Executive Summary: Key Legal and Evidentiary Issues

• Mr. Donkor appealed a Federal Court order that dismissed his motion for an extension of time to file an application for judicial review.

• The Federal Court erroneously treated the motion as ex parte, despite an affidavit of service having been filed confirming service on the respondent.

• Counsel for the respondent confirmed she did not intend to oppose the extension motion, but this was never communicated to the Court by Mr. Donkor's counsel.

• The Federal Court mistakenly believed no notice of motion had been filed, which impacted its analysis and resulting order.

• Four established factors for granting an extension of time — continuing intention, reasonable explanation for delay, arguable merit, and no prejudice — were cited, and the Federal Court's factual errors impacted its analysis of these factors.

• The Federal Court of Appeal allowed the appeal, set aside the lower court's decision, and remitted the matter back to the Federal Court for redetermination on a complete record.

Background and procedural history

Alfred Donkor brought a motion before the Federal Court seeking an extension of time within which to file an application for judicial review. On April 11, 2025, Mr. Donkor's counsel served and filed the motion along with an affidavit of service confirming service on the respondent — the Minister of Public Safety, Democratic Institutions and Intergovernmental Affairs. However, the notice of motion did not specify a return date for a hearing, which set the stage for a series of procedural complications.

Scheduling confusion and communication gaps

It appears the motion was originally set down for April 23, 2025, but on April 22, 2025, the hearing date was moved to May 7, 2025. Counsel for the respondent had not been made aware of the original return date of April 23, 2025, as the next day she wrote to counsel for Mr. Donkor seeking confirmation that the motion would be heard in writing under Rule 369 of the Federal Court Rules, S.O.R./98-106. After having been informed of the May 7, 2025 return date, counsel for the respondent confirmed on April 30, 2025 that she did not intend to oppose the motion for an extension of time within which to file the notice of application for judicial review. Counsel for Mr. Donkor did not inform the Court that the respondent did not oppose the motion.

The Federal Court's erroneous decision

For reasons unknown to the Court of Appeal, the motion was placed before the Federal Court to be dealt with in writing, and the resulting order was rendered on May 5, 2025. The Federal Court dismissed Mr. Donkor's motion. In doing so, the Court operated under two significant misapprehensions: it mistakenly believed the motion was ex parte, despite the filing by Mr. Donkor's counsel of an affidavit of service on April 11, 2025, and it was also mistaken in its belief that no notice of motion had been filed. These factual errors impacted its analysis of the extension request.

The applicable legal test

The Federal Court of Appeal reiterated the well-established four-factor test relevant to the Court's discretion in granting an extension of time, as cited in Greenblue Urban North America Inc. v. Deeproot Green Infrastructure, LLC., 2024 FCA 19 at para. 6. The relevant considerations are whether the party had a continuing intention to pursue the matter, which commenced before the relevant time limit expired; whether there is a reasonable explanation for the delay; whether there is some merit to the party's application; and whether there is no prejudice to the opposite party. The fact that the Federal Court was unaware that the respondent had been served with, and consented to, the motion impacted its analysis, as did its erroneous belief that the motion was ex parte.

The ruling and outcome

The Federal Court of Appeal, in a judgment delivered from the bench on March 26, 2026 by Justices Locke, Walker, and Rochester, allowed Mr. Donkor's appeal on the basis that the Federal Court erred in its treatment of Mr. Donkor's motion. While acknowledging Mr. Donkor's concern regarding further delay, the Appeal Court declined Mr. Donkor's request to grant the extension of time within which to file a notice of application for judicial review directly, given that the decision to grant an extension of time is discretionary and affects the workload of the Federal Court, and is best dealt with by that Court on a complete record. Accordingly, the Federal Court's decision was set aside and the matter was remitted to the Federal Court for a decision on Mr. Donkor's motion seeking an extension of time within which to file an application for judicial review. No costs were awarded, and no specific monetary amount was at issue in this proceeding.