In Benison v. Canada (Royal Canadian Mounted Police External Review Committee), 2026 FCA 53, released March 13, Justice Gerald Heckman held that the Federal Court erred in accepting the ERC’s justification that delays of several years were the result of a backlog of cases and resource constraints.
By the time the appeal was heard, some of the disciplinary appeals had been pending for over six years.
“If the ‘we will get to your appeal slowly but surely, in a methodical and principled manner, as quickly as our resources allow and depending on the number of higher priority appeals we receive’ explanation reasonably justifies a three to four year delay in processing the appellants’ appeals, what prevents it from being relied upon to justify longer delays?” the judge wrote.
The appellants were 12 current or former members of the Royal Canadian Mounted Police who had each filed at least one outstanding disciplinary appeal before the ERC.
The ERC provides non-binding findings and recommendations on certain labour-related grievances to the RCMP commissioner.
Each of the appeals was received from the RCMP and pre-screened by the ERC as complete and ready for review between October 2019 and November 2021.
In 2022, the appellants brought an application for judicial review seeking orders of mandamus to compel the ERC to complete its review of the appeals within 30 days and to require the ERC to publish and report on the service standards that apply to the review of appeal files before it.
In Bedard v. Canada (Royal Canadian Mounted Police), 2024 FC 570, the Federal Court held that the appellants had not met all of the eight criteria required for the issuance of a writ of mandamus.
The appellants challenged the decision.
Justice Heckman noted that the test for the issuance of a writ of mandamus set out in Apotex Inc. v. Canada (Attorney General), [1994] 3 S.C.R. 1100 is conjunctive.
He noted, however, that the eight criteria do not serve the same purpose.
“The first four criteria are considered by the reviewing court to determine whether the applicant has shown that they would be entitled to an order of mandamus,” the judge wrote.
The first four criteria require an applicant to establish, among other things, that there is a public duty to act and that the applicant has a clear right to the performance of that duty.
The remaining four criteria require the court to consider whether an adequate alternative remedy is available to the applicant, whether the order would have practical value, whether there is an equitable bar to the relief sought and whether the balance of convenience favours issuing the order.
Justice Heckman noted that the final four criteria relate to reasons for which the reviewing court should exercise its discretion to deny the remedy to which the applicant would otherwise be entitled.
The Federal Court had found that the appellants had not demonstrated their clear right for the ERC to issue findings and recommendations on their appeals.
It had ruled that the delay had not been longer than what the ERC’s process required. The Federal Court found that amendments enacted in 2014 had drastically increased the ERC’s caseload and that permanent additional resources were only allocated in 2020.
The court also found that the ERC was addressing a backlog through a prioritization system and that all of the appeals involved in the application fell within the three lowest priority categories.
Justice Heckman cited Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, in which the Supreme Court of Canada noted that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay.
In Blencoe, the Supreme Court also held that a court cannot simply accede to the government’s allocation of resources and tailor the period of permissible delay accordingly.
Justice Heckman noted that the open-ended explanations provided by the ERC could justify any delay.
He added that the ERC’s submissions did not provide any estimate of when the appellants might expect their reviews to be completed.
“Accepting as satisfactory a justification for open-ended delay risks insulating unreasonable delays from intervention by the Federal Court through the issuance of a writ of mandamus,” the judge wrote.
He also ruled that structural constraints induced by scarce resources were not, in and of themselves, a satisfactory justification for the delays in processing the appellants’ appeals.
The court ordered the ERC to issue findings and recommendations in the appellants’ appeals within six months but permitted the ERC to apply for an extension of time on reasonable grounds.
Justice Heckman did, however, uphold the Federal Court’s ruling with respect to the request for a writ of mandamus requiring the ERC to issue service standards governing its review of appeals.
Counsel for the parties were not immediately available for comment.
Counsel for the appellants were Andrew Montague-Reinholdt and Emma Lodge of Nelligan Law.
Counsel for the ERC and the chairperson of the ERC were David Taylor and Sean Grassie of Conway Baxter Wilson LLP.
Counsel for Canada was Chris Hutchison of the Department of Justice Canada.
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