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JR - Limitations - Post-Amend (5). Sunova v. CLAAS of America [practice]
In Sunova v. CLAAS of America (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an interlocutory JR, this brought against an Agricultural and Rural Affairs Tribunal decision which "dismissed the applicant’s recusal motion, which was based on an alleged apprehension of bias on the part of the presiding Member of the Tribunal".
Here the court grants a JR limitation time extension request (though not a motion), although dismissing the main application:Extension of Time
[5] This judicial review application was not brought within in the time provided for under s. 5(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.I. (the “Act”). This subsection requires that such application be brought within 30 days of the Tribunal’s decision.
[6] The application for judicial review was not commenced until March 14, 2024. Section 5(2) of the Act provides that the Divisional Court may extend the 30-day time limit 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 the delay.
[7] The applicant has not formally moved by way of motion for an extension of time. The request for such relief has been made in the applicant’s factum. The respondent was made aware well in advance that such request would be made and has addressed the applicant’s request in their factum.
[8] Having considered the parties’ written and oral submissions as well as the procedural timeline of this proceeding, we are not persuaded that the respondent will suffer substantial prejudice or hardship if the applicant’s request for an extension is granted.
[9] An order extending the time for the service and filing of the application pursuant to s. 5(2) of the Act is granted.
[10] In making that order, we note that in the normal course, an applicant seeking an extension in the filing time is required to bring a formal motion, and failure to do so may cause the court to refuse to extend the filing deadline. However, as an additional factor in favour of granting leave in this case, extending the filing deadline provides the opportunity to provide further guidance relating to prematurity as a ground for declining to hear a judicial review application in circumstances in which reasonable apprehension of bias is alleged as grounds for relief. . McMillan v. College of Nurses
In McMillan v. College of Nurses (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a motion to extend time for bringing a JR [JRPA s.5(2)]:[4] Applications for judicial review must be brought within 30 days of the decision being challenged. Pursuant to s. 5(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (JRPA), the court may extend the time for bringing an application where “there are apparent grounds for relief and no substantial prejudice or hardship will result to any person affected by reason of the delay.”
[5] In exercising its discretion to determine whether to grant an extension, the court may consider the length of and any explanation offered for the delay: Unifor and it Local 303 v. Scepter Canada, 2022 ONSC 5683, at para. 18.
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[11] It is not the role of the court on a motion for an extension of time to assess the merits of a proposed application in detail. Further, a moving party need not show she has a successful application on the merits to satisfy the requirement for apparent grounds of relief: Unifor, at para. 22. However, I conclude overall the grounds for Ms. McMillan’s application are weak.
Prejudice
[12] Turning to prejudice, although the College does not assert specific prejudice, prejudice may be presumed in cases where an applicant has not brought an application for judicial review within the stipulated timelines. I agree with Ryan Bell J. in Rowe, when she states at para. 49: “[T]he public has a strong interest in the timely and final resolution of the ICRC process given the possible repercussions of clinical practice or conduct issues on public health in the province of Ontario.” In this case, the delay has been well beyond the 30 days set out in the JRPA and has extended to almost two years after the timeline for initiating the application for judicial review.
Length of and Explanation for the Delay
[13] This brings me to the final issue of the length of and explanation for the delay. The failure to explain a delay may be “foremost among the factors” in a court refusing to grant relief: Rowe v. College of Nurses of Ontario, 2023 ONSC 3735, at para. 31, quoting from P.P.G. Industries Canada Ltd. v. Canada (Attorney General), 1975 CanLII 204 (SCC), [1976] 2 S.C.R. 739, at p. 749. I am not satisfied with Ms. McMillan’s explanation for the delay in this case.
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