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Judicial Review: Within A Month Or Beg Forgiveness

2 minute read

The law in Ontario with respect to judicial review applications changed in a significant way in July 2020.

With the Royal Assent of the Smarter and Stronger Justice Act, 2020 on July 8, 2020, the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 was amended to set a fixed time for bringing an application for judicial review in Ontario of 30 days, unless another Act provides otherwise.

Previously, the Judicial Review Procedure Act did not set any timeframe within which an application must be brought and only set out that a court could extend the time for making an application where there was a limitation set out in another Act.  The appellate courts in Ontario had considered requests for dismissal due to undue delay in bringing judicial review applications when there was no timeframe set in the Judicial Review Procedure Act. From these cases, it was relatively well established that there would need to be good and unusual circumstances before the courts would allow an application to proceed that had been brought more than six months after the date of decision or matter being challenged.
Section 5 of the Judicial Review Procedure Act now says that the application must 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, unless an extension is granted. A court may grant an extension to permit an application to be brought after the 30 day time period has expired, if the court 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.”’

This change means that instead of bringing an application and waiting to see if the timing will be challenged, parties will need to file their applications within 30 days of the decision, unless another Act sets out a different timeframe, or beg for permission to extend the deadline.  The timing now accords more with the challenge of a trial decision – 30 days – forcing parties to consider quickly whether they want to challenge the decision and if so, move forward in a timely manner.  Many articles on judicial review will now be outdated in terms of the discussion about the timeframe within which an application should be filed (including my own here) and so caution should be used in review or reliance upon articles or decisions prior to this change to the Judicial Review Procedure Act.

Carolyn Brandow

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