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Judicial Review - Limitation - Post-8 July 2020 Amendments (2). Boothe v. CUPE Local 4400
In Boothe v. CUPE Local 4400 (Div Court, 2023) the Divisional Court considered (and denied) a time extension under the JRPA:Analysis
[6] Section 5(2) of the JRPA places a burden on the moving party to satisfy the court that there are “apparent grounds for relief” and that “no substantial prejudice or hardship will result to any person affected by the delay.” However, this does not mean that the court cannot also consider the reasons for the delay by the moving party. Ultimately, the decision remains a matter of discretion, albeit discretion that includes consideration of the factors in s. 5(2) of the JRPA: Unifor and its Local 303 v. Scepter Canada Inc., 2022 ONSC 5683 at paras. 10-19; Belyavsky v. Walsh, 2022 ONSC 3135.
[7] Factors to consider in determining whether there are “apparent grounds for relief” include the length of the delay and any explanation offered for it, as well as the substantive merits of the application for judicial review: Unifor and its Local 303 v. Scepter Canada Inc., 2022 ONSC 5683 at paras. 17-18; Rowe v. College of Nurse of Ontario 2023 ONSC 3735 at paras. 28-29, Jonker v. Township of West Lincoln, 2023 ONSC 1948 at para. 35.
[8] Here, although the initial delay in attempting to file the application was only two weeks, the Applicant then took almost six additional months to seek an extension of time, and caused further delays, such as not attending a scheduled case conference, resulting in further delays. No good faith explanation has been provided for the delays caused by the Applicant.
[9] The merits of the application are not apparent either. The issues between the Applicant and the TDSB were addressed in the grievance process. The Applicant has shown no basis for an HRTO application that is, in effect, attempting to second-guess the labour relations process: see, e.g. Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929, [1995] S.C.J. No. 59 at paras. 55-59.
[10] Accordingly, I conclude that the first branch of the test in s. 5(2) of the JRPA has not been met and the motion is dismissed.
[11] Although it is not necessary for me to consider any hardship or prejudice, it has been observed that prejudice may be presumed: John Bruce Robinson Construction Limited v. Hamilton (City), 2022 ONSC 911 at para. 10. Permitting an extension of time to allow this application to proceed will result in substantial prejudice to the TDSB. It will have to respond to issues that occurred in 2019, and which issues it has already responded to in the arbitration process.
[12] The delay in bringing this motion also follows a pattern of delay as the Applicant also delayed bringing the application before the HRTO.
[13] The decision whether to grant an extension of time under s. 5(2) of the JRPA is discretionary. Indeed, judicial review itself is an equitable and discretionary remedy which can be refused in appropriate cases. Considering all the factors here, I see no merit in allowing this application to proceed and would dismiss the motion on that basis as well. . Yiming Liu v. Ontario Labour Relations Board et al
In Yiming Liu v. Ontario Labour Relations Board et al (Div Court, 2023) the Divisional Court considered a motion to extend time for a JR [under JRPA s.5], here in the context of a duty of fair representation labour case:The Issue on the Motion
[5] The issue on this motion is whether Ms. Liu should be granted an extension of time, given that s. 5(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, requires that a judicial review shall be brought within 30 days of the decision under review, subject to obtaining an extension time under s. 5(2) of the JRPA.
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Analysis: Should the Motion to Extend Time be Allowed?
[14] The test for an extension of time found in s. 5(2) of the JRPA requires that, in exercising its discretion to extend the time for a judicial review, the court be satisfied (i) there are “apparent grounds for relief” and (ii) no substantial prejudice or hardship will result.
[15] In considering the “apparent grounds for relief”, the court considers the length of the delay and any explanation offered for it, as well as the substantive merits of the application for judicial review: Unifor and its Local 303 v. Scepter Canada Inc., 2022 ONSC 5683 at paras. 17-18; Rowe v. College of Nurse of Ontario 2023 ONSC 3735 at paras. 28-29, Jonker v. Township of West Lincoln, 2023 ONSC 1948 at para. 35.
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Conclusion
[37] In the circumstances of the lengthy delay, the lack of detailed explanation for the delay, the prejudice to the process and the weak merits of the application for judicial review, I decline to exercise my discretion to permit Ms. Liu an extension of time to file the application for judicial review. . Bukaczewska v. Longmore-Crann
In Bukaczewska v. Longmore-Crann (Div Court, 2023) the Divisional Court considered a judicial review time-extension/limitation motion [under s.5(2) JRPA]. At para 7, the court notes that the practice in such motions is to deliver a draft application for judicial review:The Applicable Principles
[4] Subsection 5(1) of the Judicial Review Procedures Act, R.S.O. 1990, c. J.1 (“JRPA”), requires that an application for judicial review be made within 30 days of the impugned decision. An applicant is under an obligation to commence and perfect their judicial review application in a timely manner. Judicial review is an equitable and discretionary remedy that can be denied on the basis of excessive delay, regardless of the merits of the case: Ransom v. Ontario, 2010 ONSC 3156at para. 4; affirmed 2011 ONSC 5594 (Div. Ct.).
[5] Subsection 5(2) allows for an extension of time to bring an application for judicial review if the court is “satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result to any person affected by reason of the delay.” Both conditions are mandatory: Jonker v. Township of West Lincoln, 2023 ONSC 1948 (Div. Ct.), at para. 35.
[6] If both conditions are met, the court will also consider the length of delay and the reasonableness of any explanation offered for the delay when determining whether to exercise its discretion to extend the time: Unifor and its Local 303 v. Scepter Canada Inc., 2022 ONSC 5683 (Div. Ct.), at para. 17.
Application to this Case
[7] As noted above, the Decision was made on October 11, 2022. The Applicant brought this motion almost six months later, on April 3, 2023. As noted by the Respondents, the Applicant did not serve a draft notice of application for judicial review with her motion for an extension of time, as would normally be expected. Based on the submissions made by the Applicant, it appears that the grounds that she intends to rely on for review are a breach of procedural fairness and that the decision was unreasonable.
[8] The “apparent grounds for relief” condition is a more demanding standard than the test for striking or amending a pleading and requires a consideration of the substantive merits of the case. The apparent grounds for relief should be assessed in light of the applicable standard of review, which, in this case would be a standard of reasonableness: Jonker, at paras. 37 and 40.
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[14] The Applicant commenced the review process before the OLRB, however, the review was terminated in January 2023 because the Applicant failed to fulfil the required procedural steps, including serving the application on the Respondent and paying the ordered amount in trust, as required by s. 116(1) of the ESA. Having failed to avail herself of an adequate alternative remedy, the Applicant cannot demonstrate apparent grounds for relief on her application for judicial review.
[15] The Applicant relies on Carillon Decorative Products Inc. v. Mellon, 2004 CanLII 1535 (Div. Ct.) to argue that there are exceptional circumstances warranting the availability of judicial review where the amount that a party is required to pay is extremely high. In that case, however, the amount was over $500,000, and the court found that there was apparent merit to the application. In this case, the order to pay was for $31,442.84. While the Applicant alleges that this would cause her significant hardship, it is not an amount that would result in a finding of exceptional circumstances. As this court held in Airside Securuity Access Inc. v. Manickhand-Hosein, 2015 ONSC 3419 (Div. Ct.), at para. 5, the administrative process under the ESA “is not meant to be readily avoided[.]”
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[17] In respect of the second element of s. 5(2) of the JRPA, the Applicant has failed to demonstrate that there would be no substantial prejudice or hardship to any person affected by reason of the delay. There is no doubt that Mr. Prieto will suffer substantial prejudice or hardship because of the delay. In addition to the presumed prejudice resulting from delay, Mr. Prieto will be required to continue to forego payment of wages that have been found to be owing to him for work that he performed three years ago. The amount owing is significant to Mr. Prieto, who is a recent immigrant and vulnerable worker. In addition, because the order does not provide for pre or post-judgment interest, Mr. Prieto has had to forego the ability to earn interest on the amount. Had the Applicant pursued an appeal before the OLRB, the amount would have been paid into trust and earning interest from October 2022. As a result, in addition to not receiving the amount owing to him in a timely manner, Mr. Prieto receives no interest.
[18] In conclusion, the Applicant has failed to satisfy the requirements of s. 5(2) of the JRPA, that there are apparent grounds for relief and that no substantial prejudice or hardship will result to any person affected by reason of the delay if the application is allowed to proceed. I further find that the delay of almost six months in this case was excessive, and that there is no reasonable explanation for the delay. While the Applicant points to Mr. Kozuch’s health and her having given birth in the interim period as reasons for the delay, she has not provided particularized evidence as to how those circumstances affected her ability to proceed. It was during the same time that the Applicant commenced, but did not pursue, her application before the OLRB. . Lindsay v. Ecuhome Corporation
In Lindsay v. Ecuhome Corporation (Div Court, 2023) the Divisional Court considered a JRPA s.5 time extension:[12] For the motion to extend time to apply for judicial review, under s. 5(2) of the Judicial Review Procedure Act, an extension may be granted if there are apparent grounds for relief and no substantial prejudice or hardship to the respondent: Unifor and its Local 303 v Scepter Canada Inc., 2022 ONSC 5683. The Court may also consider the length of the delay and the explanation for the delay. . Segura Mosquera v. Child and Family Services Review Board
In Segura Mosquera v. Child and Family Services Review Board (Div Court, 2023) the Divisional Court considered s.5(1) JRPA limitation extension, here coupled with further delay and time limit non-compliance with RCP-governed JR perfection, and the failure to seek a time-extension order:[25] Section 5(1) of the JRPA requires an application for judicial review to be made no later than 30 days after the date the decision or matter for which judicial review is being sought was made or occurred. This is subject to s. 5(2), which gives the court authority to extend the time for making the application if it is satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result to any person affected by reason of the delay.
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[41] I accept the law as taken from paras. 26-27 of the CFSRB’s factum, concerning the factors applicable when determining whether to dismiss an application for delay:[26] Judicial review is an equitable and discretionary remedy that should be refused in the face of excessive delay. This Court has established that the following factors should be considered when determining whether to dismiss an application for delay:(a) the length of the delay;
(b) whether there is a reasonable explanation for the delay; and
(c) whether the moving party has experienced prejudice as a result of the delay. [27] Prior to the amendments in the JRPA, this Court held that an applicant must commence and perfect an application for judicial review in a timely manner, and that the failure to do so is an independent basis for a dismissal of the application. This Court has consistently held that a delay of six months or more in commencing an application and twelve or more months in perfecting it, is serious enough to warrant its dismissal, including cases where the applicant is self-represented. [Citations omitted.] [42] I also accept the submissions made by the CFSRB, supported by the jurisprudence cited at para. 29 of its factum, that this court has dismissed applications for judicial review on the basis of delay that is similar to the delay in this case.
Analysis: Should Segura be granted an extension of time to bring and perfect the JRA?
[43] As noted at the outset, Segura failed to meet the timelines under the JRPA and the Rules. Also, she has not sought an extension of time to commence or perfect the JRA.
[44] The delays in bringing and perfecting the JRA are significant and range from no less than 12 months to as great as 20 months.
[45] Segura has not provided a reasonable explanation for her delay.
[46] In keeping with the jurisprudence in this court, a delay of over six months can be serious enough to warrant the dismissal of the JRA.
[47] In addition, the Society has led evidence, which I accept, that the Society has experienced prejudice as a result of the delay.
[48] For all those reasons, I conclude that the JRA should be dismissed for delay. . Rowe v College of Nurses of Ontario
In Rowe v College of Nurses of Ontario (Div Court, 2023) the Divisional Court considered when a JRPA s.5(1) JR limitation began to run, and it's possible extension under JRPA 5(2):[2] There are two issues I must determine:(i) On what day did the 30-day time limit in s. 5(1) of the Judicial Review Procedure Act[1] begin to run?
(ii) If Mr. Rowe commenced his application beyond the 30-day time limit, should the court grant an extension of time under s. 5(2) of the JRPA? [3] For the following reasons, I find that the 30-day time limit in s. 5(1) of the JRPA began to run on June 6, 2022 when Mr. Rowe and his counsel received notice of the ICRC decision. Mr. Rowe commenced his application for judicial review well beyond the 30-day time limit. I am not satisfied that there are apparent grounds for relief and I therefore decline to exercise my discretion to extend the time for filing this application.
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The time limit began to run from June 6, 2022
[21] Section 5 of the JRPA provides:(1) Unless another Act provides otherwise, an application for judicial review shall be made no later than 30 days after the date the decision or matter for which judicial review is being sought was made or occurred, subject to subsection (2).
(2) The court may, on such terms as it considers proper, extend the time for making an application for judicial review if it is satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result to any person affected by reason of the delay. [22] Mr. Rowe argues that his application for judicial review is not out of time because the ICRC decision was not completed until he received his caution on November 23, 2022. On the plain words of s. 5(1) of the JRPA, Mr. Rowe’s argument fails. Section 5(1) expressly provides that the application shall be made no later than 30 days after “the date the decision or matter…was made or occurred.” The ICRC decision was made or occurred on April 6, 2022 and the reasons were provided to Mr. Rowe and his counsel on June 6, 2022.
[23] I agree with the College that s. 5(1) of the JRPA cannot reasonably support an interpretation that the ICRC decision was only made on the delivery of the caution on November 23, 2022. It would be contrary to the legislative goal in enacting a time limit for commencing judicial review applications if the time could be extended well into the future to allow for the undertaking and completion of a remedial activity.
[24] In support of his position, Mr. Rowe submits that the cover letter enclosing the ICRC decision represented the caution as an opportunity to “discuss the many errors in the Reasons and Caution with the ICRC” and that there was a possibility that he may have obtained relief from the ICRC on November 23, 2022. Mr. Rowe is incorrect. The cover letter states that the caution will be an opportunity to “discuss what insights you have gained” and does not support the interpretation that Mr. Rowe seeks to place on it.
[25] I also agree with the College that Mr. Rowe’s own conduct contradicts his argument that the ICRC decision could not be reviewed until the caution was complete. First, Mr. Rowe sought HPARB review of the ICRC decision in October 2022. Although review by HPARB was not available to Mr. Rowe, Mr. Rowe clearly understood that the ICRC decision could be reviewed before the caution was complete. Second, the day before the caution, in his e-mail request that three members of the ICRC panel recuse themselves from the caution, Mr. Rowe wrote that the “Decision” is “already completed.”
[26] I also reject Mr. Rowe’s alternative argument that the time should start to run on the earlier date of April 6, 2022 and not on the date he and his counsel were provided with notice of the ICRC decision. Mr. Rowe’s alternative argument is antithetical to his primary position. With respect, it is illogical to suggest that the 30-day time limit mandated by the legislature could begin to run prior to the affected party receiving notice of the very decision for which judicial review is sought.[27] The 30-day time limit began to run from June 6, 2022. At paras 28-50 the court considers whether the JRPA 5(2) extension should apply on the case facts, one of the first such detailed considerations.
. Wahbi v Ontario College of Teachers
In Wahbi v Ontario College of Teachers (Div Court, 2023) the Divisional Court considered a JR extension to commence under JRPA s.5:[13] The Judicial Review Procedure Act, RSO 1990, c J1 (“JRPA”), was amended in 2020 to impose a 30-day limitation period for bringing an application for judicial review. At the same time, it provided authority for the court to extend the time for making such an application. Sections 5(1) and 5(2) of the JRPA state:5(1) Unless another Act provides otherwise, an application for judicial review shall be made no later than 30 days after the date the decision or matter for which judicial review is being sought was made or occurred, subject to subsection (2).
5(2) The court may, on such terms as it considers proper, extend the time for making an application for judicial review if it is satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result to any person affected by reason of the delay. [14] The decision to extend time is discretionary; however, two mandatory conditions must be met: (1) there must be “apparent grounds for relief”, and (2) no substantial prejudice or hardship will result to any other person affected by reason of the delay. Even when these conditions are met, an order extending time is not automatic. The court has discretion, and may consider factors such as the length and reasons for the delay. The onus of meeting the conditions, and of satisfying the court that an extension should be granted, is on the moving party: Unifor and its Local 303 v. Scepter Canada Inc., 2022 ONSC 5683 at paras. 17-18; Jonker v. Township of West Lincoln, 2023 ONSC 1948 at paras. 34-36.
[15] The “apparent grounds for relief” condition requires the Court to examine the substantive merits of the application. This is not a high test, but is at least higher than the test to strike a pleading. The test ensures that, even when there is no prejudice caused by delay alone, an extension will not be granted in a case that has no chance of success. . Canadian Pacific Railway Company v. Teamsters Canada Rail Conference
In Canadian Pacific Railway Company v. Teamsters Canada Rail Conference (Div Court, 2023) the Divisional Court considered extending time to perfect (not commence) a case-managed (and August 2021-served) judicial review:V. The Reasons for Dismissal
[19] The motion judge granted Teamster Canada’s motion based on CP’s delay, without addressing abuse of process. In making this finding, she considered and discussed in her reasons the length of delay, the reasonableness of CP’s explanation for delay and the prejudice suffered by Teamsters Canada due to the delay, citing Canadian Chiropractic Association v. McLellan, 2011 ONSC 6014 (Div. Ct.), at para. 15.
[20] Regarding the length of delay, the motion judge noted that the case management timelines that applied during the period of this litigation and wrote that directions from case management are orders to be respected and followed. The motion judge made a finding that CP did not perfect its application within the court directed timelines, nor did it request an extension of time to do so. CP also did not take steps to perfect the application. The motion judge cited Ransom, at para. 10, where the court found that a delay of 12 months or more to perfect an application for judicial review could warrant dismissal.
[21] The motion judge rejected CP’s argument that there was no delay because it was entitled to amend its notice of application if no affidavits had yet been served, and therefore, the deadline to perfect had not passed. The motion judge found this would permit parties to extend judicial review applications indefinitely and was contrary to the Rules. She found the delay in this case was, at minimum, 11 months and was an excessive period of delay.
[22] CP’s explanation for the delay was that it was engaged in collective bargaining and an arbitration, and it was managing supply chain difficulties during this time. The motion judge found that these were vague attempts to justify taking no action in the proceeding. The motion judge found that CP’s explanations did not justify its failure to respect case management directions, in a case that it initiated, even by taking steps to vary the timetable.
[23] Regarding prejudice, Teamsters Canada submitted that CP’s failure to move the matter along meant other grievances regarding vacation entitlement remained outstanding. The motion judge found that CP’s failure to diligently pursue the application resulted in “a prolonged lack of certainty regarding the underlying issue of annual vacations.” She also found that the amended notice of application differed fundamentally from the original notice, an independent source of prejudice to Teamsters Canada.
[24] The motion judge found it was plain and obvious that the application should be dismissed for delay.
VI. Analysis
[25] CP submits that the motion judge made a palpable and overriding error by concluding that an 11-month delay could warrant dismissal for delay. CP submits that Ransom does not envision dismissal of a matter for a delay that is less than 12 months from filing to perfection. CP relies on the statement in Ransom, at para. 10, as follows:The jurisprudence of this Court has held that a delay of six months or more in commencing an application and/or twelve months or more in perfecting it could warrant dismissing the application. See Gigliotti v. Conseil d'Administration du Collèges des Grands Lacs, 2005 CanLII 23326 (ON SCDC), [2005] O.J. No. 2762 (Div. Ct.) at paras. 29-30 and Bettes v. Boeing Canada/DeHavilland, [2000] O.J. No. 5413 (Div. Ct.). [26] The decisions in Gigliotti and Bettes in fact stand for the proposition that a delay of 12-months “alone” in perfecting an application in the Divisional Court could justify dismissal for delay. Consistent with that proposition, more than simply the length of delay is relevant on a motion to dismiss for delay. This discretionary exercise requires the court to consider as well the reason for the delay and the impact of the delay on the parties and others: Canadian Chiropractic Association, at para. 15.
[27] The motion judge considered Ransom, and the three relevant factors, discussing each in turn in the reasons for decision. She concluded that not only was there excessive delay of 11 months, with the Applicant providing no compelling reason for apparently ignoring case management directions, but there was prejudice flowing from the new grounds in the amended application and the impact of the delay on other outstanding grievances.
[28] The motion judge, at para. 24, found that the explanation for the delay was insufficient, in these terms:CP's explanation for the delay is that it was engaged in collective bargaining that resulted in an impasse and arbitration, as well as "significant operational challenges resulting from supply chain disruptions caused by the COVID-19 pandemic." In my view, this vague attempt to justify taking no action in a legal proceeding that CP itself initiated is not a reasonable explanation for failing to respect the case management direction, which CP did not seek to vary, and failing to take any steps to pursue its application for almost one year. In Unifor v. Scepter, this court found that, in the case of an eight-month delay in commencing an application for judicial review, the applicant should have moved forward within the time limit "or provided a robust explanation for what is a very lengthy delay." Unifor v. Scepter, [2022 ONSC 5683] at para. 24. CP's explanation is far from robust. [29] The motion judge made specific findings that Teamsters Canada had been prejudiced by the delay and the prolonged lack of certainty around vacation entitlement. This is a reasonable conclusion given the nature of the arbitrator’s finding that the decision on vacation entitlement applied to other employees. A second finding of prejudice arose from the amended Notice of Application. As the motion judge found, this latter form of prejudice flowed from a change to the relief sought, the grounds for relief and the evidence required in support. CP did not explain why it had not provided the amended grounds sooner, which the motion judge found was a “substantively different application.”
[30] CP submits that the motion judge erred in law by failing to make any findings on prejudice. CP also submits that its amended application narrowed the issues to be reviewed.
[31] The first submission overlooks the paragraphs in the motion judge’s reasons which clearly discuss her findings on prejudice. The second submission mischaracterizes the plain wording of the amended Notice of Application as compared to the original Notice of Application. These substantive differences included the basis for relief, the nature of the record and evidence in support of the application and the nature of the relief sought.
[32] The motion judge’s findings as to prejudice were amply supported by the record and the pleadings. I find that the motion judge applied the facts before her to the applicable principles in law. Her exercise of discretion was reasonable and clear from the reasons. Note that the JR was initially served on 23 August 2021 [para 12] (the triggering events occurring shortly before) - a year after the JRPA was amended to create the JRPA s.5 30-day limitation period [on 08 July 2020], and it was case-managed [para 20]. No mention was made in the reasons for decision of JRPA s.5 at all, and it reads like an older 'laches' analysis.
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