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Federal Court - Time and Extensions. Gutierrez v. Canada
In Gutierrez v. Canada (Fed CA, 2024) the Federal Court of Appeal considered two motions to extend time to commence appeals, here of interlocutory and final orders:[4] The authority to extend the time to bring an appeal before this Court is grounded in paragraph 27(2) of the Federal Courts Act, R.S.C., 1985, c. F-7 (the Act). The test for obtaining such an extension is well known. It requires the Court to consider whether: (i) the proposed appellant had a continuing intention to pursue the appeal; (ii) there is some merit to the proposed appeal; (iii) the proposed respondent has been prejudiced by the delay; and (iv) the proposed appellant has a reasonable explanation for the delay (Canada (Attorney General) v. Hennelly, 1999 CanLII 8190 (FCA), 167 F.T.R. 158 (FCA)). It is well established as well that these factors (the Hennelly Factors) are intended to assist the Court in determining whether an extension of time is warranted in a given set of circumstances, none of them being determinative (Alberta v. Canada, 2018 FCA 83 at para. 45). As stated in Canada (Attorney General) v. Larkman, 2012 FCA 204 (Larkman), the overriding consideration in such matters "“is that the interests of justice be served”" (Larkman at para. 62).
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[16] Contrary to what is the case of the notice of appeal respecting the Final Order, the notice of appeal regarding the Interlocutory Order was not submitted for filing within the prescribed time. According to paragraph 27(2)(a) of the Act, the notice of appeal respecting the Interlocutory Order had to be filed within 10 days after the pronouncement of the Order, that is no later than June 12, 2023. The applicant only submitted his notice of appeal for filing on August 30, 2023, which is more than two and a half months past that deadline. Contrary to the applicant’s assertion, the "“July/August”" rule applicable to the computation of the appeal period for judgments other than interlocutory decisions is irrelevant here for two reasons. First, pursuant to paragraph 27(2) of the Act, it does not apply to interlocutory decisions. Second, even if applicable to such decisions, it would not have assisted the applicant because the delay for appealing the Interlocutory Order expired in June. . Comme Corporation v. Canada [time extension for objecting to an assessment]
In Comme Corporation v. Canada (Fed CA, 2024) the Federal Court of Appeal dismissed a request to extend time, this to commence a Tax Court application to object to an assessment [under Excise Tax Act, s.304(5)]. This is not a typical generic 'Rule' time-extension as this provision sets out specific criteria in order to grant:[4] Subsection 304(5) of the Act provides that the Tax Court cannot grant an application to extend the time to object to an assessment unless the conditions set out in paragraphs (a) and (b) are satisfied. Paragraph (a) provides that the appellant must have filed its application to the Minister to extend the time to object within one year after the expiration of the time period within which the appellant could have filed an objection without an extension of time. The letter from the CRA dated July 27, 2017 is not an assessment. The relevant reassessment in this matter is dated December 14, 2014. The time period within which the appellant could have requested an extension of time to object to this reassessment expired on March 16, 2016.
[5] Since the appellant only applied after March 16, 2016 to the Minister to request an extension of time to object to the relevant reassessment, there is no basis on which the Tax Court could have granted an extension of time for the appellant to object to this reassessment. The Tax Court did not err in dismissing this application.
[6] Filing a valid notice of objection is a condition precedent to commencing an appeal to the Tax Court (Beima v. Canada, 2016 FCA 205, at paragraph 14). Since the appellant did not file a valid notice of objection, the time period to commence an appeal to the Tax Court has not commenced. As noted in Beima, at paragraph 14, “[a]n extension of time is not available if the time period has not commenced”.
[7] The Act stipulates specific requirements for making an objection to the Minister and filing an appeal to the Tax Court. The appellant did not comply with these requirements. Neither the Tax Court nor this Court has the jurisdiction (either equitable or otherwise) to waive compliance with or modify these statutory requirements. . Greenblue Urban North America Inc. v. Deeproot Green Infrastructure, LLC.
In Greenblue Urban North America Inc. v. Deeproot Green Infrastructure, LLC. (Fed CA, 2023) the Federal Court of Appeal considers the federal law of procedural time extension:[5] First, the appellant’s motion was brought well outside the applicable ten-day time limit provided in Rule 397(1) of the Federal Courts Rules, SOR/98-106 (Federal Courts Rules).
[6] Although Rule 8 of the Federal Courts Rules allows the Court to extend the time limits provided in the Rules, such an extension is not appropriate here. The case law establishes that extensions may be granted in circumstances where the party seeking the extension shows that granting it is in the interests of justice. The relevant circumstances to establish this include whether: (1) the party had a continuing intention to pursue the matter, which commenced before the relevant time limit expired; (2) there is a reasonable explanation for the delay; (3) there is some merit to the party’s application; and (4) there is no prejudice to the opposite party: Rafique v. Canada (National Revenue) 2023 FCA 112, 2023 A.C.W.S. 2239 at paras. 2-3; Canada (Attorney General) v. Larkman, 2012 FCA 204, [2012] 4 C.N.L.R. 87 at paras. 61 and 62; Canada (Attorney General) v. Hennelly, 1999 CanLII 8190 (FCA), [1999] F.C.J. No. 846, 224 N.R. 399 at para. 3. . Wilson v. Meeches
In Wilson v. Meeches (Fed CA, 2023) the Federal Court of Appeal (Stratas JA) expounds on the Federal Courts, mootness, stays and speed:B. Postscript
[19] This case does not stand alone. Sometimes fast-moving events render important matters moot: for a recent, prominent example, see Peckford v. Canada (Attorney General), 2023 FCA 219.
[20] As a result, some occasionally blame courts. They say that questionable, harmful and fast-moving conduct can happen before the courts can stop it. They say that relief in courts is slow and unavailable. On occasion, others say similar things about the Federal Courts system based on assertions, not credible evidence: see, e.g., Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, [2019] 2 S.C.R. 467 at para. 66 and R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409 at paras. 57-61, both roundly criticized by this Court in Brown v. Canada (Citizenship and Immigration), 2020 FCA 130, [2021] 1 F.C.R. 53 at paras. 157-159 and Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108, 174 C.P.R. (4th) 85 at para. 22.
[21] These statements are untrue. In the Federal Courts system, things can and do move fast, especially when a party asks us to go fast. For us, “access to justice” is much more than an attractive slogan in a tweet or a lofty phrase in a news release. It has been a call to action. And, for a long time, plenty of action there has been. See the article by Professor Gerard Kennedy, “The Federal Courts Advantage in Civil Procedure” (October 31, 2023), online: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4619359.
[22] To this end, for the benefit of the profession and to further access to justice, some practical observations might now assist.
[23] In a case like this, two fundamental principles, oft-forgotten, are the starting point:. A decision of a first instance court or an administrative decision-maker takes effect as soon as it is rendered, unless the decision or legislation says otherwise; and
. Absent an order staying, enjoining or suspending the decision, it can be implemented, even in the face of an appeal or judicial review. [24] These principles mean that, absent agreement, a party challenging the decision on appeal or judicial review who wants to prevent the decision from being implemented must bring a motion for a stay or injunction to the court where the decision is being challenged.
[25] In some cases, the decision can be implemented quickly; thus, the party must move right away, asking for expedited determination and proposing an expedited schedule both for the motion and the appeal or judicial review itself. Doing otherwise—such as not seeking expedition, not proposing a schedule, or asking for a case conference—slows things down.
[26] If a request to expedite seems, at least at first glance, arguable, often the Court will issue procedural directions for the stay and expedite motion to hurry it along. And once the filings for the motion are complete, the Court tries to act quickly: see for example the prompt response to the stay motion discussed in paragraphs 10 and 11, above.
[27] Sometimes a party might suffer serious harm before we can decide the motion. To address that, the party should seek an interim stay: a short-term, temporary, emergency stay designed to preserve matters before the court decides the stay and expedite motion. If the period of restraint proposed in the interim stay is brief—and it usually is—often the supporting affidavit and the written representations for the interim stay can be short and to the point. As well, the brevity of the restraint can often tip the balance of convenience in favour of granting the interim stay.
[28] In rare circumstances of extreme urgency, an even faster measure is possible: the interim interim stay. Interim interim stays preserve the status quo during the brief time before an interim stay can be put in place. For an example, see the Order dated July 2, 2017 in Bell Canada et al. v. Lackman, file A-202-17. Because the stay sought is exceedingly short, the supporting affidavit and the written representations can sometimes be even shorter and more to the point. In fact, in the highly unusual circumstances of Lackman, including the nature of the decision sought to be restrained, the credible representations and undertakings of counsel in a letter persuaded this Court to grant the interim interim stay.
[29] This Court is “accessible 24 hours a day, [every day of the] year, from coast to coast for urgent applications, in both official languages”: Brown at para. 159. When necessary, this Court can act quickly outside of normal working hours, even on the evening of a quiet public holiday: see Order dated January 1, 2023 in Canada (Commissioner of Competition) v. Rogers Communications Inc., file A-286-22 (prompted by submissions on the evening of December 31, 2022); see also Order dated July 2, 2021 (issued at 1:45 a.m. after a two hour hearing) in Canada (Commissioner of Competition) v. Secure Energy Services Inc. et al., file A-185-21. “When necessary” is key: urgency must be demonstrated.
[30] Sometimes litigants seek directions from the Court on how to proceed. This is futile. Motions for directions, available in narrow circumstances in Rule 54 of the Federal Courts Rules, S.O.R./98-106, are not a means of getting free legal advice from the Court. The parties themselves must figure out the civil procedure and the litigation strategy: Bernard v. Canada (Revenue Agency), 2015 FCA 263, 479 N.R. 189 at paras. 37-47; Olumide v. Canada, 2016 FCA 287 at paras. 14-23. Smart parties go one step further: they prepare their stay and expedite material before the first-instance decision comes down, just in case it goes against them and they have to act right away. . Oleynik v. Canada (Attorney General)
In Oleynik v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered (and granted) a motion to quash an appeal. In these quotes the court considers the federal test for extending time to commence an appeal:[36] A decision to grant an extension of time is discretionary: Rule 8. In exercising that discretion, the Court considers four factors derived from Canada (Attorney General) v. Hennelly, 1999 CanLII 8190 (FCA), [1999] F.C.J. No. 846 (QL), 244 N.R. 399, (FCA). They are (i) whether there is a continuing intention to pursue the matter, (ii) whether there is some merit to the underlying claim, (iii) whether there is prejudice arising from the delay, and (iv) whether there is a reasonable explanation for the delay. However, no factor is determinative. Rather, they are intended to assist the Court in determining whether an extension of time is in the interests of justice between the parties: Alberta v. Canada, 2018 FCA 83 at para. 45. That is the heart of the matter. . McCotter v. Canada (Attorney General)
In McCotter v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered an appeal of a JR dismissal for mootness. In these quotes the court considers the test for extension of time to appeal:I. Motion for extension of time
[4] The AGC notes that the test for an extension of time is well-established and was articulated by this Court in Canada (Attorney General) v. Hennelly, (1999), 1999 CanLII 8190 (FCA), 244 N.R. 399, [1999] F.C.J. No. 846 at paragraph 3:The proper test is whether the applicant has demonstrated
1. a continuing intention to pursue his or her application;
2. that the application has some merit;
3. that no prejudice to the respondent arises from the delay; and
4. that a reasonable explanation for the delay exists.
[5] The AGC also correctly notes that the overriding consideration is that the interests of justice are served. . Dakota Plains Wahpeton Oyate First Nation v. Smoke
In Dakota Plains Wahpeton Oyate First Nation v. Smoke (Fed CA, 2023) the Federal Court of Appeal considered the test for extending time to appeal:[4] Paragraph 27(2)(b) of the Federal Courts Act, R.S.C. 1985, c. F-7, provides for a deadline of 30 days to appeal the Federal Court decisions in issue here. Accordingly, the deadlines were January 14, 2023 (for the Merits Decision) and March 25, 2023 (for the Costs Decision). It appears that the prospective appellants were advised that the time for commencing an appeal did not count during the seasonal recess. The seasonal recess is defined in the Federal Courts Rules, S.O.R./98-106 (the Rules), as “the period beginning on December 21 in a year and ending on January 7 in the following year.” Stopping the count of days during the seasonal recess would move the deadline to February 1, 2023, which is apparently, when the prospective appellants attempted to file a notice of appeal. Unfortunately, for the prospective appellants, the provision in Rule 6(3) of the Rules that stops the count of days during the seasonal recess does not apply to deadlines provided for in the Federal Courts Act, like the deadline to commence an appeal of the Merits Decision. By February 1, 2023, that deadline had passed.
[5] Accordingly, the prospective appellants now move for an extension of time to commence an appeal. The prospective appellants’ motion record was filed on April 13, 2023. The prospective respondent’s responding record contesting the motion was filed on April 24, 2023. The prospective appellants did not file a reply. As contemplated in Rule 369.2, I will decide this motion on the basis of the written representations, without an oral hearing.
[6] The test for an extension of time has been discussed many times in this Court, including in the following passage from Canada (Attorney General) v. Larkman, 2012 FCA 204 at paragraphs 61 and 62 (Larkman):[61] The parties agree that the following questions are relevant to this Court’s exercise of discretion to allow an extension of time:(1) Did the moving party have a continuing intention to pursue the [appeal]?
(2) Is there some potential merit to the [appeal]?
(3) Has the [respondent] been prejudiced from the delay?
(4) Does the moving party have a reasonable explanation for the delay? [62] These questions guide the Court in determining whether the granting of an extension of time is in the interests of justice. The importance of each question depends upon the circumstances of each case. Further, not all of these four questions need to be resolved in the moving party’s favour. For example, “a compelling explanation for the delay may lead to a positive response even if the case against the judgment appears weak, and equally a strong case may counterbalance a less satisfactory justification for the delay”. In certain cases, particularly in unusual cases, other questions may be relevant. The overriding consideration is that the interests of justice be served… [Citations omitted] . Rafique v. Canada (National Revenue)
In Rafique v. Canada (National Revenue) (Fed CA, 2023) the Federal Court of Appeal considered a time extension, here to settle the appeal book:[1] The appellant, Ehtesham A. Rafique, moves for an extension of time to file a motion pursuant to Rule 343(3) of the Federal Courts Rules, S.O.R./98-106 (the Rules), to determine the contents of the appeal book in the present appeal. The respondent, the Minister of National Revenue (the Minister), contests the motion.
[2] The parties agree that this Court’s decision in Canada (Attorney General) v. Hennelly (1999), 1999 CanLII 8190 (FCA), 244 N.R. 399, 1999 CarswellNat 967 (F.C.A.) (Hennelly) provides helpful guidance on the present motion. At paragraph 3 thereof, this Court considered the following factors:. A continuing intention to pursue the appeal;
. That the appeal has some merit;
. That no prejudice to the respondent arises from the delay; and
. That a reasonable explanation for the delay exists. [3] This Court has since slightly reworded and clarified the test: see Canada (Attorney General) v. Larkman, 2012 FCA 204 (Larkman) at paragraphs 61 and 62:[61] The parties agree that the following questions are relevant to this Court’s exercise of discretion to allow an extension of time:(1) Did the moving party have a continuing intention to pursue the [appeal]?
(2) Is there some potential merit to the [appeal]?
(3) Has the Crown been prejudiced from the delay?
(4) Does the moving party have a reasonable explanation for the delay? [62] These questions guide the Court in determining whether the granting of an extension of time is in the interests of justice. The importance of each question depends upon the circumstances of each case. Further, not all of these four questions need be resolved in the moving party’s favour. For example, “a compelling explanation for the delay may lead to a positive response even if the case against the judgment appears weak, and equally a strong case may counterbalance a less satisfactory justification for the delay”. In certain cases, particularly in unusual cases, other questions may be relevant. The overriding consideration is that the interests of justice be served… [Citations omitted] . Comfort Capital Inc. v. Yeretsian
In Comfort Capital Inc. v. Yeretsian (Ont CA, 2023) the Court of Appeal considered the test for extending time to appeal, here in a BIA appeal and right-to-appeal motion:Extension of Time
[9] The time to file a notice of appeal in a matter falling under the BIA is ten days from the order under appeal or “within such further time as a judge of the court of appeal stipulates”: Bankruptcy and Insolvency General Rules, C.R.C., c. 368 (the “BIA Rules”), r. 31(1). Section 187(11) of the BIA provides for the court to extend any time limit under the BIA or the BIA Rules.
[10] The test for an extension of time is whether it is in the interests of justice that the extension be granted: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 3.02(1); 2363523 Ontario Inc. v. Nowack, 2018 ONCA 286, at para. 4. Relevant factors include: whether the appellant intended to appeal within the relevant period; the length of and explanation for the delay; prejudice to the opposing party from extending the time; and the merits of the appeal. The enumerated factors are not exhaustive and may vary in importance depending on the circumstances. The overriding consideration is whether the justice of the case requires an extension: Denomme v. McArthur, 2013 ONCA 694; 36 R.F.L. (7th) 273, at para. 7; Oliveira v. Oliveira, 2022 ONCA 218, at para. 14. . Jog v. Bank of Montreal
In Jog v. Bank of Montreal (Fed CA, 2023) the Federal Court of Appeal considered extending time to commence a judicial review:[4] In dismissing the motions for an extension of time, the Federal Court did not err in identifying and applying the governing legal test: see Canada (Attorney General) v. Larkman, 2012 FCA 204, 433 N.R. 184 at paras. 61-62. In applying that test to the evidence in each motion, the Federal Court did not make a palpable and overriding error. Thus, there are no grounds for this Court to intervene. . Koch v. Borgatti Estate
In Koch v. Borgatti Estate (Fed CA, 2022) the Federal Court of Appeal considered the effect of a peremptory procedural order on the basic extension for time test:[26] Rather, said the Federal Court, because the order was peremptory, the elevated test stated in 1395047 applied, and Mr. Brudek had to show that he had no intention to ignore or flout the July orders and that the failure to comply was due to extraneous circumstances beyond his control, citing Angloflora Ltd. v. Canada Maritime Ltd., 2002 FCT 1230; 1395047; and Sarasin consultadoria E. servicos LDA v. Roox's Inc., 2003 FC 959, aff’d 2003 FC 1010 [Sarasin].
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[SS: on appeal it was held that no peremptory order was made]
[58] However, even absent a reasonable explanation for the delay, Mr. Brudek nonetheless may succeed because no Hennelly factor is determinative and the overarching consideration and real test is whether justice will be done between the parties if the extension is not granted.
[59] This requires the interests of the parties to be balanced, something the Federal Court failed to do, notwithstanding that this principle applies equally to peremptory orders: Jourdain v. Ontario (2008), 2008 CanLII 22130 (ON SC), 91 O.R. (3d) 465, 167 A.C.W.S. (3d) 498 (ONSC), citing Hytec Information Systems Ltd. v. Coventry City Council, [1996] E.W.J. No. 3603 (C.A. (Civ. Div.); Conway (Re) 2016 ONCA 918. Rather, while finding no prejudice, and expressing sympathy for Mr. Brudek, the Federal Court concluded that it was "“not in the interest of justice to grant”" the motions but rather, "“given the clear language”" of the July orders, "“it was in the interest of justice to protect the stability and finality of decisions”".
[60] Thus, for the Federal Court the determinative factor appears not to have been justice between the parties, but rather the stability and finality of court decisions. While that is obviously an important principle, in the context of a timetable order that is not peremptory, and in the face of Rule 8 which expressly contemplates extensions of time, it cannot be determinative. . Koch v. Borgatti Estate
In Koch v. Borgatti Estate (Fed CA, 2022) the Federal Court of Appeal considers the failure of counsel to perform acts within required timelines as a factor in the 'reasonable explanation for the delay' element of the test for time extension:[56] As noted, Mr. Brudek’s lawyer has acknowledged that the source of delay was failures by him and his colleagues. While an error by counsel will not necessarily constitute a reasonable explanation for the delay, there is no doubt that it can be seen as one, as in Sarasin, 1395047, Medawatte v. Canada (Minister for Public Safety and Emergency Preparedness), 2005 FC 1374, and O’Leary v. Ragone, 2022 FC 749, a case that bears many similarities to these appeals. . Koch v. Borgatti Estate
In Koch v. Borgatti Estate (Fed CA, 2022) the Federal Court of Appeal considered the SOR for time extensions in the federal court system:[39] Whether to grant an extension of time is a discretionary decision. Discretionary decisions of the Federal Court are reviewable by this Court under the appellate standard of review: Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215, at para. 79. Therefore, factual findings and matters of mixed fact and law (excluding an extricable legal question) are reviewed for palpable (obvious) and overriding error, and questions of law for correctness: Housen v. Nikolaisen, 2002 SCC 33. . Koch v. Borgatti Estate
In Koch v. Borgatti Estate (Fed CA, 2022) the Federal Court of Appeal considered the basic Federal Court extension of time test:[53] The factors to consider in exercising a discretion to extend time are well known and are derived from Hennelly. The four questions to ask are (i) whether there is a continuing intention to pursue the matter, (ii) whether there is some merit to the underlying claim, (iii) whether there is prejudice arising from the delay, and (iv) whether there is a reasonable explanation for the delay. However, all four factors need not favour an extension of time and the importance of any particular factor depends on the circumstances: Gambler First Nation v. Ledoux, 2020 FCA 204 at para. 6.
[54] As explained by this Court in Alberta v. Canada, 2018 FCA 83 at para. 45:These [Hennelly] questions are helpful to determine whether the granting of an extension is in the interest of justice, because the overriding consideration or the real test is ultimately that justice be done between the parties (Grewal v. Minister of Employment and Immigration, 1985 CanLII 5550 (FCA), [1985] 2 F.C.R. 263 at 277-279 (F.C.A.)). Thus, Hennelly does not provide an extensive list of questions or factors that may be relevant in any given case, nor is the failure to give a positive response to one of the four questions referred to above necessarily determinative (Canada (Attorney General) v. Larkman, 2012 FCA 204, at para. 62). ....
[58] However, even absent a reasonable explanation for the delay, Mr. Brudek nonetheless may succeed because no Hennelly factor is determinative and the overarching consideration and real test is whether justice will be done between the parties if the extension is not granted.
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[69] The Federal Court was obligated to look beyond the failure to expressly refer to Rule 8 in the notice of motion and to "“discern the application’s ‘real essence’ and ‘essential character’”": Leahy v. Canada (Citizenship and Immigration), 2020 FCA 145 at para. 4, citing Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250 [JP Morgan] at paras. 49-50. As this Court said in JP Morgan, the Court must "“gain ‘a realistic appreciation’ of the [motion’s] ‘essential character’ by reading it holistically and practically without fastening onto matters of form.”" . Kemp v. Canada (Finance)
In Kemp v. Canada (Finance) (Fed CA, 2022) the Federal Court of Appeal quoted a test for extension of time:[16] The Federal Court relied on this Court’s decision in Canada (Attorney General) v. Larkman, 2012 FCA 204, [2012] FCJ No. 880 (QL) at para. 61 [Larkman], which set out the test to be applied in applications for an extension of time. Those factors were listed as:(1) Did the moving party have a continuing intention to pursue the application?
(2) Is there some potential merit to the application?
(3) Has the Crown been prejudiced from the delay?
(4) Does the moving party have a reasonable explanation for the delay? . Janssen Inc. v. Apotex Inc.
In Janssen Inc. v. Apotex Inc. (Fed CA, 2022) the Federal Court of Appeal considered the test for time extension under the Federal Rules:[6] In the first Order under appeal, the Federal Court correctly noted the test for granting an extension of time as set out in Canada (Attorney General) v. Hennelly (1999), 1999 CanLII 8190 (FCA), 244 N.R. 399, 89 A.C.W.S. (3d) 376 (F.C.A.) (Hennelly). The underlying consideration is that justice must be done between the parties. The following factors should be considered: (i) whether there is a continuing intention to pursue the issue, (ii) whether there is merit to the issue, (iii) whether any prejudice arises from the delay, and (iv) whether there is a reasonable explanation for the delay. The Federal Court found that most of the factors readily favoured allowing the Addendum, and only the factor of merit required a more detailed discussion.
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