Executive Summary: Key Legal and Evidentiary Issues

• Nature of the “Post-Test Report” as a potentially reviewable administrative decision, despite arising in a federal contractual and innovation-funding context.
• Application of the four-part test for extending the 30-day Federal Courts Act time limit, including intention to proceed, arguable case, prejudice, and reasonable explanation for delay.
• Evidentiary weight of the applicant’s email correspondence with federal officials and multiple lawyers to prove continuous diligence and intention to seek judicial review.
• Characterisation of the complexity and novelty of the Innovative Solutions Canada framework as a reasonable basis for the applicant’s delay in filing.
• Assessment of alleged prejudice to the federal respondents from a late judicial review, and the court’s view that mere deviation from the 30-day norm is insufficient.
• Discretionary costs ruling in favour of the applicant following success on the motion to extend time, despite the respondents’ opposition.

Facts of the case

Technologies Nuagiques Cosnim Inc. entered into a contract on 18 April 2024 with Public Works and Government Services Canada (now Services publics et Approvisionnement Canada) under the federal “Solutions Innovatrices Canada” (Innovative Solutions Canada) program. The program is designed to support Canadian innovators by funding the testing, development and commercialization of innovative technologies through government procurement-style contracts. Under this particular contract, which remained in force until 14 March 2025, Cosnim’s innovation was to be tested and evaluated in a government environment. On 16 October 2025, Solutions Innovatrices Canada issued a “Post-Test Report” (Rapport PT) summarising the results of the testing. The report concluded that Cosnim’s innovation performed very poorly and was “very unsatisfactory”, and it identified changes that would be required to the proposed solution. This negative assessment created commercial and reputational concerns for Cosnim and raised questions about the consequences of the evaluation within the program.

Procedural background and time limit problem

Judicial review of federal administrative decisions is governed by section 18.1 of the Federal Courts Act, which generally requires an application for judicial review to be filed within 30 days of the decision or order. In this case, the 30-day clock ran from 16 October 2025, the date of the Post-Test Report. Counting forward, the nominal deadline fell on 15 November 2025, but because that day was a Saturday, the effective filing deadline under the rules was Monday, 17 November 2025. Cosnim did not file an application for judicial review within that period. Instead, it filed a motion on 15 December 2025 seeking an extension of time to file and serve a judicial review application challenging the Post-Test Report. By that point, approximately 60 days had elapsed since the report was communicated. The federal respondents—Shared Services Canada, Innovative Solutions Canada and the Attorney General of Canada—opposed the extension motion and argued that the application for judicial review should be procedurally barred as out of time.

Evidence of the applicant’s conduct after the report

The court closely examined the evidentiary record to determine how Cosnim reacted to the Post-Test Report. Through an affidavit from its president, Mr. Guy Sabourin, the applicant showed that from 17 October 2025 to 10 November 2025 it actively communicated with officials at Shared Services Canada and Solutions Innovatrices Canada to clarify the finality and practical consequences of the report. During this period there were at least nine email exchanges with government representatives in which Cosnim sought further information and requested the full technical report underlying the Post-Test Report. Around 10 November 2025, after becoming more clearly aware that the result might be treated as final and adverse, Cosnim began trying to retain legal counsel to pursue judicial review. Mr. Sabourin’s emails to lawyers stressed the urgency, noting that he had “just discovered” the possible 30-day time frame and believed fewer than seven days remained to file. From that date onward, there were roughly 29 email exchanges between Mr. Sabourin and various lawyers as he attempted, ultimately unsuccessfully until after the deadline, to secure representation.

Legal framework for extensions of time

The Federal Court applied the well-established four-part test for extending the section 18.1(2) time limit for judicial review. To obtain an extension, an applicant must demonstrate: a continuing intention to pursue the application; that the proposed judicial review is not devoid of merit and has some arguable foundation; that the respondent will not suffer prejudice because of the delay; and that there is a reasonable explanation for the failure to comply with the original deadline. These criteria, articulated by the Federal Court of Appeal in authorities such as Larkman and Hennelly, are not rigidly cumulative; rather, they guide the court’s overall assessment of whether granting an extension is in the interests of justice. The importance of the 30-day statutory period is repeatedly emphasised in the case law, but it is also recognised that courts retain a discretion to grant extensions where fairness and justice require it in the particular circumstances.

Whether the application had some foundation

A central legal issue was whether the Post-Test Report constituted a reviewable administrative decision or merely a contractual deliverable. The respondents argued that the report arose solely out of contractual obligations between the Crown and Cosnim, grounded in the general law of contract rather than statute, and therefore fell outside the scope of judicial review under section 18.1. They relied on Air Canada v. Toronto Port Authority and similar jurisprudence indicating that powers derived purely from contract, as opposed to statute or public law, are less likely to be subject to judicial review. The judge noted that the respondents’ position was not supported by clear contractual provisions or specific precedent dealing with the Innovative Solutions Canada Post-Test Reports. Their written submissions referred only to the table of contents of the contract and did not convincingly show that the duty to prepare the report was purely contractual and devoid of public law character. In the absence of clear authority demonstrating that such reports are never reviewable, the court held that it was at least arguable that the Post-Test Report could amount to a decision of a federal board, commission or other tribunal within section 18.1. Because this determination required a substantive analysis better suited to the judicial review hearing itself, the judge concluded that the proposed application was not obviously without merit and therefore satisfied the second criterion.

Continuous intention and explanation for delay

On the question of intention, the respondents argued that it was unreasonable for Cosnim to wait about three weeks before securing counsel and that this undermined any claim of continuous intention to pursue judicial review. The court rejected this argument, finding that Cosnim was never inactive. During the initial weeks, it was still seeking clarity from government officials on the finality and implications of the Post-Test Report, which was not a straightforward or routine decision. Once it became apparent that no satisfactory internal remedy would be provided, Cosnim pivoted quickly to contacting multiple lawyers with a clear focus on judicial review and an awareness of the time pressure. The judge held that these steps demonstrated a constant intention to challenge the report once its adverse effect and final nature were understood. As for the explanation for delay, the court accepted that Cosnim had diligently attempted to retain counsel before the deadline but was unable to do so until 23 November 2025, after the time limit had expired. The jurisprudence recognises that difficulty in securing representation, when accompanied by genuine and well-documented efforts, can amount to a reasonable explanation for late filing, particularly in legally complex or unusual matters. Here, the novelty and complexity of the Innovative Solutions Canada framework, and the respondents’ own elaborate arguments about non-justiciability, distinguished the case from more routine immigration or benefits decisions where late filing is less easily excused.

Prejudice to the respondents

The respondents contended that any departure from the strict 30-day limit inherently undermines the certainty that the Federal Courts Act seeks to provide and therefore prejudices federal decision-makers. While the court acknowledged the policy interest in finality and certainty, it held that this kind of abstract or generalized prejudice is not sufficient, by itself, to defeat an otherwise justified extension. In practical terms, the relatively short delay of about two months did not impair the respondents’ ability to respond to the merits of the judicial review or to marshal evidence. No concrete prejudice—such as lost witnesses, unavailable records or significant disruption to program administration—was established. The court noted that if the respondents’ argument were accepted in full, virtually any delay would automatically defeat an extension motion, contrary to the settled case law that contemplates judicial discretion based on the interests of justice.

Costs and overall outcome

In exercising its discretion, the court considered all four criteria together and concluded that they favoured granting an extension. Cosnim had shown a continuous intention to challenge the Post-Test Report, an arguable basis for judicial review on the public law character of the decision, no material prejudice to the respondents from the delay, and a reasonable, evidence-backed explanation for missing the original deadline. As a result, the motion to extend time was granted. The court ordered that the deadline for filing and serving the judicial review application in respect of the 16 October 2025 Post-Test Report be extended to the 15th day following the date of the order, effectively reviving Cosnim’s right to seek substantive judicial review of the negative evaluation. On costs, only the respondents had asked for an award, but because Cosnim succeeded on the motion, the court invoked Rule 400 of the Federal Courts Rules and held that the applicant was entitled to recover its costs related to this motion. The judgment therefore concludes with an order allowing the extension motion and awarding costs in favour of Technologies Nuagiques Cosnim Inc., but without specifying any dollar figure; the exact quantum of costs in favour of the successful party cannot be determined from this decision alone.