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Judicial Review - Laches/Limitation - Pre-08 July 2020 Amendments. Gillies v Bluewater District School Board
In Gillies v Bluewater District School Board (Div Court, 2023) the Divisional Court considered a 'laches' (undue delay) issue, here regarding the commencement of a judicial review under the JRPA (amendments in 2020 have established a flexible 30-day limitation period: JRPA s.5):[7] At the time of the decision and the commencement of this application, there was no statutory deadline for filing an application for judicial review. The Act was amended in 2020 to provide that such an application shall be made no later than 30 days after the decision for which judicial review is being sought.
[8] However, the law has long recognized that judicial review in the nature of certiorari is discretionary, and the conduct of the applicant may constitute a valid reason for declining to grant the remedy. Undue delay in pursing an application for judicial review can be grounds, in the exercise of the court’s discretion, for refusing the application: Gigliotti v. Conseil d’Administration du College des Grands Lacs, 2005 CanLII 23326 (ON SCDC), 76 O.R. (3d) 561, [2005] O.J. No. 2762, at paras. 26-7. The Divisional Court has held on numerous occasions that a delay of six months or more in the commencement of the application, and/or 12 months or more in its perfection, could be serious enough alone to warrant dismissal: Gigliotti, at para. 30.
[9] The court is to consider three factors in exercising its discretion:a) The length of the delay;
b) Whether there is a reasonable explanation for the delay; and,
c) Whether any prejudice has been suffered by the respondent or a third party as a result of the delay: Gigliotti, at para. 28. [10] In the case at bar, 3 ½ months elapsed from the date of the decision until the application was commenced. While this is well in excess of the current statutory deadline, it is within the guideline of 6 months suggested by the caselaw that was applicable at the time, and we find no fault in it. We similarly find no fault with the manner in which the applicant moved the case forward from the time the motion record to compel production of the Record of Proceedings was filed on April 20, 2022, until the application was perfected.
[11] However, the period in between is highly problematic. Almost 29 months elapsed from October 29, 2019 (when counsel for the applicant wrote to counsel for the respondent to request the Record), until April 20, 2022 (when the motion record was filed). During that period, absolutely nothing was done to move the file forward.
[12] The COVID-19 pandemic struck the world during that period, and the court was effectively shut down for a period of 6 months. It is appropriate to deduct that from the period of delay. In addition, some deduction should be made for the fact that counsel for respondent did not respond to the request for a Record. As it turns out, Emery J. ultimately ruled that they had no obligation to provide a Record. However, as a courtesy they should have responded to the request in a timely fashion, so that the applicant would know that a motion to compel would be needed. I allocate a deduction of 2 months to this aspect of the delay, which would allow a reasonable period for the respondent to respond to the request, and for the applicant to prepare and serve their motion record.
[13] This results in a net delay, for which the applicant is wholly responsible, of 21 months. This is an egregious delay, and is well in excess of the one-year limit from commencement to perfection that is suggested in the caselaw.
[14] The applicant has provided no explanation whatsoever for the delay, let alone a reasonable one.
[15] As to prejudice, while there is no actual prejudice relied upon by the respondent, it can be presumed from a delay of this length.
[16] The applicant argues that we should decline to dismiss the application for delay for reasons of judicial economy. It is suggested that the applicant, who is passionate about the issues discussed in her proposed presentation, will simply ask once again for permission to present at a Board meeting, and this court will find itself facing the same application if the Board again refuses permission.
[17] I reject this argument. To begin with, we are advised that the Board’s by-laws have been amended since the decision in question was made, so the factual matrix for any future decision will be different. Furthermore, the core of the applicant’s submissions before us relate to the sufficiency of the Board’s reasons. If the facts repeat themselves in the future, there is no way of knowing what the Board’s formal response to the request will contain. I conclude that any future case will be different in many material respects, so that considerations of judicial economy should play no role in determining the delay issue.
[18] In the exercise of our discretion, this delay is sufficient on its own to justify dismissal of this application for judicial review, and it is dismissed on that basis. . Bagherian v. Seneca College et al
In Bagherian v. Seneca College et al (Div Court, 2023) the Divisional Court considered a laches JRPA issue (pre-01 July 2020 amendments), in the context of a Court-issued R2.1 frivolous and vexatious motion:Legal Principles: Delay in Seeking Judicial Review
[19] Administrative decisions made prior to July 1, 2020 are subject to the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”) as it existed just before that date: see s. 5(4). The JRPA as it existed prior to July 1, 2020 does not prescribe a time period for bringing an application for judicial review. Accordingly, it is up to the Court to decide whether to deny judicial review, a discretionary remedy, based on excessive delay. In exercising its discretion to dismiss applications on this basis, the Court will consider three factors: (i) the length of delay; (ii) the reasonableness of any explanation offered for the delay; and (iii) any prejudice suffered by the respondent as a result of the delay: Becker v. WSIAT, 2012 ONSC 6946 (Div. Ct.); Savic v. College of Physicians and Surgeons of Ontario, 2021 ONSC 4756, at para. 42. This Court has regularly treated applications commenced six months after the decision as presumptively excessive in length: Taylor v. Pivotal Integrated HR Solutions, 2020 ONSC 6108 (Div. Ct.) at para. 35.
[20] An application for judicial review should only be dismissed under r. 2.1 in the clearest of cases. If there is an arguable basis that the court would exercise its discretion to grant judicial review, a dismissal under r. 2.1 is not appropriate.
[21] In Mihundukulasuriya v. Aramark Food Services Ltd., 2022 ONSC 4563, this Court dismissed a motion to extend time to seek judicial review from decisions of the Ontario Labour Board pursuant to r. 2.1 when the decisions were made approximately 6-7 years earlier.
Application of Legal Principles
[22] In my view, the 2017 and 2019 decisions of the HRTO fall within the “clearest of cases” where there is no reasonable prospect the court would exercise its discretion to grant judicial review.
[23] Turning to the factors a court will consider in dismissing an application for delay, the Respondents in a r. 2.1 review are not entitled to provide evidence. They also chose in this case not to provide submissions. In this context, starting with the third of the three factors, I assume they will not be able to show any specific prejudice caused by Mr. Bagherian’s delay in seeking judicial review of the 2017 and 2019 decisions.
[24] However, the applications for judicial review are doomed to fail on the other factors. The delay is inordinate, being well over five years from the 2017 decisions and over four years from the 2019 decision. Mr. Bagherian has not provided any credible explanation for the delay. His only justification is that he is self-represented and did not know how to proceed. However, he has initiated repeated proceedings before the HRTO and was able to determine that judicial review was the appropriate procedure for the HRTO’s June 2022 decision. Also, in the HRTO’s 2019 decision, the adjudicator expressly advised Mr. Bagherian about proceeding by judicial review, stating, “[t]he applicant’s recourse, if [he] was unhappy with the previous decision of the Tribunal, was to seek to have that decision judicially reviewed.” At that time, Mr. Bagherian would have been late to judicially review the 2017 decisions but not nearly as late as he is now. He also was given notice of the appropriate process with respect to the 2019 decision.
[25] In determining that there is no reasonable prospect that the Court would exercise its discretion to grant judicial review, I also take into account that in two of the HRTO decisions that are significantly out of time, his applications were dismissed as abuses of process. Mr. Bagherian’s history of abusive conduct and of rolling forward issues from prior proceedings further diminish the chances that judicial review would be granted in the overall interests of justice. . Priolo v. Workplace Safety and Insurance Appeals Tribunal
In Priolo v. Workplace Safety and Insurance Appeals Tribunal (Div Court, 2023) the Divisional Court considered the old 'laches' JR commencement delay, before the present 30-day limitation period:[7] The 30-day period for commencing an application for judicial review under s. 5(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, does not apply because the decisions were made before that provision came into effect. The applicable timelines are those established at common law by the Divisional Court to the effect that, generally, an application for judicial review should be started no later than six months after the decision under review was made: Democracy Watch v. Ontario Integrity Commissioner, 2021 ONSC 7383 (Div. Ct.), at para. 50.
[8] In exercising its discretion to dismiss an application for judicial review, the court will consider the following factors:(a) The length of the delay;
(b) The reasonableness of any explanation offered for the delay; and
(c) Any prejudice suffered by the respondent as a result of that delay.
Canadian Chiropractic Association v. McLellan, 2011 ONSC 6014 (Div. Ct.), at para. 15. . Know Your City Inc. v. The Corporation of the City of Brantford
In Know Your City Inc. v. The Corporation of the City of Brantford (Div Ct, 2021) the Divisional Court considered the issue of laches in bringing a judicial review application (apparently without mention of the July 2020 limitation amendments to the JRPA):[44] The final meeting at which City Council approved the sale of Arrowdale occurred on December 17, 2019. The Applicant was not incorporated until July 27, 2020, and this application was not commenced until August 13, 2020, more than 7 months after Council’s vote.
[45] This Court has repeatedly held that a delay of more than 6 months in commencing an application for judicial review can justify a dismissal on the basis of delay: see Foster v. The City of Oshawa, 2020 ONSC 681 (Div.Ct.), at para. 4.
[46] In deciding whether to dismiss for delay, the Court considers the following factors: (1) the length of the delay; (2) the explanation for the delay; and (3) whether the delay will cause prejudice to the respondent: see 1736095 Ontario Ltd. v. Waterloo (City), 2015 ONSC 6541 (Div. Ct.), 340 O.A.C. 290, at paras. 29-30. . Knot v. State Farm Automobile Insurance Company
In Knot v. State Farm Automobile Insurance Company (Div Ct, 2020) the Divisional Court granted a motion for dismissal for delay of a judicial review application:[16] As held by this Court in The Canadian Chiropractic Association v. Dr. Barry McLellan, Coroner, 2011 ONSC 6014, at para. 14, “[j]udicial review is an extraordinary equitable and discretionary remedy which can be denied in the face of excessive delay”.
[17] The test developed by this court for determining whether an application for judicial review should be dismissed for delay is as follow:a. Has the delay been excessive?
b. Is there a reasonable explanation for the delay?
c. Is there prejudice arising from the delay?
See Canadian Chiropractic Association, at para. 15. [18] As held in De Pelham v. Human Rights Tribunal of Ontario, 2011 ONSC 7006, at para.12, a single judge of the Divisional Court should not dismiss an application for judicial review except in the clearest of cases.
[19] In my view, this is a clear case and the application for judicial review should be dismissed for delay.
Length of the delay
[20] The Divisional Court has consistently held that delays of more than six months in commencing an application for judicial review and more than twelve months in perfecting an application for judicial review are excessive and can be serious enough to warrant dismissal for delay: Gigliotti v. Conseil d’administration du Collège des Grands Lacs, 2005 CanLII 23326, at para. 30.
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[31] In several cases, this Court has found that prejudice is presumed where the delay is lengthy: for example, Nahirny v. Human Rights Tribunal of Ontario, 2019 ONSC 5501, at para. 9; and Toronto District School Board v. Child and Family Services Review Board, 2019 ONSC 7064, at para. 28. . Taylor v. Pivotal Integrated HR Solutions
In Taylor v. Pivotal Integrated HR Solutions (Div Ct, 2020) the Divisional Court sets out factors to dismiss a judicial review for delay:[32] Judicial review is a discretionary remedy that can be denied on the basis of excessive delay, regardless of the merits of the case (Ransom v. Ontario, 2010 ONSC 3156 at para. 4; affirmed 2011 ONSC 5594 (Div. Ct.).
[33] In exercising its discretion to dismiss an application for judicial review, the court will consider the following factors:(a) The length of delay;
(b) The reasonableness of any explanation offered for the delay; and
(c) Any prejudice suffered by the respondent as a result of that delay. (Becker v. WSIAT, 2012 ONSC 6946 (Div. Ct.)). . Allen v. Bricklayers Masons Independent Union of Canada Local 1
In Allen v. Bricklayers Masons Independent Union of Canada Local 1 (Div Ct, 2020) the Divisional Court considered the effect of delay on a judicial review application:[33] Judicial review is a discretionary remedy which can be denied on the basis of excessive delay. In examining whether to dismiss on the basis of delay the court is to consider the following factors: (1) the length of the delay; (2) whether there is a reasonable explanation for the delay; and (3) whether the moving parties have suffered prejudice as a result of the delay (Nahimy v. Human Rights Tribunal of Ontario, 2019 ONSC 5501 (Div. Ct.)).
Length of the Delay
[34] This court has established a presumptive deadline of six months for the commencement of an application for judicial review (Kaur v. The National Dental Examining Board of Canada, 2019 ONSC 5882 at para. 4).
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[39] With respect to prejudice, the court does not require the demonstration of actual prejudice; prejudice can be presumed (Khaiter v. Ontario (Labour Relations Board), 2013 ONSC 791 (Div. Ct.) at para.15). However, in this case the Respondent Unions did suffer prejudice because of the delay – they spent time and money trying to enforce the Horan Award. . Amodeo v. Ontario Labour Relations Board
In Amodeo v. Ontario Labour Relations Board (Div Ct, 2010) the Divisional Court considered the factor of delay in an application for judicial review:[4] The Ministry and the Union also submitted that we should not hear the application to review the OLRB decisions because of inordinate delay in bringing and perfecting this application for judicial review. We agree.
[5] There was a delay of eleven months after the MOS was executed in bringing the application and a further seven months delay before it was perfected. This Court has held that applications for judicial review are to be commenced expeditiously and has exercised the power to dismiss an application on the basis of undue delay:“…the Divisional Court has held on numerous occasions that delay on the part of an applicant of six or more months in the commencement of an application and/or twelve months in the perfection of an application could be serious enough alone to warrant the dismissal of the application”. (Bettes v. Boeing Canada/Dehavilland, [2000] O.J. No. 5413 (Div. Ct.) at para.7). [6] The length of delay in this case well exceeds any reasonable limit. Furthermore, the record discloses no evidence of any reasonable explanation for the delay and in particular, as I have stated, no medical evidence of incapacity or impairment. Moreover, this Court has stated that judicial review of OLRB decisions should proceed expeditiously because certainty is particularly important in labour disputes (see Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers v. International Union of Bricklayers and Allied Craftworkers (2003), 2003 CanLII 34378 (ON SCDC), 172 O.A.C. 156 (Div. Ct.) at para. 10).
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