Simon's Legal Resources

Federal Court - Time and Extensions

. 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].

....

[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.

....

[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.