Given delay of almost three years, judge finds no continued intention to pursue matter
Canada’s Federal Court declined to extend the time for a man to apply for a judicial review of a Canadian Revenue Agency (CRA) decision refusing his request to cancel his 2020–21 tax-free savings account (TFSA) taxes.
Last June 29, under s. 18.1 of the Federal Courts Act, 1985, the applicant in Komarnisky v. Canada (Attorney General), 2026 CanLII 82126 (FC), first moved for an extension of time to apply for a judicial review of the CRA’s letter decision dated July 4, 2023.
Last July 3, Justice Whyte Nowak denied the applicant’s motion without prejudice because the style of cause did not identify Canada’s attorney general as the proper respondent and because there was no service on the respondent.
Nowak gave the applicant 10 days to re-serve his amended motion record.
Second attempt to extend time
On July 13, in an amended motion under s. 369 of the Federal Court Rules, SOR/98-106, the applicant again sought to extend the time to bring a judicial review application.
To explain his delay of almost three years after the relevant deadline, the applicant described himself as a self represented litigant who was “diligently learning the Court’s procedural requirements.” He added that he acted promptly to remedy his inadvertent oversight upon realizing his mistake.
Opposing the motion, the respondent federal attorney general alleged that the applicant failed to show a strong and continuing intention to pursue the proceeding, a possible merit to a judicial review application, or a reasonable basis for his delay.
Federal Court denies extension
The Federal Court did not find it in the interests of justice to extend the time for the applicant to apply for a judicial review of the CRA decision. The court awarded no costs.
Four-part test not met to extend deadline
The Federal Court found insufficient evidence to satisfy the four factors in the test to exercise its discretion to grant a motion to extend an application deadline, as stated in Thompson v Canada (Attorney General), 2018 FCA 21.
First, the court did not see enough evidence of the applicant’s continued intention to pursue the judicial review application, apart from his recent attempt to bring the first extension motion. In so finding, the court considered the length of the delay, which favoured denying the extension.
Second, the court found no evidence of merit to or grounds for the judicial review application, and no serious shortcoming or fatal flaw to warrant quashing the CRA decision.
Third, the court described the applicant’s explanations for the delay as limited, imprecise, and unreasonable. Given that the law bound all litigants, including self-represented individuals, the court stressed that a lack of familiarity with the rules did not count as a reasonable explanation for delay.
Fourth, the court emphasized that abiding by the statutory deadline served the public interest.
Federal Court’s previous tax cases
Here are some other recent tax-related decisions by the Federal Court of Canada.
Upon the parties’ consent, the Federal Court issued a July 3 ruling setting aside a decision by a delegate of the minister of national revenue that refused LG Electronics Canada, Inc.’s request for interest relief under s. 220(3.1) of the Income Tax Act, 1985.
The Federal Court made a June 15 decision granting judicial review applications filed by immigrants from India who requested relief from tax penalties and arrears interest arising from the delayed filing of their T1135 forms, referred to as foreign income verification statements.
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