T-1225-85
Debora Bhatnager (Applicant)
v.
Minister of Employment and Immigration and
Secretary of State for External Affairs (Respond-
ents)
Trial Division, Strayer J.—Toronto, September 3,
4 and 5; Ottawa, October 15, 1985.
Judicial review — Prerogative writs — Immigration —
Application for mandamus directing processing of application
for permanent residence of applicant's spouse — No decision
taken on March, 1981 application to sponsor husband —
Years of delay caused by investigations into bona fides of
marriage — Minister of Employment and Immigration v.
Robbins, [19841 1 F.C. 1104 (C.A.) disallowing practice of
investigating into bona fides of marriage — S. 4(3) of Regula
tions, coming into force April 1, 1984, not applicable — Three
medical examinations required — As of July, 1985 back
ground inquiries concerning eligibility for admission to
Canada completed — Application allowed — Mandamus can
issue to require some decision be made where long delay
without adequate explanation notwithstanding no specific
refusal to decide — 4 1 / 2 -year delay unreasonable and on its
face amounting to failure to decide — Immigration Regula
tions, 1978, SOR/78-172, ss. 4(3) (as am. by SOR/84-140, s.
1), 6 — Immigration Act, 1976, S.C. 1976-77, c. 52.
Practice — Costs — Solicitor-client basis — Immigration
— Applicant requesting to see file from New Delhi in May,
1985 — Production of file ordered August 15 — Respondents
not producing file until August 29 — Delays in producing file
causing additional costs to applicant — Solicitor-client costs
ordered only where substantial and unnecessary difficulty or
expense caused other party — Inevitable delays due to dis
tance between New Delhi and Toronto excusing delay until
July — Costs to applicant, all after July on solicitor-client
basis.
CASE JUDICIALLY CONSIDERED
APPLIED:
Minister of Employment and Immigration v. Robbins,
[1984] 1 F.C. 1104 (C.A.).
COUNSEL:
Barbara Jackman for applicant.
Michael W. Duffy for respondents.
SOLICITORS:
Chiasson, Jackman, Toronto, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
STRAYER J.: This is an application for man-
damus to direct the officers of the respondents to
process the application for permanent residence in
Canada of Ajay Kant Bhatnager, the spouse of the
applicant, in accordance with the Immigration
Act, 1976 [S.C. 1976-77, c. 52] and in particular
without reference to the provisions of subsection
4(3) of the Immigration Regulations, 1978 [SOR/
78-172, as am. by SOR/84-140, s. 1].
Counsel for the respondents conceded prior to
the hearing that subsection 4(3) of the Regulations
should not be applied to the said application for
permanent residence. Therefore that matter is no
longer in issue in this case. I have come to the
conclusion, however, that I should issue man-
damus requiring the officers of the respondents to
take a decision in this matter, having regard to the
lengthy delay which has occurred without any
decision being taken.
The applicant is a Canadian citizen. She mar
ried her husband in Canada in June, 1980. He
returned to India and in August, 1980 she made
an application to sponsor her spouse for landing in
Canada. This application proved to be abortive
and the applicant signed a second undertaking for
sponsorship for her husband, in March, 1981. No
decision has yet been taken on that application. It
appears that some years of delay were caused by
investigations into the bona fides of the marriage,
first as a matter of practice (which was overruled
by the Federal Court of Appeal in Minister of
Employment and Immigration v. Robbins, [1984]
1 F.C. 1104 in 1983) and then by resort to subsec
tion 4(3) of the Regulations (which came into
force on April 1, 1984 but was mistakenly thought
to apply to this situation). Prior to 1985 the appli
cant's spouse had been required to have two differ
ent medical examinations and a further medical
examination was apparently ordered in 1985.
According to an affidavit of an officer of the
Canada Employment and Immigration Commis
sion, as of July 3, 1985 background inquiries con
cerning his eligibility for admission to Canada had
been completed.
The decision to be taken by a visa officer pursu
ant to section 6 of the Regulations with respect to
issuing an immigrant visa to a sponsored member
of the family class is an administrative one and the
Court cannot direct what that decision should be.
But mandamus can issue to require that some
decision be made. Normally this would arise where
there has been a specific refusal to make a deci
sion, but it may also happen where there has been
a long delay in the making of a decision without
adequate explanation. I believe that to be the case
here. The respondents have in the evidence submit
ted on their behalf suggested a number of general
problems which they experience in processing
these applications, particularly in New Delhi but
they have not provided any precise explanation for
the long delays in this case. While I would not
presume to fix any uniform length of time as being
the limit of what is reasonable, I am satisfied on
the basis of the limited information which I have
before me that a delay of 4' years from the time
the renewed application was made is unreasonable
and on its face amounts to a failure to make a
decision.
I will therefore issue an order in the nature of
mandamus to require that a decision be made.
Recognizing that some of the remaining necessary
steps may involve the assistance or cooperation of
others I will not require that the decision be
finalized until December 31, 1985 and I will also
make that deadline subject to the possibility of the
respondents applying in the meantime for an
extension if they can show that compliance is
impossible for reasons beyond their control.
The applicant has requested that costs be
ordered in her favour on a solicitor-client basis.
Her solicitor first requested to see the file from the
office of the Canadian High Commission in New
Delhi in May, 1985. The notice of motion herein
was filed on June 5. The motion came up on
several motion days during the summer. It was not
possible to proceed in part because the file had not
arrived in Toronto and the officer of the respond
ents being cross-examined on his affidavit could
not respond to certain questions without having the
file from New Delhi. It finally became necessary
on August 15 for the Associate Chief Justice to
order the production of the file in time for use
prior to the hearing fixed for September 3. In fact
it was not until August 29 that counsel for the
respondents was able to produce a copy of only a
portion of the file. Because of the apparent failure
to comply with the order of the Associate Chief
Justice I have issued a show cause order against
the respondents but it will not be disposed of for
some time.
I am satisfied that the delays in producing the
file caused additional costs for the applicant. Costs
should not be ordered on a solicitor-client basis
except in very clear cases where the party against
whom they are ordered has caused substantial and
unnecessary difficulty or expense for the other
party. In the present case I believe counsel for the
respondents has made every reasonable effort to
cooperate with the applicant but he was unable to
obtain the relevant materials from his client. I also
recognize that some delays were inevitable given
the distance between New Delhi and Toronto. This
might have excused the production of the file as
late as July but not thereafter. I would therefore
order costs in favour of the applicant, with all costs
incurred after July, 1985 up to and including the
hearing of this motion to be on a solicitor-client
basis. Whether or not the delays after August 15,
when the order was made, are held to amount to
contempt of court, I think the respondents must be
held responsible for all of the applicant's costs
after a sufficient time had elapsed for the normal
production of the documents required to complete
the cross-examination of the respondents' own
representative.
ORDER
It is hereby ordered that:
(1) an order in the nature of mandamus issue
requiring, subject to paragraph (2), the respon
dents and their officers to take all the necessary
steps so that a visa officer makes a decision on or
before December 31, 1985 as to whether an immi
grant visa is to be issued to the spouse of the
applicant, Ajay Kant Bhatnager,
(2) the period for making the said decision shall
be subject to further extension by this Court if the
respondents apply therefor before December 31,
1985 and are able to prove that such further time
is required due to causes beyond their control; and
(3) the applicant is entitled to costs, such costs as
were incurred from and after the first of August,
1985 up to and including the hearing of the motion
to be payable on a solicitor-client basis and the
remainder to be payable on a party and party
basis.
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