On July 8, 2020 Bill 161 – the Stronger and Smarter Justice Act, 2020 (SASJA, 2020) – received Royal Assent from the Ontario legislature. The SASJA, 2020 amends the JRPA to provide the courts with a generally applicable power to refuse to grant any relief on a judicial review application and, most importantly, requires judicial review applications to be brought within 30 days after the date the decision, or matter for which review is sought, was rendered, unless another Act provides otherwise. The Human Rights Code (Code) does not provide any time period for commencing an application for judicial review and this means that the new 30-day time period applies to applications for judicial review under section 45.8 of the Code.
There are two significant developments to be aware of about commencing an application for judicial review under the Code. First, if your Human Rights Tribunal of Ontario (HRTO) decision is dated July 8, 2020 or after then you have thirty (30) days to commence an application for judicial review. If you do not meet the thirty (30) day deadline, then you would have to ask the Divisional Court for an extension of time to be able to commence your application for judicial review. The Court may 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.
Second, if your HRTO decision is dated July 7, 2020 or before then the time period for an application for judicial review is still governed by the pre-Bill 161 Ontario jurisprudence. The Court has applied a general rule that an application for judicial review must be commenced within six (6) months. The Court retains a discretion to dismiss an application for any delay past the six (6) month time period. The Court will typically examine the length of the delay, the explanation for a delay, and any prejudice to the respondent by the delay in commencing the application for judicial review. See Allen v. Bricklayers Masons Independent Union of Canada Local 1, 2020 ONSC 3369 (CanLII) where an application for judicial review was dismissed due to excessive delay.
For more information about practice and procedure on applications for judicial review, please see our Guide to Judicial Review.