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Judicial Review - Dismissal for Delay

. Medeiros v. Vacheff

In Medeiros v. Vacheff (Div Court, 2024) the Divisional Court granted a motion for dismissal for delay against a labour JR, considering it in light as well of the JRPA s.5 limitation provisions:
[3] In November 2023, Mr. Medeiros sought to commence an application for judicial review three years and eight months after the Decision.

[4] The Judicial Review Procedure Act, R.S.O. 1990, c. 11, as amended, currently provides for a 30-day time period to commence an application for judicial review, which may be extended with leave of the court. Under the prior regime, there was no prescribed deadline. However, judicial review is a discretionary remedy and under the prior regime the court would dismiss an application for judicial review where there was undue delay. The court would consider the length of the delay, the reasonableness of any explanation offered for the delay and any prejudice suffered by the respondent as a result of that delay: The Canadian Chiropractic Association v. Dr. Barry McLellan, Coroner, 2011 ONSC 6014 (Div. Ct.), at paras. 14-15.

[5] This Divisional Court file was administered at intake as if it was under the current legislation. However, it is so stale that the Decision predates the introduction of the 30-day time period in 2020. I have therefore proceeded on the basis that the prior regime applies and the onus is on the respondents to show that the application should not be permitted to proceed.

[6] Under the prior regime, this Court has “consistently held that a delay of six months in bringing an application for judicial review and a delay of 12 months in perfecting it is excessive. …Moreover, a substantial delay creates a presumption of prejudice.[citations omitted]”: None of the Above Direct Democracy Party v. Chief Electoral Officer of Ontario, 2022 ONSC 3498 (Div. Ct.), at para. 32.
. Segura Mosquera v. Child and Family Services Review Board

In Segura Mosquera v. Child and Family Services Review Board (Div Court, 2023) the Divisional Court considered s.5(1) JRPA limitation extension, here coupled with further delay and time limit non-compliance with RCP-governed JR perfection, and the failure to seek a time-extension order:
[25] Section 5(1) of the JRPA requires an application for judicial review to be made no later than 30 days after the date the decision or matter for which judicial review is being sought was made or occurred. This is subject to s. 5(2), which gives the court authority to extend the time for making the application 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.

....

[41] I accept the law as taken from paras. 26-27 of the CFSRB’s factum, concerning the factors applicable when determining whether to dismiss an application for delay:
[26] Judicial review is an equitable and discretionary remedy that should be refused in the face of excessive delay. This Court has established that the following factors should be considered when determining whether to dismiss an application for delay:
(a) the length of the delay;

(b) whether there is a reasonable explanation for the delay; and

(c) whether the moving party has experienced prejudice as a result of the delay.
[27] Prior to the amendments in the JRPA, this Court held that an applicant must commence and perfect an application for judicial review in a timely manner, and that the failure to do so is an independent basis for a dismissal of the application. This Court has consistently held that a delay of six months or more in commencing an application and twelve or more months in perfecting it, is serious enough to warrant its dismissal, including cases where the applicant is self-represented. [Citations omitted.]
[42] I also accept the submissions made by the CFSRB, supported by the jurisprudence cited at para. 29 of its factum, that this court has dismissed applications for judicial review on the basis of delay that is similar to the delay in this case.

Analysis: Should Segura be granted an extension of time to bring and perfect the JRA?

[43] As noted at the outset, Segura failed to meet the timelines under the JRPA and the Rules. Also, she has not sought an extension of time to commence or perfect the JRA.

[44] The delays in bringing and perfecting the JRA are significant and range from no less than 12 months to as great as 20 months.

[45] Segura has not provided a reasonable explanation for her delay.

[46] In keeping with the jurisprudence in this court, a delay of over six months can be serious enough to warrant the dismissal of the JRA.

[47] In addition, the Society has led evidence, which I accept, that the Society has experienced prejudice as a result of the delay.

[48] For all those reasons, I conclude that the JRA should be dismissed for delay.
. Canadian Pacific Railway Company v. Teamsters Canada Rail Conference

In Canadian Pacific Railway Company v. Teamsters Canada Rail Conference (Div Court, 2023) the Divisional Court considers what is essentially a successful laches argument, here where the JR applicant delays in perfecting their application (not in commencing it):
The Applicable Principles

[13] Judicial review is an equitable and discretionary remedy that can be denied on the basis of excessive delay, regardless of the merits of the case: Ransom v. Ontario, 2010 ONSC 3156at para. 4; affirmed 2011 ONSC 5594 (Div. Ct.). An applicant is under an obligation to commence and perfect their judicial review application in a timely manner.

[14] Subsection 5(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. sets out a 30-day period for commencing an application for judicial review. Under s. 5(2), the court may exercise its discretion to extend the 30-day period 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.

[15] In exercising its discretion to dismiss an application for judicial review for delay, 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. See also: Unifor and its Local 303 v. Scepter Canada Inc., 2022 ONSC 5683, at para. 17.
....

[23] In my view, in the face of a specific case management direction and the general 30-day timeline under Rule 68.04, CP’s delay in perfecting its application for judicial review, which is at a minimum 11 months long, is excessive.

....

[26] On the issue of prejudice, TCRC points out that as a result of the failure to move the matter forward, the other outstanding grievances regarding the cancellation of annual vacation remain unresolved. In the labour relations context, delay raises concerns about the “acrimony that may result from drawn-out litigation, and the timely resolution of disputes is essential.”: Ransom v. Ontario, 2011 ONSC 5594, at para. 15. CP’s failure to pursue its application with diligence resulted in a prolonged lack of certainty regarding the underlying issue of annual vacations.

[27] Moreover, in my view, the fact that the amended notice of application differs fundamentally from the original notice of application is also relevant to the issue of prejudice. While CP maintains that the amended notice of application “narrows” and “focuses” the grounds for review, the amended notice expands the grounds for review beyond those that were initially pleaded. The original notice of application is based on, as CP described it, a “generic” challenge to the reasonableness of the original and supplementary awards. The awards were not challenged for lack of jurisdiction. The jurisdictional challenge requires different evidence than a reasonableness review, as evidenced by CP’s reliance on statements made by the arbitrator at the time. The amended notice of application also seeks relief that was not sought in the original application, specifically, that TCRC’s original motion be dismissed in its entirety, rather than an order remitting the matter to a different arbitrator. CP has provided no explanation as to why it could not raise the jurisdictional challenge in the original application. Had CP sought to file a new application for judicial review, it would have been out of time under s. 5(1) of the JRPA. In my view, it is prejudicial to TCRC to have to respond to a substantively different application for judicial review one year after the application was first commenced.
. Savic v. College of Physicians and Surgeons of Ontario

In Savic v. College of Physicians and Surgeons of Ontario (Div Ct, 2021) the Divisional Court set out the criteria for dismissing a judicial review application for delay:
[41] 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”.

[42] 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.

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Last modified: 18-07-24
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