The Federal Court of Appeal threw out a challenge on Monday involving hundreds of current and former members of the Canadian Armed Forces. Another $2,340 in costs was also ordered. As of now, this appears to be the end of the road.
Many had thought that the purpose was to get the case back on track, after it was struck last year. However, that’s only partly true. This proceeding was to determine whether or not Justice Manson of the Federal Court erred in refusing to grant an extension of time to bring an initial Appeal. The filing deadline had been missed.
The Justices here ruled that no mistake had been made, and the Appeal was dismissed.
Appeals Within/Between Federal Courts
Whether it’s a Judge or Associate Judge/Prothonotary who makes a decision matters, if parties wish to challenge. It determines where the Appeal goes to, and procedure, and more importantly, the time limit.
| APPEAL RULING FROM | PROTHONOTARY | JUDGE |
|---|---|---|
| Appeal Goes Where | Federal Court | Federal Court Of Appeal |
| Appeal Ruling To | Single Judge (FC) | Panel of Justices (FCA) |
| Rules of Procedure | Rule 51 | Rules 335 to 357 |
| Time Limit For Notice | 10 Days | 30 Days |
| Initial Document | Notice Of Motion | Notice Of Appeal |
| Procedure | Motion | Appeal |
| New Evidence Allowed? | No | With Leave, Rule 351 |
The original claim was struck over (a) inadequate pleadings; and (b) a requirement to follow the grievance scheme, by an Associate Judge, back in November, 2024. This meant there was a mere 10 days to serve a Notice of Motion. However, counsel appeared to mistake it for being a 30-day limit. Justice Manson refused a request to extend time. The case was effectively time barred at that point.
Now, the case went to the Federal Court of Appeal. What should have happened was a committed effort to convince this panel that it was a mistake to not grant that extension. Instead, it was glossed over in favour of attempting to argue the case shouldn’t have been thrown out in the first place.
Ultimately, the Court of Appeal ruled that no error was made in refusing to grant an extension of time.
Hennelly Factors: What Decided This Appeal
The test for whether or not to grant an extension of time is commonly referred to the Hennelly Test, or the Hennelly Factors. While not exhaustive, these are 4 considerations that need to be made.
- a continuing intention to pursue an appeal of the Associate Judge’s order
- that their proposed appeal had some merit
- that the respondents would not be prejudiced by the delay
- that there was a reasonable explanation for the delay
A number of other issues were raised, such as not following procedures, and citing incorrect rules. That said, this is what courts look to when making their decision on time extensions.
Factor #1: Was There A Continuing Intention To Appeal?
[7] In particular, the Judge held that there was no evidence supporting an intent to appeal, even when considering the Affidavit.
The Affidavit submitted surprisingly came from counsel, and not from a client. On contentious issues, lawyers are prohibited from swearing out evidence they intend to argue. Typically, a client or a clerk does this. Consequently, this one was disallowed.
It also didn’t say the magic words: “I/we always intended to appeal”.
Factor #2: Was There Some Merit To The Appeal?
[12] Second, the appellants contend that the Judge erred in concluding that their proposed appeal had no likelihood of success. In fact, the bulk of the appellants’ submissions in this appeal focuses on the merits of some aspects of the Associate Judge’s order. The appellants contend in this respect that the Associate Judge erred: (i) in treating their claim as improperly bypassing the CAF grievance system; (ii) in concluding that that system was an adequate alternative remedy; and (iii) in striking the amended Statement of Claim without leave to amend.
[13] One major problem with these submissions is that nothing of that sort was put to the Judge. As the Judge correctly noted, both the Affidavit and the appellants’ written submissions in support of the Motion are silent as to how the appeal of the Associate Judge’s order might be successful (Order at para. 15). This problem is exacerbated by the fact that these submissions are based, in large part, on documents, mostly directives and reports on reviews of the National Defence Act and the CAF, that were not before the Judge and that were appended, in e-versions, to the appellants’ Memorandum of Fact and Law in this appeal.
[14] As the respondents correctly point out in their written submissions, the Judge cannot be faulted for not considering documents and submissions that were not put to him.
The Motion requesting the extension of time actually didn’t get into this at all. No draft submissions were attached, nor was there a section outlining what the appeal might look like. Justice Manson denied the request, in part, not knowing he Court of Appeal saw nothing wrong with that.
Factor #3: Will The Respondents Not Be Prejudiced By The Delay?
[7] …. On prejudice, the Judge found that although the respondents did not claim to be prejudiced by the delay in bringing the Motion, they were “certainly going to be prejudiced” by the fact the appellants were seeking an additional delay – that is up to the end of January 2025 – to file a “full motion record for an Appeal” (Order at paras. 19-21). According to the Judge, the respondents, in such context, were facing “indefinite delay going forward”.
This is probably the most subjective part of the test, as it’s hard to prove that a party is prejudiced. Nonetheless Justice Manson concluded that there was already excessive delay, and that there probably would be again.
Factor #4: Was There A Reasonable Explanation For The Delay?
[7] …. Finally, the Judge determined that both the 29-day delay and the additional 6-week delay sought to create a “full motion record for an Appeal”, were not explained in any rational sense, even, again, when considering the Affidavit (Order at paras. 22-23).
The official reason for the delay was that there was a serious logistical problem coordinating over 300 clients, to determine who actually wanted to appeal. Justice Manson ruled that a Notice of Motion could still have been filed within the 10 day period. in short something could have been filed, and the client issues sorted out later.
Part of the problem with this test is that it’s discretionary, and largely subjective. What one Judge may consider a reasonable explanation, another would reject out of hand. Similarly, one may view submissions to have “at least some merit”, while a colleague would not. There’s no uniform standard.
The Court of Appeal concluded with this:
[17] One other major problem with this appeal is that the appellants, at best, only superficially address the Judge’s application of the other Hennelly criteria (intent to appeal, delay and prejudice) to the circumstances of the case. There is nothing for us, therefore, to conclude that the appellants have met the highly deferential palpable and overriding error standard on these issues.
At the Monday hearing, a considerable amount of time was spent arguing how an Appeal could have proceeded (which is the 2nd Factor). That said, none of that had been put to Justice Manson previously. The 1st, 3rd, and 4th Factors weren’t addressed in great detail. The Appeal was dismissed.
What Happens Now For The Plaintiffs?
It’s quite disappointing for Plaintiffs, especially to have it end this way. The Court of Appeal never made any meaningful or deep findings on the merits of their cases. Nor was any new ground broken over employment rights. A missed deadline is what ultimately sealed their fate.
There’s no single answer for what comes next. Many are still employed with the military, while others have left. And most have at least initiated the grievance process, and are at various stages. They have some things to figure out.
While an attempt at the Supreme Court of Canada is theoretically possible, it seems unlikely to happen.
FEDERAL COURT/CLAIM STRUCK:
(1) Qualizza Statement Of Claim (June 2023)
(2) Qualizza Amended Statement Of Claim (July 2023)
(3) Qualizza Statement Of Defence (September 2023
(4) Qualizza Reply To Statement Of Defence (September 2023)
(5) Qualizza Defendants Motion To Dismiss Claim (July 2024)
(6) Qualizza Plaintiff Motion To Strike Written Submissions (August 2024)
(7) Qualizza Transcript Of Coughlan Hearing (September 2024)
(8) Qualizza Order Striking Statement Of Claim Without Leave (November 2024)
FEDERAL COURT/RULE 8 MOTION TO EXTEND TIME/RULE 51 APPEAL:
(1) Qualizza Plaintiffs Motion To Extend Time To Appeal (December 2024)
(2) Qualizza Defendants Respond To Motion To Extend Time To Appeal (December 2024)
(3) Qualizza Order Denying Extension Of Time (January 2025)
(4) Qualizza Federal Court Notes
FEDERAL COURT OF APPEAL/CONTENTS OF APPEAL BOOK:
(1) Qualizza Notice Of Appeal (January 2025)
(2) Qualizza Motion Record Contents Of Appeal Book (February 2025)
(3) Qualizza Responding Motion Record Contents Of Appeal Book (March 2025)
(4) Qualizza Order Contents Of Appeal Book (April 2025)
FEDERAL COURT OF APPEAL/ARGUMENTS/RESULTS (AD HOC):
(1) Qualizza Appellants Memorandum Of Fact And Law (May 2025)
(2) Qualizza Respondents Memorandum Of Fact And Law (June 2025)
(3) Qualizza FCA Order Dismissing Appeal (December 2025)
(4) Qualizza FCA Reasons Dismissing Appeal (December 2025)
FEDERAL COURT OF APPEAL/MARK LOLACHER REINSTATEMENT:
(1) Qualizza Notice Of Discontinuance (January 2025)
(2) Qualizza Lolacher Motion Record (March 2025)
(3) Qualizza Lolacher A.G. Responding Motion Record (March 2025)
(4) Qualizza Lolacher Christensen Responding Motion Record (March 2025)
(5) Qualizza Lolacher Order For Reinstatement (May 2025)
(6) Qualizza Lolacher Reasons For Reinstatement (May 2025)
FEDERAL COURT OF APPEAL/VENDETTA AGAINST LOLACHER:
(1) Qualizza Lolacher Letter To Court (May 2025)
(2) Qualizza Federal Court Notes FCA
(3) Qualizza Order Justice Gleason Refusing Filing Of Materials (June, 2025)
SUPREME COURT OF CANADA, APPLICATION FOR LEAVE:
(1) Qualizza SCC Notice Of Application For Leave To Appeal
(2) Qualizza SCC Application For Leave To Appeal
(3) Qualizza SCC Certificate File Access
(4) Qualizza SCC Response From AG Opposing Application
(5) Qualizza SCC Responding Certificate
