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Limitations - COVID Suspension [Reg 73/20]. 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 interaction of the 6-month COVID limitation suspension [March 16, 2020 to September 14, 2020] under Reg 73/20, with the old laches JR commencement limitation:[9] In this case, the Applicant’s position is that the application for judicial review is timely because it had to be filed within six months of the end of the suspension of limitation periods on September 16, 2020, or before March 15, 2021. The Respondent’s position is that the application had to be filed within six months of the final reconsideration decision, or by November 1, 2020, and was therefore four months late.
[10] O. Reg. 73/20 suspended limitation periods established by “any statute, regulation, rule, by-law or order of the Government of Ontario[.]” It is unlikely that this provision would apply to a common law timeline subject to the discretion of the court in its application.
[11] In any event, however, even if the six-month timeline was not suspended, the delay at issue from the final reconsideration decision to the commencement of the judicial review application is four months. The WSIAT has not suggested that the Applicant was required to bring an application for judicial review at an earlier stage, such as after the merits decision in 2017. In my view, a four month delay in bringing an application for judicial review does not constitute an inordinate delay, especially in the circumstances, which include the COVID-19 pandemic.
Reasonableness of the Explanation
[12] The Applicant submits that even if O. Reg. 73/20 does not apply to the presumptive time frame for commencing an application for judicial review, the underlying rationale for the suspension of statutory limitation periods is relevant to the issue of whether the delay was undue and the reasonableness of his explanation for the delay. The Applicant submits that it was reasonable for him not to pursue a non-urgent matter at a time when court resources were constrained by the pandemic.
[13] I would not go so far as to accept the Applicant’s submission that it was reasonable to refrain from bringing his application for judicial review while court resources were under pressure from the pandemic. The Applicant, who has been represented by counsel throughout, ought to have followed the procedures specified in the Notice to Profession, of which counsel are expected to be aware: Go Fleet Corporation v. So, 2021 ONSC 2199 (Div. Ct.) at para. 10.
[14] In Democracy Watch, at para. 50, Favreau J. (as she then was) noted the suspension of limitation periods as a factor in determining whether to dismiss an application for judicial review for delay. In this case, given that the delay was not lengthy and the suspension of other timelines because of the pandemic during the relevant time period, I find that the Applicant’s explanation weighs against dismissing the application for delay.
Prejudice Resulting From the Delay
[15] The WSIAT submits that the passage of time raises a presumed prejudice to the integrity of the workplace insurance scheme and the finality of decisions. The WSIAT further notes that there are decisions pertaining to the Applicant dating back to 2012 and that the merits decision under review was made over four years ago. The WSIAT has not, however, adduced evidence of actual prejudice. Moreover, it has not identified prejudice attributable to the four-month delay in bringing the application.
[16] Where the delay is lengthy, prejudice can be presumed: Nahirny v. Human Rights Tribunal of Ontario, 2019 ONSC 5501 (Div. Ct.) at para. 9. Under the circumstances, it is not clear to me that the length of the delay would result in a presumption of prejudice. Even presuming some prejudice arising from the delay, I am not satisfied that the prejudice to the WSIAT arising from the four-month delay would warrant this court exercising its discretion to dismiss the application for judicial review. The Applicant has not raised any procedural fairness or other issues requiring evidence beyond the Record of Proceedings.
[17] The WSIAT filed its Record of Proceedings in August 2022. The Applicant has filed his factum on the application. There is no reason why this matter cannot proceed to a hearing in an expeditious manner. Should the parties be unable to agree to a timeline for the remaining steps in the proceeding, they may request a case management conference before me.
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