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Judicial Review - Laches/Limitation - Pre-08 July 2020 Amendments

. Know Your City Inc. v. The Corporation of the City of Brantford

In Know Your City Inc. v. The Corporation of the City of Brantford (Div Ct, 2021) the Divisional Court considered the issue of laches in bringing a judicial review application (apparently without mention of the July 2020 limitation amendments to the JRPA):
[44] The final meeting at which City Council approved the sale of Arrowdale occurred on December 17, 2019. The Applicant was not incorporated until July 27, 2020, and this application was not commenced until August 13, 2020, more than 7 months after Council’s vote.

[45] This Court has repeatedly held that a delay of more than 6 months in commencing an application for judicial review can justify a dismissal on the basis of delay: see Foster v. The City of Oshawa, 2020 ONSC 681 (Div.Ct.), at para. 4.

[46] In deciding whether to dismiss for delay, the Court considers the following factors: (1) the length of the delay; (2) the explanation for the delay; and (3) whether the delay will cause prejudice to the respondent: see 1736095 Ontario Ltd. v. Waterloo (City), 2015 ONSC 6541 (Div. Ct.), 340 O.A.C. 290, at paras. 29-30.
. Knot v. State Farm Automobile Insurance Company

In Knot v. State Farm Automobile Insurance Company (Div Ct, 2020) the Divisional Court granted a motion for dismissal for delay of a judicial review application:
[16] 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”.

[17] 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.
[18] As held in De Pelham v. Human Rights Tribunal of Ontario, 2011 ONSC 7006, at para.12, a single judge of the Divisional Court should not dismiss an application for judicial review except in the clearest of cases.

[19] In my view, this is a clear case and the application for judicial review should be dismissed for delay.

Length of the delay

[20] The Divisional Court has consistently held that delays of more than six months in commencing an application for judicial review and more than twelve months in perfecting an application for judicial review are excessive and can be serious enough to warrant dismissal for delay: Gigliotti v. Conseil d’administration du Collège des Grands Lacs, 2005 CanLII 23326, at para. 30.

....

[31] In several cases, this Court has found that prejudice is presumed where the delay is lengthy: for example, Nahirny v. Human Rights Tribunal of Ontario, 2019 ONSC 5501, at para. 9; and Toronto District School Board v. Child and Family Services Review Board, 2019 ONSC 7064, at para. 28.
. Taylor v. Pivotal Integrated HR Solutions

In Taylor v. Pivotal Integrated HR Solutions (Div Ct, 2020) the Divisional Court sets out factors to dismiss a judicial review for delay:
[32] Judicial review is a discretionary remedy that can be denied on the basis of excessive delay, regardless of the merits of the case (Ransom v. Ontario, 2010 ONSC 3156 at para. 4; affirmed 2011 ONSC 5594 (Div. Ct.).

[33] In exercising its discretion to dismiss an application for judicial review, the court will consider the following factors:
(a) The length of 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. (Becker v. WSIAT, 2012 ONSC 6946 (Div. Ct.)).
. Allen v. Bricklayers Masons Independent Union of Canada Local 1

In Allen v. Bricklayers Masons Independent Union of Canada Local 1 (Div Ct, 2020) the Divisional Court considered the effect of delay on a judicial review application:
[33] Judicial review is a discretionary remedy which can be denied on the basis of excessive delay. In examining whether to dismiss on the basis of delay the court is to consider the following factors: (1) the length of the delay; (2) whether there is a reasonable explanation for the delay; and (3) whether the moving parties have suffered prejudice as a result of the delay (Nahimy v. Human Rights Tribunal of Ontario, 2019 ONSC 5501 (Div. Ct.)).

Length of the Delay

[34] This court has established a presumptive deadline of six months for the commencement of an application for judicial review (Kaur v. The National Dental Examining Board of Canada, 2019 ONSC 5882 at para. 4).

....

[39] With respect to prejudice, the court does not require the demonstration of actual prejudice; prejudice can be presumed (Khaiter v. Ontario (Labour Relations Board), 2013 ONSC 791 (Div. Ct.) at para.15). However, in this case the Respondent Unions did suffer prejudice because of the delay – they spent time and money trying to enforce the Horan Award.
. Amodeo v. Ontario Labour Relations Board

In Amodeo v. Ontario Labour Relations Board (Div Ct, 2010) the Divisional Court considered the factor of delay in an application for judicial review:
[4] The Ministry and the Union also submitted that we should not hear the application to review the OLRB decisions because of inordinate delay in bringing and perfecting this application for judicial review. We agree.

[5] There was a delay of eleven months after the MOS was executed in bringing the application and a further seven months delay before it was perfected. This Court has held that applications for judicial review are to be commenced expeditiously and has exercised the power to dismiss an application on the basis of undue delay:
“…the Divisional Court has held on numerous occasions that delay on the part of an applicant of six or more months in the commencement of an application and/or twelve months in the perfection of an application could be serious enough alone to warrant the dismissal of the application”. (Bettes v. Boeing Canada/Dehavilland, [2000] O.J. No. 5413 (Div. Ct.) at para.7).
[6] The length of delay in this case well exceeds any reasonable limit. Furthermore, the record discloses no evidence of any reasonable explanation for the delay and in particular, as I have stated, no medical evidence of incapacity or impairment. Moreover, this Court has stated that judicial review of OLRB decisions should proceed expeditiously because certainty is particularly important in labour disputes (see Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers v. International Union of Bricklayers and Allied Craftworkers (2003), 2003 CanLII 34378 (ON SCDC), 172 O.A.C. 156 (Div. Ct.) at para. 10).


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