New guidance from Manitoba’s top court on delay in judicial review proceedings

The Manitoba Court of Appeal has clarified how courts should address delay in the context of applications for judicial review. This guidance is helpful for both applicants and respondents, filling a gap where the Court of Appeal had not previously provided explicit direction.

In Delwar v. Beausejour (Town of), 2025 MBCA 84, the Court upheld the dismissal of a judicial review application challenging a decision of the Minister of Environment, Climate and Parks on the basis of a nearly 21‑month delay.

Background

In November 2020, the director of the Environmental Approvals Branch issued a licence to the Town of Beausejour to build and operate a water treatment plant. The applicant appealed the director’s decision to the minister of the Environment, Climate and Parks. The minister dismissed the appeal and the Lieutenant Governor in Council approved the decision. The applicant was notified of the decision on April 13, 2021.

On January 10, 2023, the applicant filed an application for judicial review of the Decision and the director’s issuance of the licence. The Town moved to dismiss the application for delay under Court of King’s Bench Rule 38.12(2). The motion was granted, with the motion judge finding that the starting point for the calculation of delay was the date of the decision. The applicant appealed, arguing that the motion judge had erred in using the decision date as the starting point and in finding that the Town was prejudiced by the delay.

Starting point for the calculation of delay

After reviewing previous Manitoba authorities, the Court confirmed that time begins to run from the date of the administrative decision at issue – or the date the applicant knew of the decision – not from the date the application is filed. The Court therefore rejected the applicant’s argument that the motion judge erred in calculating delay from the date the applicant was advised of the Decision.

How much delay justifies dismissal?

Manitoba courts had not previously stated a benchmark period of delay warranting the dismissal of an application for judicial review. Adopting an approach used in Ontario, the Court held that a delay exceeding six months to file an application for judicial review will, in most cases, be excessive. The Court emphasized, however, that the standard is discretionary: Depending on the circumstances, a shorter delay may be excessive and a longer delay may be justified. On the facts, the Court found no error in characterizing the nearly 21‑month delay as “inexplicable and inordinate.”

The public interest and prejudice

The Court found no error by the motion judge considering factors such as the subject matter of the litigation, the complexity of the issues, the length and explanation of the delay and the prejudice to the other litigant. On prejudice, the motion judge noted that the project was nearly fully constructed, the Town had incurred expenses of $12.4 million and the cost to delay and/or cease operations – all considerations the Court viewed as highly relevant.

The applicant argued that the motion judge erred by conflating prejudice to the Town with prejudice to the public interest. The Court confirmed that the public interest can be an important consideration on motions to dismiss an application for judicial review for delay but should be considered separately from the prejudice to a respondent.

While the Court found the motion judge did err in considering the public interest and prejudice to the respondents together, the error was not material and had no impact on the outcome of the motion.

Key takeaways

1. The starting point for calculating delay in a judicial review application is the date of the administrative decision at issue or the date the applicant knew of the decision, not the date the application is filed.
2. A delay in excess of six months from the date of a decision to the filing of an application for judicial review will be excessive and, in most cases, subject to case-specific discretion.
3. On a motion to dismiss an application for judicial review for delay, courts may consider the subject matter of the litigation, the complexity of the issues, the length of and explanation for the delay, the prejudice to the other party and any other relevant factor, including the public interest. Public interest must be considered separately from prejudice to the other party.

In summary, the decision is a reminder that parties contemplating judicial review should proceed expeditiously.

The MLT Aikins municipal team is committed to providing timely, innovative and practical advice to our municipal clients across Western Canada. We have extensive experience representing numerous municipalities in Western Canada, covering the full range of legal issues a municipality may expect to face on a daily basis, including planning, development, enforcement and employment matters.

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