|
Date: 20260520
|
|
Docket: IMM-3558-26
|
|
Citation: 2026 FC 643
|
|
Toronto, Ontario, May 20, 2026
|
|
PRESENT: Associate Judge John C. Cotter
|
|
BETWEEN:
|
|
PING ZHANG
|
|
Applicant
|
|
and
|
|
MINISTER OF IMMIGRATION
REFUGEES AND CITIZENSHIP CANADA
|
|
Respondent
|
REASONS AND ORDER
[1] This decision concerns a motion by the applicant filed April 27, 2026, seeking the following relief:
1. An order fixing an expedited hearing date for the Application for Judicial Review in the nature of mandamus;
2. In the alternative, an order providing for case management and expedited scheduling directions;
3. Such further and other relief as this Honourable Court deems just.
[2] The motion was heard by videoconference on May 5, 2026.
I. Preliminary comments
[3] As noted below (see “Status of the proceeding”), the applicant’s request for leave to seek judicial review is ready for determination by the Court. In other words, it is unknown at this point whether leave will be granted. The applicant’s request for an “order fixing an expedited hearing date for the Application for Judicial Review”
seems to presuppose that leave will be granted and is therefore flawed for that reason.
[4] What is open for consideration is whether an order should be granted directing the Registry to prioritize the application for leave and place it at or near the front of the line (Order of Associate Judge Horne dated June 25, 2025 in Lu v Canada (Minister of Citizenship and Immigration), IMM-3585-25 [Lu v Canada] at paras 5-6).
II. Nature of the proceeding
[5] The application for leave and judicial review [ALJR] states that:
The applicant seeks leave of the Court to commence an application for judicial review of:
The purpose of this application is to obtain a writ of mandamus, and request the court to compel the Respondent to make a decision on Ping Zhang’s permanent resident application within 30 days of the Court’s order.
[6] The ALJR seeks the following relief should leave be granted:
1. A writ of mandamus directing the Respondent to make a decision with respect to the Applicant’s permanent residence (Application Number: EP00457223), within 30 days of the Court’s order.
2. Any further relief as this Honorable Court deems just and necessary under the circumstances.
III. Status of the proceeding
[7] This proceeding was commenced on February 11, 2026, upon the filing of the ALJR. The applicant filed the application record on March 24, 2026. This was followed by the respondent’s memorandum of argument and supporting affidavit, both of which were filed on April 23, 2026. The applicant has not filed a memorandum of argument in reply, and the time for doing so has now passed. As a result, the applicant’s request for leave to seek judicial review is ready for determination by the Court.
IV. Governing principles on motions to expedite
[8] A motion to expedite can involve two components:
-
The first is whether Rule 8 of the Federal Courts Rules, SOR/98-106 [Rules] [hereinafter Rule 8] should be applied to abridge time periods under the Rules or the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 [FCCIRP Rules]. This is not applicable in the present case since, as noted above, the applicant’s request for leave to seek judicial review is ready for determination by the Court.
-
The second involves the timing for the hearing or disposition of a matter, as the case may be, when that is not provided for under the Rules, the FCCIRP Rules, or otherwise by statute. The timing of such matters is for the Court to determine and Rule 8 does not apply. One such situation, which applies in the present case, is the timing for deciding an application for leave in a matter proceeding under the FCCIRP Rules (Li v Canada (Citizenship and Immigration), 2025 CanLII 92161 (FC) [Li] at paras 5-6; Ezimokhai v Canada (Citizenship and Immigration), 2022 FC 1452 [Ezimokhai] at paras 11-12; Chen v Canada (Citizenship and Immigration), 2026 FC 407 [Chen] at paras 24-25; Lu v Canada at paras 5-6; Hou v Canada (Citizenship and Immigration), 2025 FC 1266 [Hou] at para 4; Tiamiyu v Canada (Citizenship and Immigration), 2024 FC 59 at para 7).
[9] As explained below, the factors to be considered on a motion to expedite under Rule 8 are sometimes also considered on a request to expedite the hearing or disposition of a matter.
[10] In St-Cyr v Canada (Attorney General), 2021 FC 107 [St-Cyr], Justice Roussel (then of this Court) set out the factors to be considered under Rule 8 in deciding whether there are exceptional circumstances that justify expediting a proceeding (see paras 16-18, 25). An example of a case where those factors were considered in deciding whether to expedite an application which included both abridging the time periods under the Rules and scheduling the hearing on an expedited basis is MacKinnon v Canada (Attorney General), 2025 FC 105.
[11] In some cases proceeding under the FCCIRP Rules, the factors set out in St-Cyr have been considered to determine whether there are exceptional circumstances that justify expediting the disposition of the leave application (Hou at paras 6-7; Ezimokhai at para 13). In others, the Court has assessed whether there are exceptional circumstances without specifically considering St-Cyr or the factors set out in that case (Chen at paras 22-30). In all cases, the Court has considered whether there are exceptional circumstances.
[12] In St-Cyr, Justice Roussel stated:
[15] The sole issue to be decided is whether the Court ought to depart from the timelines prescribed in Part 5 of the I, SOR/98-106 [Rules] and expedite the hearing of the application for judicial review.
[16] Section 8 of the Rules authorizes the Court to “extend or abridge a period provided by these Rules or fixed by an order”. In exercising its discretion to do so, the Court will consider a number of factors which have been summarized as follows:
a) Whether the proceeding is really urgent or does the moving party simply prefer the matter be expedited;
b) Whether prejudice will ensue to the responding party if the matter is expedited;
c) Whether the matter will be moot if it is not expedited; and
d) Whether expediting the matter will prejudice other litigants by jumping the queue
(See May v CBC/Radio Canada, 2011 FCA 130 at paras 12-13; Alani v Canada (Prime Minister), 2015 FC 859 at para 14 [Alani]; Conacher v Canada (Prime Minister), 2008 FC 1119 at para 16 [Conacher]; Canadian Wheat Board v Canada (Attorney General), 2007 FC 39 at para 13 [CWB]).
[17] After reviewing the cases in which reasons were provided on motions to expedite proceedings, the Honourable Mr. Justice Sébastien Grammond found in McCulloch v Canada, 2020 CF 565 [McCulloch] that the discretion to expedite the hearing of a case was exercised according to two (2) main sets of considerations: (1) whether an expedited hearing is necessary to ensure the effectiveness of the remedy sought; and (2) whether it can be accomplished through a fair process (McCulloch at para 12).
[18] Notwithstanding how the relevant factors are framed, the burden lies with the party seeking to vary the timelines provided in the Rules (Alani at para 15; CWB at para 14; Conacher at para 18).
[13] The factor set out in d) above, namely “[w]hether expediting the matter will prejudice other litigants by jumping the queue”
, is a particularly important consideration in cases such as this one. The following cases highlight that point:
-
In Ezimokhai, Justice Diner stated:
[21] Fourth, and last under the St-Cyr criteria, there are thousands of other parties who come to this Court every year who would like their matters to be expedited. The Court has received a record number of ALJR this year, and the numbers are continuing to trend upwards. Expediting this matter – just as would be the case for moving up any other judicial review for a different immigration matter, no matter the category (student or otherwise) – will inevitably prejudice other litigants waiting patiently for their turn before the Court.
[Emphasis added]
-
In Hou, Justice Pentney stated:
[11] In assessing the Applicant’s motion, I cannot ignore the wider context. The fact is that the Applicant’s request for leave is part of a huge and growing inventory of cases that the Court must deal with. I have no reason to doubt that the Applicant is frustrated with the time it has taken to complete the security screening needed before a decision can be taken on her study permit. But that is not, in itself, a reason to grant her an order to expedite the determination of her leave request.
[12] On this point, I can do no better than to quote the words of Justice Diner in Ezimokhai: [quoting paragraph 21 set out above]
[Emphasis added]
-
In Chen, Justice Blackhawk stated:
[27] As noted by Associate Justice Horne in Lu v Canada (Minister of Citizenship and Immigration), IMM-3585-25, in an Order dated June 25, 2025, at paragraph 9, the reality is many litigants in immigration matters have compelling reasons to request that their matter be heard in priority to others. The relief requested here effectively would permit the Applicant’s matter to be prioritised over others in the queue.
[Emphasis added]
-
In Li, Justice Diner stated:
[8] To expedite cases for leave – which is already the purpose of a mandamus application – would further advantage the Applicant beyond what would be an already-advantageous position, should a mandamus order ultimately be granted, relative to other similarly-situated applicants. Should the request be accepted by this Court, it would not only disrupt the orderly determination of this matter, but also set a dangerous precedent at this time of record volumes of cases that are expected to exceed 30,000 immigration ALJRs in 2025, up about 600% from the average of about 5000 cases that we customarily saw in the years preceding and just after Covid.
[Emphasis added]
-
See also Lu v Canada at paras 9-10, quoted later in these reasons.
V. Evidence in support of the motion
[14] In support of the request to expedite, the applicant filed an affidavit. In addition to information regarding the status of her application for permanent residence, the status of this proceeding, and the passage of time, her affidavit states the following under the headings “ONGOING PREJUDICE” and “NEED FOR COURT INTERVENTION”:
ONGOING PREJUDICE
18. My work permit expires on June 26, 2026.
19. In the absence of a decision, I must consider further work permit applications, creating cost, delay, and uncertainty.
20. My child is in Grade 12 and must make post-secondary decisions in early May 2026, notwithstanding the June 1, 2026 acceptance deadline, in order to allow sufficient time to apply for a study permit under uncertain processing timelines.
21. Since filing the Application Record, may child has received a university offer. I continue to defer decisions in the expectation that my permanent residence application will be decided before June 1, 2026. I have already delayed acceptance on this basis. However, the ongoing delay and absence of any timeline increasingly limits my ability to evaluate multiple offers, including those expected in May.
22. This delay has narrowed available options and continues to create significant uncertainty in post-secondary planning.
23. Continued delay increases the likelihood that my child will be required to make critical educational decisions under uncertain immigration status and may affect domestic tuition eligibility, which depends on status at enrolment.
24. The prejudice is ongoing, concrete, and increasing as fixed deadlines approach.
NEED FOR COURT INTERVENTION
25. There is no administrative mechanism to obtain a timeline or compel a decision.
26. The application has been pending for a prolonged period without any defined or communicated endpoint.
27. I have made repeated efforts to obtain updates, including a demand letter dated January 13, 2026, and further correspondence on April 23, 2026.
28. On April 23, 2026, counsel for the Respondent advised that no timeline has been provided in respect of the underlying application and that any substantive response would only be provided within the context of this litigation.
29. In these circumstances, no meaningful administrative avenue remains available to obtain a decision or timeline.
30. Despite repeated efforts, no substantive progress, timeline, or decision has been provided, and the application remains in a state of procedural stagnation.
31. As a result, this proceeding has become the only available means by which the Applicant can obtain a determination of the application within a reasonable time.
32. In the absence of any defined timeline, meaningful progress, or available administrative recourse, the delay has become indeterminate, and court intervention remains the only effective means to ensure determination within a reasonable time.
[Emphasis in original]
VI. Analysis
[15] In Lu v Canada, Associate Judge Horne stated the following:
[9] Many litigants in immigration matters have good reason to request that their matters be heard in priority to others. Some refugee claimants who are residing in other countries assert that their personal safety is at risk while their matter proceeds. Applicants for visitors’ visas may miss an important family event if the processing is delayed. Others, like the applicant, may risk losing their place at a Canadian educational institution if the Court’s decision is rendered after the beginning of a school term. To grant the relief sought by the applicant would prioritize this matter over many others in the queue, and necessarily delay someone else. I do not know the circumstances of the other persons that are in line and who would be inherently affected by expediting this file, and not satisfied that their proceedings should be de-prioritized.
[10] The applicant’s motion is compelling. The security screening is taking longer than published averages, and the September term is approaching. That said, the published service standard is not a guarantee. Overall, I am not satisfied that these circumstances are truly exceptional such that the leave process should be expedited.
[Emphasis added]
[16] For the purpose of determining whether exceptional circumstances are present, I find it useful in this case to consider the factors set out in St-Cyr. In this analysis, I assume (without deciding) that the facts set out in the applicant’s affidavit are correct. I have some sympathy for the applicant’s situation. However, having considered the factors set out in St-Cyr, I am not satisfied that the applicant’s circumstances are exceptional and justify prioritizing the applicant’s matter over the many others in the queue. The underlined portions of the passage set out immediately above apply equally in the present case.
VII. Request for case management
[17] The applicant seeks alternative relief on this motion, specifically:
2. In alternative, an order providing for case management and expedited scheduling directions;
[18] It is not apparent why case management is either necessary or appropriate. In addition, to the extent that it is being sought simply as an alternative means to expedite this proceeding, that alone is not an appropriate basis for case management in the present circumstances.
VIII. Conclusion
[19] As a result, the applicant’s motion is dismissed.
ORDER in IMM-3558-26
THIS COURT ORDERS that the applicant’s motion is dismissed.
|
blank
|
"John C. Cotter"
|
|
blank
|
Associate Judge
|
Email this Content