Mandamus
What is Mandamus?
Mandamus means "we command" in Latin. It is an order compelling the government to do something.
Legal Test
The legal test for mandamus has eight elements, all of which must be met:
- There must be a legal duty to act,
- The duty must be owed to the applicant,
- There must be a clear right to performance of that duty, in particular
- The applicant has satisfied all conditions precedent giving rise to the duty, and
- There was
- A prior demand for performance of the duty,
- A reasonable time to comply with the demand unless refused outright, and
- A subsequent refusal which can be either expressed or implied by unreasonable delay,
- Where the duty sought to be enforced is discretionary, certain additional principles apply,
- No adequate remedy is available to the applicant,
- The order sought will have some practical value or effect,
- There is no equitable bar to the relief sought, and
- The balance of convenience favours ordering mandamus.
Canada (Health) v The Winning Combination Inc, 2017 FCA 101 at para 60; Apotex Inc v Canada (Attorney General), [1994] 1 FC 742 (FCA) at 766-769, aff’d Apotex Inc v Canada (Attorney General), [1994] 3 SCR 1100.
Unreasonable Delay
To satisfy sub-element 3(a)(iii) of the mandamus test, delay will be considered unreasonable where
- The delay in question has been longer, on first impression (prima facie), than the nature of the process required,
- The applicant and their counsel are not responsible for the delay, and
- The authority responsible for the delay has not provided satisfactory justification.
Conille v Canada (Minister of Citizenship and Immigration), 1998 CanLII 9097 (FC) at para 23.
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