|
JR - Limitations - Post-Amend (5). Huang v. Landlord and Tenant Board et al. [important case on JRPA s.5(2)]
In Huang v. Landlord and Tenant Board et al. (Ont Div Ct, 2026) the Ontario Divisional Court considered an application to extend time to commence a JR [JRPA s.5(2)] (here styled by the court as a 'leave' application, which IMHO is a new usage of the term).
Here the court addresses an issue which has needed addressing frontally since the JRPA limitation amendments of 08 July 2020 - ie. that of whether there is any difference between the 'regular' RCP test for extend time [RCP 3.02(1)], and the specific JR time extension test [JRPA s.5(2)] (hint: there is a difference):[1] Unless another Act provides otherwise, an application for judicial review shall be made no later than 30 days after the date of the decision: s. 5(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the “JRPA”).
....
The test for leave
[6] Section 5(2) of the JRPA provides for the extension of time to apply for judicial review:The court may, on such terms as it considers proper, extend the time for making an application for judicial review 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. [7] The three judge panel of the Divisional Court in Unifor and its Local 303 v. Scepter Canada Inc., 2022 ONSC 5683, considered the principles applicable to an extension of time at paras. 17-19:[17] Subsection 5(2) must be interpreted in context and giving meaning to all of its words. Subsection 5(1) is important context. The legislative reform introduced a 30-day time limit, which should be given force. Moving to s. 5(2), an extension of time is not mandatory where the two factors referenced in that subsection are satisfied. On the contrary, the subsection provides that an extension is in the court’s discretion. The two factors mentioned are prerequisites to the exercise of that discretion. They are necessary, but do not preclude the consideration of other circumstances. Given the time limit in s. 5(1), the length of delay and any explanation offered for it would be relevant considerations.
[18] Therefore s. 5(2) does not foreclose a consideration of the length of the delay, and any explanation offered for the delay, in the exercise of the court’s discretion. The impact of these facts may vary depending on the case and will now be considered in the context of a 30-day time limit. The lengthy delay in this case is therefore significant. Even before the imposition of the 30-day time limit, a delay of more than six months could justify the dismissal of an application for judicial review for delay: Kaur, at para. 4.
[19] The applicant puts forward Belyavsky v. Walsh 2022 ONSC 3135 and respectfully disagrees with its approach in this regard. In Belyavsky, the judge considered not only the two factors in s. 5(2), but also the length of the delay and explanation for the delay, in exercising her discretion to deny the requested extension of time. In my view, she was entitled to do so. [8] In short, granting leave is discretionary. To obtain leave to extend the time to file his application, the applicant must establish two mandatory conditions: (1) that the request for judicial review has “apparent grounds for relief”, and (2) that no substantial prejudice or hardship will result to any other person affected by reason of the delay. The court may also consider other factors such as the length of the delay and any explanation for the delay. Lengthy delays in seeking leave may justify refusal of leave.
[9] The respondent submits that the court should use the same test applied by the Court of Appeal for Ontario to decide whether to grant leave to extend time for an appeal. In Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15, the court stated the test as follows:The test on a motion to extend time is well settled. The overarching principle is whether the "justice of the case" requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including
(a) whether the moving party formed a bona fide intention to appeal within the relevant time period;
(b) the length of, and explanation for, the delay in filing;
(c) any prejudice to the responding parties caused, perpetuated or exacerbated by the delay; and
(d) the merits of the proposed appeal. [10] Enbridge dealt with granting leave to extend the time for an appeal from a decision of the Divisional Court exercising its appellate jurisdiction.
[11] To be sure, the two tests are very similar and consider some of the same factors, but s. 5(2) of the JRPA must be considered in granting leave to extend the time to commence an application for judicial review. Given the language of s. 5(2), and as noted in Unifor, the two s. 5(2) factors are “prerequisites”. The failure to establish either is fatal to the application.
[12] Where the underlying judicial review application does not have any “apparent grounds for relief”, the court can deny extension requests on this basis alone: Yan v. Law Society of Ontario, 2023 ONSC 1290, at para. 8; Jonker v. Township of West Lincoln, 2023 ONSC 1948, 167 O.R. (3d) 544, at para. 35.
[13] In Enbridge, at para. 20, the court noted that in considering the merits, the court “must be satisfied that the proposed appeal presents an arguable question of law, or mixed law and fact, requiring consideration of matters such as the interpretation of legislation; the interpretation, clarification or propounding of some general rule or principle of law; the interpretation of a municipal by-law where the point in issue is a question of public importance; or the interpretation of an agreement where the point in issue involves a question of public importance”.
[14] To determine whether the judicial review has apparent grounds for relief, the court will engage in a limited inquiry into the merits of the underlying application, including the evidentiary record: Jonker, at paras. 35 and 41. It is not a high bar, but it is a more onerous standard than the test for striking pleadings and requires that the applicant demonstrate more than simply a “tenable” argument: Jonker, at para. 40; Wahbi v. Ontario College of Teachers, 2023 ONSC 3713, at para. 15. The apparent grounds for relief should be assessed against the applicable standard of review: Jonker at para. 42.
[15] The majority of the Divisional Court in Ricketts v. Veerisingnam, 2025 ONSC 841, set out at paras. 20-24 the applicable standard of review on a judicial review application of this nature:[20] On the appeal, the standard of review is correctness for questions of law: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, para. 8; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, para. 37. There is no appeal with respect to questions of fact or questions of mixed fact and law except where there is an extricable legal principle, which is reviewable on a correctness standard: Housen, paras. 26-37.
[21] Whether there has been a breach of the duty of procedural fairness is a question of law, subject to correctness review on appeal: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, paras. 26-30, 129, 169, 179. The degree of procedural fairness required is determined by reference to all the circumstances of the case: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, paras. 21-28; Vavilov, para. 77.
[22] With respect to the application for judicial review, this court will not entertain the application or grant a remedy to the extent that the substance of the application is adequately addressed by another process, that “other process” in this case being the appeal: see Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713, paras. 40-45. Therefore, the only issues that this court will entertain for judicial review are questions of fact, mixed fact and law (where there is no extricable question of law) and exercises of discretion: Shearer, para. 32. Upon judicial review, the presumptive standard of review is reasonableness: Vavilov, at paras. 23-25.
[23] Reasonableness review “finds its starting point in the principle of judicial restraint” but remains “a robust form of review” rather than “a ‘rubber-stamping’ process or a means of sheltering administrative decision makers from accountability”: Vavilov, para. 13. A reasonable decision is one that is based on an internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires a reviewing court to defer to such a decision: Vavilov, para. 85. The relative expertise of administrative decision makers with respect to the questions before them is a relevant consideration in conducting reasonableness review: Vavilov, paras. 31, 92-93.
[24] The burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on that basis, “the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”: Vavilov, para. 100. ....
Leave denied
[32] The principal basis advanced by the applicant in submissions for seeking judicial review was the “discovery” of the “documentary inconsistency”. He asserts he intended to seek relief from the day he received the Order but that he mistakenly proceeded with a T6 application, and when he realized that was not the correct process, he began his requests for review until he was prevented from requesting further reviews, at which point he sought judicial review.
[33] The applicant asserts that allowing the Order to stand when it relied on the “estimate” gives rise to a right to judicial review and that the LTB’s refusal of his request related to this document gives rise to procedural unfairness. He submits he could not have identified the issue with the document within the statutory time for an application for judicial review. Finally, he submits that not allowing judicial review would allow the Landlord to rely on misleading evidence and deny him justice.
[34] The applicant has not raised “apparent grounds for relief” in his application or submissions.
[35] The fact that the “estimate” is dated May 10, 2024, does not mean it is inaccurate. On its face, it was generated a year before the hearing and very shortly after the flood and remediation work. The applicant could have cross-examined on the document at the hearing. Moreover, the LTB accepted the evidence of the Landlord that the drying equipment was on site for three days; the LTB did not rely only on the document. Finally, it is clear that the conclusions of the LTB also depended on not accepting the applicant’s evidence in many respects and that the conduct of the Landlord generally was reasonable.
[36] The LTB is an expert tribunal. The reasoning in the Order is internally coherent and sets out a rational chain of analysis that is justified in relation to the facts and law that constrain the LTB. The reasonableness standard requires a reviewing court to defer to such a decision. The applicant has raised no “apparent grounds for relief” with respect to the reasonableness of the LTB’s conclusions in the Order or with respect to the Requests to Review.
[37] Further, the applicant has not raised “apparent grounds for relief” regarding procedural unfairness. The “estimate” was available and referred to at the hearing. The applicant could have examined it more closely at the time and cross-examined on it. His failure to do so and the LTB’s denial of his third Request for Review when this issue was first raised does not give rise to procedural unfairness. Finally, the LTB did in fact consider the applicant’s Requests for Review. They were not denied for being late.
[38] It is not clear that there is prejudice to the respondent other than the passage of time. However, the application does not disclose apparent grounds for relief. This alone is sufficient to deny leave.
[39] Turning to other factors, the delay in this case is significant.
[40] I do not accept that the applicant formed an intention to bring the application for judicial review within 30 days of the Order.
[41] In his affidavit, the applicant does not clearly set out when he discovered the “documentary inconsistency”. The applicant’s reasons to challenge the Order evolved between May 7, 2025, and Nov 12, 2025. He first commenced another application seeking the same relief. He then sought a review. When that was denied, he raised the joint tenancy as a basis for a review. In none of these steps did he raise the issue with the “estimate”. He did not raise the issue until his third Request for Review on November 12, 2025, as he was reaching for yet another reason to challenge the Order. This was more than six months after the Order. However, the document had been in his possession all along and was used at the hearing. He could have discovered this alleged ground for judicial review within 30 days of the Order if he had carefully reviewed the “estimate” at the time of the hearing. This factor also weighs against granting leave.
[42] The application for leave to extend the time for judicial review is denied. . Chammah v. Legal Aid Ontario
In Chammah v. Legal Aid Ontario (Ont Div Ct, 2026) the Ontario Divisional Court allowed a motion to extend time to commence a JR, here brought against an Legal Aid decision where the applicant "advises that he has autism spectrum disorder.".
The court considers the JR time extension request [JRPA s.5], here in this unusual behaviour-instigated context:[2] Section 5(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the “JRPA”), provides that unless another Act provides otherwise, an application for judicial review shall be made no later than 30 days after the date of the decision.
[3] Section 5(2) of the JRPA provides that the court may, on such terms as it considers proper, extend the time for making an application for judicial review 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.
....
The test for an extension
[16] The parties agree that to be granted an extension of time to file his application, Mr. Chammah must establish two mandatory conditions: (1) the request for judicial review has “apparent grounds for relief”, and (2) no substantial prejudice or hardship will result to any other person affected by reason of the delay. As the Divisional Court held in Unifor and its Local 303 v Scepter Canada Inc., 2022 ONSC 5683, at paras. 17-19, the court may consider other factors such as the length of the delay and any explanation for the delay. However, an extension of time is not automatic even where the two mandatory conditions are met. An extension of time is discretionary.
[17] To determine whether the judicial review has apparent grounds for relief, the court will engage in a limited inquiry into the merits of the underlying application, including the evidentiary record: Jonker v. Township of West Lincoln, 2023 ONSC 1948, 167 O.R. (3d) 544, at paras. 35 and 41. This is a more onerous standard than the test for striking pleadings and requires that the applicant demonstrate more than simply a “tenable” argument: Jonker, at para. 40; Wahbi v. Ontario College of Teachers, 2023 ONSC 3713, at para. 15. The apparent grounds for review should be assessed against the applicable standard of review, which is reasonableness: Jonker at para. 42.
[18] Where the underlying judicial review application does not have any “apparent grounds for relief,” the court can deny extension requests on this basis alone: Yan v. Law Society of Ontario, 2023 ONSC 1290, at para. 8; Jonker, at para. 35.
Position of the Parties
[19] Citing Yan at para. 9, the only prejudice LAO relies on is the prejudice that is presumed to flow from the delay.
[20] LAO acknowledges that it exercised state authority. However, citing Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018] 1 S.C.R. 750, at para. 14., LAO opposes the relief on the basis that the application has no apparent grounds for relief because the underlying decision that Mr. Chammah is seeking to review is not of a sufficiently public character to attract judicial review.
[21] LAO references the Court of Appeal for Ontario’s decision in Khorsand v. Toronto Police Services Board, 2024 ONCA 597, 499 D.L.R. (4th) 717, at paras. 73 and 74. There, the court held that the factors in Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605 can be used to tease out why, at a minimum, the Wall functional criterion had or had not been met in determining whether a decision is public or not, and that the Air Canada factors were not a “strict test or checklist” but “simply play a helpful role in focusing the court’s attention and reasoning process, especially when analyzing the second criterion from Wall”. The court added a caveat at para. 76 that the Air Canada factors should not be used to characterize a decision of a public body as public in function simply because a broad segment of the public may be interested in or impacted by it.
[22] LAO also references the Court of Appeal for Ontario’s decision in West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2025 ONCA 821, at para. 43, where the court summarizes the three principles that can be derived from the JRPA and the cases of Wall, Khorsand, and Air Canada.
[23] LAO engages in an in-depth analysis of the Air Canada factors to establish that the Decision should not be characterized as sufficiently public in nature.
[24] Mr. Chammah submits he has met the test for an extension of time. He submits that the Decision is of a sufficiently public character to attract judicial review, and his underlying application meets the apparent grounds for relief test.
[25] Mr. Chammah raises numerous grounds in his underlying application. Among them are the following:a. the Decision was made without notice, without an opportunity to respond, and without reasons, and contains on a conclusory assertion of abuse without specifying the details of the abuse;
b. the Legal Aid Services Rules were breached by LAO;
c. the Decision did not inform him of the reviewability of the Decision or of the timeframes and process for seeking review;
d. the Decision prohibited further interaction with LAO staff which meant that he could not exercise his review rights;
e. LAO failed to make a finding pursuant to s. 8(1)(c) of the Legal Aid Services Rules that services “cannot be provided effectively” and that he had successfully received duty counsel assistance at prior appearances; and
f. a legal aid certificate was issued without his application, consent, or signature and in violation of the asserted mandatory procedure requirements in ss. 6(1), 10, and 11. Analysis and Conclusion
[26] In my view, “apparent grounds for relief” does not require a determination at this stage whether the decision is of a sufficiently public nature to attract judicial review. On a limited review, the evidence and materials filed and the arguments made before me support either conclusion. It is possible that a court may conclude that the decision to deny access to duty counsel to a self-represented party who is entitled to choose whether to be represented by counsel or not, and to require him to submit to a legal aid certificate instead, is of a sufficiently public character to allow for judicial review. I am not required to make that final determination on this application, and it is inappropriate to do so where it is not clear or obvious that the decision is not of a sufficiently public nature to be amenable to judicial review.
[27] Mr. Chammah intended to seek judicial review within 30 days of the Decision. The length of the delay is minimal. The presumed prejudice is nominal. No actual prejudice has been established.
[28] There is an explanation for the delay. But for the issues encountered by Mr. Chammah at the Kitchener civil counter and with the Portal, the application for judicial review would have proceeded in the ordinary course and this motion to extend the time would not have been required. He would have been entitled to commence the application for judicial review.
[29] Further, in my view, a limited inquiry based on the merits of the underlying application leads me to conclude that, for the purposes of the extension application, there exist apparent grounds for relief. Whether the decision is of a sufficient public character to meet the test for judicial review, and whether the application will be successful, is left for determination on a full record and a hearing of the issues. . Sunova v. CLAAS of America [practice]
In Sunova v. CLAAS of America (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an interlocutory JR, this brought against an Agricultural and Rural Affairs Tribunal decision which "dismissed the applicant’s recusal motion, which was based on an alleged apprehension of bias on the part of the presiding Member of the Tribunal".
Here the court grants a JR limitation time extension request (though not a motion), although dismissing the main application:Extension of Time
[5] This judicial review application was not brought within in the time provided for under s. 5(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.I. (the “Act”). This subsection requires that such application be brought within 30 days of the Tribunal’s decision.
[6] The application for judicial review was not commenced until March 14, 2024. Section 5(2) of the Act provides that the Divisional Court may extend the 30-day time limit 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 the delay.
[7] The applicant has not formally moved by way of motion for an extension of time. The request for such relief has been made in the applicant’s factum. The respondent was made aware well in advance that such request would be made and has addressed the applicant’s request in their factum.
[8] Having considered the parties’ written and oral submissions as well as the procedural timeline of this proceeding, we are not persuaded that the respondent will suffer substantial prejudice or hardship if the applicant’s request for an extension is granted.
[9] An order extending the time for the service and filing of the application pursuant to s. 5(2) of the Act is granted.
[10] In making that order, we note that in the normal course, an applicant seeking an extension in the filing time is required to bring a formal motion, and failure to do so may cause the court to refuse to extend the filing deadline. However, as an additional factor in favour of granting leave in this case, extending the filing deadline provides the opportunity to provide further guidance relating to prematurity as a ground for declining to hear a judicial review application in circumstances in which reasonable apprehension of bias is alleged as grounds for relief. . McMillan v. College of Nurses
In McMillan v. College of Nurses (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a motion to extend time for bringing a JR [JRPA s.5(2)]:[4] Applications for judicial review must be brought within 30 days of the decision being challenged. Pursuant to s. 5(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (JRPA), the court may extend the time for bringing an application where “there are apparent grounds for relief and no substantial prejudice or hardship will result to any person affected by reason of the delay.”
[5] In exercising its discretion to determine whether to grant an extension, the court may consider the length of and any explanation offered for the delay: Unifor and it Local 303 v. Scepter Canada, 2022 ONSC 5683, at para. 18.
....
[11] It is not the role of the court on a motion for an extension of time to assess the merits of a proposed application in detail. Further, a moving party need not show she has a successful application on the merits to satisfy the requirement for apparent grounds of relief: Unifor, at para. 22. However, I conclude overall the grounds for Ms. McMillan’s application are weak.
Prejudice
[12] Turning to prejudice, although the College does not assert specific prejudice, prejudice may be presumed in cases where an applicant has not brought an application for judicial review within the stipulated timelines. I agree with Ryan Bell J. in Rowe, when she states at para. 49: “[T]he public has a strong interest in the timely and final resolution of the ICRC process given the possible repercussions of clinical practice or conduct issues on public health in the province of Ontario.” In this case, the delay has been well beyond the 30 days set out in the JRPA and has extended to almost two years after the timeline for initiating the application for judicial review.
Length of and Explanation for the Delay
[13] This brings me to the final issue of the length of and explanation for the delay. The failure to explain a delay may be “foremost among the factors” in a court refusing to grant relief: Rowe v. College of Nurses of Ontario, 2023 ONSC 3735, at para. 31, quoting from P.P.G. Industries Canada Ltd. v. Canada (Attorney General), 1975 CanLII 204 (SCC), [1976] 2 S.C.R. 739, at p. 749. I am not satisfied with Ms. McMillan’s explanation for the delay in this case.
|
