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Federal Court - Time and Extensions (2). Jawad v. Canada (Attorney General)
In Jawad v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against the earlier dismissal of "the appellant’s request for an extension of time to file a motion for reconsideration":[4] To be granted an extension of time, the moving party must establish: (1) a continuing intention to pursue the matter; (2) that the matter has merit; (3) that no prejudice arises from the delay; and (4) a reasonable explanation for the delay: Canada (Attorney General) v. Hennelly, 1999 CanLII 8190 at para. 3 (F.C.A.) [Hennelly]; Greenblue Urban North America Inc. v. Deeproot Green Infrastructure, LLC, 2024 FCA 19 at paras. 5–6.
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[9] Granting an extension of time is a discretionary decision, subject to considerable deference on appeal. We are not permitted to redo the motion that was decided by the Federal Court judge. Unless an extricable question of law can be identified, which is reviewed on a standard of correctness, the Federal Court’s order is reviewed on a standard of palpable and overriding error: Qualizza v. Canada, 2025 FCA 222 at para. 9; Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215 at para. 79; Canada (Transportation Safety Board) v. Carroll Byrne, 2022 SCC 48 at para. 41.
[10] To identify a palpable and overriding error, it is not enough to disagree with the Federal Court’s interpretation of the evidence: Nelson (City) v. Mowatt, 2017 SCC 8 at para. 38. To be palpable, an error must be truly obvious. To be overriding, an error must affect the core of the outcome of the case: Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157 at paras. 61–62; Canada v. South Yukon Forest Corporation, 2012 FCA 165 at para. 46, cited with approval in Benhaim v. St‑Germain, 2016 SCC 48 at para. 38. . Whitelaw v. Canada (Attorney General)
In Whitelaw v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal considered the test for extending time under the Federal Rules:[1] The appellant seeks an order extending the time to serve and file a motion to determine the contents of the Appeal Book under Rule 343(3) of the Federal Courts Rules, S.O.R./98-106 (the Rules). ....
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[6] In order for her motion to succeed, the appellant needed to show: (i) a continuing intention to pursue the underlying proceeding (here, a motion to determine – or vary – the contents of the Appeal Book); (ii) that this underlying proceeding has some merit; (iii) that no prejudice to the respondent arises from the delay; and (iv) that a reasonable explanation for the delay exists (see Canada (Attorney General) v. Hennelly, 1999 CanLII 8190 (FCA) at para. 3). As stated in Canada (Attorney General) v. Larkman, 2012 FCA 204 (Larkman), the overriding consideration in such matters "“is that the interests of justice be served”" (Larkman at para. 62). . Bank of America v. Canada (Attorney General)
In Bank of America v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from a JR of a dismissal of an late-filed application [under Excise Act s.141.02] to become a "qualifying institution", which would allow the applicant to "claim input tax credits above a prescribed rate".
Here the court considers a time extension to commence an application, which turns largely of the applicant's "degree of care" in trying to meet the timeline:[4] The Minister refused to exercise her discretion to accept the late filing of applications by the Bank of America, National Association, primarily based on the Bank’s failure to exercise due care with respect to its filing obligations. In a decision reported as 2023 FC 1496, the Federal Court dismissed the Bank’s application for judicial review of the Minister’s decision, finding that her decision was both reasonable and fair.
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[10] The Bank contends that the decision to reject its applications for late filing was unreasonable as the Minister applied the wrong test in rejecting its applications, given the scheme and underlying purpose of section 141.02 of the Act. Rather than focussing on the Bank’s diligence in filing its section 141.02 applications, the Bank says that the Minister should have applied the four-part test applicable to extensions of time under section 18.1(2) of the Federal Courts Act, R.S.C. 1985, c-F-7. That is, the Minister should have considered whether the Bank had a continuing intention to pursue its application, whether the application had some merit, whether there was any prejudice to the respondent as a result of the Bank’s delay and whether the Bank had a reasonable explanation for its delay: Canada v. Hennelly, 1999 CanLII 8190 (FCA), [1999] F.C.J. No. 846, 244 N.R. 399.
[11] There are two problems with the Bank’s argument. The first is that this Court has already determined that it is reasonable for the Minister to have regard to the diligence of a taxpayer in circumstances such as this: Denso Manufacturing Canada, Inc. v. Canada (Minister of National Revenue), 2021 FCA 236. The second is that even if the Bank were correct, and the Minister applied the wrong test in denying its applications for late filing, it was still required to provide a reasonable explanation for its delay under the Hennelly test, which it failed to do.
[12] The Minister found that the Bank had failed to exercise the requisite degree of care in this matter. This was a factually suffused finding that provided a reasonable basis for the Minister’s decision to deny the Bank’s applications for late filing, and the Bank has not shown any reversible error with respect to this factually suffused finding. Consequently, the appeal will be dismissed with costs.
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