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Judicial Review - Dismissal 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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