Executive Summary: Key Legal and Evidentiary Issues

• Appeal challenged the Federal Court's dismissal of a request for an extension of time to file a notice of application for judicial review of two Correctional Service of Canada grievance decisions.

• The appellant failed to sufficiently establish any of the four Hennelly factors: continuing intention, merit, absence of prejudice, and a reasonable explanation for the delay.

• Discretionary decisions on time extensions attract considerable deference on appeal, reviewable on a standard of "palpable and overriding error."

• Procedural unfairness was alleged due to the exclusion of certain evidence from the appeal book, but the appellant never brought a motion to admit fresh evidence as directed by the Court.

• Written submissions on appeal dealt almost exclusively with the merits of the proposed judicial review of the CSC decisions rather than identifying errors in the motion judge's reasons.

• No costs were awarded despite the respondent's request, and the appeal was dismissed.

Background and facts of the case
Corey Scott Tymchyshyn, an unrepresented appellant, sought an extension of time to apply for judicial review of two grievance decisions of the Correctional Service of Canada (CSC). These decisions had been communicated to the appellant on January 5, 2023 and July 28, 2023. Under the Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.1(2), the deadline for filing an application for judicial review is 30 days after a decision has been communicated to the affected party. Tymchyshyn did not file within that window and instead sought an extension of time on May 16, 2024 — months after both filing deadlines had passed.

The Hennelly test and the Federal Court's ruling
The Federal Court assessed Tymchyshyn's request against the Hennelly test, which requires an applicant seeking an extension of time to establish four factors: (1) a continuing intention to pursue the application; (2) that the application has merit; (3) that no prejudice arises from the delay; and (4) that a reasonable explanation for the delay exists. The motion judge acknowledged the appellant's difficulty in retaining counsel and lack of funds, but concluded that the appellant had not sufficiently established any of the Hennelly factors. The motion judge found that the appellant's explanations did not adequately justify the delay in filing an application for judicial review. The request for an extension of time was dismissed.

The appeal to the Federal Court of Appeal
Tymchyshyn appealed the Federal Court's order to the Federal Court of Appeal. He submitted that the motion judge erred because the criteria in Hennelly are satisfied. He said that he demonstrated a clear intention to pursue the application for judicial review, but that his lawyers missed the filing deadline, providing a reasonable basis for the delay. He also submitted that his claim is meritorious and that no prejudice resulted from the delay. However, the Court of Appeal noted that the appellant's written submissions dealt almost exclusively with the merits of the proposed judicial review of the CSC decisions, a matter that was not before the Court. Neither the written submissions nor the oral submissions pointed to any error in the motion judge's reasons that would justify interfering with the Federal Court's order.

Procedural unfairness claim and fresh evidence
Tymchyshyn also claimed procedural unfairness for having been denied the opportunity to include certain evidence in the appeal book which was not before the Federal Court. The Federal Court of Appeal disagreed. The Court noted that there are strict requirements for admitting fresh evidence on appeal, citing Palmer v. The Queen, [1980] 1 S.C.R. 759 and Barendregt v. Greblinas, 2022 SCC 22. On January 22, 2025, the Court directed the appellant to file a motion if he sought to add fresh evidence to the appeal book. While the appellant attempted to unilaterally file an appeal book including proposed new evidence, that appeal book was not accepted for filing and no motion for new evidence was brought. The Court found there had been no procedural unfairness.

Standard of review and outcome
The Federal Court of Appeal confirmed that whether to grant an extension of time is a discretionary decision, subject to considerable deference on appeal. Unless an extricable question of law can be identified — which is reviewed on a standard of correctness — the Federal Court's order is reviewed on a standard of "palpable and overriding error." An error is palpable when it is obvious, and overriding when it affects the core of the outcome of the case. The Court found no error in the motion judge's analysis, including on the absence of a reasonable explanation for the delay and that there was little evidence to substantiate the appellant's continuing intention to pursue the application. The appeal was dismissed by the Federal Court of Appeal on February 9, 2026, with Justice Biringer delivering the reasons for judgment from the bench on behalf of the panel comprising De Montigny C.J., Leblanc J.A., and Biringer J.A. Although the respondent, the Attorney General of Canada, asked for costs, none were awarded. No specific monetary amount was at issue in this procedural matter, as the dispute centered solely on whether the appellant should be granted an extension of time within which to file a notice of application for judicial review.