Record-breaking number of immigration cases went through Federal Court in 2022

Canada's Federal Court saw more new immigration proceedings in 2022 than any of the past 30 years, which some lawyers say is a sign of an overburdened system.

Recent statistics posted to the court's website show more than 70 per cent of its cases were tied to immigration and refugees as of late 2022.

In total, the court saw 13,487 new immigration proceedings in 2022, up from 9,761 in 2021 and 6,424 in 2020, according to the office of Chief Justice Paul Crampton.

Lawyers who work with immigration applications say the surge in proceedings making their way to the Federal Court is a response to delays and refusals at Immigration, Refugees and Citizenship Canada (IRCC).

The IRCC has a backlog of close to a million applications. 

Extended processing times for any kind of immigration application — including ones for temporary or permanent residence — have left people languishing as they wait, according to Barbara Jackman, a Toronto immigration lawyer.

"I don't think there's one answer, but I do think part of it is COVID-19," Jackman said by Zoom Tuesday. "Cases are now being processed all at once that they've been sitting on for the last several years."

As more cases move forward and are dealt with, more refusals are also handed out. Those people take their cases to the Federal Court in response, Jackman said.  

"It's really backlogged badly."

Ottawa immigration lawyer Jacqueline Bonisteel suspects an increase in mandamus applications, used to compel IRCC to issue decisions in a timely fashion after considerable delays, is at least partially driving the spike in new immigration proceedings.

Mandamus applications are often submitted when an applicant is well past the reasonable processing timeline and attempts to get a response from the IRCC are unsuccessful. 

Bonisteel called such applications a last resort that are becoming increasingly common.

"The thing with that remedy is it's quite effective most of the time," she said. 

"I'm finding I'm filing quite a few of these in my practice, and often just the act of filing that initial court application — without ever having to make any submissions to court — that suddenly triggers a decision from IRCC or a letter about the next steps."

Jackman said she thinks the increase in mandamus applications has reduced their effectiveness in getting the IRCC to act.

"You file that notice, rarely now will you get the IRCC responding," she said.

"They used to in the past more often, but there's so many mandamus [applications] now that I think … it doesn't motivate them, it doesn't spur them to act quickly."

The IRCC has close to two million applications in its inventory, including the backlog. In an emailed statement, the department said it made more than 5.2 million final decisions for permanent residents, temporary residents and citizenship in 2022, nearly twice what it was able to accomplish the previous year. 

Those left waiting feel frustrated

Still, those waiting can often be left frustrated by the immigration process.

Laura Silver, a Canadian citizen who was separated from her husband in Cuba, waited nearly four years until she turned to the Federal Court. 

She was approved to sponsor her husband in 2019 after applying in 2018 and had hoped their case would be processed within about 11 months. 

Her husband required a medical evaluation before coming to Canada, but had no access to consular services in Havana after staffing at the Canadian embassy there was reduced because of health concerns.

The pandemic also slowed down the process, she said. 

We missed all of our wedding anniversaries, just waiting for that paperwork to happen.- Laura Silver

"I know for us, we missed funerals. We missed celebrations. We missed all of our birthdays. We missed all of our wedding anniversaries, just waiting for that paperwork to happen," she said. 

Silver said her family's best recourse was to turn to the Federal Court and thinks submitting a mandamus application got the ball rolling for the IRCC to eventually grant the visitor visas and permanent residencies her family needed. 

She said it's a sign of a broken system that so many have to rely on these applications to get the responses they deserve. 

"It's really a misuse of some of the resources that we have," she said. 

According to the Federal Court, the avalanche of immigration proceedings has been difficult to manage.

Since 1993, the court has seen an average of 7,388 new proceedings a year, according to data provided by the office of the chief justice.

The number of new immigration proceedings was as low as 5,313 in 2016 and 5,572 in 2017, less than half the caseload now. 

"Chief Justice Crampton observed that the number of applications filed in 2022 is the highest ever, surpassing the previous record of almost 13,000 in 2012, following significant amendments to the Immigration and Refugee Protection Act," a statement from his office reads. 

"Given the significant number of vacancies on the Court, and stretched resources in the Court's Registry, the Court is finding it challenging to keep up with the recent surge in applications."

The court says that over the past years it completed cases within an average of nine months where there was an oral hearing and within four months where it was refused without an oral hearing.

The Federal Court has 34 full-time judges, excluding the chief justice and the associate chief justice. It is allowed up to 39 full-time judges, meaning it has five vacancies. 

Jackman would like to see more appointments of judges with backgrounds in immigration law, given just how many immigration and refugee cases it deals with.  

"Divide the court," she said. "There needs to be an immigration and refugee component to the Federal Court.

"I'm sure that they would find ways to speed it up if they did that."