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Federal Court - JR - Mandamus (2). 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. . 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 fourth ('certain criteria are satisfied if the duty sought to be enforced is discretionary') element of the conjunctive (all required) Apotex mandamus test:XI. THE FEDERAL COURT’S REFUSAL TO ISSUE THE SERVICE STANDARDS MANDAMUS
[164] The Federal Court decided that "“the Appellants’ arguments on the issue of service standards are not grounded in any of the ""Apotex criteria”" (Decision at para. 111). The appellants have argued on this appeal that the Federal Court erred in interpreting section 28.1 of the Act as conferring on the ERC a discretion to decide which files are subject to its service standards and in deciding that the duty to publish and report on service standards is owed to the general public rather than to them. They have also submitted that the Federal Court erred in finding that the order requested was overly broad. While the appellants’ submissions clearly touch on some of the Apotex criteria, including the second and fourth criteria, they do not challenge the Federal Court’s conclusions regarding some of the other Apotex criteria, including the seventh and eighth criteria. In the ERC’s view, this is fatal to the appeal given that the Apotex test is conjunctive.
[165] As I have already laid out, an applicant is not required to proactively disprove the existence of the discretionary bars to judicial review laid out in Apotex’s fifth to eighth criteria unless these bars are raised by the respondent or the reviewing court, or where their existence is apparent from the record before the court. Nonetheless, I am of the view that the Federal Court’s decision to dismiss the appellants’ application for the second writ of mandamus must be upheld, since they have not established their entitlement to mandamus under the first four Apotex criteria. I focus on the fourth criterion, which in my view is determinative, and do so without expressing an opinion on whether the first three Apotex criteria are met.
[166] In setting out the fourth Apotex criterion, this Court observed that, where the public legal duty that is sought to be enforced is discretionary, the following rules apply:(a) in exercising a discretion, the decision-maker must not act in a manner which can be characterized as “unfair”, “oppressive” or demonstrate “flagrant impropriety” or “bad faith”;
(b) mandamus is unavailable if the decision-maker’s discretion is characterized as being “unqualified”, “absolute”, “permissive” or “unfettered”;
(c) in the exercise of a “fettered” discretion, the decision-maker must act upon “relevant”, as opposed to “irrelevant”, considerations;
(d) mandamus is unavailable to compel the exercise of a “fettered discretion” in a particular way; and
(e) mandamus is only available when the decision-maker’s discretion is “spent”; i.e., the applicant has a vested right to the performance of the duty.
(Apotex at pp. 767-8, underlining in the original) [167] Having laid out the analytical framework, it is helpful to reproduce the text of section 28.1 of the Act, which provides:"Service standards respecting time limits"
"Normes de service régissant les délais"
"28.1 The Committee shall establish, and make public, service standards respecting the time limits within which it is to deal with grievances and appeal cases that are referred to it and specifying the circumstances under which those time limits do not apply or the circumstances under which they may be extended."
"28.1"" Le Comité établit et rend publiques des normes de service concernant les délais pour le traitement des griefs et des dossiers d’appels qui font l’objet d’un renvoi devant lui et prévoyant les circonstances dans lesquelles ces délais ne s’appliquent pas ou peuvent être prorogés." [168] The appellants emphasize that section 28.1 places a public legal duty on the ERC to establish, and make public, service standards respecting the time limits within which it is to deal with grievances and appeal cases that are referred to it. They invite the Court to accept that this provision mandates publication of service standards prescribing time limits for the processing of all files, including the appellants’ files. However, section 28.1 also requires the ERC to specify the circumstances under which the time limits set out in the service standards "“do not apply.”" It does not prescribe these circumstances. Therefore, on a plain reading of section 28.1, the precise definition of these circumstances is left to the ERC’s discretion.
[169] Significantly, while the appellants argue that, under section 28.1, the ERC "“does not have free reign (""sic) to apply the standards discriminately,”" they recognize that this provision "“may grant the ERC the ability to determine the circumstances in which the Service Standards do not apply”". In doing so, they effectively concede that section 28.1 confers on the ERC a discretion to decide in what circumstances the time limits set out in its service standards apply or do not apply, such that the remaining issue is whether the discretion was exercised — or not exercised — in one of the prohibited manners described in Apotex.
[170] The appellants claim that, in its findings and recommendations service standard, the ERC has only explicitly laid out three circumstances under which time limits do not apply or may be extended: where the ERC has received incomplete documentation for the case to proceed; where further clarifications or submissions are required for the case to be properly assessed; and where the ERC has approved the party’s request for an abeyance. They observe that none of these circumstances apply to the appellants’ files. For its part, the ERC argues that this service standard explicitly states that it applies only to files received on or after April 1, 2022. It follows, by necessary implication, that one of the circumstances under which the time limits set out in this service standard do not apply is where a file was received prior to April 1, 2022.
[171] At the end of the day, these arguments do not affect my conclusion that, on a plain reading, section 28.1 confers on the ERC a discretion to define the circumstances under which the time limits set out in its service standards do not apply. The appellants are asking this Court to compel the ERC to exercise that discretion in a particular way – by refraining from establishing a service standard that specifies the date on which a file is received as a circumstance under which its prescribed time limits do not apply. This Court’s decision in Apotex is clear: mandamus is unavailable to compel the exercise of the ERC’s discretion in a particular way.
[172] The appellants suggest that the ERC’s findings and recommendations service standard is inconsistent with the purpose behind the ERC’s statutory duty to establish service standards and its duty under subsection 30(2) of the Act to report on its performance in meeting these standards to the Minister of Public Safety and Emergency Preparedness and, through the Minister, to Parliament.
[173] Section 28.1 unquestionably requires the ERC to publicly commit to a level of timeliness for the processing of grievances and appeal cases that can be expected in some, but not all, circumstances. In those circumstances in which the time limits specified in its service standards apply, these standards clarify when RCMP members can expect their grievances and appeal cases to be processed. Data that measures the ERC’s performance in meeting its service standards can help the ERC improve its processes. The ERC’s obligation to report its performance in relation to its service standards reinforces its accountability to the Canadian public, including to RCMP members, by making this performance transparent.
[174] It is undisputed that the ERC has exercised its authority under section 28.1 by adopting service standards. Yet, the appellants have not addressed in their submissions whether and how the ERC improperly exercised its discretion to set service standards in one of the manners listed by this Court in its description of the fourth Apotex criterion. Nor have they established that this discretion was not exercised reasonably in light of the broad statutory language and the statutory objectives of clarifying expectations and enhancing transparency and accountability (Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency), 2025 FCA 147 at paras. 47–53).
[175] Accordingly, I find that the appellants have not satisfied the fourth Apotex criterion. . 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 eighth ('balance of convenience') element of the conjunctive (all required) Apotex mandamus test:X. THE BALANCE OF CONVENIENCE
[151] The eighth and final criterion to consider before issuing an order of mandamus is the balance of convenience. This criterion was carefully scrutinized by this Court in Apotex and, in MiningWatch, the Supreme Court provided guidance on when reviewing courts should deny prerogative relief to a successful applicant for judicial review based on the balance of convenience. Both decisions indicate that mandamus relief will not lightly be denied on grounds of the balance of convenience. The teachings from these two decisions must inform my review of the Federal Court’s determination on the balance of convenience.
A. The balance of convenience in light of Apotex and MiningWatch
[152] In Apotex, the Minister of National Health and Welfare failed to render a decision granting Apotex, a manufacturer of generic drugs, a notice of compliance that would have allowed Apotex to market a generic version of a drug first developed and produced by Merck, an "“innovator”" pharmaceutical company. While Apotex had cleared all of the scientific safety and efficacy conditions required for a notice of compliance to issue, the Minister had delayed making a decision in light of the impending passage of legislation and regulations that would further extend innovator drug manufacturers’ distribution and sales rights to patented drugs. This Court decided that Apotex had a vested right to the notice of compliance, notwithstanding the Minister’s failure to render a decision before the new regulatory regime came into effect, and that it was thus entitled to an order of mandamus requiring the Minister to issue a notice of compliance. Merck submitted that the Court should exercise its discretion to deny this relief on the grounds that mandamus would frustrate legislative change.
[153] Justice Robertson, writing for the Court, observed that Merck was effectively inviting it to exercise the discretionary power of reviewing courts to refuse relief on a successful application for judicial review on the grounds of the "“balance of convenience”" (Apotex at pp. 787, 791). He noted that if the Court declined to interfere, even though the Minister’s failure to perform a statutory duty had been found to be unjustified, it was effectively "“rendering lawful that which has been deemed unlawful”" (Apotex at p. 788). Accordingly, he decided that it would only be appropriate for a reviewing court to exercise its discretion in favour of the public interest by refusing to issue mandamus to a successful applicant for judicial review where issuing the order would cause obvious and unacceptable administrative cost or chaos or where potential health and safety risks to the public would outweigh the applicant’s right to pursue personal or economic interests (Apotex at 791; see also Khalil at para. 49 (per Robertson J.A., dissenting, but not on this point)). In deciding not to deny Apotex an order of mandamus based on the balance of convenience, Justice Robertson concluded:[T]he balance of convenience test authorizes the Court to use its discretion to displace the law of relevant considerations and the doctrine of vested rights. It should therefore be used only in the clearest of circumstances and not be perceived as a panacea for bridging legislative gaps. Unless courts are prepared to be drawn into the forum reserved for those elected to office, any inclination to engage in a balancing of interests must be measured strictly against the rule of law.
(Apotex at 794, underlining added) [154] The Supreme Court also set a high bar for reviewing courts to decline to issue a remedy on the grounds of balance of convenience in MiningWatch. The Court found that, in deciding to review the environmental impact of a mining project by way of a screening process rather than a comprehensive study, federal authorities had acted without statutory authority. The Federal Court had quashed the authorities’ decision to proceed by way of screening and prohibited the issuance of federal permits or approvals until completion of a comprehensive study. This Court had then allowed the appeal and dismissed the application for judicial review. The Supreme Court sided with the Federal Court and yet overturned its order, finding that it had failed to give weight to all relevant circumstances. The Supreme Court held that the appropriate relief would have been to allow the application for judicial review and declare, without further relief, that the authorities had erred in failing to conduct a comprehensive study. However, it warned that reviewing courts should not exercise lightly their discretion to deny remedies to which successful applicants for judicial review are otherwise entitled:I acknowledge that in exercising discretion to grant declaratory relief without requiring the parties to substantially redo the environmental assessment, the result is to allow a process found not to comply with the requirements of the [Canadian Environmental Asessement Act] to stand in this case. But the fact that an appellant would otherwise be entitled to a remedy does not alter the fact that the court has the power to exercise its discretion not to grant such a remedy, or at least not the entire remedy sought. However, because such discretionary power may make inroads upon the rule of law, it must be exercised with the greatest care. See Sir William Wade and C. Forsyth, Administrative Law (10th ed. 2009), at p. 599, and Immeubles Port Louis Ltée v. Lafontaine (Village), 1991 CanLII 82 (SCC), [1991] 1 S.C.R. 326, at p. 361. In the exercise of that discretion to deny a portion of the relief sought, balance of convenience considerations are involved. See D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at pp. 3-88 and 3-89, referred to by Binnie J. in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 36. Such considerations will include any disproportionate impact on the parties or the interests of third parties (Brown and Evans, at p. 3-88, fn. 454).
(MiningWatch at para. 52, underlining added) [155] The Supreme Court found such a disproportionate impact on the facts before it. It noted that MiningWatch, the not-for-profit non-governmental organization that had sought judicial review of the authorities’ decision, had brought the application as a test case of the federal government’s statutory obligations, had no proprietary or pecuniary interest in the decision and had not challenged the substantive outcome of the screening process. In contrast, the Federal Court’s order would prejudice the proponent of the mining project, which was not responsible for the authorities’ decision to proceed by way of screening, by requiring it to incur further delay and costs. Moreover, the province of British Columbia had conducted an environmental assessment of the project with the proponent’s full cooperation as well as public involvement. Taking these relevant circumstances into account in assessing the balance of convenience, as the Federal Court should have done, the Supreme Court concluded that its proposed declaration would be an appropriate remedy:The focus of MiningWatch’s interest as a public interest litigant is the legal point to which the declaration will respond. On the other hand, I can see no justification in requiring [the proponent] to repeat the environmental assessment process when there was no challenge to the substantive decisions made by the [Responsible Authorities].
(MiningWatch at para. 52) [156] Both Apotex and MiningWatch call on reviewing courts to exercise prudence when choosing to exercise their discretion to decline relief to which an applicant for judicial review has shown they are entitled. Given its serious impact on an applicant, a reviewing court’s decision to decline to issue mandamus at the eighth step of the Apotex test should be supported by evidence and justified by cogent reasons.
B. The balance of convenience lies in favour of the issuance of mandamus
[157] I return now to how the Federal Court considered the balance of convenience in the case at bar. When it formulated the questions before it, the Federal Court combined the seventh and eighth Apotex criteria into a single question (Decision at para. 35). In its analysis, it purported to rely on the Jia line of decisions, which would raise an equitable bar against the granting of an order of mandamus that would allow applicants’ appeals to be processed before earlier-filed appeals of similarly situated individuals (Decision at para. 96).
[158] As I have explained, the Jia line of decisions does not support denying mandamus in the circumstances of this case. However, and in any event, I am satisfied that in the section of its reasons titled "“Does the balance of convenience favour issuing the ""mandamus order?”", the Federal Court focused its analysis not on the existence of an equitable bar to relief but on whether the balance of convenience favoured mandamus.
[159] In this respect, the Federal Court, referring to its earlier findings regarding the ERC’s implementation of the prioritization system, found, at paragraphs 97, 99 and 100, that:. the appellants’ appeals represented only 8.5% of the ERC’s overall backlog;
. the appeals of several members of the RCMP who were initially part of the application for mandamus were deemed high-priority and were processed by the ERC before the Federal Court hearing; and
. by requiring the ERC to accord greater priority to the appellants’ appeals, issuing a mandamus order would increase processing delays for appeals by members facing more severe sanctions. [160] According to the evidence before the Federal Court, the ERC’s backlog included high priority appeals involving dismissed or demoted members and uninvestigated harassment complaints.
[161] The Federal Court concluded that the balance of convenience did not favour issuing a mandamus order because doing so would undermine the priority system and delay issuing findings and recommendations for more pressing appeals (Decision at para. 100). Significantly, it did not advert to the teachings in Apotex and MiningWatch that the discretion to deny relief based on the balance of convenience must be exercised only in the clearest of circumstances and with the greatest of care. Nor did it turn its mind to whether, on the evidence before it, issuing a writ of mandamus would cause obvious and unacceptable cost or chaos or, at the very least, have a disproportionate impact on the interests of the other RCMP members who have filed higher-priority appeals. In my view, the Federal Court committed a reviewable error in exercising its discretion without taking into account these relevant considerations.
[162] Measured against the standards established in Apotex and MiningWatch, neither the respondents’ arguments nor a review of the record disclose circumstances of a nature that could justify the Federal Court’s exercise of its discretionary power to refuse to issue the remedy to which the appellants have shown they are otherwise entitled. As previously noted, while the issuance of the writ of mandamus sought by the appellants would likely increase the delay required to process higher priority appeals, the evidence in the record does not establish the magnitude of any additional delays nor that the impact of such delays on other RCMP members would be disproportionate. Nor does the record give me any reason to believe that "“administrative chaos”" would ensue from prioritizing the appellants’ appeals through an order of mandamus, or that this application for mandamus otherwise gives rise to the "“clearest of circumstances”" in which relief ought to be denied at the last step of the Apotex test. I am therefore not convinced that relief should not, on the balance of convenience, be granted.
[163] Since the appellants have shown, through the first four Apotex criteria, that they are prima facie entitled to the first writ of mandamus, and because none of the discretionary bars to the issuance of mandamus set out in the final four Apotex criteria have been shown to apply, I am of the view that the first writ of mandamus should issue.
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