Federal Court Delays Hearing on Certified Tribunal Record Review

Date: 03092026 Docket: IMM-1545-25 Citation: 2026 FC 319 Toronto, Ontario, March 9, 2026 PRESENT: The Honourable Mr. Justice Southcott BETWEEN: [NAME] Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent

ORDER AND

REASONS I. Overview [ 1 ] This decision addresses a motion by the Respondent, filed on February 24, 2026 [the Motion], and returnable in writing under Rule 369 of the Federal Courts Rules , SOR/98-106 [the Rules], seeking: (a) to vacate the hearing date of this application for judicial review [the Application], scheduled for March 11, 2026 [the Hearing Date], pursuant to the Order of Justice McDonald dated December 15, 2025, which granted leave in this application [the Leave Order], pending a complete review and delivery of the Certified Tribunal Record [the CTR]; and (b) to suspend the deadlines set out in the Leave Order, with new deadlines and a new hearing date to be set following the review and delivery of the CTR. [ 2 ] For the reasons explained below, the Motion is granted in part, and my Order will vacate the Hearing Date and extend the deadlines set out in the Leave Order, but it will set the deadline for the production of the CTR or, in the alternative, for the Respondent to advise the Court and the parties of a timeline for a Non-Disclosure Motion (as defined later in these Reasons), on a peremptory basis.

II. Background [ 3 ] The Application seeks judicial review of a decision by a visa officer [the Officer] dated November 27, 2024 [the Decision], determining that the Applicant was not eligible to become a permanent resident under the Federal Skilled Worker class on the ground that there are reasons to believe that he is inadmissible pursuant to paragraph 34(1)(d) of Immigration and Refugee Protection Act , SC 2001, c 27 [IRPA], for being a danger to the security of Canada. [ 4 ] The Applicant is a citizen of Pakistan and resides in Islamabad with his wife and daughter. He is an electrical engineer, holding a Bachelor of Electrical Engineering from [COMPANY] and a Master of Science in Electrical Engineering from [COMPANY], and has been employed as an engineer and in marketing and consulting roles in Pakistan. [ 5 ] In May 2020, the Applicant submitted his and his wife’s permanent residence applications under the Federal Skilled Worker class. In November 2023, the Applicant filed an application for judicial review, seeking a writ of mandamus to compel [NAME] [[NAME]] to process his application. Following settlement of that application, [NAME] resumed processing the file in accordance with the settlement terms. [ 6 ] In October 2024, [NAME] issued a Procedural Fairness Letter [the PFL], stating that the Applicant’s academic research and employment history suggested he posed a security risk under paragraph 34(1)(d) of IRPA. The PFL highlighted the Applicant’s employment for a company that specializes in the power grid and new energy sectors, as well as the Applicant’s publications on pure sine wave inverters, and lead acid, nickel-based, lead crystal and lithium-based batteries. The PFL stated that sine wave inverters and nickel and lithium batteries are used in military applications and, as such, can be characterized as dual use items, which, as defined in a European Union publication, can be used for both civilian and military applications. [ 7 ] The PFL referenced reports that Pakistan continues to build up its nuclear force and develop new delivery systems, including sea-based weapons and ballistic missiles, as well as Canada’s support for nuclear disarmament, and expressed concern that the Applicant’s field of study and work may relate to activities that constitute a danger to the security of Canada, such that the Applicant may be inadmissible to Canada pursuant to paragraph 34(1)(d) of IRPA. The PFL therefore provided the Applicant with the opportunity to provide written information to address those concerns. [ 8 ] On October 28, 2024, the Applicant provided written submissions, asserting his position that his work did not fall under restricted dual-use technology and including documentary support for that position. [ 9 ] On November 27, 2024, the Officer issued the Decision under review in this application, refusing the Applicant’s application for permanent residence, on the basis that the Officer had reasonable grounds to believe that the Applicant was inadmissible to Canada pursuant to paragraph 34(1)(d) of IRPA. [ 10 ] On January 21, 2025, the Applicant commenced the Application challenging the Decision. On December 15, 2025, Justice McDonald issued the Leave Order, paragraph 4 of which imposed an obligation upon the tribunal to provide the CTR within 21 days (i.e. by January 5, 2025) and paragraph 19 of which imposed the following additional obligations upon the Respondent: [redacted] [ 11 ] On January 5, 2026, the Respondent’s counsel wrote to the Court, copying the Applicant’s counsel, as follows [the Respondent’s Letter]: Pursuant to the order of the Honourable Justice McDonald, dated December 15, 2025, the Respondent must send copies of the certified tribunal record (“CTR”) to the Registry of the Court and in the Applicant on or before January 5, 2026. However, the Respondent is currently in the process of reviewing the CTR to determine whether any redactions are required, and will not be in a position to meet the January 5, 2026 deadline. Once review of the documents is complete, the Respondent will file a motion for an extension of time to file the CTR, and potentially a non-disclosure motion under s 87 of the IRPA . [ 12 ] On February 24, 2026, the Respondent filed the Motion seeking the relief identified earlier in these Reasons. The Respondent’s Motion Record included an affidavit affirmed by a paralegal in the office of the Respondent’s counsel [the Paralegal’s Affidavit], as well as written representations. On March 4, 2026, the Applicant filed written representations in response, opposing the Motion. On March 6, 2026, the Respondent filed its reply representations.

III. Issues [ 13 ] Based on the positions advanced in the parties’ respective written representations, the issues for the Court’s determination in the Motion are as follows: A. Should the Court vacate the Hearing Date and suspend the timelines set out in the Leave Order? B. If the Hearing Date is vacated, should the Court impose a peremptory timetable to govern the next steps in the Application? C. If the Hearing Date is vacated, should the Court award costs in favor of the Applicant? IV. Analysis A. Should the Court vacate the Hearing Date and suspend the timelines set out in the Leave Order? [ 14 ] The Respondent submits that it is in the interest of justice and judicial economy to vacate the Hearing Date, because the CTR will not be produced by the Hearing Date and the hearing of the Application cannot proceed without the CTR. The Respondent further submits that, because the other deadlines in the Leave Order have now lapsed (i.e., the parties have not filed further affidavits, cross-examination transcripts, or further written representations), those deadlines must also be rescheduled. The Respondent requests that no new hearing date or other deadlines be set at this time, because it is currently difficult to ascertain a deadline for production of the CTR. [ 15 ] The Respondent asserts that its review of the CTR (to assess whether any of the documents therein contain information that requires redaction as its disclosure would be injurious to international relations, national defence or national security, or would endanger the safety of any person) may take several months to complete and that it is therefore difficult to ascertain a timeline for production at this time. The Respondent also asserts that it may need to bring a non-disclosure motion pursuant to section 87 of IRPA. [ 16 ] The Applicant submits that the general test for an extension of time, identified in Canada (Attorney General) v [NAME] , 1999 CanLII 8190 (FCA), 244 NR 399 [ [NAME] ] at paragraph 3, should be applied to the Court’s adjudication of the Respondent’s request to vary the deadlines, including the Hearing Date, provided by the Leave Order. The Respondent has not disagreed with this position. The [NAME] test involves consideration whether the party seeking an extension has established (a) a continuing intention to pursue the application; (b) that the application has some merit; (c) that no prejudice arises from the delay; and (d) that there is a reasonable explanation for the delay. I accept that this Court has applied the [NAME] test in circumstances similar to the Motion ( [NAME] v Canada (Citizenship and Immigration) , 2018 FC 770 [ [NAME] ] at para 11) and will take into account the factors identified therein, ultimately considering whether it is in the interests of justice to grant the requested relief. [ 17 ] The Respondent’s Letter and indeed this Motion demonstrate the Respondent’s intention to continue to respond to the Application. I am also satisfied, based on the Respondent’s written representations at the leave stage, that its position in the Application has sufficient merit for purposes of the [NAME] test. [ 18 ] With respect to prejudice to the Applicant resulting from the requested extension, he emphasizes aspects of the uncertainty under which he and his wife have lived for nearly 6 years since originally applying for immigration to Canada. As the Applicant expresses it, as delay goes to the very heart of this Application, further delay resulting from vacating the Hearing Date will cause further prejudice to him and his family. In reply, the Respondent notes that (as the Applicant advised the Court in December 22, 2025 correspondence), it appears that the Court may have mistakenly issued the Leave Order in a form intended for mandamus applications, as a consequence of which the Leave Order was not preceded by an earlier production order and therefore set the Hearing Date more quickly than would typically be the case. [ 19 ] While the circumstances identified by the Respondent might be characterized as having mitigated the delay in achieving adjudication of the Application, the Court remains concerned about such delay, particularly in the absence of any indication by the Respondent as to how quickly it will complete review of the CTR and identify whether or not a section 87 motion is required. [ 20 ] [ADDRESS] similarly has concern as to whether the Respondent has provided a reasonable explanation for the delay and, more significantly, for the delay that would result from the Court declining to set any new deadlines at this time. While the Court accepts the Respondent’s submission that the request for an extension is attributable to the review of the CTR not being complete, I find compelling the Applicant’s argument that the Motion does not include any evidence as to the progress of the CTR review, the projected date for its production, or the date for a section 87 motion. The only evidence before the Court is the Paralegal’s Affidavit, which provides no basis for the Court to assess the effort that has already been devoted to review of the CTR, what will be involved in completing that process, or how long that should reasonably take. [ 21 ] I also agree with the Applicant’s argument that the Respondent has not complied with paragraph 19 of the Leave Order. That paragraph provided that, if the Respondent intended to bring a section 87 motion, it was required to so advise the Court and the Applicant no later than the date the CTR was due (January 5, 2026) and, at the same time, to confirm a timeline for the filing of that motion. The Respondent’s Letter did not satisfy those obligations, as it did not advise whether a section 87 motion was actually required and did not provide the required timeline for such a motion. [ 22 ] The Applicant has indicated that he is prepared to proceed to a hearing without a CTR. However, I note that the Respondent disagrees with such an approach, and I adopt the conclusion in [NAME] as to the importance of the Court having before it the full record that was before the administrative decision-maker when assessing the reasonableness of a decision under review (at para 13). That said, this matter cannot be permitted to drag indefinitely, and such an approach may therefore ultimately prove to be necessary and in the interests of justice. In my view, both to mitigate prejudice to the Applicant and to take into account the lack of evidence supporting the Respondent’s request for an indefinite extension of applicable deadlines, the appropriate result is to vacate the Hearing Date but (as discussed further under the next issue below) to impose a peremptory deadline for the next step in the Application. B. If the Hearing Date is vacated, should the Court impose a peremptory timetable to govern the next steps in the Application? [ 23 ] As previously noted, the Respondent argues that no new hearing date or other deadlines should be set at this time, because it is currently difficult to ascertain a deadline for production of the CTR. Effectively, the Respondent requests that the Court place this Application into abeyance indefinitely. However, as also previously explained above, the Respondent has offered no evidentiary support for its position. [ 24 ] I therefore agree with the Applicant’s alternative position in responding to this Motion that, if the Hearing Date is to be vacated, the Court should impose a peremptory deadline for the next step in the Application. [ADDRESS] will again impose the obligation to produce the CTR (consistent with paragraph 4 of the Leave Order), in combination with the obligations set out in paragraph 19 of the Leave Order, but this time on a peremptory basis. The effect of this relief will be that, within 21 days of the date of this Order, either (a) the CTR shall be provided to the parties and to the Registry of the Court; or (b) the Respondent shall advise that it intends to apply for the non-disclosure of information or other evidence contained in the CTR pursuant to section 87 of the IRPA or on some other basis [Non-Disclosure Motion] and shall confirm a timeline for the filing of the Non-Disclosure Motion , in which case the Designated Proceedings Registry of the Court will liaise with the parties to establish a timetable for the hearing of the Non-Disclosure Motion. [ 25 ] I am not prepared to order, as the Applicant requests, that if the Respondent fails to comply with these obligations, the Respondent’s pleadings will be struck and the Application will proceed unopposed. However, with the above obligations being imposed on a peremptory basis, the result may be that the Application proceeds to adjudication without the benefit of a CTR if those obligations are not met. [ 26 ] As the Applicant proposes, my Order will also provide that, subject to the availability of the Court, a new hearing date for the Application will be scheduled by the Judicial Administrator within 90 days of the CTR being produced or, if a Non-Disclosure Motion is brought, within 90 days of its determination and the resulting production of the CTR . [ 27 ] My Order will also extend the other deadlines provided in the Leave Order (for the filing of further affidavits, etc., pursuant to paragraphs 11 to 18 of the Leave Order) to dates set by reference to the new hearing date that are commensurate with the deadlines provided by the Leave Order. C. If the Hearing Date is vacated, should the Court award costs in favor of the Applicant? [ 28 ] The Applicant argues that, if the Hearing Date is vacated, the Court should award him costs of this Motion, in recognition of unjustified delay that has unnecessarily prolonged this proceeding. [ 29 ] The Applicant has also claimed costs in the Application itself, to be adjudicated when the Application is decided. In my view, the Applicant’s claim for costs of the Motion should also be adjudicated at that time, when the Court will have more information as to the effect of the outcome of this Motion. My Order will therefore reserve the adjudication of costs of the Motion until that time.

ORDER IN IMM-1545-25 THIS COURT’S

JUDGMENT is that: The Motion is granted in part and the provisions of the Leave Order are varied as follows: The obligations and deadlines for the performance thereof, set out in paragraphs 4 and 19 of the Leave Order, are extended on a peremptory basis to the date that is twenty-one (21) days following the date of this Order; Subject to the availability of the Court, a new hearing date for the Application [the New Hearing Date] will be scheduled by the Judicial Administrator within 90 days of the CTR being produced or, if a Non-Disclosure Motion is brought, within 90 days of its determination and the resulting production of the CTR; The following obligations and deadlines for the performance thereof, set out in the Leave Order, are extended as follows: Further affidavits, if any, shall be served and filed by the Applicant on or before the date that is 55 days prior to the New Hearing Date ; Further affidavits, if any, shall be served and filed by the Respondent on or before the date that is 44 days prior to the New Hearing Date; Cross-examinations on affidavits, if any, shall be completed on or before the date that is 35 days prior to the New Hearing Date; The Applicant's further memorandum of argument, if any, shall replace the Applicant's memorandum of argument filed pursuant to Rule 10 and reply memorandum, if any, filed pursuant to Rule 13, and shall be served and filed on or before the date that is 23 days prior to the New Hearing Date; The Respondent's further memorandum of argument, if any, shall replace the Respondent's memorandum, if any, filed pursuant to Rule 11, and shall be served and filed on or before the date that is 15 days prior to the New Hearing Date ; The transcript of cross-examinations on affidavits, if any, shall be filed on or before the date that is 15 days prior to the New Hearing Date; Notwithstanding the above, the parties may consent to an alternate timeline for completing the steps in paragraph 1(c) of this Order, in which case a joint amended schedule shall be filed with the Registry. All steps shall be completed no later than the date that is 15 days prior to the New Hearing Date; and Books of Authorities shall be filed, if possible, no later than by the Friday of the week preceding the New Hearing Date, pursuant to paragraph 83 of this Court’s Amended Consolidated General Practice Guidelines . The Applicant’s claim for costs of this Motion is reserved for adjudication when the Court is determining the Application. "Richard F. Southcott" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1545-25 STYLE OF CAUSE: [NAME] v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION MATTER CONSIDERED WITHOUT PERSONAL APPEARANCE PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES AT: TORONTO, ONtario order AND

REASONS: SOUTHCOTT J. DATED: MARCH 9, 2026 WRITTEN REPRESENTATIONS BY : [NAME] For The Respondent SOLICITORS OF RECORD : [NAME] of Canada Toronto, Ontario For The Respondent