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Judicial Review - Limitation - Post-8 July 2020 Amendments (3). Nouracham v. Aviva General Insurance Company
In Nouracham v. Aviva General Insurance Company (Div Court, 2024) the Divisional Court dismissed an adjournment request, here where the appellant wished to add a dual-JR proceeding (as per Yatar) but it was late as per JRPA s.5 limitation provisions:[3] The week before the hearing of this appeal, the appellant sought an adjournment. The appellant wanted to bring a late application for judicial review because of the recent decision in Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8. A lengthy extension of time would be needed to bring an application for judicial review from the above Tribunal decisions. The adjournment request was contested.
[4] In response to the adjournment request, the appellant was required to deliver a notice of application and motion showing the grounds for the proposed judicial review and for the necessary extension of time. The adjournment request was then argued at the outset of the appeal. It was taken under reserve.
[5] The adjournment is denied. We are satisfied with the explanation for the delay, given the timing of Yatar and the hearing of this appeal. However, as set out in s. 5(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, to get an extension of time the appellant would also have to show that there are apparent grounds for relief and no substantial prejudice or hardship. The respondent insurer submits there is prejudice, however, we do not rely on it. In this case we are not persuaded to exercise our discretion to grant the adjournment because of the grounds for relief in the proposed application for judicial review. We are not persuaded that those grounds would lead to relief that is not already addressed by the issues in the appeal. . Humberplex Developments Inc. v. Ontario (AG)
In Humberplex Developments Inc. v. Ontario (AG) (Div Court, 2024) the Divisional Court dismissed a JR, here of "O.Reg. 382/19, which amended O.Reg. 303/19: Transition for Planning Act Appeals" under the Local Planning Appeal Tribunal Act, 2017 on ultra vires grounds. "The amending regulation reimposed the more restrictive procedural regime that previously applied to appeals of municipal planning decisions heard by the Ontario Land Tribunal (the “Tribunal”). Under the amending regulation, the more restrictive regime was reimposed only on appeals solely by third party appellants.".
Here the court considers (and denies) 'delay' grounds for dismissing the JR, here without apparent reference to the relatively new (08 July 2020) JRPA s.5 limitation provisions:VIII. Delay
[95] As a preliminary issue, Kirby 27 and Vaughan also raise the issue of delay. They submit that the applicants’ judicial review application should be dismissed for delay, given the excessive time elapsed between the Tribunal’s Initial Decision in December 2019 (finding that O. Reg. 382/19 applies to the appeals) and the applicants’ judicial review application in July 2021 (challenging that regulation’s validity). They say that it was open to the applicants at any time to challenge the vires of O. Reg. 382/19. They argue that the applicants should have done so promptly after the Tribunal’s Initial Decision to resolve the issue of whether the Tribunal was proceeding under the correct procedural regime, rather than causing significant prejudice to Kirby 27, Vaughan and the public arising from the appeals’ proceeding under the challenged Bill 139 regime.
[96] I see no merit in the submission that the applicant’s judicial review application should be dismissed for delay. Previous case law provided that unless there are exceptional circumstances, the court will generally decline to consider an application for judicial review until the underlying tribunal proceeding has been completed: Gill v. College of Physicians and Surgeons, 2021 ONSC 7549, at para. 31 (Div. Ct.); Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 CanLII 3430 (ON SCDC), 11 O.R. (3d) 798, 99 D.L.R. (4th) 738 (Div. Ct.).
[97] The rationale for this position was summarized in Canada (Border Services Agency) v. C.B. Powell Limited, at paras. 31-32 (quoted with approval in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, at para. 69), as follows:[A]bsent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.
This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge. [Citations omitted.] [98] The bar for establishing exceptional circumstances is high: Kadri v. Windsor Regional Hospital, 2019 ONSC 5427, at para. 59 (Div. Ct.); C.B. Powell, at para. 33. Given previous case law, it was entirely appropriate for the applicants to initiate their application after the Tribunal rendered a final decision to avoid a challenge for prematurity.
[99] Accordingly, as a preliminary issue, I would not dismiss the applicants’ judicial review application for delay. The applicants acted reasonably in waiting until the Final Decision before challenging the vires of O. Reg. 382/19. . Lisikh v. HRTO
In Lisikh v. HRTO (Div Court, 2024) the Divisional Court considered a JR time extension (limitations) issue [JRPA s.5], here where the underlying tribunal proceeding was before the HRTO:[1] The Applicant, Mr. Lisikh, has brought a motion for an extension of time to seek judicial review of two decisions of the Human Rights Tribunal of Ontario. The first decision is dated November 10, 2022 and the second is a reconsideration decision dated February 28, 2023. Pursuant to s. 5(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (JRPA), Mr. Lisikh had 30 days to file an application for judicial review. Mr. Lisikh’s notice of motion was served on October 23, 2023, which was almost 7 months after his deadline.
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[7] Subsection 5(2) of the JRPA authorizes the court to extend the time for making an application for judicial review where there are apparent grounds for relief and no substantial prejudice will result to any person affected by reason of the delay. The question of whether there are “apparent grounds for relief” requires consideration of the merits of the claim. It is in the court’s discretion whether to grant or deny the extension: Unifor and its Local 303 v. Scepter Canada Inc., 2022 ONSC 5683, at paras. 17, 21.
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[16] Mr. Lisikh submits in his notice of motion seeking an extension of time that he is self-represented with no experience in legal procedure. He states that he did not have enough time to find and solicit legal advice. He also states that the Tribunal did not assist him with how to challenge its decision.
[17] The Respondent does not claim this motion should be dismissed because of the length of or reasons for the delay. It also does not assert prejudice. The court may exercise its discretion to deny an extension of time solely because of a lack of merit: Yan v. Law Society of Ontario, 2023 ONSC 1290, at para. 8. Mr. Lisikh need not show he has a successful application on the merits, but he has not provided any basis on which this court could find the Tribunal’s decisions unreasonable. The proposed application for judicial review is devoid of merit and contains no “apparent grounds for relief.” In these circumstances, the extension is denied, and the motion is dismissed. . Jonker v. West Lincoln (The Township of)
In Jonker v. West Lincoln (The Township of) (Div Court, 2024) the Divisional Court considered a JR, here challenging a finding that - after "investigation by the Township’s Integrity Commissioner" - the applicant had "contravened two sections of the Township’s Code of Conduct for his actions" during the "January/February 2022 Freedom Convoy protest in Ottawa against government lockdowns and Covid-19 vaccine mandates"].
Here, the court granted a one-day time extension under JRPA 5(2):The Motion for an Extension
[22] Pursuant to s. 5(2) of the JRPA, this court has the discretion to grant the requested extension. In order to grant an extension, 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 person affected by the delay. Other relevant considerations include the length of the delay and the explanation for that delay.
[23] In this case the delay was one day. The explanation for the delay, which was not contradicted, was counsel error in counting the days. The other delays in perfecting the appeal have been satisfactorily explained and the Respondent could point to no prejudice, other than presumed prejudice, that would justify denying the extension. While, as explained below, I would dismiss the application on the merits, there were “apparent grounds” for relief. Thus, the requested extension is granted. . Lachance v. Solicitor General of Ontario
In Lachance v. Solicitor General of Ontario (Div Court, 2023) the Divisional Court consider a JR by local residents, here to resist ["quash the decision of the Solicitor General"] the construction of a new Ontario correctional facility.
In these quotes, the court considers the 'prejudice' element ["substantial prejudice or hardship"] of the JRPA s.5(2) limitations extension test:PREJUDICE
[57] Finally, the respondents’ evidence is that the government committed $3 - $4 million to the proposed development project during the two years that the applicants delayed commencing this proceeding. They have now had to hold up the procurement process for another 1.5 years as this litigation has proceeded through motions to this hearing.
[58] The respondents have also closed the purchase of the land upon which the proposed correctional facility complex is to be constructed. The ministry has spent its money while the applicants delayed commencing this proceeding.
[59] I am not convinced that funds moving on government ledgers from the Ministry of the Solicitor General to the crown corporation that previously owned title to the land is actual prejudice to the government respondents. I understand that the Solicitor General’s budgetary allocation was decreased by the sale price. The crown corporation vendor probably also has an independent reporting structure. Those may be important accounting principles to promote government fiscal accountability. But the bottom line appears to be that two branches of the government traded assets of equal value. If the sale is set aside, then the Ministry of the Solicitor General will perhaps have wasted the costs of the transaction.
[60] The respondents point to closer to $1 million spent on consultants and for due diligence around the land. It also incurred about $1 million for water main upgrades to the site. While the applicants’ pursued their chosen paths, people in government ministries and crown corporation(s) spent their time at public expense, working on the project for two years.
[61] The Solicitor General also says that the search for land for this project has been especially difficult. It certainly took years and the project has gone through various iterations. The respondents rely on somewhat speculative evidence that finding a new site will be even harder and more expensive now.
[62] M. Émard-Chabot submits that in the context of a massive proposed project, valued at around $200 million, the loss of a few million here or there is not really substantial prejudice. He points to the fact that the Solicitor General may have walked away from a similar amount in August, 2020 when it abandoned its previously planned site and decided to move the correctional facility project to Kemptville. He also submits that it is unfair for the Solicitor General to walk away from a few million dollars when it decides to change policy, but that she can then rely on roughly the same amount to prevent the applicants from reviewing the lawfulness of her decision.
[63] I reject the notion that wasting $2 or $3 million in public funds is not substantial prejudice. Even if it is a small percentage of a planned investment in a mega-project, every dollar of public funds must be treated with prudent stewardship. Losses of public funds in the millions of dollars may be a rounding error on the books. But to those who taxes paid that money or to others’ who could have used programs funded by that money, its loss must be viewed as substantial prejudice.
[64] Similarly, there is no equivalence between the government’s cost benefit analysis in making policy decisions and the applicants’ entitlement to challenge government action at a time of their choosing. The elected representatives are accountable to the voters for the cost of government’s policy decisions. The Solicitor General can be called upon by the electorate to explain the costs of the decision to switch development projects in August, 2020. The applicants, by contrast, are advancing their own interests, accountable to no one, and free to make their strategic choices as they see fit. Holding the applicants to an assessment of the time they took to challenge the Solicitor General’s decision so as to avoid millions of dollars being wasted while they engaged in public meetings, information campaigns, freedom of information appeals, election sign dispute proceedings, and lobbying politicians, is not a proper comparator to any cost incurred by the Solicitor General in the decision-making processes.
[65] A judicial review proceeding delayed for two years incurs a presumption of prejudice under the applicable case law discussed above. The applicants have tried to minimize the cost evidence. But they do not deny that the relevant people invested two years of efforts in their jobs, at public expense, while foregoing any search for other sites, that would not have happened had the applicants proceeded with this application on a timely basis rather than as a last resort.
[66] It is also telling that the applicants seek relief prohibiting altogether the development of the correctional facility project in Kemptville. If they succeeded in this judicial review application on Planning Act grounds, it is likely that the court would quash the decision and remit it back to the Solicitor General to reconsider while taking all proper planning steps required by law. There is no apparent basis under the two specific Planning Act issues raised by the applicants for the court to prohibit the project from ever being built provided planning decisions are all made lawfully.
[67] This lays bare the applicants’ rationale for treating these proceedings as the last resort. The litigation does not get the applicants what they want – which is to stop the project.
[68] I find that the respondents have suffered substantial prejudice from the applicants’ delay in bringing this proceeding. The government invested two years of time and funds on the project while the applicant’s chose to pursue relief elsewhere. Even accepting that the application could have prima facie merit, allowing this application to proceed so late in the day would undermine the purpose of requiring timely judicial review proceedings at common law and now in the JRPA.
[69] In all the circumstances, I would not exercise the discretion to extend the time limit for the commencement of this proceeding. Therefore, the application is dismissed. . Lachance v. Solicitor General of Ontario
In Lachance v. Solicitor General of Ontario (Div Court, 2023) the Divisional Court consider a JR by local residents, here to resist ["quash the decision of the Solicitor General"] the construction of a new Ontario correctional facility.
In these quotes the court considers the JR limitation period under JRPA 5(1), and a request for an extension thereof. This case is an example of how new post-July 2020 30-day JR limitations can stifle community activism and it's necessary logistical (information and document) preparation [see paras 28-56, esp paras 53-56] - something that was already difficult for public participation:[3] The Solicitor General announced her decision to build a correctional facility in Kemptville on August 27, 2020. The applicants started this application to challenge the decision almost two years later on August 16, 2022.
[4] Under s. 5 (1) of the Judicial Review Procedure Act, RSO 1990 c J.2 applications to review government decisions must be brought within 30 days of the decision being made. That date can be extended under s. 5 (2) of the statute if the court finds that application has merit and, “no substantial prejudice or hardship will result to any person affected by reason of the delay”.
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The Limitation Period
[23] The 30-day time limit to apply for judicial review under s. 5 (1) of the JRPA was added to the legislation effective July 8, 2020. Prior to that time however, case law had recognized that the court could exercise a discretionary authority to dismiss proceedings for delay. Case law established there was a presumptive six-month time limit on bringing applications for judicial review. See, for example, Taylor v. Pivotal Integrated HR Solutions, 2020 ONSC 6108, at para. 35.
[24] The purpose of the time limit is clear enough. The common law has long required that judicial review of government decisions be sought expeditiously. De Pelham v. Human Rights Tribunal of Ontario, 2011 ONSC 7006 (CanLII), at para. 14.
[25] Governmental and tribunal decisions often involve real time issues. Peoples’ lives are affected. Unlike most civil actions that tend to involve historical issues for which damages or other remedies are claimed, an application for judicial review can affect and delay implementation of government action. Expenses may be incurred by government or individuals while waiting for judicial review proceedings. There is an institutional interest in ensuring timeliness and finality to governmental decisions. Taylor v. Pivotal Integrated HR Solutions, 2020 ONSC 6108, at para. 45.
[26] The court will consider an applicant’s reasons for any delay although s. 5 (2) of the JRPA mentions only the apparent merit of a proceeding and any prejudice caused by delay. The decision to extend the time for a claim is ultimately one that requires the court to exercise judgment or discretion. I agree with Matheson J,. writing for a panel of this court, in Unifor and its Local 303 v Scepter Canada Inc., 2022 ONSC 5683 (CanLII):
[18] Therefore s. 5(2) does not foreclose a consideration of the length of the delay, and any explanation offered for the delay, in the exercise of the court’s discretion. The impact of these facts may vary depending on the case and will now be considered in the context of a 30-day time limit.
[27] To the extent that s. 5 (2) of the JRPA requires the court to consider whether there are apparent grounds for relief raised in the applicants’ material, I assume this is so for the purposes of the motion. I have no hesitation finding that there is a prima facie case raised in the applicants’ material. . Rao v. Wawanesa Mutual Insurance Company
In Rao v. Wawanesa Mutual Insurance Company (Div Court, 2023) the Divisional Court considers (and allows) a motion to extend time to commence an appeal, here of a LAT SABS decision.
The below quote raises issues that I've written about before, there in the similar RTA context. The issue is what to do when an administrative regime allows for a 'review' (aka 'reconsideration', or 'recon') - but fails to allow an extension of time (so that the 'recon' can be conducted) to commence an appeal. Prudent (and necessarily well-funded) counsel facing such a situation would elect to advance both the recon and the appeal simultaneously (at least where 'questions of law' are concerned), a seemingly avoidable offence against the 'multiplicity of proceedings' prohibition set out in the Courts of Justice Act [s.138]. But this 'solution' is rarely financially available to most litigants, and recommending it disregards the undeniably more serious administrative offence that it poses to the 'access to justice' interest in such areas of law as residential tenancies and MVA-associated income support.
It is much worth noting that this problem is both overtly recognized (and sensibly and directly addressed) in social assistance law where, in the ODSP context [ODSPA, General Reg, s.70(2-3)], the law provides:70(2) If a party has made a request to the Tribunal for a reconsideration of its decision, no party may commence an appeal to the Divisional Court until,
(a) the Tribunal has held the reconsideration and delivered a decision;
(b) the Tribunal has refused to hold a reconsideration; or
(c) the request for the reconsideration has been withdrawn.
70(3) If subsection (2) applies, the notice of appeal with the Divisional Court shall be filed within 30 days after the occurrence referred to in subsection (2), rather than as provided in subsection (1). I have written on this issue in past [quoting from my Residential Tenancy (Ontario) Guide, Ch.15, s.4: 'Reviews and Appeals - When To Choose a Review, an Appeal - or Both?']:In Oladunjoye v. Jonker (Div Ct, 2021) the Divisional Court held that commencing a s.210 RTA appeal while an LTB review application was outstanding was premature. I have a problem with this case, because - unlike the situation with social assistance appeals [eg. ODSPA General Reg s.70] - the RTA has no appeal time-extending provision for when a review (reconsideration) is filed. I have already written on the prudence of filing both appeals and reviews to fully protect a party's rights, a situation which I lament but see no safe solution for. This case had the potential to resolve this problem with a clear statement of principle, but rather it was applied to hurt the tenant's case when they seem - in my mind - to be acting sensibly: ... In this case [in discussion at para.18 and 23 (below)] the court cites a similar practical (and highly sensible) resolution that parties sometimes reach to address this plainly unsensible situation. Parties simply 'wait out' the reconsideration, only commencing an appeal if and when it became necessary. Unfortunately this court viewed this practice as irrelevant as being "... not evidence and at most show(ing) an inconsistent practice.":[18] Counsel for both parties on this motion made submissions about the practice in the personal injury bar regarding when to serve a notice of appeal to the Divisional Court when a reconsideration is also sought at the LAT. There was reference to a practice of serving the notice of appeal within thirty days of the decision that is the subject of a reconsideration request, and, in parallel, seeking reconsideration from the LAT. There was also reference to waiting until after the reconsideration decision was released and then serving the notice of appeal challenging both decisions. As I said at the hearing, while I accept that counsel were trying to be helpful to the Court, these ad hoc submissions are of limited assistance. They are not evidence and at most show an inconsistent practice. In addition, in this case, an extension of time was needed from the LAT before there would be a reconsideration. This is not the more straightforward case of a final merits decision followed by a reconsideration decision.
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[23] The moving party relies on the decision of this Court in Hordo v. CAA Insurance Company, 2023 ONSC 6774, also arising from a motion for an extension of time to appeal to this Court. It appears that Hordo proceeded on the assumption that the time to appeal began when the LAT released its reconsideration decision. That position was not challenged and there was no discussion about whether or not there was a right of appeal from the reconsideration decision. ....
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