March 16, 2015

Federal Court Applications – to settle or not to settle?

While the entire Federal Court process is speeding up in 2015, applications continue to take nearly a year from start to hearing date. For most applicants, this is very long wait and patience can begin to wear thin.

An underutilised option is settlement, which can save applicants significant time and money. Settlement is the process within which the applicant and respondent (counsel for Citizenship and Immigration Canada, Canada Border Services Agency, etc.) come to an agreement outside of the Court. On the basis of this agreement, the applicant withdraws the application from the Court and the respondent – in most cases – agrees to reconsider the application that had been refused (which led to the Federal Court application). This is the same relief as the Court would grant the applicant, and so is definitely a part of litigation that should not be overlooked.

There are two periods in the Court process where settlement will typically occur. The first opportunity is directly after the initial arguments are filed by the applicant. If the applicant’s arguments are strong and the evidentiary record is available (i.e., within the applicant’s application record), then counsel for the applicant should contact counsel for the respondent to discuss settlement. The respondent, although representing government offices, has an interest in settlement at this stage: they also do not have to take the time and effort to defend a decision which the Court is likely to ultimately overturn.

The second opportunity for settlement follows the granting of leave by the Court. The respondent is likely to wait for this stage for two reasons: one, that a Judge granted leave is evidence that the applicant’s arguments have merit, and two, following leave the entire evidentiary record is produced within the Certified Tribunal Record (CTR). If the applicant’s arguments were evidence-based, the respondent may have waited for the official CTR to evaluate the strength of the applicant’s arguments. For applicant’s counsel, it is worth identifying exactly where in the CTR the evidence supporting your client’s arguments is located, and contacting counsel for the respondent – as early as possible – with this information. For example, if an entire argument turned on whether or not a Visa Office received a particular document and/or whether the Officer ignored evidence, then locating the document within the CTR may be enough to convince the respondent that settlement is appropriate.

If settlement is possible, the applicant may withdraw the application from the Court or ask that the application with the Court be adjourned. In most cases, withdrawal is appropriate as the settlement will achieve the relief sought (i.e., reconsideration of the Officer’s decision). In certain circumstances, and in particular with applications for mandamus, it may be more appropriate to adjourn the application with the Court, so that if the respondent is unable to follow through on the terms of settlement the application can be brought before the Court again without filing an entirely new application. If the respondent does meet the terms of settlement, then the applicant can withdraw the application from the Court at that time (i.e., when a final decision has been made).

Should the terms of settlement be confirmed by the Court? The applicant and respondent can request that the Court make an Order on consent, containing the terms of settlement. This is not a necessary part of settlement though, and most often the undertaking of the respondent is relied upon. In this same vein, if the respondent offers settlement, and that settlement is for reconsideration, it is often in the applicant’s best interests to accept that settlement. If settlement is not accepted and the application goes before the Court, the Judge is likely to consider whether the Court’s time was wasted, endorse the settlement terms of the respondent, and may entertain a request by the respondent for costs against the applicant (albeit, only in the rarest of cases).

Bottom line, settlement is in the interests of all parties: the applicant, respondent, and the Court. Settlement moves an application outside of the Court and leads to the same relief as the Court would have ordered, just faster. It is in the interests of all parties, and particularly counsel for the applicant, to ensure that the evidence before the Court is complete as early as possible, so that settlement may be reached before a Judge ever becomes involved. This will lead to the quickest and most cost-effective outcome for the applicant, who can now have his or her application reconsidered and decided without waiting on the Court’s schedule.

For more information on Federal Court Appliactions, click here.