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Judicial Review - Limitation - Post-8 July 2020 Amendments (4). Netmizaaggamig Nishnaabeg (Pic Mobert Band) v Ontario (Mines)
In Netmizaaggamig Nishnaabeg (Pic Mobert Band) v Ontario (Mines) (Div Court, 2024) the Divisional Court considers a JR time extension under JRPA s.5:[5] The application is being brought more than 30 days after the date of the challenged decisions (to add, or to refuse to remove the two additional First Nations from the consultation lists). Therefore, if the Applicant wishes to proceed with an application for judicial review now, it needs to obtain an extension of time under s. 5 (2) of the Judicial Review Procedure Act, RSO 12990, c J.1.
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[12] The Applicant asks for its extension motion to be heard first. If it does not get an extension, there will be no application and no need to determine the parties or process.
[13] But this ignores the test under s. 5 (2) of the JRPA that will be in issue on the motion for an extension of time. To obtain an extension of time, an applicant needs to show that there are apparent grounds for relief in the proposed application on its merits and that no substantial prejudice will be suffered by “any person affected by reason of the delay”. Case law also recognizes that the decision is discretionary. So, more general questions concerning the interests of justice may be considered. Unifor and its Local 303 v Scepter Canada Inc., 2022 ONSC 5683 (CanLII) at para. 17.
[14] Whether the Applicant is entitled to have a court determine that the Ministry unreasonably recognized consultation rights of the two additional First Nations necessarily turns on what rights, if any, those two First Nations have or ought to have. The decisions on the extension motion, of whether there is apparent merit in the proposed judicial review and whether any person is prejudiced by the extension of time being sought, also necessarily involve consideration of the roles and facts relating the two additional First Nations. . Achaia-Shiwram v. Intact Insurance Co.
In Achaia-Shiwram v. Intact Insurance Co. (Div Court, 2024) the Divisional Court dismissed a LAT SABS appeal, here for "no-fault accident benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”)" for "catastrophic psychological impairment".
Here, in an appeal where the appellant struggled with the inconsistent law surrounding when a fact error constituted a legal error (and that of extricable errors contained in mixed errors of fact and law), the appellant left the Yatar JR option too late:[38] At the end of oral argument, the applicant asked the court to consider granting leave to bring a judicial review application if the appeal was unsuccessful. Such an application would be over a year late and the request for leave was not the subject of a proper motion. In the circumstances, and in the absence of Intact’s consent (which was not provided), I would not be prepared to grant the requested leave. . Traders General Insurance Company v. Rumball
In Traders General Insurance Company v. Rumball (Div Court, 2024) the Divisional Court allowed a motion to extend time for a LAT SABS auto insurance judicial review [JRPA 5(1)], here in unusual circumstances where there was an earlier statutory appeal and as well the Yatar case came down in the SCC (2024) recently:[3] Since a judicial review of the interlocutory decisions would have been premature, in addition to other potential obstacles, all parties have focused on the date of the Final LAT Decision. As of that decision in 2020, a judicial review had to be commenced within 30-days, as set out in s. 5 of the Judicial Review Procedure Act, R.S.O. 1990, c. 11. There was no prescribed time period prior to 2020.
[4] The moving party therefore needs an extension of time, which may be provided under s. 5(2) of the Act. This motion was brought and a preliminary issue was raised about the affidavit delivered in support of this motion as containing problematic statements such as argument. I have disregarded the contentious contents of that affidavit.
[5] This motion arises in highly unusual circumstances. The Final LAT Decision was the subject of an appeal and cross-appeal to this Court.[1] The limitation period issue was the subject of the appeal and was dismissed because it was not a question of law. It was a question of mixed fact and law. There was therefore no right of appeal. The cross-appeal related to the denial of post-104 IRBs. It was also dismissed. The Court of Appeal denied leave from the decision on the appeal but granted leave from the decision on the cross-appeal. Upon being advised of this motion, the Court of Appeal vacated the hearing date regarding the cross-appeal pending these proceedings.
[6] Under s. 5(2) of the Act, I may grant an extension of time if I am satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result due to the delay. The length of the delay and explanation for the delay are also relevant considerations: Unifor v. Scepter Canada Inc., 2022 ONSC 5683 (Div. Ct.), at para. 18.
[7] The moving party relies on Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, to explain the timing of the proposed application for judicial review. The moving party submits that prior to this decision, released in March 2024, it would have had to meet a high hurdle to pursue judicial review. The moving party moved promptly after the above decision to bring this motion.
[8] The recent decision in Yatar is a relevant consideration on this motion but it is not determinative.
[9] On the apparent grounds for relief, the moving party submits that the prior appeal does not undermine the merits because this Court found the appeal on this issue was not a question of law. It therefore did not address the issues. There is some obiter in that decision that I have considered but the decision was that there was no right of appeal. The moving party submits that it is plain on the face of the termination letter that it was clear and unequivocal. The moving party submits that once the letter is reasonably interpreted, settled Court of Appeal jurisprudence will determine the limitation issue in its favour. I need not conclude that these apparent grounds of relief have a strong chance of succeeding.
[10] On the issue of prejudice, the moving party submits that it has both paid Ms. Rumball all the IRBs that were already awarded by the LAT and has agreed not to claim them back if successful. The moving party’s focus is on not paying any more IRBs, which brings the outstanding Court of Appeal proceedings into consideration. If the limitation period ruling is overturned, that appeal becomes moot. Ms. Rumball submits that is prejudicial to her. However, should that transpire it would mean that there would be no legal entitlement to the post-104 IRBs. I have also considered the implied prejudice that arises from the passage of time, but it is diluted by the ongoing proceedings in the Court of Appeal.
[11] I agree with the submissions of LAT that finality is a central principle in the administration of justice and a compelling consideration in assessing prejudice. Moving party’s counsel fairly conceded that the recent decision in Yatar is not enough and, on prejudice, emphasized that in this unusual case the issues are still live issues between the parties.
[12] This is an unusual case. Without the outstanding appeal hearing at the Court of Appeal, arising from the same Final LAT Decision and about the same benefits (IRBs), I would not grant the motion. . South Junction Triangle Grows Neighbourhood Association v. City of Toronto
In South Junction Triangle Grows Neighbourhood Association v. City of Toronto (Div Court, 2024) the Divisional Court dismisses a JR time extension motion:[24] Section 5(2) of the Judicial Review Procedure Act, R.S.O. 1990, c.J.1 states: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. [25] The onus is on the applicant to prove that there are apparent grounds for relief. This Court has held that the following should be considered:a. The length of the delay and any explanation offered for it;
b. The substantive merits for the application for judicial review. Success need not be shown, but weak grounds will weigh against granting an extension: Rowe v. College of Nurses of Ontario, 2023 ONSC 3735. . Khan v. Allstate
In Khan v. Allstate (Div Court, 2024) the Divisional Court dismisses a motion to extend time to commence a Yatar JR (here against SABS decisions of the LAT) - this in conjunction with a LAT SABS appeal:[2] Mr. Khan initiated both an appeal and an application for judicial review of the Tribunal decisions on March 7, 2023 but states he subsequently discontinued the application because of an adverse costs award in another case in which the court relied on the Court of Appeal decision in Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446. Yatar was subsequently reversed by the Supreme Court of Canada: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8. Whereas the Court of Appeal had stated, given the existing statutory right of appeal, judicial review was reserved for “rare cases,” the Supreme Court concluded a person has a right to seek judicial review in spite of the statutory right of appeal.
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Analysis
[6] Subsection 5(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 requires an applicant to file an application for judicial review within 30 days of the decision. Subsection 5(2) authorizes the court to extend this time “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.” In considering whether an extension of time should be granted, it may also be relevant for the court to consider the length of the delay and any explanation offered for it: Unifor and its Local 303 v. Scepter Canada Inc., 2022 ONSC 5683 (Div. Ct.), at paras. 17-18.
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B. Prejudice and Length of the Delay
[15] The length of the delay also weighs against granting an extension of time. I acknowledge that Mr. Khan acted promptly after the release of the Supreme court’s decision in Yatar. On the other hand, he filed this motion not only after a lengthy delay from the initial decisions, but after the respondent the appeal was dismissed. Mr. Khan filed this motion over a year after the Tribunal’s reconsideration decision and 18 months after the Tribunal’s initial decision. He had already withdrawn his first application for judicial review and the respondent already successfully defended the appeal in this court and motion for leave to appeal at the Court of Appeal.
[16] Although the respondent has not alleged specific prejudice arising from the delay, I accept the Tribunal’s submission that a relevant consideration is the principle of finality. This court has maintained that there comes a time when parties must be able to say “this matter has been decided.” This is the core of the finality principle, which is a central principle in the administration of justice: Mihundukulasuriya v. Aramark Food Services Ltd., 2022 ONSC 4563 (Div. Ct.), at para. 17; Marché D’Alimentation Denis Thériault Ltée v. Giant Stores Limited, 2007 ONCA 695, at para. 37.
[17] In the circumstances of this case, the length of delay and principle of finality are not determinative on their own, but they weigh against an extension of time.
Disposition
[18] Taking all the factors into consideration and especially the lack of any apparent grounds of relief, the court will not exercise its discretion to grant an extension. The motion therefore is dismissed. . City of Toronto v. Minto (Mimico) Inc.
In City of Toronto v. Minto (Mimico) Inc. (Div Court, 2024) the Divisional Court allowed a time extension motion to commence a JR of an OLT interlocutory decision, here of whether the OLT was correct in finding "the respondent’s application to be complete when it had failed to attend a pre-application consultation (PAC) as required by a City By-Law":[4] The Tribunal’s reasons were dated December 12, 2023. Subsection 5(1) of the Judicial Review Procedure Act, R.S.O. 1990 c. J.1 (JRPA) provides that an application for judicial review shall be made no later than 30 days after the date of the decision from which review is sought. The City initiated this application for judicial review seven weeks after the deadline, on February 29, 2024.
Analysis
[5] Subsection 5(2) of the JRPA authorizes the court to grant an extension of 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.” In considering whether there are apparent grounds for relief, the court will also assess the substantive merits of the application. An applicant need not show it has a successful application but weak grounds for review will weigh against granting an extension. In exercising its discretion, the court may also consider the length of the delay and any explanation offered for it: Unifor and its Local 303 v. Scepter Canada Inc., 2022 ONSC 5683, at paras. 17-18, 22.
Delay
[6] Here, the delay was not lengthy and the City offered an acceptable explanation for it. As the City states, it always intended to challenge the decision. It initially filed a motion for leave to appeal within the required 15-day period. Section 24 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6 provides for an appeal to this court, with leave, on a question of law “unless another Act specifies otherwise.” At a case conference on February 23, 2024, the respondent submitted the City’s appeal was barred by s. 114(4.8) of the Act, which provides: “The Ontario Land Tribunal’s determination under subsection (4.6) is not subject to appeal or review.”
[7] Following the case conference, at my direction, the Registrar issued a notice pursuant to r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194. In my directions, I advised the court was concerned the motion for leave to appeal was frivolous or vexatious or otherwise an abuse of the process of the court because s. 114(4.8) states the Tribunal’s decision under s. 114(4.6) was not subject to appeal or review and because the court does not have discretion to hear an appeal where it has been barred by statute. The City initiated its motion for an extension of time to file an application shortly after the case conference, on February 29, 2024. In my view, the City’s initial challenge of the decision by motion for leave to appeal is a sufficient explanation for its delay.
Apparent Grounds for Relief
[8] The more difficult question is whether there are apparent grounds for relief because of a concern about prematurity. Following receipt of the parties’ submissions on this motion, I sent directions asking them to provide their positions on whether the proposed application would be premature. The respondent replied that the application would be premature. The City submitted the application would not be premature and, if the court were to determine the Tribunal’s decision was interlocutory, there are exceptional circumstances that merit judicial review.
[9] Having reviewed the parties’ submissions, I am not prepared to deny the extension of time based on prematurity, but the parties will be required to brief this issue in their submissions on the application. Although the motion for directions in this case formed part of an ongoing administrative proceeding, the City submits the next step in the proceeding, where the City would reach a decision on the overall site plan control application, involves different subject matter and legal considerations. Also, only the respondent would be able to appeal that decision. The City’s submissions raise the question of whether there is any other legal route for the City to challenge the Tribunal’s interpretation of the PAC requirement. I am not determining whether the proposed application would be premature, or whether there are exceptional circumstances that would justify the court hearing the application, only that this issue should be put before a panel.
[10] Apart from the question of prematurity, the City’s case has sufficient merit that an extension should not be denied on this ground. The City submits the Tribunal’s interpretation effectively invalidated its mandatory PAC By-law. In its submission, this was not a reasonable interpretation of the statute. It analogizes this case to City of Toronto v. SheppBonn Ltd., 2015 ONSC 3929 (Div. Ct.), in which this court found, in the circumstances of that case, the Tribunal had exceeded its jurisdiction on a motion for directions and effectively determined whether site plan control applied to the development proposal. The panel hearing the application will have the opportunity to consider that case, as well as Paletta International Corporation v. Burlington (City), 2004 CanLII 8695 (ONCA), which the respondent relies on and was cited by the Tribunal. The City has raised a position of sufficient merit that it should be determined by a panel.
Prejudice
[11] The respondent has submitted evidence of the prejudice it claims it will suffer because of the City’s delay. It submits it will be subject to extra costs. For example, there is a $200 million demand debenture and a negotiated land loan on the properties it seeks to develop. Interest charges on the loan are approximately $530,000 per month. The respondent also submits that delay to one aspect of a development can have downstream impact on other aspects.
[12] The City submits the respondent has not advanced evidence it is prepared to immediately develop the properties. Instead, the respondent’s affiant admits the development requires further studies.
[13] I accept there is some prejudice to the respondent from the delay. The respondent is attempting to move the project forward efficiently. It is reasonable to conclude any delay to resolving the site plan application will have some impact on being able to do so, even if the impact cannot be quantified in the precise numbers the respondent has provided. But the real prejudice is caused by the dispute as a whole, not the additional seven weeks. In circumstances where the City advised it intended to challenge the decision from the outset and where the merits weigh in favour of having the matter determined by a panel, the prejudice caused by the seven-week delay is not sufficient to deny the extension of time.
[14] To address prejudice, the application may also be moved forward on an expedited schedule. For example, the court may have limited dates available for a hearing during the summer sittings. Within 7 days, the parties shall provide their proposed agreed schedule for the exchange of materials on the application by email to my attention. If they are not able to agree on a schedule, each party shall provide its proposed schedule to my attention.
Disposition
[15] The motion for an extension of time therefore is granted. With respect to costs, neither party has uploaded a bill of costs or costs outline to CaseLines, as required by the Consolidated Practice Direction for Divisional Court Proceedings. No costs are ordered.
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