Simon's Megalomaniacal Legal Resources

Federal Court - Time and Extensions

. Oleynik v. Canada (Attorney General)

In Oleynik v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered (and granted) a motion to quash an appeal. In these quotes the court considers the federal test for extending time to commence an appeal:

[36] A decision to grant an extension of time is discretionary: Rule 8. In exercising that discretion, the Court considers four factors derived from Canada (Attorney General) v. Hennelly, 1999 CanLII 8190 (FCA), [1999] F.C.J. No. 846 (QL), 244 N.R. 399, (FCA). They are (i) whether there is a continuing intention to pursue the matter, (ii) whether there is some merit to the underlying claim, (iii) whether there is prejudice arising from the delay, and (iv) whether there is a reasonable explanation for the delay. However, no factor is determinative. Rather, they are intended to assist the Court in determining whether an extension of time is in the interests of justice between the parties: Alberta v. Canada, 2018 FCA 83 at para. 45. That is the heart of the matter.

. McCotter v. Canada (Attorney General)

In McCotter v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered an appeal of a JR dismissal for mootness. In these quotes the court considers the test for extension of time to appeal:

I. Motion for extension of time

[4] The AGC notes that the test for an extension of time is well-established and was articulated by this Court in Canada (Attorney General) v. Hennelly, (1999), 1999 CanLII 8190 (FCA), 244 N.R. 399, [1999] F.C.J. No. 846 at paragraph 3:

The proper test is whether the applicant has demonstrated

1. a continuing intention to pursue his or her application;

2. that the application has some merit;

3. that no prejudice to the respondent arises from the delay; and

4. that a reasonable explanation for the delay exists.

[5] The AGC also correctly notes that the overriding consideration is that the interests of justice are served.

. Dakota Plains Wahpeton Oyate First Nation v. Smoke

In Dakota Plains Wahpeton Oyate First Nation v. Smoke (Fed CA, 2023) the Federal Court of Appeal considered the test for extending time to appeal:

[4] Paragraph 27(2)(b) of the Federal Courts Act, R.S.C. 1985, c. F-7, provides for a deadline of 30 days to appeal the Federal Court decisions in issue here. Accordingly, the deadlines were January 14, 2023 (for the Merits Decision) and March 25, 2023 (for the Costs Decision). It appears that the prospective appellants were advised that the time for commencing an appeal did not count during the seasonal recess. The seasonal recess is defined in the Federal Courts Rules, S.O.R./98-106 (the Rules), as “the period beginning on December 21 in a year and ending on January 7 in the following year.” Stopping the count of days during the seasonal recess would move the deadline to February 1, 2023, which is apparently, when the prospective appellants attempted to file a notice of appeal. Unfortunately, for the prospective appellants, the provision in Rule 6(3) of the Rules that stops the count of days during the seasonal recess does not apply to deadlines provided for in the Federal Courts Act, like the deadline to commence an appeal of the Merits Decision. By February 1, 2023, that deadline had passed.

[5] Accordingly, the prospective appellants now move for an extension of time to commence an appeal. The prospective appellants’ motion record was filed on April 13, 2023. The prospective respondent’s responding record contesting the motion was filed on April 24, 2023. The prospective appellants did not file a reply. As contemplated in Rule 369.2, I will decide this motion on the basis of the written representations, without an oral hearing.

[6] The test for an extension of time has been discussed many times in this Court, including in the following passage from Canada (Attorney General) v. Larkman, 2012 FCA 204 at paragraphs 61 and 62 (Larkman):

[61] The parties agree that the following questions are relevant to this Court’s exercise of discretion to allow an extension of time:

(1) Did the moving party have a continuing intention to pursue the [appeal]?

(2) Is there some potential merit to the [appeal]?

(3) Has the [respondent] been prejudiced from the delay?

(4) Does the moving party have a reasonable explanation for the delay?

[62] These questions guide the Court in determining whether the granting of an extension of time is in the interests of justice. The importance of each question depends upon the circumstances of each case. Further, not all of these four questions need to be resolved in the moving party’s favour. For example, “a compelling explanation for the delay may lead to a positive response even if the case against the judgment appears weak, and equally a strong case may counterbalance a less satisfactory justification for the delay”. In certain cases, particularly in unusual cases, other questions may be relevant. The overriding consideration is that the interests of justice be served… [Citations omitted]

. Rafique v. Canada (National Revenue)

In Rafique v. Canada (National Revenue) (Fed CA, 2023) the Federal Court of Appeal considered a time extension, here to settle the appeal book:

[1] The appellant, Ehtesham A. Rafique, moves for an extension of time to file a motion pursuant to Rule 343(3) of the Federal Courts Rules, S.O.R./98-106 (the Rules), to determine the contents of the appeal book in the present appeal. The respondent, the Minister of National Revenue (the Minister), contests the motion.

[2] The parties agree that this Court’s decision in Canada (Attorney General) v. Hennelly (1999), 1999 CanLII 8190 (FCA), 244 N.R. 399, 1999 CarswellNat 967 (F.C.A.) (Hennelly) provides helpful guidance on the present motion. At paragraph 3 thereof, this Court considered the following factors:

. A continuing intention to pursue the appeal;

. That the appeal has some merit;

. That no prejudice to the respondent arises from the delay; and

. That a reasonable explanation for the delay exists.

[3] This Court has since slightly reworded and clarified the test: see Canada (Attorney General) v. Larkman, 2012 FCA 204 (Larkman) at paragraphs 61 and 62:

[61] The parties agree that the following questions are relevant to this Court’s exercise of discretion to allow an extension of time:

(1) Did the moving party have a continuing intention to pursue the [appeal]?

(2) Is there some potential merit to the [appeal]?

(3) Has the Crown been prejudiced from the delay?

(4) Does the moving party have a reasonable explanation for the delay?

[62] These questions guide the Court in determining whether the granting of an extension of time is in the interests of justice. The importance of each question depends upon the circumstances of each case. Further, not all of these four questions need be resolved in the moving party’s favour. For example, “a compelling explanation for the delay may lead to a positive response even if the case against the judgment appears weak, and equally a strong case may counterbalance a less satisfactory justification for the delay”. In certain cases, particularly in unusual cases, other questions may be relevant. The overriding consideration is that the interests of justice be served… [Citations omitted]

. Comfort Capital Inc. v. Yeretsian

In Comfort Capital Inc. v. Yeretsian (Ont CA, 2023) the Court of Appeal considered the test for extending time to appeal, here in a BIA appeal and right-to-appeal motion:

Extension of Time

[9] The time to file a notice of appeal in a matter falling under the BIA is ten days from the order under appeal or “within such further time as a judge of the court of appeal stipulates”: Bankruptcy and Insolvency General Rules, C.R.C., c. 368 (the “BIA Rules”), r. 31(1). Section 187(11) of the BIA provides for the court to extend any time limit under the BIA or the BIA Rules.

[10] The test for an extension of time is whether it is in the interests of justice that the extension be granted: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 3.02(1); 2363523 Ontario Inc. v. Nowack, 2018 ONCA 286, at para. 4. Relevant factors include: whether the appellant intended to appeal within the relevant period; the length of and explanation for the delay; prejudice to the opposing party from extending the time; and the merits of the appeal. The enumerated factors are not exhaustive and may vary in importance depending on the circumstances. The overriding consideration is whether the justice of the case requires an extension: Denomme v. McArthur, 2013 ONCA 694; 36 R.F.L. (7th) 273, at para. 7; Oliveira v. Oliveira, 2022 ONCA 218, at para. 14.

. Jog v. Bank of Montreal

In Jog v. Bank of Montreal (Fed CA, 2023) the Federal Court of Appeal considered extending time to commence a judicial review:

[4] In dismissing the motions for an extension of time, the Federal Court did not err in identifying and applying the governing legal test: see Canada (Attorney General) v. Larkman, 2012 FCA 204, 433 N.R. 184 at paras. 61-62. In applying that test to the evidence in each motion, the Federal Court did not make a palpable and overriding error. Thus, there are no grounds for this Court to intervene.

. Koch v. Borgatti Estate

In Koch v. Borgatti Estate (Fed CA, 2022) the Federal Court of Appeal considered the effect of a peremptory procedural order on the basic extension for time test:

[26] Rather, said the Federal Court, because the order was peremptory, the elevated test stated in 1395047 applied, and Mr. Brudek had to show that he had no intention to ignore or flout the July orders and that the failure to comply was due to extraneous circumstances beyond his control, citing Angloflora Ltd. v. Canada Maritime Ltd., 2002 FCT 1230; 1395047; and Sarasin consultadoria E. servicos LDA v. Roox's Inc., 2003 FC 959, aff’d 2003 FC 1010 [Sarasin].

....

[SS: on appeal it was held that no peremptory order was made]

[58] However, even absent a reasonable explanation for the delay, Mr. Brudek nonetheless may succeed because no Hennelly factor is determinative and the overarching consideration and real test is whether justice will be done between the parties if the extension is not granted.

[59] This requires the interests of the parties to be balanced, something the Federal Court failed to do, notwithstanding that this principle applies equally to peremptory orders: Jourdain v. Ontario (2008), 2008 CanLII 22130 (ON SC), 91 O.R. (3d) 465, 167 A.C.W.S. (3d) 498 (ONSC), citing Hytec Information Systems Ltd. v. Coventry City Council, [1996] E.W.J. No. 3603 (C.A. (Civ. Div.); Conway (Re) 2016 ONCA 918. Rather, while finding no prejudice, and expressing sympathy for Mr. Brudek, the Federal Court concluded that it was "“not in the interest of justice to grant”" the motions but rather, "“given the clear language”" of the July orders, "“it was in the interest of justice to protect the stability and finality of decisions”".

[60] Thus, for the Federal Court the determinative factor appears not to have been justice between the parties, but rather the stability and finality of court decisions. While that is obviously an important principle, in the context of a timetable order that is not peremptory, and in the face of Rule 8 which expressly contemplates extensions of time, it cannot be determinative.

. Koch v. Borgatti Estate

In Koch v. Borgatti Estate (Fed CA, 2022) the Federal Court of Appeal considers the failure of counsel to perform acts within required timelines as a factor in the 'reasonable explanation for the delay' element of the test for time extension:

[56] As noted, Mr. Brudek’s lawyer has acknowledged that the source of delay was failures by him and his colleagues. While an error by counsel will not necessarily constitute a reasonable explanation for the delay, there is no doubt that it can be seen as one, as in Sarasin, 1395047, Medawatte v. Canada (Minister for Public Safety and Emergency Preparedness), 2005 FC 1374, and O’Leary v. Ragone, 2022 FC 749, a case that bears many similarities to these appeals.

. Koch v. Borgatti Estate

In Koch v. Borgatti Estate (Fed CA, 2022) the Federal Court of Appeal considered the SOR for time extensions in the federal court system:

[39] Whether to grant an extension of time is a discretionary decision. Discretionary decisions of the Federal Court are reviewable by this Court under the appellate standard of review: Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215, at para. 79. Therefore, factual findings and matters of mixed fact and law (excluding an extricable legal question) are reviewed for palpable (obvious) and overriding error, and questions of law for correctness: Housen v. Nikolaisen, 2002 SCC 33.

. Koch v. Borgatti Estate

In Koch v. Borgatti Estate (Fed CA, 2022) the Federal Court of Appeal considered the basic Federal Court extension of time test:

[53] The factors to consider in exercising a discretion to extend time are well known and are derived from Hennelly. The four questions to ask are (i) whether there is a continuing intention to pursue the matter, (ii) whether there is some merit to the underlying claim, (iii) whether there is prejudice arising from the delay, and (iv) whether there is a reasonable explanation for the delay. However, all four factors need not favour an extension of time and the importance of any particular factor depends on the circumstances: Gambler First Nation v. Ledoux, 2020 FCA 204 at para. 6.

[54] As explained by this Court in Alberta v. Canada, 2018 FCA 83 at para. 45:

These [Hennelly] questions are helpful to determine whether the granting of an extension is in the interest of justice, because the overriding consideration or the real test is ultimately that justice be done between the parties (Grewal v. Minister of Employment and Immigration, 1985 CanLII 5550 (FCA), [1985] 2 F.C.R. 263 at 277-279 (F.C.A.)). Thus, Hennelly does not provide an extensive list of questions or factors that may be relevant in any given case, nor is the failure to give a positive response to one of the four questions referred to above necessarily determinative (Canada (Attorney General) v. Larkman, 2012 FCA 204, at para. 62).

....

[58] However, even absent a reasonable explanation for the delay, Mr. Brudek nonetheless may succeed because no Hennelly factor is determinative and the overarching consideration and real test is whether justice will be done between the parties if the extension is not granted.

....

[69] The Federal Court was obligated to look beyond the failure to expressly refer to Rule 8 in the notice of motion and to "“discern the application’s ‘real essence’ and ‘essential character’”": Leahy v. Canada (Citizenship and Immigration), 2020 FCA 145 at para. 4, citing Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250 [JP Morgan] at paras. 49-50. As this Court said in JP Morgan, the Court must "“gain ‘a realistic appreciation’ of the [motion’s] ‘essential character’ by reading it holistically and practically without fastening onto matters of form.”"

. Kemp v. Canada (Finance)

In Kemp v. Canada (Finance) (Fed CA, 2022) the Federal Court of Appeal quoted a test for extension of time:

[16] The Federal Court relied on this Court’s decision in Canada (Attorney General) v. Larkman, 2012 FCA 204, [2012] FCJ No. 880 (QL) at para. 61 [Larkman], which set out the test to be applied in applications for an extension of time. Those factors were listed as:

(1) Did the moving party have a continuing intention to pursue the application?

(2) Is there some potential merit to the application?

(3) Has the Crown been prejudiced from the delay?

(4) Does the moving party have a reasonable explanation for the delay?

. Janssen Inc. v. Apotex Inc.

In Janssen Inc. v. Apotex Inc. (Fed CA, 2022) the Federal Court of Appeal considered the test for time extension under the Federal Rules:

[6] In the first Order under appeal, the Federal Court correctly noted the test for granting an extension of time as set out in Canada (Attorney General) v. Hennelly (1999), 1999 CanLII 8190 (FCA), 244 N.R. 399, 89 A.C.W.S. (3d) 376 (F.C.A.) (Hennelly). The underlying consideration is that justice must be done between the parties. The following factors should be considered: (i) whether there is a continuing intention to pursue the issue, (ii) whether there is merit to the issue, (iii) whether any prejudice arises from the delay, and (iv) whether there is a reasonable explanation for the delay. The Federal Court found that most of the factors readily favoured allowing the Addendum, and only the factor of merit required a more detailed discussion.