Mandamus -to Compel Scheduling at the RPD
Mandamus is often treated as an IRCC remedy: the stalled permanent residence file, the citizenship application lost in “background checks,” the study permit that never moves. However, the same writ can be used to compel the Refugee Protection Division to schedule a proceeding. Now this is relatively rare but we came across a file that was initially marked as suitable for accelerated, paper-based determination but ended up languishing instead of expedited processing.
In this case, once a file receives designation, the claimant is required to provide disclosure. Our case was buttressed by the fact that a close family member with the same risk profile, same stream, and same counsel (us) was treated similarly and indeed received a positive decision in weeks. The other file on the other hand just sat round. The only explanation we got is that front-end security screening from “partner agencies” is outstanding and since the Board cannot expedite it, no timeline could be provided.
The Instructions Governing the Streaming of Less Complex Claims exist so the RPD can accept certain claims without a hearing under paragraph 170(f) of the IRPA, or decide them after a short hearing, when the issues are few and the country evidence is not ambiguous. File-review is supposed to follow a complete package: Basis of Claim, identity documents, submissions, and confirmation of security screening. The member can still send the claim to a hearing (short or full). The designation can be abandoned if the claim turns out to be more complex than it looked. What the instructions do not authorize is leaving the file to gather dust due to pending security.
Front-end security screening happens on all refugee claims. CBSA runs it with CSIS.
There are other instructions — the Instructions Governing the Management of Refugee Protection Claims Awaiting Front-end Security Screening — which build in an off-ramp. At six months from referral, the RPD will normally schedule and hear the claim unless CBSA applies to adjourn and the Board grants that application after the claimant is heard. At twelve months, the Board is to convene a conference and may fix a hearing date. If the Board intends to sit without confirmation, the Minister can apply to change the date on ten days’ notice. The policy assumes movement. It puts the onus on CBSA and the Minister to justify more delay.
That didn’t happen in our case.
So what to do? Mandamus is available against delay at the RPD. The test is the same one used in the IRCC cases. Apotex, as restated in Tousi v. Canada (Citizenship and Immigration), 2025 FC 671, still governs. There must be a public legal duty, owed to the applicant, and a clear right to performance. Where the complaint is delay, that right is shown by a complete file, a prior demand for a decision, and either an express refusal or an unreasonably long silence. Delay is unreasonable when it exceeds what the process prima facie requires, the applicant did not cause it, and the authority has not supplied a satisfactory justification.
The RPD has a statutory duty to determine claims referred to it. Streaming a file into the less-complex process, then receiving the disclosure the Board asked for, helps establish that duty. The claimant is not asking the Court to grant protection. The claimant is asking the Court to compel the Board to process the claim — not sit on it.
Significant hardship is not an extra element of the delay test. It belongs, if anywhere, to discretion and the balance of convenience. This was discussed in a prior blog post. In our case, we could make it out: A parent separated from a child left in the country of alleged risk, a claimant whose seizures are triggered by prolonged uncertainty; we did not need to establish “suffering” before the Court will look at whether the Board has a justification.
The security line, without particulars, is not a justification
A boilerplate reference to outstanding security screening is not sufficient justification. The IRB does not discharge its duty by pointing at another agency. “Internal scurrying about with no actual progress” (Hamalipoor) is not compliance nor diligence. If the checks are complex, the record has to show why this file, what has been done, and why it is still open. That failure of proof is usually the case when the only letters on file say “front-end security screening remains outstanding.”
Security work should not be rushed for its own sake. But a respondent or tribunal that refuses to describe the work does not get the benefit of judicial trust and an open-ended timetable.
In this case, a sibling filed around the same time and had her case finalized in short order. If the Board could finalize one file in that household on the same risk profile, the question writes itself: what is different about the remaining file? In the absence of an identified exclusion issue, an intervention, an identity problem, or any description of a screening complication, differential treatment of similarly situated claimants can be evidence that the delay is not inherent in the process. It is evidence that the hold is arbitrary. Similar claims are supposed to be treated in a similar way. When they are not, and the only answer is a template, the third Conille branch fails.
A demand for performance is best practice. In this case, we provided details about the other related file and and the medical evidence. Another demand put the Board on notice that leave and judicial review will follow.
Obviously, the Board suffers no prejudice by performing a duty it already has and following the existing procedure. Prejudice is to the claimant. Even without treating prejudice as a threshold, the facts that support convenience are obvious in this kind of file: a designated less-complex claim, a completed record, a family member already protected, a child who cannot be brought to Canada while the claim sits, and a medical condition aggravated by the wait. Public policy points the same way.
As noted in the jurisprudence untrammeled delay has no place in this system. Security screening is not carte blanche. Either the CBSA makes application or the RPD proceeds with its jurisdiction. Inadmissibility can be invoked at any time.
The relief is modest and precise: mandamus directing that the outstanding claim be processed. The Court is not being asked to invent a procedure just to enforce one that already exists.
Postscript
After the Federal Court materials were filed, the DOJ wrote the Court to advise that they would not be filing any materials and soon after, the RPD wrote to schedule the claim. It would of course have been interesting to see how the Court would have decided the claim, but the point is a practical solution for the client rather than continuing litigation for its own sake. The hearing is now set within the next four months.
Mandamus is not reserved for permanent residence and citizenship. It is potentially available wherever a public authority has a duty to determine a claim and has stopped processing on a specious argument.