Date: 20260618

Dockets: A-72-25

A-92-25

Citation: 2026 FCA 115

CORAM:		GLEASON J.A. BIRINGER J.A. PAMEL J.A.
	Docket: A-72-25
	BETWEEN:
	THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
	Appellant
	and
	MARIO RAUL RODAS TEJEDA
	Respondent
	and
	CANADIAN ASSOCIATION OF REFUGEE LAWYERS and IMMIGRATION AND REFUGEE LEGAL CLINIC
	Interveners
	Docket: A-92-25
	AND BETWEEN:
	MARIO RAUL RODAS TEJEDA
	Appellant
	and
	THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
	Respondent
	and
	CANADIAN ASSOCIATION OF REFUGEE LAWYERS and IMMIGRATION AND REFUGEE LEGAL CLINIC
	Interveners

Heard at Vancouver, British Columbia, on December 17, 2025.

Judgment delivered at Ottawa, Ontario, on June 18, 2026.

REASONS FOR JUDGMENT BY:	GLEASON J.A.
CONCURRED IN BY:	BIRINGER J.A. PAMEL J.A.

 

Date: 20260618

Dockets: A-72-25

A-92-25

Citation: 2026 FCA 115

CORAM:		GLEASON J.A. BIRINGER J.A. PAMEL J.A.
	Docket:A-72-25
	BETWEEN:
	THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
	Appellant
	and
	MARIO RAUL RODAS TEJEDA
	Respondent
	and
	CANADIAN ASSOCIATION OF REFUGEE LAWYERS and IMMIGRATION AND REFUGEE LEGAL CLINIC
	Interveners
	Docket:A-92-25
	AND BETWEEN:
	MARIO RAUL RODAS TEJEDA
	Appellant
	and
	THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
	Respondent
	and
	CANADIAN ASSOCIATION OF REFUGEE LAWYERS and IMMIGRATION AND REFUGEE LEGAL CLINIC
	Interveners

REASONS FOR JUDGMENT

GLEASON J.A.

[1] We have before us two consolidated appeals from decisions of the Federal Court in which it certified the following question under subsection 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA):

Does the Immigration Division of the Immigration and Refugee Board have the jurisdiction to grant a stay of proceedings upon finding an abuse of process taking into account delays by the Canada Border Services Agency before making a decision to prepare a report pursuant to section 44 of the [IRPA]?

[2] Both appeals arise from the following common set of facts. In November 2019, an officer of the Canada Border Services Agency prepared a report under subsection 44(1) of the IRPA (the Section 44 Report), concluding that there were reasonable grounds to believe that Mr. Rodas Tejeda was inadmissible to Canada for organized criminality under paragraph 37(1)(a) of the IRPA. This conclusion was based in significant part on admissions Mr. Rodas Tejeda made in late 2010 in an amended Personal Information Form (PIF) he filed during earlier proceedings before the Refugee Protection Division of the Immigration and Refugee Board (the RPD). Pursuant to subsection 44(2) of the IRPA, a delegate of the Minister of Public Safety and Emergency Preparedness (the Minister) determined on February 24, 2020 that the subsection 44(1) report was well-founded, and on March 9, 2022, the matter was referred by the Minister to the Immigration Division of the Immigration and Refugee Board (the ID) for an admissibility hearing.

[3] In the first matter, Rodas Tejeda v. Canada (Public Safety and Emergency Preparedness), 2025 FC 214 (per Southcott J.) [Referral JR Decision], Mr. Rodas Tejeda sought judicial review of the Minister’s referral decision, alleging that the delay in initiating and pursuing the section 44 referral process, that was premised on information long known to the Minister, constituted an abuse of process. The Federal Court dismissed the judicial review application on the basis that it was premature, holding that Mr. Rodas Tejeda had an adequate alternative remedy before the ID where he could allege that this delay constituted an abuse of process: Referral JR Decision at para. 22.

[4] In the second matter, Rodas Tejeda v. Canada (Citizenship and Immigration), 2025 FC 215 (per Southcott J.) [ID JR Decision], Mr. Rodas Tejeda applied to the ID for a stay of the admissibility proceedings on abuse of process grounds. The ID dismissed the application on July 7, 2023: Rodas Tejeda v. Canada (Minister of Public Safety and Emergency Preparedness) (7 July 2023), ID C2-00150-01 [ID Decision]. The ID held that it may only consider the delay that took place after a decision is made to issue the Section 44 Report and that such delay was not abusive. On judicial review, the Federal Court concluded that the ID erred by restricting the period of delay it could consider in the abuse of process analysis. The Federal Court allowed the application and set aside the ID Decision, remitting the abuse of process allegation to the ID for reconsideration based on all the delay Mr. Rodas Tejeda alleged was abusive: ID JR Decision at para. 95.

[5] We also have before us a motion from Mr. Rodas Tejeda, seeking to file fresh evidence in the appeal from the Referral JR Decision as well as a request by Mr. Rodas Tejeda for an award of costs.

[6] For the reasons that follow, I would find that the ID has jurisdiction in an admissibility proceeding to rule on abuse of process claims based on delay, encompassing, where relevant, pre-report and pre-referral delay, including investigative delay. I accordingly agree with the Federal Court’s conclusion on these issues. Thus, I would dismiss the appeal from the ID JR Decision and answer the certified question in the affirmative.

[7] I would further find that there is no reviewable error in the Federal Court’s decision to dismiss the judicial review application taken from the referral decision for prematurity in the Referral JR Decision. Thus, I would dismiss this appeal as well.

[8] I would also dismiss the motion to admit fresh evidence as the proposed evidence is not relevant for the determination of the appeal from the Referral JR Decision. I would further conclude that costs in these appeals should be awarded against the Minister given what I find to be an inexplicable change in his position, which was detrimental to Mr. Rodas Tejeda and occasioned additional time and expense. Finally, I would amend the style of cause to substitute the Minister of Public Safety and Emergency Preparedness as the appropriate appellant in Court file A-72-25 and as the appropriate respondent in Court file A-92-25.

I. Background and the Decisions Below

[9] Mr. Rodas Tejeda entered Canada in 2009 and sought refugee protection, alleging a fear of persecution in Guatemala arising from his involvement in drug trafficking and money laundering in that country, threats against him and his family, the murder of his father, and his bisexuality. In 2011, the RPD determined that Mr. Rodas Tejeda was excluded from refugee protection under Article 1F(b) of the 1951 Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 137 [Refugee Convention]: Rodas Tejeda v. Canada (Minister of Public Safety and Emergency Preparedness) (11 January 2011), RPD VA9-04980.

[10] Article 1F(b) of the Refugee Convention is incorporated into section 98 of the IRPA and, among other things, denies refugee status to those who have committed serious non-political crimes.

[11] Mr. Rodas Tejeda applied for leave to judicially review the RPD’s decision, but his leave request was denied: Rodas Tejeda v. Canada (Minister of Public Safety and Emergency Preparedness) (7 April 2011), Federal Court File No. IMM-460-11 (FC). In 2012, Mr. Rodas Tejeda applied for permanent residence on humanitarian and compassionate (H and C) grounds and for a pre-removal risk assessment (PRRA). Both applications were denied in 2013. Thereafter, a removal order, requiring him to leave Canada, became effective, but Mr. Rodas Tejeda’s removal from Canada was stayed by the Federal Court in 2014: Rodas Tejeda v. Canada (Minister of Citizenship and Immigration) (14 January 2014), Federal Court File No. IMM-8028-13 (FC).

[12] The denial decisions were subsequently set aside on consent and Mr. Rodas Tejeda’s H and C and PRRA applications were remitted for redetermination. No new determinations have been made in them in the meantime.

[13] As noted, the Section 44 Report was prepared in November 2019 and was referred to the ID in March 2022. The Section 44 Report outlines the basis for the belief that Mr. Rodas Tejeda is inadmissible by reason of organized criminality and is premised in large part on admissions Mr. Rodas Tejeda made in 2010 in his amended PIF.

[14] Under section 44 of the IRPA, a ministerial delegate may prepare a report if they believe an individual is inadmissible to Canada. If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the ID for an admissibility hearing. The ID conducts a de novo analysis of admissibility and determines if the person named in the report is inadmissible: Obazughanmwen v. Canada (Public Safety and Emergency Preparedness), 2023 FCA 151 [Obazughanmwen] at para. 38; Lin v. Canada (Public Safety and Emergency Preparedness), 2021 FCA 81 [Lin] at para. 4.

[15] Section 44 of the IRPA provides in relevant part:

[16] The range of decisions that the ID may make in an admissibility matter are set out in section 45 of the IRPA, which provides:

[17] Organized criminality is one of many grounds for inadmissibility in the IRPA. Paragraph 37(1)(a) of the IRPA provides:

[18] As noted, Mr. Rodas Tejeda sought a stay of the admissibility proceedings before the ID on the basis that the delay in initiating and pursuing the section 44 process constituted an abuse of process due to the impact of the delay on him and on his ability to respond to the inadmissibility allegations of the Minister. The ID rejected this argument. It held that the period of delay it could consider commenced only when the decision was made to prepare the Section 44 Report and not when the underlying information first came to the attention of the authorities, relying principally on the decisions in Torre v. Canada (Citizenship and Immigration), 2015 FC 591 [Torre], appeal dismissed on other grounds, Torre v. Canada (Citizenship and Immigration), 2016 FCA 48, application for leave to appeal dismissed, Michele Torre v. Minister of Immigration, Refugees and Citizenship, 2016 CanLII 55165 (SCC); Singh v. Canada (Public Safety and Emergency Preparedness), 2018 FC 455 [Singh], Ismaili v. Canada (Public Safety and Emergency Preparedness), 2017 FC 427 [Ismaili], and Canada (Public Safety and Emergency Preparedness) v. Najafi, 2019 FC 594 [Najafi]: ID Decision at paras. 14–61.

[19] Applying this approach, the ID found that the delay it was entitled to consider did not meet the threshold for abuse of process because the 28-month delay between November 2019 and March 2022, while inordinate, did not impair procedural fairness within the meaning of the governing jurisprudence. In this regard, the ID noted the absence of evidence demonstrating concrete harm to Mr. Rodas Tejeda arising from the 28-month delay. The ID did not consider the personal prejudice that might have been experienced by Mr. Rodas Tejeda over the eleven-plus year delay in referring the question of his inadmissibility to the ID nor the impact of this delay on his ability to respond to the Minister’s allegations.

[20] In the Referral JR Decision, the Federal Court identified the issues as whether the application was premature and, if not, whether the Minister’s decision to refer the Section 44 Report constituted an abuse of process, noting that procedural fairness is reviewed on a standard akin to correctness: Referral JR Decision at paras. 10–11. The Federal Court concluded that the application was premature as Mr. Rodas Tejeda had recourse to an adequate alternative remedy before the ID, which could consider whether the total period of delay was abusive. The Federal Court accordingly declined to adjudicate the abuse of process arguments: Referral JR Decision at paras. 13, 19, 22–23.

[21] The Federal Court reached the opposite conclusion on prematurity in the ID JR Decision. There, it concluded that, despite the interlocutory nature of the ID’s refusal to grant a stay, the judicial review application was not premature due to exceptional circumstances, including ongoing prejudice to Mr. Rodas Tejeda and the interrelationship between the issues raised in the two judicial review applications: ID JR Decision at paras. 37 and 45. The Court accepted that the application raised issues of procedural fairness but noted conflicting Federal Court jurisprudence on whether correctness or reasonableness applies to administrative decision-makers’ assessments of procedural fairness, citing authorities supporting both approaches: ID JR Decision at para. 49. The Federal Court declined to resolve the issue, finding that the ID’s decision could not stand under either standard of review: ID JR Decision at para. 59.

[22] On the merits, the Federal Court held that the ID erred in limiting its analysis of delay to the period following the decision to prepare the Section 44 Report, finding that neither the statutory scheme nor the jurisprudence supported such a restriction and that the law has evolved beyond the approach reflected in Torre and related cases: ID JR Decision at para. 89. The Court concluded that delay occurring prior to the preparation of a section 44 report must be considered by the ID in assessing abuse of process, where such delay is relevant to the abuse of process allegation, and that the ID’s failure to consider the investigative delay rendered its decision both unreasonable and incorrect: ID JR Decision at paras. 89–94. Thus, the application was allowed and the matter remitted for redetermination by the ID without any constraint precluding consideration of the portion of the delay prior to the decision to prepare a Section 44 report, alleged to give rise to the abuse of process: ID JR Decision at para. 95.

II. Positions of the Parties

[23] Mr. Rodas Tejeda submits that the Minister’s referral of the Section 44 Report, more than eleven years after the relevant facts were known, constitutes an abuse of process. Relying principally on Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 [Blencoe] and Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 [Abrametz], he argues that the delay was inordinate, unexplained, and caused both significant personal prejudice and significant prejudice to the fairness of the admissibility proceedings before the ID, in part because his memory has faded and evidence has been lost. He further submits that in the Referral JR Decision the Federal Court erred in finding his application premature. In his view, a stay may be sought at the earliest opportunity and requiring him to proceed before the ID only compounds the alleged unfairness. With respect to the standard of review this Court is to apply to the appeal from the Referral JR Decision, he submits that the issues engage procedural fairness and are reviewable on a standard akin to correctness. He thus invites this Court to reconduct the assessment of prematurity.

[24] Concerning the ID JR Decision, Mr. Rodas Tejeda argues that the ID has jurisdiction to address abuse of process and failed to apply the proper test in assessing prejudice arising from the passage of time and its impact on his ability to respond to the inadmissibility allegations of the Minister and other prejudice caused by the delay. With respect to the standard of review, he submits that the central question of the parameters of the legal test for abuse of process and the relevant delay to be assessed by the ID are legal questions to be decided on the correctness standard.

[25] The Minister, for his part, submits that the Federal Court erred by expanding the ID’s jurisdiction. Although the Minister argued in the Federal Court that the judicial review application from the referral decision was premature, he now argues the opposite. The Minister now maintains that challenges to the pre-referral process lie only with the Federal Court.

[26] Concerning the standard of review for the Referral JR Decision, the Minister argues that normal appellate standards of review apply, such that questions of law are reviewable for correctness and questions of fact or of mixed fact and law are reviewable for palpable and overriding error. The Minister contends that the Federal Court erred in law in concluding that the ID could assess the impact of pre-referral delay in an abuse of process analysis. The Minister also submits that the Federal Court ought to have assessed whether the pre-referral delay gave rise to an abuse of process and should have determined that no abuse of process had been established as delay alone is insufficient and no significant prejudice has been established. The Minister further maintains that the delay incurred was not inordinate, even though no explanation was provided for the delay. Although the Minister states that he wishes to set aside part of the Federal Court’s determination, he would have us dismiss the appeal from the Referral JR Decision, so allowing the appeal in part is not what the Minister is actually seeking.

[27] Only a judgment or order of the Federal Court may be appealed and not its reasons: Zoghbi v. Air Canada, 2024 FCA 123 at para. 76, citing Federal Courts Act, R.S.C. 1985, c. F-7 at s. 27(1); Fournier v. Canada (Attorney General), 2019 FCA 265 at para. 28; Ratiopharm Inc. v. Pfizer Canada Inc., 2007 FCA 261, 60 C.P.R. (4th) 165 at para. 6. The Minister seeks to have the Federal Court’s judgment in the Referral JR Decision upheld and thus actually seeks to have the appeal from the Referral JR Decision dismissed, albeit for different reasons than those offered by the Federal Court.

[28] With respect to the ID JR Decision, the Minister argues that the ID’s jurisdiction to grant a stay is limited and that delay may be assessed by the ID only from the date of a referral under subsection 44(2) of the IRPA because the ID does not sit in review of decisions made by the Minister nor of the process followed by the Minister in making them. With respect to standard of review, the Minister submits that the issue of the ID’s jurisdiction is a question where the tribunal is interpreting its own statute and jurisdiction and therefore is reviewable on a standard of reasonableness. Under this approach, the Minister claims that the ID’s decision was reasonable, that the appeal from the ID JR Decision should be granted, and the certified question answered in the negative.

[29] The interveners, the Canadian Association of Refugee Lawyers and the Immigration and Refugee Legal Clinic, made submissions on the appropriate forum and timing for review of reports issued under subsection 44(1) of the IRPA and of referrals to the ID under subsection 44(2) of the IRPA. The interveners submit that the proper forum to review issues involving section 44 reports depends on the nature of a challenge. Where the issue is whether a report is well founded, judicial review is premature because the ID will determine that issue anew. However, where the challenge concerns the Minister’s discretionary referral decision, the interveners submit that judicial review is the only recourse, as the ID lacks jurisdiction to review that discretion, though it may assess abuse of process in its own proceedings, including whether all delays that have transpired, including pre-referral delays, give rise to an abuse of process. Thus, the interveners argue that there is concurrent jurisdiction between the Federal Court and the ID to consider Mr. Rodas Tejeda’s abuse of process allegations.

III. Analysis

A. Issues and Standard of Review

[30] I commence my analysis by noting that, where a question has been properly certified by the Federal Court under subsection 74(d) of the IRPA, this Court has jurisdiction to consider all issues that arise on appeal and is not limited to consideration of only the certified question: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 [Baker] at para. 12; Brown v. Canada (Citizenship and Immigration), 2020 FCA 130, [2021] 1 F.C.R. 53 at para. 9; Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344 [Mahjoub] at para. 50; Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130, [2018] 2 F.C.R. 229 at para. 37. Here, there is no suggestion that the Federal Court erred in certifying the question it referred to this Court, so we are entitled to consider all issues relevant to these appeals.

[31] Given the view that I take of these matters, I find that the issues requiring determination in these appeals are the following: (1) whether the Federal Court erred in the ID JR Decision in concluding that the ID committed a reviewable error in limiting its consideration of delay to the period following the date a decision was made to prepare the Section 44 Report; (2) whether the Federal Court made a reviewable error in declining to deal with the judicial review application in the Referral JR Decision; (3) whether the fresh evidence tendered by Mr. Rodas Tejeda should be admitted; (4) whether Mr. Rodas Tejeda should be awarded costs; and (5) whether the style of cause should be amended in the manner proposed by the Minister?

[32] The first issue engages the standard of review applicable in appeals from judicial review decisions made on the merits by the Federal Court, which requires this Court to determine whether the correct standard of review was identified and properly applied by the Federal Court. This essentially requires this Court to “step into the shoes” of the Federal Court, including where certified questions are at issue: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paras. 45–47; Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909 at para. 44; Mason v. Canada (Citizenship and Immigration), 2023 SCC 21 at para. 36.

[33] In the ID JR Decision, due to the uncertainty in its jurisprudence, the Federal Court declined to select a standard of review and addressed the issue of the ID’s jurisdiction to consider delay under both the correctness and reasonableness standards. The Federal Court jurisprudence does reveal a divergence regarding the standard of review to be applied to questions of procedural fairness where a determination made by the administrative tribunal, whose decision is being reviewed, is alleged to be procedurally unfair.

[34] More specifically, some Federal Court decisions treat a tribunal’s assessment of whether there has been a breach of procedural fairness before it to be a merits-based decision reviewable for reasonableness: see, e.g. Naimi v. Canada (Public Safety and Emergency Preparedness), 2024 FC 1294 [Naimi] at paras. 8–12; Kowalska v. Canada (Citizenship and Immigration), 2024 FC 1053 at para. 26; Khan v. Canada (Public Safety and Emergency Preparedness), 2022 FC 210 at para. 18; Akram v. Canada (Citizenship and Immigration), 2021 FC 1024 at paras. 17–18; and B006 v. Canada (Citizenship and Immigration), 2013 FC 1033 at paras. 35–36 (collectively, the first line of cases).

[35] Other cases hold that such determinations engage the duty of procedural fairness and are reviewable on a standard akin to correctness: see, e.g. Ahmad v. Canada (Citizenship and Immigration), 2014 FC 1666; Ganeswaran v. Canada (Citizenship and Immigration), 2022 FC 1797 [Ganeswaran] at paras. 20–28; Badran v. Canada (Citizenship and Immigration), 2022 FC 1292 at para. 14; Chabanov v. Canada (Citizenship and Immigration), 2017 FC 73 at para. 23; and Ismaili at para. 7.

[36] The first line of cases conflicts with binding authority from this Court and from the approach taken by the Supreme Court of Canada to procedural fairness issues that arise in an administrative law context.

[37] The Supreme Court of Canada has confirmed that issues of delay in administrative proceedings raise questions of procedural fairness. In Abrametz, the Supreme Court of Canada stated at paragraph 38 of the majority reasons that “in administrative proceedings, abuse of process is a question of procedural fairness”, citing Blencoe; G. Régimbald, Canadian Administrative Law (3rd ed. 2021) at pp. 344–50; P. Garant, with P. Garant and J. Garant, Droit administratif (7th ed. 2017) at pp. 766–67. In Blencoe, the judges who adopted an administrative law review approach to the question of delay, as opposed to an analysis under section 7 of the Charter, approached the issue as one of procedural fairness. These judges assessed for themselves whether the delays in question gave rise to an abuse of process warranting a stay of proceedings or some other remedy. Thus, the first issue raises a question of procedural fairness.

[38] This Court has determined that, for questions of procedural fairness, the reviewing court asks whether, having regard to all the circumstances, a fair process was followed. As this Court has observed, while the terminology is imperfect, this inquiry may be reflected by terming it a “correctness standard”, as the ultimate question is whether the individual had a meaningful opportunity to know and meet the case and had a full and fair chance to respond: Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69 [CPR] at paras. 54–56. When applying this standard, the reviewing court may choose either to uphold the administrative decision-maker’s determination or to substitute its own views, as the reviewing court is required to come to its own conclusions on the questions at issue: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 54.

[39] Multiple decisions of this Court have followed the approach in CPR: see the decisions in Byrne v. Canada (Border Services Agency), 2025 FCA 30 at para. 7, Wepruk v. Canada (Attorney General), 2024 FCA 55 at para. 8, and Sjogren v. Canada (Attorney General), 2019 FCA 157 at para. 6, to name only a few.

[40] This Court has also held that it matters not whether the administrative tribunal has ruled on the procedural fairness issue by considering what procedural fairness requires or whether a claimed violation of procedural fairness is argued for the first time before this Court based on what the administrative tribunal did or did not do as opposed to what it decided in the reasons it gave. In both instances, the same standard of review, akin to correctness, applies to procedural fairness questions: see, for example, Bergey v. Canada (Attorney General), 2017 FCA 30 at paras. 7 and 64–67; Canada v. Akisq’nuk First Nation, 2017 FCA 175 at paras. 16, 20–25 and 55–59; Bremsak v. Professional Institute of the Public Service of Canada, 2014 FCA 11 at paras. 9–15. See also Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para. 35; Denso Manufacturing Canada, Inc. v. Canada (National Revenue), 2021 FCA 236 at para. 36.

[41] This Court’s approach follows the case law of the Supreme Court of Canada. In Mission Institution v. Khela, 2014 SCC 24 [Khela], the Supreme Court noted that compliance with the duty of procedural fairness is subject to correctness review (at para. 79). Likewise, in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, Justice Binnie noted at paragraph 43 that procedural fairness issues are determined on a correctness basis. To similar effect, at paragraph 74 of Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, the Supreme Court stated that procedural fairness requires no assessment of the appropriate standard of judicial review and that evaluating whether the duty of procedural fairness has been adhered to by a tribunal requires an assessment of the procedures and safeguards required in a particular situation.

[42] This approach to procedural fairness, of full curial review of the issue, has been applied by the Supreme Court in many cases. For example, this approach was adopted in Baker, where the Supreme Court outlined the relevant contours of the required approach to procedural fairness and applied them to assess whether the appellant had been accorded procedural fairness in the administrative process at issue. Similarly, in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, in respect of what Justice Rennie termed “the orphaned issue” (at paragraph 47 of CPR), the Supreme Court assessed for itself whether Mr. Dunsmuir had been afforded procedural fairness and applied no standard of review to that question.

[43] While at least one appellate court has adopted a different position in Loiselle c. Haggai, 2025 QCCA 932 at paragraphs 70–92, leave to appeal granted 2026 CanLII 41513 (S.C.C.), in the Federal Courts, questions of procedural fairness are to be decided based on a standard of review akin to correctness. This latter approach has similarly been followed in many of Canada’s common law jurisdictions: see, for example, Queen Elizabeth Annex (QEA) Parents’ Society v. Vancouver School District No. 39, 2025 BCCA 160 at para. 46; Feng v. Saskatchewan (Economy), 2020 SKCA 6 at para. 43; Landry v. Rocky View County (Subdivision and Development Appeal Board), 2025 ABCA 34 at paras. 32–33; Afolabi v. Law Society of Ontario, 2025 ONCA 257 at para. 60.

[44] That said, I hasten to note that, in applying this standard of review to procedural fairness issues, reviewing courts should consider and give appropriate weight to the procedural choices of the administrative decision-maker. As noted at paragraph 27 of the majority reasons in Baker:

The analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances: Brown and Evans, supra, at pp. 7-66 to 7-70. While this, of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints: IWA v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 S.C.R. 282, per Gonthier J.

[45] Hence, in determining whether an administrative decision-maker was procedurally fair, a reviewing court is required to give weight to the administrative decision-maker’s procedural choices in similar matters. Thus, in essence, a certain degree of deference is built into the standard of review applied to the assessment of procedural fairness issues by a reviewing court under the approach to these issues mandated by Baker.

[46] Thus, on the first issue regarding the ability of the ID to rule on allegations of abuse of process due to delay in admissibility matters, this Court applies a standard akin to correctness. As such, we must determine if the ID was correct in its assessment of these matters.

[47] The second issue, on the other hand, involves a discretionary decision made by the Federal Court to decline to rule on the abuse of process allegations in the Referral JR Decision by reason of prematurity. Here, we are reviewing the decision of the Federal Court and not its assessment of the ID’s decision. Therefore, on the second issue, normal appellate standards of review apply such that legal questions are reviewable for correctness whereas factual questions or questions of mixed fact and law, that do not contain an extricable legal issue, are reviewable for palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 36; Dugré v. Canada (Attorney General), 2021 FCA 8 at paras. 34–41; Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17 at paras. 24–25.

[48] No standard of review applies to the remaining issues that arise in this appeal, as they are questions for determination by this Court.

B. Did the ID Err in Limiting its Consideration of Delay Related to the Alleged Abuse of Process to the Period Following the Date the Decision was Made to Prepare the Section 44 Report?

[49] Turning to the first issue, it is useful to commence by briefly outlining the principles applicable to abuse of process allegations like those made by Mr. Rodas Tejeda.

(1) Abuse of Process Generally

[50] The doctrine of abuse of process applies in various contexts and is “rooted in a court’s inherent and residual discretion to prevent abuse of its processes”: Abrametz at para. 33, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 at para. 35; Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227 at para. 39; R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601 at p. 612; and P. M. Perell, “A Survey of Abuse of Process”, in T. L. Archibald and R. S. Echlin, eds., Annual Review of Civil Litigation 2007 (2007), 243 at p. 243.

[51] One context where the doctrine of abuse of process may be invoked involves abusive delay in administrative proceedings. In Abrametz, the Supreme Court of Canada held that its earlier decision in Blencoe recognizes that administrative decision-makers “…have, as a corollary to their duty to act fairly, the power to assess allegedly abusive delay” (at para. 38). There is accordingly no reason to doubt that administrative decision-makers have authority to rule on abuse of process arguments based on delay. Indeed, this authority flows from the well-established principle that administrative tribunals must be able to control their own proceedings to ensure fairness: Prassad v. Canada (Minister of Employment and Immigration), 1989 CanLII 131 (SCC), [1989] 1 S.C.R. 560 at pp. 568–69; Lorne Sossin et al., Practice and Procedure Before Administrative Tribunals (Toronto: Thomson Reuters Canada, 2026) at § 13:1.

[52] To establish that there has been an abuse of process by reason of delay, a party must first establish that the delay that has been incurred was inordinate. This requires consideration of the time that has elapsed in context, with reference to factors such as: (1) the nature and purpose of the proceedings, (2) the length and reasons for the delay, and (3) the complexity of the facts and legal issues involved: Abrametz at paras. 50–51.

[53] If the party advancing an abuse of process argument establishes that the delay was inordinate, they must secondly establish that they have suffered significant prejudice by reason of the delay. Such prejudice may either be to the hearing process itself, which could include situations where evidence has been lost or where memories of witnesses have faded, or may be prejudice caused by the delay to the personal circumstances of the party. As Justice Lebel noted in Blencoe at paragraph 154, “[a]busive administrative delay is wrong and it does not matter if it wrecks only your life and not your hearing”.

[54] As a third step, the court or tribunal must determine if the delay is manifestly unfair to the party raising the abuse of process allegation or otherwise brings the administration of justice into disrepute: Abrametz at para. 72.

[55] Where abuse of process by reason of delay is found, the court or tribunal may award different remedies, depending on what is appropriate in the circumstance. Among other things, these may include an award of costs, an order for an expedited hearing, an order to exclude evidence, or a stay of proceedings: Blencoe at paras. 101–02, 178–79; Abrametz at paras. 80–83; Mahjoub at paras. 206–09.

(2) Application of the General Principles to the ID

[56] Given the determinations in Blencoe and Abrametz, it is clear that the ID, as an administrative tribunal, has jurisdiction to address abuse of process arguments based on delay, including, in my view, delay in referring a matter to the ID for an admissibility determination. This is so because, where abusive delay is alleged before the ID, what is at issue is the fairness of the proceeding before the ID, which may be alleged to be unfair by reason of abusive pre- or post-referral delay, or the combination of both. When it rules on such a claim, the ID is not sitting in review of the decisions made by the Minister in the investigative process but rather is determining whether its own proceeding is procedurally unfair by reason of delay. Nor is the ID undertaking an H and C assessment when it rules on a claim of abusive delay. Rather, in assessing an abuse of process allegation, the ID is determining whether it is fair for it to proceed with the admissibility inquiry in light of the prejudice caused by delay.

[57] A useful analogy may be drawn to the decision in Canada (Human Rights Commission) v. Canada Post Corp., 2004 FC 81, [2004] 2 F.C.R. 581 [CPC FC], aff’d Canadian Human Rights Commission v. Canada Post Corp., 2004 FCA 363, where this Court and the Federal Court held that the Canadian Human Rights Tribunal (the CHRT) could assess whether delays in the investigative process of the Canadian Human Rights Commission (CHRC) gave rise to an abuse of process and whether, if so, the CHRT should stay its own proceedings. As noted by the Federal Court at paragraph 10 of CPC FC, the issue for the CHRT was not whether it was an abuse of process for the CHRC to have referred the complaint to the CHRT but, rather, whether it was an abuse of the CHRT’s own process to consider the complaint given the delay in question.

[58] The foregoing principles applicable to abuse of process thus favour answering the certified question in the affirmative.

(3) Consideration of the Statutory Scheme

[59] The ID’s authority to rule on the fairness of its own proceedings and determine whether delay, including pre-referral delay, gives rise to an abuse of process is also reinforced by several provisions in the IRPA.

[60] Subsection 162(1) of the IRPA grants the ID “sole and exclusive jurisdiction” over all questions of law and fact arising before it. This broad conferral of authority necessarily encompasses control over the ID’s own process and the obligation to ensure that proceedings are conducted fairly. Subsection 162(2) of the IRPA underscores this obligation by requiring that ID proceedings be conducted in accordance with the principles of fairness and natural justice. Section 162 of the IRPA provides:

[61] The ID is further equipped with coercive powers under section 165 of the IRPA, which incorporates the powers of a commissioner under Part I of the Inquiries Act, R.S.C. 1985 c. I-11. These include the authority to summon witnesses and compel the production of documents relevant to the matters before it.

[62] Disclosure is also governed by Rule 3 of the Immigration Division Rules, SOR/2002-229, which imposes mandatory obligations on the Minister upon requesting an admissibility hearing. In practical terms, the Minister is required under Rule 3 to disclose all relevant information in the Minister’s possession on which the Minister intends to rely, including the inadmissibility report, the referral decision, and the supporting evidentiary record. This obligation is not contingent on an order of the ID. Rather, it arises as a matter of course at the outset of the proceeding. The ID then, under section 165 of the IRPA, may compel further production where what is sought is relevant. This disclosure obligation is qualified by the confidentiality regime in section 86 of the IRPA, which permits the Minister to object to the disclosure of information where its release would be injurious to national security or endanger the safety of any person, as contemplated by subrule 3(n) of the Immigration Division Rules. In such circumstances, the ID’s role is not to override non-disclosure claims but to manage fairness within the scheme set out in the IRPA, which provides for the appointment and disclosure of such information to special advocates.

[63] When read together, these provisions establish a structured regime. The Minister must disclose the case to be met, and the ID is empowered to ensure that disclosure is complete and that the evidentiary record permits a fair hearing. The ID’s powers under section 165 of the IRPA serve to enforce these obligations where necessary. This scheme reflects the transition from investigation to adjudication that occurs upon referral of a section 44 report. At that stage, the burden lies on the Minister to establish inadmissibility before the ID, and the ID’s jurisdiction over the fairness of the proceeding is fully engaged.

(4) Torre and Subsequent Federal Court Case Law

[64] The Minister argues, and the ID found, that, despite the authority of Blencoe and Abrametz, the authority of the ID to consider delay is temporally limited. The ID, relying on Torre and its progeny, took the position that the ID could only consider delay after a decision was made to prepare a report under section 44 of the IRPA. Before us, the Minister argues that the ID’s jurisdiction to consider delay should be shortened even further to the date the referral of a section 44 report is made.

[65] It is true that the Federal Court held in Torre that, in assessing whether there has been an abuse of process, the ID possesses jurisdiction to consider only the delay after a decision is made to prepare a report under section 44. It is also true that Torre has been applied, without any real analysis of whether it was correct, by subsequent Federal Court decisions: see, for example, Martinez v. Canada (Citizenship and Immigration), 2017 FC 982; Singh; Ismaili.

[66] However, Torre is premised, at least in part, on the assertion that the ID lacks authority to apply the Charter, a proposition which is incorrect. Administrative tribunals, like the ID, that possess jurisdiction to rule on questions of law, have jurisdiction to apply the Charter and grant Charter-based remedies where Charter issues arise in proceedings before them: R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765 at para. 81; Obazughanmwen at para. 49.

[67] Moreover, in Torre, the Federal Court provided only a very limited assessment of why it felt the ID had no jurisdiction to consider pre-report delay and, with respect, drew incorrect conclusions from Blencoe, which does not limit the delay that might be considered in an abuse of process argument to that which arose only before the administrative decision-maker and not in the investigative process. Indeed, in both Blencoe and Abrametz, it was investigative delay that was alleged to give rise to an abuse of process and that was considered by the administrative decision-makers. This approach was not questioned by the Supreme Court in either case.

[68] Further, the case law of the Federal Court has not consistently followed Torre. In Najafi, the Federal Court upheld a permanent stay of proceedings granted by the ID based on extreme and unexplained delay in the preparation and referral of a section 44 report. There, the Federal Court confirmed that the IRPA does not preclude the ID from granting such a remedy and that its broad jurisdiction under section 162, coupled with its duty to ensure fairness, includes a limited authority to prevent proceedings that would undermine the integrity of the adjudicative process.

[69] Subsequent Federal Court jurisprudence has refined and reinforced the reasoning in Najafi, following the Supreme Court of Canada’s guidance in Abrametz.

[70] In Naimi, a case involving the RPD, the Federal Court confirmed that the abuse of process inquiry necessarily extends to the Minister’s conduct at the investigative stage and that this entire continuum forms part of the relevant delay analysis (at para. 30). The Federal Court held that the RPD’s failure to consider delay beginning when immigration officials first became aware of the alleged misrepresentation was inconsistent with binding authority, emphasizing that Abrametz requires consideration of whether delay has prejudiced the process from its earliest administrative stages: Naimi at paras. 15–18, 24, 29–30.

[71] Similarly, in Ganeswaran, the Federal Court explicitly grounded the RPD’s ability to assess abuse of process in the Minister’s entire course of conduct, including a near ten-year period of investigative inaction. The Federal Court held that the duty of fairness applies at all stages of administrative proceedings, including the investigative stage, and rejected the proposition that only delay occurring after formal proceedings are initiated is relevant: Ganeswaran at paras. 40–43. The Court further held that the Minister’s pre-application delay is not immune from scrutiny and is directly relevant to whether proceeding would bring the administration of justice into disrepute: Ganeswaran at paras. 42–43, 52–55. Thus, Ganeswaran confirms that the RPD’s jurisdiction is engaged where the Minister’s pre-referral delay, taken together with prejudice, undermines the integrity of the adjudicative process.

[72] The Minister attempts to distinguish Naimi and Ganeswaran because they involved the RPD and not the ID. I find this proposed distinction unpersuasive. The principles articulated in Naimi and Ganeswaran concern the scope of procedural fairness and abuse of process within the IRPA scheme, issues that transcend divisional boundaries at the Immigration and Refugee Board, and apply with equal force to proceedings before the ID.

[73] Ultimately, this jurisprudence confirms that in assessing whether delay gives rise to an abuse of process, the ID must take a holistic view of the administrative continuum, including investigative delay attributable to the Minister’s pre-referral conduct, where such delay may bear directly on the procedural fairness of the proceedings before the ID.

(5) Additional Administrative Law Principles

[74] Another consideration bears mention, namely, that settled principles of administrative law prevent interlocutory judicial review applications, barring exceptional circumstances. Courts have repeatedly cautioned against fragmenting administrative processes through premature judicial intervention, particularly where the impugned decision is preliminary in nature and forms part of an integrated statutory scheme.

[75] In Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364, the Supreme Court of Canada held that decisions to refer a human rights complaint for further adjudication are discretionary screening determinations that do not resolve the merits or finally determine jurisdiction. As such, while they are reviewable, such screening decisions attract significant deference, and intervention is warranted only where there is no reasonable basis for the referral (at paras. 45–49, 53). The Court emphasized that judicial review at this stage should be rare, as it risks fragmenting the administrative process, depriving the reviewing court of a full evidentiary record, and would undermine legislative schemes designed to entrust decision-making to specialized bodies (at paras. 35–36).

[76] This Court has similarly adopted this approach. In C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61 [C.B. Powell], this Court held that courts should refrain from intervening in ongoing administrative proceedings absent exceptional circumstances (at para. 4).

[77] This Court’s decision in Gupta v. Canada (Attorney General), 2021 FCA 202 [Gupta], emphasizes the same restraint principle. There, the Court reinforced that judicial review is generally unavailable prior to the exhaustion of adequate alternative administrative remedies, absent exceptional circumstances. It further emphasized that the threshold for such exceptionality is high, and that alleged procedural unfairness occurring prior to a final administrative decision will not, in the ordinary course, justify premature judicial intervention: Gupta at paras. 7–8. This reasoning underscores the preference for allowing administrative processes to run their course before resort to the courts is permitted.

[78] Likewise, in Lin, this Court confirmed that an application for judicial review of a decision to refer a section 44 report was premature because the ID and, if necessary, the IAD could assess “… any procedural fairness or substantive issues regarding the section 44 screening process that undermine the [ID’s] ability to proceed” (at para. 4).

[79] The foregoing supports the conclusion that the ID possesses jurisdiction to assess whether pre-referral delay amounts to an abuse of process. Indeed, it may well be better placed than the Federal Court to make such an assessment, at least in the first instance. As the Immigration Appeal Division (IAD) noted in the decision that gave rise to the judicial review in Najafi:

[N]either the IAD nor the Federal Court is so well-positioned to assess whether the 13-year delay in initiating an admissibility hearing once a section 44(2) referral to a hearing had been signed is unreasonable and inordinate than the ID itself as the decision-making body to which all such referrals must be made. The ID is also ideally positioned to make a preliminary assessment of whether in light of the allegations made and the complexity of the matter, the delay had prejudiced the ability of the respondent to meet the case against him. In other words, the legal test set out in Blencoe for assessing whether a delay is inordinate is squarely within the ID’s expertise and experience.

(Najafi v. Canada (Public Safety and Emergency Preparedness), 2018 CanLII 102179 (CA IRB) at para. 20).

[80] Thus, for this reason as well, I would answer the certified question in the affirmative.

[81] Before concluding on this point, I wish to note that the foregoing should not be understood as meaning that all judicial review applications from ministerial referrals made under section 44 of the IRPA should be dismissed for prematurity. While this is the general rule, there could be extraordinary circumstances that would justify an immediate application for judicial review of a referral decision.

[82] I do not think it advisable to outline all the circumstances where it would be appropriate for a party to have immediate recourse to the Federal Court to judicially review a section 44 referral, as, of necessity, the exercise of discretion to hear a case that is alleged to be premature is very fact-specific. However, to provide some guidance for future cases, it is useful to highlight examples where it could be appropriate for the Federal Court to consider an application for judicial review from a referral decision.

[83] Such an application might be considered to be extraordinary and to thus merit immediate access to judicial review where there is such obvious and immediately discernable significant prejudice amounting to abuse of process that is so self-evident that the Federal Court determines that the admissibility hearing should be stayed because the mere holding of the hearing compounds the abuse of process, as occurred, for example, in Beltran v. Canada (Citizenship and Immigration), 2011 FC 516. Or, there might be procedural fairness issues that could not be cured or addressed by the ID in its adjudication of the admissibility issue, such as a claim that the Minister abused his authority by embarking on what is in effect a disguised extradition process, as occurred, for example, in A.B. v. Canada (Citizenship and Immigration), 2025 FC 486. In these circumstances, it would be open to the Federal Court to conclude that a judicial review application of the referral decision is not premature. However, the general rule remains that, in most instances, such an application would be premature, as this Court held in Lin.

(6) The Difficulties that Result from Bifurcation

[84] A final point must be made, and that is that under the approach taken by the ID and that advocated by the Minister, no decision-maker would ever be able to assess delay in its entirety. According to the Minister’s position, any pre-referral delay would be considered, if at all, on judicial review of the Minister’s decision to refer the section 44 report, while any post-referral delay would be assessed by the ID in the context of its own proceedings. According to the ID’s position, any delay before the decision to prepare the section 44 report would be considered, if at all, on judicial review of the Minister’s decision to refer the section 44 report and all subsequent delay would be considered by the ID.

[85] Under both approaches, the result is a piecemeal fragmentation of what is essentially a single continuum of administrative conduct. Neither forum would have jurisdiction to consider the full chronology of delay, with the effect that the cumulative impact of ministerial investigation, referral, and adjudicative delay would be artificially disaggregated. That outcome is inconsistent not only with the abuse of process doctrine, which requires a holistic assessment of whether delay, viewed as a whole, undermines fairness or brings the administration of justice into disrepute, but also with settled principles of administrative law that caution against fragmenting administrative proceedings and encourage courts and tribunals to assess integrated statutory schemes as coherent wholes rather than in artificially isolated segments. Such a result is not one this Court should endorse as appropriate in any but the extraordinary cases.

(7) Response to the Certified Question

[86] For the foregoing reasons, I would answer the certified question in the affirmative. The ID, like the RPD, has jurisdiction to grant a stay of proceedings where it finds an abuse of process by reason of delay, including where that abuse arises from delay in the period preceding the preparation of a report under section 44 of the IRPA, which includes investigative delays. I would accordingly dismiss the appeal from the ID JR Decision.

C. Did the Federal Court Make a Reviewable Error in Declining to Deal with the Judicial Review Application in the Referral JR Decision?

[87] I turn next to the appeal of the Referral JR Decision. As noted, normal appellate standards of review are applicable to this appeal. Under those standards, I see no error made by the Federal Court in declining to address the judicial review application made by Mr. Rodas Tejeda by reason of prematurity.

[88] The Federal Court applied the correct law, cited above, including the decision of this Court in Lin, which stands for the principle that judicial review applications mid-way through an administrative process are to be avoided. And, I see no palpable and overriding error in the Federal Court’s conclusion that the judicial review of the referral decision was premature, once the Federal Court correctly outlined the jurisdiction of the ID to consider pre-referral delay and remitted the abuse of process claims to the ID for redetermination.

[89] I would accordingly dismiss this appeal as well.

D. Should the Fresh Evidence Be Admitted?

[90] I turn next to Mr. Rodas Tejeda’s motion to admit fresh evidence, which consisted of an updated medical report from his doctor detailing the adverse impact delay continues to have on his psychological well-being.

[91] Appellate courts have the discretion to admit additional evidence to supplement the record on appeal where the evidence: (1) could not, by the exercise of due diligence, have been available at the first instance hearing; (2) is relevant, in that it bears on a decisive or potentially decisive issue; (3) is credible, in the sense that it is reasonably capable of belief; and (4) if believed, could have affected the result below: Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517 at para. 29, applying Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 at p. 775.

[92] Here, the fresh evidence would be relevant only if this Court were to assess for itself whether the ID’s admissibility hearing should be stayed by reason of delay. However, that is not something we may do in the appeal of the Referral JR Decision, where I have found no reviewable error in the Federal Court’s dismissal of the application for prematurity. The fresh evidence is therefore not relevant. I would accordingly dismiss the motion to admit it.

E. Should Costs be Awarded Against the Minister?

[93] I next consider Mr. Rodas Tejeda’s request for costs. While the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, generally reflect the principle that costs are not awarded in immigration matters, Rule 22 permits the Court to award costs in special circumstances, including where the conduct of a party so warrants.

[94] In this case, the Minister materially shifted his position on appeal in a manner that was both unexpected and inconsistent with the position advanced before the Federal Court, thereby contributing to unnecessary litigation and undermining the efficient resolution of the issues. This was unfair to Mr. Rodas Tejeda, particularly considering that he asserts that he has been unfairly prejudiced by delay.

[95] The jurisprudence confirms that costs may be awarded under Rule 22 in circumstances where a party’s conduct materially departs from the standards expected of a public decision-maker and results in unnecessary or avoidable litigation. In Canada (Citizenship and Immigration) v. Shen, 2025 FC 1175, Salem v Canada (Citizenship and Immigration), 2025 FC 756 and Carrero v. Canada (Citizenship and Immigration), 2021 FC 891, costs were awarded where the conduct of the Minister or the Minister’s agents contributed to unnecessary proceedings, prolonged litigation, or otherwise undermined the efficient and fair resolution of the issues before the Court.

[96] In my view, the same considerations arise here. The Minister’s shifting position on appeal required Mr. Rodas Tejeda to respond to a materially different framing of the jurisdictional issue than that advanced before the Federal Court, while also contributing to avoidable litigation and an inefficient use of judicial resources. In these circumstances, an award of costs is warranted given the nature of the Minister’s conduct. The cost award will also serve to reinforce the expectation that proceedings under the IRPA are to be conducted by the Minister in a manner consistent with fairness, efficiency, and candour.

[97] I would accordingly grant Mr. Rodas Tejeda his costs in both appeals as the Minister’s change in position affected both of them.

[98] The parties jointly requested that, if a costs award were to be made, they be afforded the opportunity to make post-hearing submissions on costs. As the Court would benefit from these submissions, I would allow the parties the opportunity to address the quantum of the costs award. Such submissions shall be made on the following schedule: (1) within 20 days of the date of these reasons, Mr. Rodas Tejeda shall serve and file submissions of no more than 10 pages; (2) within 20 days of receipt of Mr. Rodas Tejeda’s submissions, the Minister shall serve and file responding submissions, also of no more than 10 pages; and (3) within 20 days of receipt of the Minister’s responding submissions Mr. Rodas Tejeda, if he wishes, may make reply submissions of no more than 5 pages.

F. Should the Style of Cause be Amended?

[99] The Minister has requested that the style of cause be amended to substitute the Minister of Public Safety and Emergency Preparedness for the Minister of Citizenship and Immigration in the appeal from the Referral JR Decision in Court file A-72-25 and for the Minister of Public Safety and Immigration in the appeal from the ID JR Decision in Court file A-92-25.

[100] Under Rule 303 of the Federal Courts Rules, S.O.R./98-106, an applicant for judicial review must name as respondents all persons directly affected by the order sought, or any party required by statute to be named. This party is often the party who appeared opposite the applicant in the administrative proceedings.

[101] In light of Rule 303 of the Federal Courts Rules, the style of cause should be amended to reflect that the appropriate party in Court files A-72-25 and A-92-25 is the Minister of Public Safety and Emergency Preparedness and not the Minister of Citizenship and Immigration nor the Minister of Public Safety and Immigration, as it is the Minister of Public Safety and Emergency Preparedness who acts in admissibility matters and who was party to the proceedings before the ID.

IV. Proposed Disposition

[102] I would accordingly dismiss the appeals and award costs of these appeals to Mr. Rodas Tejeda on the basis outlined above. I would amend the style of cause in Court files A-72-25 and A-92-25 to substitute the Minister of Public Safety and Emergency Preparedness for the Minister of Citizenship and Immigration and the Minister of Public Safety and Immigration. Finally, I would answer the certified question as follows:

Question: Does the Immigration Division of the Immigration and Refugee Board have the jurisdiction to grant a stay of proceedings upon finding an abuse of process taking into account delays by the Canada Border Services Agency before making a decision to prepare a report pursuant to section 44 of the [IRPA]?

Answer: Yes.

“Mary J.L. Gleason”

“I agree.

Monica Biringer J.A.”

“I agree.

Peter G. Pamel J.A.”

 

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:	A-72-25
STYLE OF CAUSE:	THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS v. MARIO RAUL RODAS TEJEDA and CANADIAN ASSOCIATION OF REFUGEE LAWYERS and IMMIGRATION AND REFUGEE LEGAL CLINIC
AND DOCKET:	A-92-25
STYLE OF CAUSE:	MARIO RAUL RODAS TEJEDA v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS and CANADIAN ASSOCIATION OF REFUGEE LAWYERS and IMMIGRATION AND REFUGEE LEGAL CLINIC
PLACE OF HEARING:		Vancouver, British Columbia
DATE OF HEARING:		December 17, 2025
REASONS FOR JUDGMENT BY:		GLEASON J.A.
CONCURRED IN BY:		BIRINGER J.A. PAMEL J.A.
DATED:		june 18, 2026

APPEARANCES (A-72-25):

Hilla Aharon Mary Murray	For The Appellant
Erica Olmstead Molly Joeck	For The Respondent
Mojan Farshchi Juliana Dalley	For The Interveners

SOLICITORS OF RECORD (A-72-25):

Marie-Josée Hogue Deputy Attorney General of Canada	For The Appellant
Edelmann & Co. Law Offices Vancouver, British Columbia	For The Respondent
MKS Immigration Lawyers Vancouver, British Columbia	For The Interveners

APPEARANCES (A-92-25):

Erica Olmstead Molly Joeck	For The Appellant
Hilla Aharon Mary Murray	For The Respondent
Mojan Farshchi Juliana Dalley	For The Interveners

SOLICITORS OF RECORD (A-92-25):

Edelmann & Co. Law Offices Vancouver, British Columbia	For The Appellant
Marie-Josée Hogue Deputy Attorney General of Canada	For The Respondent
MKS Immigration Lawyers Vancouver, British Columbia	For The Interveners