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Federal Court - Appeals - Time. Qualizza v. Canada
In Qualizza v. Canada (Fed CA, 2025) the Federal Court of Appeal considered an appeal of a denial of a motion to extend time to commence an appeal to the Federal Court:[6] On the actual merits of the request for an extension of time, the Judge determined that the appellants had failed to satisfy any of the jurisprudential criteria that must be considered on such motions, as set out in Canada (Attorney General) v. Hennelly, 1999 CanLII 8190 (FCA), 1999 167 FTR 158 (Hennelly), that is: (i) a continuing intention to pursue an appeal of the Associate Judge’s order; (ii) that their proposed appeal had some merit; (iii) that the respondents would not be prejudiced by the delay; and (iv) that there was a reasonable explanation for the delay.
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[9] It is trite that whether to grant an extension of time is a discretionary decision (Koch v. Borgatti Estate, 2022 FCA 201 at para. 39). It is trite as well that discretionary decisions made by Federal Court judges are reviewable by this Court under the appellate standard of review, meaning that questions of law are reviewable on the correctness standard whereas findings of fact and findings of mixed fact and law can only be overturned in the presence of a palpable and overriding error (Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215 at para. 79; Housen v. Nikolaisen, 2002 SCC 33; Spectrum Brands, Inc. v. Schneider Electric Industries SAS, 2021 FCA 51 at para. 6 (Spectrum Brands)). A palpable error means an error that is "“obvious”" whereas for an error to be overriding, it must go "“to the very core of the outcome of the case”". That standard is "“highly deferential”" and is "“not easily met”" (Canada v. South Yukon Forest Corporation, 2012 FCA 165 at para. 46; Spectrum Brands at para. 7; Western Oilfield Equipment Rentals Ltd. v. M-I L.L.C., 2021 FCA 24, at para. 11).
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[16] At the hearing of this appeal, the appellants insisted that the Hennelly test was applied too restrictively by the Judge, given the potential merit of their claims. However, it is important to underscore that it is not the role of this Court to proceed with its own assessment of the Hennelly test and to do so, moreover, based on a significantly different – improperly constituted – record than the one that was before the Judge. Our role, again, is to determine whether the Judge committed a palpable and overriding error in concluding that the appellants had not established that their claims, based on the record before him, had merit. We find that he did not commit such an error.
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