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JR - Limitations - Post-Amend (5). Chammah v. Legal Aid Ontario
In Chammah v. Legal Aid Ontario (Ont Div Ct, 2026) the Ontario Divisional Court allowed a motion to extend time to commence a JR, here brought against an Legal Aid decision where the applicant "advises that he has autism spectrum disorder.".
The court considers the JR time extension request [JRPA s.5], here in this unusual behaviour-instigated context:[2] Section 5(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the “JRPA”), provides that unless another Act provides otherwise, an application for judicial review shall be made no later than 30 days after the date of the decision.
[3] Section 5(2) of the JRPA provides that 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.
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The test for an extension
[16] The parties agree that to be granted an extension of time to file his application, Mr. Chammah must establish two mandatory conditions: (1) the request for judicial review has “apparent grounds for relief”, and (2) no substantial prejudice or hardship will result to any other person affected by reason of the delay. As the Divisional Court held in Unifor and its Local 303 v Scepter Canada Inc., 2022 ONSC 5683, at paras. 17-19, the court may consider other factors such as the length of the delay and any explanation for the delay. However, an extension of time is not automatic even where the two mandatory conditions are met. An extension of time is discretionary.
[17] To determine whether the judicial review has apparent grounds for relief, the court will engage in a limited inquiry into the merits of the underlying application, including the evidentiary record: Jonker v. Township of West Lincoln, 2023 ONSC 1948, 167 O.R. (3d) 544, at paras. 35 and 41. This is a more onerous standard than the test for striking pleadings and requires that the applicant demonstrate more than simply a “tenable” argument: Jonker, at para. 40; Wahbi v. Ontario College of Teachers, 2023 ONSC 3713, at para. 15. The apparent grounds for review should be assessed against the applicable standard of review, which is reasonableness: Jonker at para. 42.
[18] Where the underlying judicial review application does not have any “apparent grounds for relief,” the court can deny extension requests on this basis alone: Yan v. Law Society of Ontario, 2023 ONSC 1290, at para. 8; Jonker, at para. 35.
Position of the Parties
[19] Citing Yan at para. 9, the only prejudice LAO relies on is the prejudice that is presumed to flow from the delay.
[20] LAO acknowledges that it exercised state authority. However, citing Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018] 1 S.C.R. 750, at para. 14., LAO opposes the relief on the basis that the application has no apparent grounds for relief because the underlying decision that Mr. Chammah is seeking to review is not of a sufficiently public character to attract judicial review.
[21] LAO references the Court of Appeal for Ontario’s decision in Khorsand v. Toronto Police Services Board, 2024 ONCA 597, 499 D.L.R. (4th) 717, at paras. 73 and 74. There, the court held that the factors in Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605 can be used to tease out why, at a minimum, the Wall functional criterion had or had not been met in determining whether a decision is public or not, and that the Air Canada factors were not a “strict test or checklist” but “simply play a helpful role in focusing the court’s attention and reasoning process, especially when analyzing the second criterion from Wall”. The court added a caveat at para. 76 that the Air Canada factors should not be used to characterize a decision of a public body as public in function simply because a broad segment of the public may be interested in or impacted by it.
[22] LAO also references the Court of Appeal for Ontario’s decision in West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2025 ONCA 821, at para. 43, where the court summarizes the three principles that can be derived from the JRPA and the cases of Wall, Khorsand, and Air Canada.
[23] LAO engages in an in-depth analysis of the Air Canada factors to establish that the Decision should not be characterized as sufficiently public in nature.
[24] Mr. Chammah submits he has met the test for an extension of time. He submits that the Decision is of a sufficiently public character to attract judicial review, and his underlying application meets the apparent grounds for relief test.
[25] Mr. Chammah raises numerous grounds in his underlying application. Among them are the following:a. the Decision was made without notice, without an opportunity to respond, and without reasons, and contains on a conclusory assertion of abuse without specifying the details of the abuse;
b. the Legal Aid Services Rules were breached by LAO;
c. the Decision did not inform him of the reviewability of the Decision or of the timeframes and process for seeking review;
d. the Decision prohibited further interaction with LAO staff which meant that he could not exercise his review rights;
e. LAO failed to make a finding pursuant to s. 8(1)(c) of the Legal Aid Services Rules that services “cannot be provided effectively” and that he had successfully received duty counsel assistance at prior appearances; and
f. a legal aid certificate was issued without his application, consent, or signature and in violation of the asserted mandatory procedure requirements in ss. 6(1), 10, and 11. Analysis and Conclusion
[26] In my view, “apparent grounds for relief” does not require a determination at this stage whether the decision is of a sufficiently public nature to attract judicial review. On a limited review, the evidence and materials filed and the arguments made before me support either conclusion. It is possible that a court may conclude that the decision to deny access to duty counsel to a self-represented party who is entitled to choose whether to be represented by counsel or not, and to require him to submit to a legal aid certificate instead, is of a sufficiently public character to allow for judicial review. I am not required to make that final determination on this application, and it is inappropriate to do so where it is not clear or obvious that the decision is not of a sufficiently public nature to be amenable to judicial review.
[27] Mr. Chammah intended to seek judicial review within 30 days of the Decision. The length of the delay is minimal. The presumed prejudice is nominal. No actual prejudice has been established.
[28] There is an explanation for the delay. But for the issues encountered by Mr. Chammah at the Kitchener civil counter and with the Portal, the application for judicial review would have proceeded in the ordinary course and this motion to extend the time would not have been required. He would have been entitled to commence the application for judicial review.
[29] Further, in my view, a limited inquiry based on the merits of the underlying application leads me to conclude that, for the purposes of the extension application, there exist apparent grounds for relief. Whether the decision is of a sufficient public character to meet the test for judicial review, and whether the application will be successful, is left for determination on a full record and a hearing of the issues. . 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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