Federal Court of Appeal Reverses Lower Court's Extension of Time Decision

Date: 20260326 Docket: A-189-25 Citation: 2026 FCA 65 CORAM: LOCKE J.A. WALKER J.A. [NAME] J.A. BETWEEN: [NAME] Appellant and THE MINISTER OF PUBLIC SAFETY, DEMOCRATIC INSTITUTIONS AND INTERGOVERNMENTAL AFFAIRS Respondent Heard at Ottawa, Ontario, on March 26, 2026. Judgment delivered from the Bench at Ottawa, Ontario, on March 26, 2026.

REASONS FOR

JUDGMENT OF THE COURT BY: [NAME] J.A. Date: 20260326 Docket: A-189-25 Citation: 2026 FCA 65 CORAM: LOCKE J.A. WALKER J.A. [NAME] J.A. BETWEEN: [NAME] Appellant and THE MINISTER OF PUBLIC SAFETY, DEMOCRATIC INSTITUTIONS AND INTERGOVERNMENTAL AFFAIRS Respondent

REASONS FOR

JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa, Ontario, on March 26, 2026). [NAME] J.A. [ 1 ] [NAME] appeals an order of the Federal Court dated May 5, 2025, in file number 25-T-43. The Federal Court dismissed [NAME]’s motion seeking an extension of time within which to file an application for judicial review. The respondent does not oppose the appeal and has elected not to file submissions. [ 2 ] This appeal will be allowed on the basis that the Federal Court erred in its treatment of [NAME]’s motion. [ 3 ] On April 11, 2025, [NAME]’s counsel served and filed the motion, along with an affidavit of service confirming service on the respondent. The notice of motion did not specify a return date for a hearing. Nevertheless, it appears the motion was originally set down for April 23, 2025. On April 22, 2025, the hearing date was moved to May 7, 2025. It is clear from the record that counsel for the respondent had not been made aware of the return date of April 23, 2025, as the next day she wrote to counsel for [NAME] seeking confirmation that the motion would be heard in writing under Rule 369 of the Federal Court Rules , S.O.R./98-106. [ 4 ] On April 30, 2025, after having been informed of the May 7, 2025, return date, counsel for the respondent confirmed that she did not intend to oppose the motion for an extension of time within which to file the notice of application for judicial review. Counsel for [NAME] did not inform the Court that the respondent did not oppose the motion. [ 5 ] For reasons unknown to us, the motion was placed before the Federal Court to be dealt with in writing and the resulting order was rendered on May 5, 2025. It is clear from the Federal Court’s reasons that the court mistakenly believed that the motion was ex parte , despite the filing by [NAME]’s counsel of an affidavit of service on April 11, 2025. The Federal Court was also mistaken in its belief that no notice of motion had been filed. [ 6 ] It is well established that the four factors relevant to the Court’s discretion in granting an extension of time are whether: (1) the party had a continuing intention to pursue the matter, which commenced before the relevant time limit expired; (2) there is a reasonable explanation for the delay; (3) there is some merit to the party’s application; and (4) there is no prejudice to the opposite party: [COMPANY]. v. [NAME] ., 2024 FCA 19 at para. 6. [ 7 ] The fact that the Federal Court was unaware that the respondent had been served with, and consented to, the motion impacted its analysis as did its erroneous belief that the motion was ex parte . [ 8 ] While we acknowledge [NAME]’s concern regarding further delay, we decline [NAME]’s request to grant the extension of time within which to file a notice of application for judicial review. Given that the decision to grant an extension of time is discretionary and affects the workload of the Federal Court, it is best dealt with by that Court on a complete record. [ 9 ] Therefore, the appeal will be allowed, the decision of the Federal Court will be set aside, and the matter will be remitted to the Federal Court for a decision on [NAME]’s motion seeking an extension of time within which to file an application for judicial review. No costs shall be awarded. "[NAME]" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-189-25 STYLE OF CAUSE: [NAME] v. THE MINISTER OF PUBLIC SAFETY, DEMOCRATIC INSTITUTIONS AND INTERGOVERNMENTAL AFFAIRS PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: March 26, 2026

REASONS FOR

JUDGMENT OF THE COURT BY: LOCKE J.A. WALKER J.A. [NAME] J.A. DELIVERED FROM THE BENCH BY: [NAME] J.A. APPEARANCES : [NAME] For The Appellant [NAME] For The Respondent SOLICITORS OF RECORD : [NAME], Ontario For The Appellant [NAME] of Canada For The Respondent