In Canadian immigration law, the remedy of mandamus serves a crucial function: it allows applicants to compel the government to make a decision when they have failed to act within a reasonable timeframe. However, in recent years, there has been growing confusion in the jurisprudence over whether applicants must also demonstrate “significant prejudice” to obtain this remedy. A series of conflicting Federal Court decisions in 2024 and 2025 have brought this issue to the forefront.
The Traditional Framework
The test for mandamus originates from Apotex Inc. v. Canada (AG), [1994] 1 FC 742 (FCA), which outlines eight factors the Court must consider. In immigration delay cases, courts also apply the Conille factors, which focus on whether:
- The delay is prima facie excessive;
- The applicant is not responsible for the delay; and
- The government has not provided adequate justification.
Historically, this analysis was sufficient. However, some decisions, including Abbasy v. Canada, 2024 FC 1982, and Chen v. Canada, 2023 FC 885, began to import a fourth requirement: that applicants must show “significant prejudice” resulting from the delay, relying on the reasoning from Vaziri v. Canada, 2006 FC 1159 and the Supreme Court’s abuse of process framework in Blencoe v. BC (Human Rights Commission).
The Rejection of “Significant Prejudice” in 2025
In a trio of recent decisions, the Federal Court has firmly rejected this additional requirement:
- In Tousi v. Canada, 2025 FC 671, Justice Turley held that requiring proof of prejudice “is not relevant to or consistent with” the test for unreasonable delay and misapplies the administrative law doctrine of abuse of process. She concluded that the three Conille factors are sufficient.
- In Majidi v. Canada, 2025 FC 680, Justice Grant agreed, warning that incorporating “significant prejudice” into the mandamus test would “perversely require a level of hardship that mandamus is specifically intended to prevent.”
- In Sharma v. Canada, 2025 FC 796, Justice Battista expressly adopted this reasoning and granted mandamus after a three-year delay in a TRV application, despite minimal evidence of prejudice.
Together, these cases mark a clear departure from Abbasy, where Justice Go had dismissed the application specifically due to a lack of prejudice, finding that even a 20-month delay did not justify intervention without supporting evidence of harm.
Reconciling the Conflict
The jurisprudential divide can now be reconciled by recognizing the different legal purposes of prejudice:
- In abuse of process cases (e.g. Blencoe), prejudice is necessary to justify a stay or other sanction due to delay.
- In mandamus cases, the goal is to compel action, not to penalize delay. Thus, requiring applicants to suffer significant harm before receiving relief defeats the purpose of the remedy.
Prejudice may still play a secondary role, particularly at the balance of convenience stage of the Apotex test, but it is not a threshold requirement.
Key Takeaways
- Prejudice is not required to establish unreasonable delay for mandamus.
- Counsel should still include evidence of prejudice where possible, it can strengthen the claim.
- The trend in 2025 indicates that mandamus remains available as a proactive remedy, especially in the face of unexplained and prolonged IRCC inaction.
As the volume of judicial review applications continues to rise, clarity on this issue will help avoid inconsistent outcomes and ensure that timely processing remains a justiciable standard, not merely an administrative aspiration.
The content of this bulletin is for informational purposes only, and is not intended to provide or be relied on as legal advice.