KIM TANCZOS Applicant v. THE ATTORNEY GENERAL OF CANADA, 2024 FC 232

Date: 20240212Docket: 24-T-7 Citation: 2024 FC 232Ottawa, Ontario, February 12, 2024PRESENT: The Honourable Madam Justice NgoBETWEEN: KIM TANCZOS ApplicantandTHE ATTORNEY GENERAL OF CANADA Respondent ORDER AND REASONS UPON the Applicant’s motion in writing dated January 18, 2024, pursuant to Rules 8 and 369 of the Federal Courts Rules, SOR/98-106for an Order: 1)Extending the application deadline by 30 or more business days to file an application for leave and judicial review undersubsection 18.1(2) of the Federal Courts Act, RSC 1985, c.

F-7, of two decisions by the Canada Revenue Agency [CRA]: a. the first dated September 22, 2023 informing the Applicant on a second review that they were not eligible for the CanadaEmergency Response Benefit [CERB] [CERB Decision], and b. the second-dated November 15, 2023 informing the Applicant of a first review they were not eligible for the CanadaRecovery Benefit [CRB] [CRB Decision]; and 2)Such further and other relief or directions as the Applicant may request and this Honourable Court deems just; AND UPON reading the Applicant’s Motion Record filed on January 19, 2024, including supporting Affidavit and writtenrepresentations; AND UPON reading the Respondent’s Motion Record filed on January 26, 2024, including written representations; AND UPON reviewing the extensive materials and considering the following facts; [1] The proper test for a motion to extend the application deadline requires the Applicant to demonstrate: A.

A continuing intention to pursue his or her application; B. That the application has some merit; C. That no prejudice to the respondent arises from the delay; and, D. That a reasonable explanation for the delay exists. (Canada (Attorney General) v Hennelly, (FCA), [1999] FCJ No 846, [Hennelly] at para 3) [2] The factors in Hennelly are not determinative, and not all four questions in Hennelly need to be resolved in the moving party’s favourto grant an extension of time (see Whitefish Lake First Nation v Grey, 2019 FCA 275 at para 3; Canada (Attorney General) v Larkman,2012 FCA 204 at para 62).

However, they are helpful to determine whether the granting of an extension is in the interest of justice,because the overriding consideration or the real test is ultimately that justice be done between the parties (Alberta v Canada, 2018 FCA83 at para 45). [3] Although the Applicant seeks an extension of time to judicially review both the CERB and CRB Decisions simultaneously, I willaddress each decision separately. I.

CERB Decision [4] In the letter communicating the CERB Decision dated September 22, 2023, the Applicant was advised that she could seek judicialreview with the Federal Court within 30 days of the letter (i.e., October 23, 2023).

The Applicant’s Notice of Motion seeking to extendthe limitation period is dated January 18, 2024, approximately three months after the expiry of the limitation period. [5] The Applicant filed an affidavit stating that she was trying to retain lawyers and had suffered from migraines requiringhospitalization, which prevented her from filing her application for judicial review within the proper timeframe.

Other than theseassertions, the Applicant offers no supporting evidence or any details of when these incidents occurred that would have prevented herfrom pursuing an application for judicial review in a timely fashion. There is therefore insufficient evidence to substantiate a reasonableexplanation for the delay (Jog v Bank of Montreal, 2022 FC 243 at paras 24-25 [Jog], aff’d 2023 FCA 44). As such, the first factor inHennelly has not been met. [6] I find that the Applicant has not met the second factor in Hennelly, where a moving party is required to demonstrate that theapplication has some merit.

The only mention remotely addressing this issue is a statement at paragraph 3 of the Applicant’s Written

Representations dated January 18, 2024 under the heading " “The application for judicial review (main proceeding)” " . In that section, the Applicant describes that the application for judicial review seeks " “to enforce the rights of the Applicant, pursuant to the open court principle enshrined in subsection 2(

b) of the Charter , to view documents, including submissions and evidence that were provided to the Canada Revenue Agency (“the Agency”) in the course of adjudicative proceedings heard by the Agency. The Applicant’s position is that unless confidentiality was sought and granted in accordance with the Agency’s rules of procedure.” " The Applicant’s materials do not identify on what basis she would challenge the CERB Decision or the merits of the underlying application.

The second part of the Hennelly factors has therefore not been met. [ 7 ] The Respondent has not led any evidence of prejudice arising from the Applicant’s delay. Accordingly, by default, the Applicant meets the third part of the Hennelly factors. [ 8 ] Having found that there was insufficient evidence to substantiate the Applicant’s claims that there was a reasonable explanation for a delay of approximately three months beyond the limitation period, this significant delay militates against a continuing intention to pursue the application .

The fourth part of the Hennelly factors has not been met. [ 9 ] Based on the above factors set out in the jurisprudence, the evidence filed with the motion materials, and the submissions of the parties, I find that the Applicant has not satisfied me that it is in the interests of justice to grant an extension of time with respect to the CERB Decision. II. CRB Decision [ 10 ] In addition to the CERB Decision, the Applicant also seeks an extension of time to file an application for judicial review in respect of the CRB Decision.

The CRB Decision was communicated to the Applicant by way of letter dated November 15, 2023 informing the Applicant after a first review that she was not eligible for the CRB. [ 11 ] The Respondent argues that the Applicant’s motion for an extension of time to seek judicial review of the CRB Decision should be dismissed because it is premature. The Applicant has not exhausted all available remedies, which is a second review. [ 12 ] The Respondent cites the Federal Court of Appeal in Lin v Canada (Public Safety and Emergency Preparedness) 2021 FCA 81 [ Lin ].

This case refers to the well-established general rule that " “parties can proceed to the court system only after all adequate remedial recourses in the administrative process have been exhausted” " ( Lin at para 5 ; CB Powell Limited v Canada (Border Services Agency) , 2010 FCA 61 [ CB Powell ] at para 30 ). This general principle serves to eliminate significant costs and delays resulting from parties seeking a premature judicial review, and the only exception to this rule is given to the extremely difficult threshold of " “exceptional circumstances” " .

It is a " “very rare” " exception set at a high threshold akin to the threshold for prohibition ( Lin at para 6 ). [ 13 ] In the letter communicating the CRB Decision dated November 15, 2023, the Applicant was informed that she could request a second review of the CRB Decision within 30 days of the letter (i.e., December 15, 2023).

There is no evidence on the record explaining why the Applicant did not ask for a second review. [ 14 ] The record further demonstrates that the Applicant asked for a second review of the Agency’s ineligibility finding for the CERB, which led to the final CERB Decision as described above.

In addition to the explicit information in the letter communicating the CRB Decision of the availability of a second review, it cannot be said that the Applicant was not aware that she could ask for a second review after receiving the CRB Decision. [ 15 ] Section 31(1) of the Canada Recovery Benefits Act , SC 2020, c 12, s 2 [ Act ] prescribes that a person may make a request for the Minister to review a decision under the Act " “at any time within 30 days after the day on which they are notified of the decision or any further time that the Minister may allow.” " [ 16 ] On a plain reading of section 31(1) of the Act , there was an available remedy to the Applicant in relation to the CRB Decision, which was to request a second review.

There is no evidence before the Court that the Applicant sought a second review after the expiry of the 30 days pursuant to section 31(1) of the Act or whether having done so, the Minister declined to exercise the discretion to conduct a second review of the CRB Decision. [ 17 ] An application for judicial review in respect of the CRB Decision is therefore premature.

Finally, there is no evidence on the record that demonstrates any " “exceptional circumstances” " that warrant any deviation from the general rule for this Court to interfere until the process has been completed ( Lin at para 6 ). [ 18 ] The motion to extend the limitation period to seek judicial review in respect of the CRB Decision is dismissed. THIS COURT ORDERS that : 1 . The Applicant’s motion is dismissed. 2 . There shall be no costs awarded in respect of this motion. Blank "Phuong T.V. Ngo" blank Judge