Background
Gemma Acco sought an extension of time to file an application for judicial review of a Canada Revenue Agency (CRA) decision dated December 3, 2025, which found her ineligible for the Canada Economic Recovery Benefit (CERB) and the Canada Recovery Caregiving Benefit (CRCB). The applicant received the decision on December 3, 2025, triggering a 30-day time limit under section 18.1(2) of the Federal Courts Act to file her application for judicial review.
The applicant did not file her motion for extension until May 29, 2026—a delay of 177 days. She attributed this delay to post-partum medical complications following her son’s birth on October 8, 2025, and claimed she had experienced severe stress, anxiety, and exhaustion that prevented her from acting sooner. She submitted a letter from a breastfeeding clinic documenting six in-person visits (the last on February 11, 2026) and two telephone appointments in March and April 2026.
The applicant also submitted a proposed Notice of Application alleging that the CRA’s decision breached her procedural fairness rights, failed to meaningfully engage with her evidence, was based on erroneous findings of fact, and was unreasonable due to lack of justification. She noted that she had been unable to obtain a Record of Employment form from a former employer, which she argued was central to establishing her CERB eligibility.
The Court’s Holding
Justice Benoit M. Duchesne dismissed the motion for extension of time. The court applied the four-part test established in Grewal v. Canada (Minister of Employment & Immigration) and refined in Canada (Attorney General) v. Larkman, which requires the moving party to demonstrate: (1) continuing intention to pursue the application; (2) potential merit to the application; (3) absence of prejudice to the Crown; and (4) reasonable explanation for the delay. The overriding consideration is whether granting the extension serves the interests of justice.
The court found that the applicant satisfied only the second factor—that her proposed application had at least some potential merit based on the allegations pleaded. On all other factors, she failed to meet the required threshold. Most critically, the court found no evidence of continuing intention between the expiry of the 30-day period (January 2, 2026) and the filing of the motion (May 29, 2026). The applicant provided only a bare assertion of continuing intention with no evidence of steps taken to retain counsel, seek consent from the CRA for an extension, or pursue self-representation. The court also found the applicant’s medical evidence insufficient to explain the four-month gap between her last clinic visit (February 11, 2026) and the motion filing. Justice Duchesne emphasized that statutory time limits exist “in the public interest, in order to bring finality to administrative decisions,” and that the absence of probative evidence, the length of delay, and failure to justify the failure to act sooner were determinative.
Key Takeaways
- Bare assertions of continuing intention, unsupported by evidence of concrete steps, will not satisfy the first prong of the Hennelly test for extension of time motions.
- Medical hardship must be substantiated with specific evidence; attending a clinic six times over several months may not adequately explain a four-month gap in legal action without further evidence.
- Applicants bear the burden of explaining why they did not act sooner and must justify their delay in light of the matter’s claimed merit; inaction suggests no continuing intention.
- Statutory time limits in the Federal Courts Act are mandatory and exist to serve the public interest in finality of administrative decisions; extensions require clear justification.
Why It Matters
This decision reinforces that procedural compliance is essential in administrative law. While courts retain discretion to grant extensions of time, applicants cannot rely on post-hoc explanations or unsubstantiated claims of hardship. The decision clarifies that the absence of evidence is itself probative: if an applicant took no demonstrable steps over a five-month period, the court will infer no continuing intention existed. For social benefit claimants and others challenging adverse administrative decisions, the lesson is clear—engage legal representation or pursue alternatives promptly, or risk losing the right to seek judicial review.
The judgment also signals that the courts will not sacrifice the statutory interest in administrative finality without substantial justification. While sympathetic circumstances (such as post-partum recovery) may be relevant, they must be proven with specificity and cannot bridge unexplained gaps in the delay period. This approach maintains the integrity of time-limited judicial review as a check on administrative power while preventing indefinite vulnerability for decision-makers.