Federal Court Denies Request for Late Judicial Review on Benefits Decision

OUTCOME: Dismissed

Date: 20260702 Docket: 26-T-221 Citation: 2026 FC 891 Ottawa, Ontario, July 2, 2026 PRESENT: The Honourable Mr. Justice Duchesne BETWEEN: [APPELLANT] Applicant and THE [NAME] [NAME] OF CANADA Respondent

REASONS AND

ORDER [ 1 ] The Applicant has brought a motion in writing for an order pursuant to section 18.1(2) of the Federal Courts Act , RSC 1985, c F-7 [the FCA ] and Rules 359 and 369 of the Federal Courts Rules granting her an extension of time to file an application for judicial review of a December 3, 2025, decision made by the Canada Revenue Agency [the [NAME]] that found that the Applicant was not eligible for the Canada Economic Recovery Benefit [the CERB] pursuant to the Canada Emergency Response Benefit Act, SC 2020, c 5, s 8 and the Canada Recovery Caregiving Benefit [CRCB] pursuant to the Canada Recovery Benefits Act , SC 2020, c 12, s 2. [ 2 ] The Respondent [NAME] [NAME] of Canada [[NAME]] opposes the Applicant’s motion. [ 3 ] The Applicant’s motion is dismissed for the reasons that follow.

I. The Law applicable to this motion [ 4 ] Section 18.1(1) and (2) of the FCA provides as follows: Application for judicial review Demande de contrôle judiciaire 18.1 (1) An application for judicial review may be made by the [NAME] [NAME] of Canada or by anyone directly affected by the matter in respect of which relief is sought. 18.1 (1) Une demande de contrôle judiciaire peut être présentée par le [NAME] ou par quiconque est directement touché par l’objet de la demande. Time limitation Délai de présentation (2) An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the [NAME] [NAME] [NAME] of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days. (2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l’office fédéral, de sa décision ou de son ordonnance au bureau du sous-[NAME] ou à la partie concernée, ou dans le délai supplémentaire qu’un juge de la Cour fédérale peut, avant ou après l’expiration de ces trente jours, fixer ou accorder. [ 5 ] The test that guides the Court in the exercise of its discretion with respect to an extension of time to commence an application for judicial review pursuant to section 18.1(2) of the FCA is the four part test set out in [NAME] v. Canada (Minister of Employment & Immigration) , 1985 CanLII 5550 (FCA) that was reformulated succinctly in Canada ([NAME] [NAME]) v. [NAME] , 1999 CanLII 8190 ( Canada ([NAME] [NAME]) v. [NAME] , 2012 FCA 204 [ [NAME] ]; [NAME] v. Canada (Employment Insurance Commission), 2008 FCA 249). That test was explained in [NAME] at paragraphs 61 and 62 as follows: [61] The parties agree that the following questions are relevant to this Court’s exercise of discretion to allow an extension of time: (1) [NAME] 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) [NAME] have a reasonable explanation for the delay? [NAME] v. Canada (Minister of Employment & Immigration) , 1985 CanLII 5550 (FCA), [1985] 2 F.C. 263 (C.A.); [NAME] v. Canada (Employment Insurance Commission), 2008 FCA 249 at paragraph 8. [62] These questions guide the Court in determining whether the granting of an extension of time is in the interests of justice: [NAME] , supra at pages 277-278. The importance of each question depends upon the circumstances of each case. Further, not all of these four questions need be resolved in [NAME]’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”: [NAME] , at page 282. In certain cases, particularly in unusual cases, other questions may be relevant. The overriding consideration is that the interests of justice be served. See generally [NAME] , at pages 278-279; Canada ([NAME]) v. [NAME] , 2007 FCA 41 at paragraph 33; [NAME] v. Canada ([NAME] [NAME]) , 2007 FC 195, 89 Admin LR (4th) 1. [ 6 ] Mr. Justice Strayer clarified in [NAME] v. Minister of Employment and Immigration (1995) , 88 F.T.R. 132 at 134, that the period of delay to be considered on a motion for an extension of time is the entirety of the period of the delay. The entirety of the period of delay means the delay beginning on the date on which [NAME] became aware of the order or matter to be judicially reviewed and the date on which they filed their request for an extension of time. This same point was echoed in the Federal Court of Appeal’s decision in [NAME] at paragraphs 67 to 69. [ 7 ] The interests of justice in connection with a motion for an extension of time to commence an application for judicial review were well canvassed and summarized by Mr. Justice Denis Gascon in [COMPANY]. v. Canada , 2023 FC 1757, at paragraphs 35 to 37 as follows: E. Weighing the factors and serving the interests of justice [35] Weighing each of the factors set out in [NAME] and [NAME] , and taking into account the circumstances of this case, I give determinative weight to the complete lack of justification for the very long delay and the failure to demonstrate the merit of Clinique Gascon’s application. After conducting my analysis, I cannot identify any reason that could allow me to grant an extension of time for filing Clinique Gascon’s application for judicial review. [36] It has been repeatedly acknowledged that undertaking judicial review of administrative tribunal decisions within the relatively short time limits prescribed by the Act reflects the public interest with respect to the finality of administrative decisions ( Canada v [NAME] , 2005 FCA 267 at para 60 [ [NAME] ], leave to appeal to the SCC refused, 31166 (May 25, 2006); Canada ([NAME]) v [NAME] , 2007 FCA 41 at para 24). That time limit is “not whimsical” and exists “in the public interest, in order to bring finality to administrative decisions” ( [NAME] at para 60). [37] I acknowledge that the interests of justice remain the paramount consideration in granting an extension of time. But the interests of justice do not exist in a vacuum and do not absolve applicants from their duty to satisfy the burden of proof. In this case, to exercise my discretion in favour of Clinique Gascon would require me to ignore all of the established criteria regarding an extension of time and turn a blind eye to the lack of evidence supporting each of the factors set out in case law to consider granting such an extension. The rule of law is based on the fundamental principles of certainty and predictability. Discretion must be based on the law. Exercising such a power would not be appropriate or judicious, or in the interests of justice, if it ignored the minimum requirements of the applicable law. [ 8 ] With the foregoing in mind, I turn to substance of the Applicant’s motion.

II. Evidence and Arguments A. [NAME] and proposed Applicant (1) Evidence [ 9 ] The Applicant’s evidence in support of her motion is brief. Its probative narrative content is as follows:

2. I received the decision on December 15, 2025, Exhibit M-1, and have had the intention to pursue a judicial review since receiving it, but following the birth of my son, and the medical issues that followed, I was overwhelmed with stress, anxiety, and exhaustion, despite regular follow ups with my medical professional, Exhibit M-2;

3. I acted diligently and promptly to identify legal counsel to assist me once my circumstances and [NAME] permitted it;

4. The decision requires judicial review since it results from errors in the handling of my file, and errors in the analysis and application of the applicable legislation, as well as in the analysis of the supporting documentation I submitted;

5. I believe that a judicial review is necessary in order to ensure that my eligibility for CERB and CRCB is evaluated justly and equitably;

6. I, at all times throughout the first and second review, Exhibits M-3 and M-4, tried to justify my eligibility for CERB and CRCB, and provided a large amount of supporting documentation to this effect;

7. However, I was not able to obtain the collaboration of one of my former employers regarding a Record of Employment form, a key document in support of my eligibility, and a decision was rendered based on its absence;

8. Save for the missing record of employment, all of the pertinent documents are in both my possession, and in the [NAME]’s possession, either as a result of them being the author of them, or as a result of my submitting them to the reviewing agent; [ 10 ] Exhibit M-2 is a medical letter from the [NAME] [the [NAME]] dated April 29, 2026. It sets out that Ms. [APPELLANT] gave birth to her son on October 8, 2025, has been followed at the [NAME], was seen on six (6) dates between November 27, 2025, and February 11, 2026, and had one telephone appointment with the [NAME] in March 2026 and a second telephone appointment with the [NAME] in April 2026. [ 11 ] The Applicant has included a proposed Notice of Application [the Proposed NOA] in her motion materials. The Proposed NOA contains concise but complete grounds and allegations of material which, if established by evidence, could lead to a court to grant her the relief she seeks. The Applicant alleges that the Decision she seeks to review was reached in breach of her rights of procedural fairness, does not meaningfully engage with the evidence she submitted, is based on erroneous findings of fact that were consistent with the evidence submitted, and fails to engage with the central factual and legal questions raised by the Applicant’s submissions including with respect to the [NAME]. The Decision, she submits, is unreasonable because it lacks justification and is not intelligible. (2) Argument [ 12 ] The Applicant appears to recognize that this motion was filed well after the expiry of the 30-day time period set out section 18.1(2) of the FCA . The Applicant argues several material facts in support of her that are not included her evidence in the record. These argued but unproven material facts are described in the Applicant’s written representations as follows: a) The Applicant’s son’s delivery in October 2025 involved significant medical complications. The Applicant has not tendered any affidavit or medical evidence that substantiates this representation of fact made in argument, beyond the six (6) in person and two (2) remote appointments with the [NAME]; b) The Applicant was her son’s primary caregiver and suffered from severe sleep deprivation and remains on parental leave. The Applicant deposes to being overwhelmed with stress, anxiety, and exhaustion following her son’s birth, but has led no evidence that she is her son’s primary caregiver, suffered from severe sleep deprivation, or that she remains on parental leave; c) The motion for an extension of time was filed as soon as practicable, once the Applicant was able to retain counsel. The Applicant deposes to having “acted diligently and promptly to identify legal counsel to assist me once my circumstances and [NAME] permitted it” , but no evidence has been led as to the steps she took to identify legal counsel to assist her, when she took those steps, and what their outcomes were. There is also no evidence as to when counsel had been retained, and why it was not practicable for the Applicant to file her motion for an extension of time prior to May 29, 2026. [ 13 ] The Applicant argues very succinctly, in an almost bald manner, that she meets each part of the four-part Hennelly test and that the Respondent would not be prejudiced by the motion being granted. B. [NAME] (1) Evidence [ 14 ] [NAME]’s evidence is that the Applicant had elected to receive electronic correspondence from the [NAME], had in fact received the [NAME]’s December 3, 2025, Decision on December 3, 2025, and reviewed the Decision on December 3, 2025. The Respondent observes that 177 days elapsed between the date of the Decision and May 29, 2026, the date on which the Applicant’s motion for an extension of time was filed. (2) Argument [ 15 ] [NAME] argues that the Applicant does not meet the requirements of applicable jurisprudence for an extension of time to be granted and, moreover, that it is not in the interests of justice for the extension of time sought to be granted. [ 16 ] [NAME] argues that the Applicant has not led evidence sufficient to meet the requirements of the four Hennelly factors. [NAME] argues that the Applicant has led no evidence to substantiate a reasonable explanation for her 177-day delay in seeking an extension of time and has led no evidence of her continuing intention to file an application for judicial review between December 3, 2025, and May 29, 2026. Rather, argues [NAME], the Applicant’s evidence demonstrates inaction and a lack or responsiveness. This lack of responsiveness it is argued does not demonstrate a continued intention to commence an application for judicial review. [ 17 ] [NAME] argues that he does, in fact, suffer prejudice from the Applicant’s failure to act in a timely manner because his “intrinsic interest in the timeliness of challenging administrative decisions”. He argues that this Court’s decision in [COMPANY]. v. Canada , 2023 FC 1755, at paragraph 30 [ [NAME] ] and in Roger c. Canada ( [NAME] [NAME] ), 2025 CF 1340, at paragraphs 31-32 support his argument in this regard. [ 18 ] Finally, [NAME] argues that the Applicant has not demonstrated that the interests of justice are served by granting the Applicant the extension of time she seeks on this motion.

III. Analysis [ 19 ] After having considered the evidence led and the parties’ respective arguments, I conclude that the Applicant has not demonstrated that the interests of justice require that I exercise my discretion to grant the extension of time sought. I come this conclusion for the following reasons. [ 20 ] Many decisions of this Court and of the Federal Court of Appeal have consistently held that time limitations as fixed by a statute, in this case in section 18.1(2) of the FCA , are not whimsical and exist “in the public interest, in order to bring finality to administrative decisions so as to ensure their effective implementation without delay” ( [NAME] , 2005 FCA 267, at para 60). As has been noted repeatedly and quite correctly by my colleague Mr. Justice Denis Gascon, “undertaking judicial review of administrative tribunal decisions within the relatively short timeframes prescribed by the Act reflects the public interest in the finality of administrative decisions” ( [NAME] , at para 36 and the jurisprudence cited therein). [ 21 ] Extensions of time to commence an application for judicial review are determined on a principled basis in light of the jurisprudence that requires the Applicant to explain why they did not act sooner than they did and justify their delay in acting in light of what they believe is a proceeding that has some merit, while balancing the responding party’s rights. A reasoned consideration of the Applicant’s evidence here reveals that she has not done so. A. Continuing intention [ 22 ] Proof of a continuing intention to pursue judicial review consists of more than a bald statement in an affidavit that one had a continuing intention to act throughout the entirety of the delay period. In this case, the Applicant was required to show that she had a continuing intention to seek judicial review between the end of the 30-day period in which she could file her application for judicial review as of right and the date upon which she filed this motion. [ 23 ] The Applicant’s evidence here is very limited indeed. The absence of evidence with respect to any steps taken by the Applicant that might demonstrate her continuing intention to seek judicial review of the [NAME]’s December 3, 2025, decision, between January 2, 2026, and May 29, 2026, suggests that no steps were taken because there was no continuing intention to take them. There is no evidence of the steps taken by the Applicant to find legal representation, when she took those steps, what the result of those steps were, whether the Applicant sought to contact [NAME] to discuss whether an extension of time could be available to her upon consent or not, or that the Applicant considered but chose not to represent herself as she is permitted to do. [ 24 ] While the Court is prepared to accept that the Applicant had an intention to pursue judicial review at various point in time and that that intention culminated in her retaining legal counsel for this motion at some point prior to May 29, 2026, the Court would have to infer from the fact that legal counsel was retained several months after the expiry of the 30 days provided by subsection 18.1(2) of the FCA that the Applicant’s intention was a continuing one between early January 2026 and some point in time in May 2026. [ 25 ] [ADDRESS] cannot draw the necessary inference from the evidence led.

I therefore find that the Applicant has failed to satisfied the first component of the [NAME] test. B. The intended application’s potential merit [ 26 ] The Applicant’s Proposed NOA contains sufficient allegations of material facts and grounds of review that, if proven, show that the Proposed NOA is not bound to fail as a matter of pleading. Considering the minimal documentation filed on this motion that would be considered by the Court sitting as a reviewing court, I find that the Applicant’s Proposed NOA reflects that her intended proceeding has at least some potential merit. [ 27 ] The Applicant has satisfied the second component of the [APPELLANT] test. C. Prejudice to the Respondent arising from the delay [ 28 ] The Applicant has not led evidence that the Respondent would not suffer any prejudice from her delay in [NAME] forward. Taken at its best, the Applicant’s materials argue that the Respondent would not be prejudiced because, “the Respondent is the party that produced the majority of the material that would be invoked in a judicial review, they are not prejudiced by this delay, nor would they be by the granting of this motion”. Leaving the distinction between [NAME] and [NAME] aside (they are not the same party although one may represent the other), the Applicant’s argument is an argument without a factual basis. Argument is not evidence. [ 29 ] Conversely, [NAME] argues that he would suffer prejudice because he has “an intrinsic interest in the timeliness of challenging administrative decisions”. [NAME] also argues that “The [NAME] as the administrative decision maker serves the public interest and has a duty that the time limits for challenging its administrative decisions be respected so as to bring finality to administrative decisions and ensure their effective implementation without delay.” While both of these propositions may be accurate, [NAME] has not led any evidence to substantiate them. Argument is not a substitute for evidence. [ 30 ] Finally, [NAME] argues that “the delay provided in subsection 18.1(2) of the Federal Courts Act exists in the public interest. As a result, it is clear that the Respondent would suffer prejudice if the motion were granted.” [NAME] has adduced no evidence or jurisprudence that substantiates that a time period fixed by a statute which also provides for the possibility of an extension of time in some manner operates to establish, without any additional evidence, that a party who may lose the benefit of the effect of the time limitation because of the passage of time will suffer prejudice per se the passage of time. [ 31 ] Considering that neither party has led evidence as to any prejudice being suffered either party as result of the Applicant’s delay in [NAME] forward, I find that the Applicant has failed to satisfy the third [APPELLANT] factor. D. Explanation for the delay [ 32 ] The Applicant argues that her delay in acting is explained by the detailed medical issues that prevented her from acting sooner. [ 33 ] While the Court can accept that the presence of a newborn child is life changing in many anticipated and unanticipated ways and that those changes carry their own challenges, the Applicant’s reliance on a [NAME] letter attesting to specific dates upon which she attended for breastfeeding follow up does not substantiate the medical issue explanation her counsel argues. [ 34 ] [ADDRESS] observes that the Applicant’s attended at the [NAME] on six (6) occasions, the last in person attendance being on February 11, 2026. There is no explanation at all as to why the Applicant did not act between February 12, 2026, and May 29, 2026, beyond the bald assertions mentioned previously. There is similarly no evidence to explain why the Applicant did not act sooner after her March 11, 2026, telephone appointment, or after her April 15, 2026, telephone appointment. The bald assertions contained in the Applicant’s affidavit are not sufficient to establish a reasonable explanation for a failure to act sooner. [ 35 ] The Applicant has not satisfied the fourth Hennelly factor. E. The interests of justice [ 36 ] The Applicant has met one of the four Hennelly factors. Considering those factors holistically and weighing them along with the interests of justice leads me to conclude that it is not in the interests of justice to grant the extension of time sought by the Applicant. [ 37 ] The absence of probative evidence, the length of time that has passed, and the failure to adequately explain and justify her failure to act sooner are determinative in this case. The Applicant has not satisfied me that it would be in the interests of justice in light of the jurisprudential requirements she failed to meet to extend the time for her to commence her intended proceeding.

ORDER in 26-T-221 THIS COURT’S

ORDER is that : [NAME]’s motion for an extension of time pursuant to subsection 18.1(2) of the FCA is dismissed. The responding party has not sought his costs of this motion. No costs are awarded to either party. “Benoit M. Duchesne” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: 26-T-221 STYLE OF CAUSE: [APPELLANT] v. AGC

REASONS aND

ORDER: [APPELLANT], j. DATED: july 2, 2026 MOTION IN WRITING PURSUANT TO RULE 369 OF THE FEDERAL COURT RULES WRITTEN SUBMISSIONS BY: [APPELLANT] For The Applicant [APPELLANT] [NAME] For The Respondent