minister had brought changes to the processing of such permanent residence applications via ministerial instructions, the inventory of applications to be processed had increased for reasons outside the Minister’s control and a labour dispute had diminished the processing capacity of the Minister. Observing that the applicant’s file was active and moving up the queue, the Court found that the intervention by the Court was not warranted and, citing Agama, noted at paragraph 29 that it "“would only result in the inequitable outcome of allowing this application to jump the queue ahead of other applications that are also awaiting processing but that are ahead of the applicant in the queue”".
B. Recognizing "“queue-jumping”" as an absolute equitable bar to mandamus shields administrative delay from mandamus relief
[144] I preface my observations by noting that, in each of the decisions discussed in the previous section, the Federal Court’s discussion of equitable principles was unnecessary, since the Court had determined that mandamus was unavailable for other reasons. In Jia, Mazarei and Mobasher, the Federal Court had determined that there had been no unreasonable delay in the processing of the applications; there was thus no implied refusal to perform a public legal duty to act and no clear right to performance of the duty, and the third Apotex criterion was therefore not met. In Agama and Jia, the Federal Court had determined that the applicants had failed to establish that they had a legitimate expectation that might entitle them to an order enforcing a specific promise made by the Minister.
[145] In my view, the ERC and Attorney General essentially argue that, according to the Jia line of decisions, where (1) an applicant for mandamus establishes that, due to an unreasonable delay in processing their appeal, an administrative decision maker may be implied to have refused to perform a public legal duty to act; (2) a group of similarly situated individuals also affected by the unreasonable delay have filed appeals which predate that of the applicant and have not joined the application for mandamus; and (3) granting mandamus would require that the applicant’s appeal be processed ahead of those of members of the similarly situated group, the effect of granting mandamus is to violate "“the fundamental rule of fairness”" by which applications are processed in the order in which they are filed, raising an equitable bar to mandamus under the seventh Apotex criterion.
[146] If this submission is correct, mandamus must be refused to an individual otherwise entitled to the remedy because they are only one of many individuals subjected to unreasonable administrative delay, some of whom have chosen, for reasons of their own, not to seek mandamus. Under this logic, only the individual whose application is next in line to be considered by the decision-maker could ever successfully apply for mandamus. Accepting this argument could shield from the reach of the prerogative writ of mandamus unreasonable delays in administrative decision-making simply by virtue of the fact that they affect groups of individuals, some of whom choose not to seek mandamus.
[147] I therefore have serious doubts about the soundness of a rule that would erect an equitable bar to the granting of mandamus in relief of unreasonable administrative delay solely because it results in "“queue jumping”": for a similar view, see Thomas v. Canada (Public Safety and Emergency Preparedness), 2020 FC 164 at paras. 28–31. In any event, the rule developed in the Jia line of decisions does not apply in the circumstances of this case.
C. The circumstances of this case do not engage the rule developed in the Jia line of decisions
[148] The appellants are not asking to be placed at the head of a "“queue”" of applications brought by similarly situated RCMP members. Unlike the circumstances present in the Jia line of decisions, where applications were processed in order of their date of filing, under the ERC’s prioritization system, more recent appeals involving sanctions more severe than older appeals are treated first. The system does not primarily rest on the "“fundamental rule of fairness”" by which the processing of applications occurs in order of the date of filing. Rather, it is a triage mechanism to allocate scarce adjudicative resources based on the premise that it is preferable to process the appeals of RCMP members facing sanctions judged to be more severe before those of members facing sanctions judged to be less severe. The rule developed in the Jia line of decisions is inapplicable to the circumstances of this appeal.
D. There is no equitable bar to mandamus
[149] The ERC’s prioritization scheme assumes that the benefit accruing from a more timely adjudication of the appeals of members facing more severe sanctions outweighs any harm caused to the appellants by the delayed adjudication of their appeals. The granting of an order of mandamus to expedite the processing of the appellants’ appeals thus engages the balance of convenience analysis from the eighth Apotex criterion, but does not constitute an equitable bar based on any judicial disapproval of the unfairness of queue-jumping. The ERC’s appeal to notions of leap-frogging or queue-jumping is unhelpful and distracts from the real questions at play.
[150] As the respondents have raised no further equitable bars to the issuance of the first writ of mandamus and none are apparent from the record before this Court, I find that the seventh Apotex criterion is met.
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