Is it Too Late to Seek Judicial Review of Your Tribunal Decision?

Under the Judicial Review Procedure Act, R.S.O. 1990, c.J.1 (the “JRPA”), most applications for judicial review of an administrative decision in Ontario must now be brought within 30 days. 

The purpose of the new 30-day deadline is presumably to set a firm timeframe by which any tribunal decision in Ontario may be challenged. The JRPA also aligns the deadline for commencing judicial reviews with most appellate start-periods in the province.

That being said, where a party has not started a judicial review application on time, the Court has discretion under the JRPA to extend that time based on a range of factors.

A recent decision of the Ontario Divisional Court, Unifor and its Local 303 v. Scepter Canada Inc., 2022 ONSC 5683, clarifies the considerations the Court should take into account, both statutory and at common law, when deciding whether to grant leave to start an application for judicial review beyond 30 days from the original tribunal decision.

An Eight-Month Delay

Scepter involved a challenge by the applicant union of a group / policy grievance award of an arbitrator (the “Award”), which upheld certain discharges of employees following a change to the collective agreement. 

The unionized employees were dismissed on the basis that they could not complete certain functions in the workplace due to disability. 

The union grieved the dismissals on behalf of these employees and the arbitrator dismissed the employees’ grievances.

The Award was issued on February 22, 2021. 

The union’s application for judicial review was not commenced until November, 2021, more than eight months after the Award was made.

Under subsection 5(1) of the JRPA, most applications for judicial review in Ontario need to be started within 30 days of the decision being challenged:

5(1)     Unless another Act provides otherwise, an application for judicial review shall be made no later than 30 days after the date the decision or matter for which judicial review is being sought was made or occurred, subject to subsection (2).

Subsection 5(2) of the JRPA lists the circumstances under which a Court may exercise its discretion to extend the 30-day deadline:

5(2)     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.

In Scepter, the Court exercised its discretion not to extend the 30-day deadline under subsection 5(1).    

The Court held that the application’s grounds, which challenged the Arbitrator’s reasons for decision and his legal analysis, were “weak”. 

The Court also considered the “lengthy” eight-month delay in this case to be “significant”; the union failed to provide a “robust explanation” for its delay.

In reaching this conclusion, the Court established a number of key principles for assessing whether to extend the 30-day deadline to commence a judicial review application in Ontario:

1.         The Previous Factors in Deciding Whether to Extend the Deadline

Before the JRPA was amended to codify the 30-day deadline, parties generally had no more than six months to commence their application for judicial review in Ontario. 

This was a common law principle, based on various cases that established that a delay of more than six months could justify the dismissal of the application for judicial review: see, for example, Kaur v. National Dental Examining Board of Canada, 2019 ONSC 5882.

This body of jurisprudence also held that, in deciding whether to exercise its discretion to extend the period for judicial review, the Court had to consider the following factors:

• The length of the delay;
• The explanation for the delay; and
• Whether the delay would cause prejudice to the respondent to the application

(collectively, the “Previous Factors”).

See Kaur v. National Dental Examining Board of Canada, supra, citing Nahirney v. Human Rights Tribunal of Ontario, 2019 ONSC 5501.

2.         The Court Can Still Consider the “Previous Factors” in Assessing Delay

In Scepter, the applicant union tried to argue that because only two factors are now expressly mentioned under subsection 5(2) of the JRPA, i.e., whether 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 Previous Factors no longer needed to be considered under s.5(2).

According to the applicant, this meant that Previous Factors, such as whether there was any “explanation for the delay”, were largely irrelevant to the analysis.

The Court disagreed:

Subsection 5(2) must be interpreted in context and giving meaning to all of its words…The legislative reform introduced a 30-day time limit, which should be given force…an extension of time is not mandatory where the two factors referenced [under subsection 5(2)] 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.

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 lengthy delay in this case is therefore significant. [emphasis added]

A Holistic Approach to Delay

Scepter illustrates that in order to give effect to the new 30-day period for most judicial review applications in Ontario, the Courts must adopt a holistic approach in assessing the delay.  

This involves a consideration of the Previous Factors, which developed over years of jurisprudence. 

The fact that subsection 5(2) does not specifically enumerate the Previous Factors is immaterial.  The s.5(2) factors form the foundational baseline for any motion to extend the time to bring an application for judicial review; however, they are not exhaustive.

The Divisional Court, in exercising its discretion, can still consider both the length and explanation for any delay on the part of the applicant. 

These considerations are not only relevant, but may in fact steer the Court’s assessment of the equities: if there is no valid explanation for a lengthy delay, then the 30-day JRPA deadline will very likely be enforced. 

This approach protects the policy underlying s.5(1) – i.e., to ensure that applications for judicial review are brought promptly and that the respondent can move past the tribunal decision without the prospect of a judicial review application lingering for months thereafter.