Executive Summary: Key Legal and Evidentiary Issues

• Central issue was whether the Federal Court should extend the 30-day time limit in subsection 18.1(2) of the Federal Courts Act so the Moving Parties could bring a judicial review more than 4 years and 6 months after the Harbour Authority’s July 2021 termination decision.

• The Court found no evidence of a continuing intention by the Moving Parties to pursue judicial review between the July 2021 decision and the filing of this motion.

• The Moving Parties provided no reasonable explanation, supported by evidence, for their inaction over the entire period of delay, including during and after the BCSC summary trial.

• The intended judicial review was found to have some potential merit on certain procedural fairness and reconciliation-related arguments, but no merit on the “improper delegate” argument based on section 14 of the Harbour Authority Lease.

• The Court concluded that the Harbour Authority would not suffer prejudice in its ability to respond to a judicial review as a result of the delay, although it identified potential operational and financial impacts.

• Weighing all factors and the public interest in finality of administrative decisions, the Court held that the interests of justice did not favour an extension of time and dismissed the motion, with costs reserved for later determination.

Factual background

Ridge Fishing Ltd., Orca Spirit Adventure Ltd. and Cuda Marine Adventures Inc. are corporations incorporated under the laws of British Columbia. They conducted commercial business activities from office space and berths for vessel moorage at the Steveston Small Craft Harbour under licences issued by the Steveston Harbour Authority (the HA) through specific contracts. The HA operates and manages the harbour under a Harbour Authority Lease with the Crown dated October 31, 2008. Article 7 of that lease sets out, in general terms, the HA’s rights and obligations to grant the public access to the harbour and provides that the HA may refuse harbour access to any person or vessel with outstanding charges payable to it.

The Moving Parties held two-year licences to occupy and use Building 24B, Building 39 (Locker 3903AA) and the “X” and “W” floats, issued beginning in December 2019 and October 2020. On July 20, 2021, they were informed that the HA was exercising its contractual right to terminate these licences on 30 days’ written notice, as permitted by the agreements. The licences were cancelled before the end of their terms because of recurring breaches of licence terms, including failure to pay various charges. The Moving Parties were also given written notice to remove their property from the harbour premises by September 30, 2021, and to pay outstanding charges.

The record indicates that the Moving Parties did not remove their property within the time specified. On February 1, 2022, the HA began a civil proceeding in the Supreme Court of British Columbia (BCSC), court file VIC-S-S-220314. It sought declaratory orders in trespass and permanent injunctive relief, among other remedies, against the Moving Parties and their ships.

The BCSC litigation and reference to judicial review

The Moving Parties defended the BCSC proceeding. In their Response to Civil Claim (later amended), they alleged that their relationship with the HA regarding the use and occupation of the harbour was contractual, and that the HA wrongfully terminated the licences in breach of contract and in breach of the HA’s mandate and purpose as set out in the Harbour Authority Lease.

The HA was successful before the BCSC and obtained the declaratory and injunctive relief it sought, subject to a six-month stay of enforcement. In reasons released October 31, 2025, Justice Veenstra described the parties’ positions on whether the HA’s decision to terminate the licences was subject to judicial review. He noted that the Moving Parties argued that the decision to terminate or not renew their licence and occupancy agreements was subject to judicial review and stated that the parties agreed that judicial review of the July 20, 2021 decision (the Decision) fell within the exclusive jurisdiction of the Federal Court.

Justice Veenstra recorded that he could not dismiss out of hand the possibility that the defendants might succeed in a judicial review application and that they would first need to obtain an extension of time. He stated that he did not know whether they had brought such an application and that he could not say the positions were “entirely without merit.” He therefore stayed the effect of the declaration and injunction for six months to (a) give the defendants an opportunity to seek leave to bring their judicial review and (b) give them an opportunity, in light of the result in the BCSC action, to seek another location for their businesses.

The Federal Court motion for extension of time

In Federal Court, the Moving Parties brought a motion under subsection 18.1(2) of the Federal Courts Act for an order extending the time to commence an application for judicial review. They described the subject of the intended judicial review as the conduct of the HA when it exercised its statutory powers as a federal board under the Fishing and Recreational Harbours Act to cancel or refuse to renew their licences and to enjoin them from using and accessing the harbour. They sought an extension for a delay of more than 4 years and 6 months.

The HA opposed the motion, arguing that the Moving Parties did not satisfy the applicable test and that it was not in the interests of justice to grant the requested extension of time.

The applicable test for extending time to commence a judicial review under subsection 18.1(2) is taken from Grewal v. Canada (Minister of Employment & Immigration) and has been reformulated in Canada (Attorney General) v. Hennelly and further explained in Larkman v. Canada (Attorney General) and Muckenheim v. Canada (Employment Insurance Commission). As summarized in Larkman, the Court considers whether (1) the moving party had a continuing intention to pursue the application, (2) there is some potential merit to the application, (3) the Crown (or respondent) has been prejudiced by the delay, and (4) there is a reasonable explanation for the delay. These questions guide the exercise of discretion under the overarching “interests of justice” standard, and not all factors must favour the moving party.

The Court also relied on authority stating that the period of delay to be assessed runs from the date the moving party became aware of the decision or matter to be reviewed to the date the extension request is filed, and that the time limits for judicial review reflect a public interest in the finality of administrative decisions and are “not whimsical” but exist in the public interest.

Characterization of the decision and the 30-day time limit

The Moving Parties argued that the 30-day time limit in subsection 18.1(2) did not apply because they were challenging a continuing course of conduct rather than a discrete decision fixed in time. They said the HA’s conduct from the July 2021 Decision through the BCSC litigation, including enforcement efforts, formed a continuing course of conduct and that the delay should therefore not be measured from July 2021 to December 11, 2025.

They relied on Key First Nation v. Lavallee for the proposition that the 30-day limit applies only when the matter to be reviewed is a discrete decision or order occurring at a fixed point in time. Justice Duchesne noted that Lavallee dealt with specific facts involving a band council resolution, a prior Federal Court decision and the First Nations Election Act, and that its guidance on discrete versus continuing matters must be applied in light of the evidence and allegations in this case.

The Court examined the Moving Parties’ Notice of Motion, their BCSC pleadings, and Justice Veenstra’s reasons. Justice Duchesne found that their evidence and representations showed they were contemplating judicial review of the July 2021 Decision itself, rather than of a broader course of conduct that included the BCSC injunctive proceedings. The Court observed that if the Moving Parties had wished the civil injunctive relief to be part of the course of conduct to be reviewed, they could have argued that before the BCSC and taken steps to carve that relief out for determination on judicial review. They did not do so.

The Court concluded that the intended judicial review concerned the July 2021 Decision, which was a discrete event. The Moving Parties had not demonstrated that the HA’s pursuit of injunctive relief in the BCSC proceeding formed part of a “course of conduct” within the meaning of Lavallee. Accordingly, the 30-day limitation period in subsection 18.1(2) applied, and the delay had to be assessed from the July 2021 Decision to the filing of this motion.

Affidavit evidence filed by the parties

The Moving Parties relied on four affidavits. Mabel Wilson, a director of all three Moving Parties and a member of the Kawkiutl Fort Ruper Band and registrant under the Indian Act, did not mention in her affidavit any intention to challenge the Decision by judicial review or otherwise and did not explain the delay.

Walter Cadwallader, general manager of Ridge Fishing Ltd. and manager of the other two Moving Parties, deposed that after receiving the Decision he attempted to speak with members of the HA’s board of directors, sought an opportunity to appear before the board to address the Decision, was refused that opportunity, and was directed to speak to the HA’s lawyers. Like Ms. Wilson, he did not state that the Moving Parties intended to pursue judicial review or explain the delay.

Cindy MacKay, an independent contractor providing financial management services to the Moving Parties, deposed that notice of termination of the licences was provided on July 21, 2021. She described three letters she sent or caused to be sent between July and November 2021—to the HA, to its legal counsel and to its board—seeking reconsideration of the terminations. She also deposed to payment of invoice arrears and overholding monthly invoices after the Moving Parties refused to vacate the premises.

Tracee Dooley, a legal assistant in the Moving Parties’ solicitors’ firm, deposed to documents filed in the BCSC registry in the HA’s litigation against the Moving Parties, including the pleadings, Justice Veenstra’s October 31, 2025 reasons, and a DFO-Coast Guard Reconciliation Strategy Evergreen Guidance Document dated September 2019. Her affidavit did not address any intended application for judicial review. The Moving Parties’ Amended Response to Civil Claim attached to her affidavit did not allege that the Decision or the HA’s conduct was subject to judicial review; instead, it asserted that the Decision breached the contracts between the parties. The Moving Parties did not include a proposed Notice of Application for judicial review in their Federal Court motion materials.

On the HA’s side, Paul Edgett, Vice President of the Canadian Fishing Company, provided an affidavit speaking to the harbour as an ongoing business but not addressing the motion or any judicial review intention. Jamie Gusto, the HA’s general manager at the relevant time and thereafter, gave evidence about the history between the parties, the HA’s management of the harbour, the delegation of licence-management authority from the board to her, and a major project with other commercial fishers since 2023 that she said would be detrimentally affected if the Moving Parties returned to the harbour. She also deposed that the HA and its counsel first became aware of the Moving Parties’ intention to file a judicial review application on January 27, 2026, when HA counsel received an email from the Moving Parties’ counsel attaching a link to the motion record.

Assessment of the Larkman and Hennelly factors

On the first factor, continuing intention, the Court found the affidavits were silent on any continuing intention to pursue judicial review. The only indication came from paragraph 96 of Justice Veenstra’s reasons, stating that the defendants were “now contemplating” seeking judicial review of the June 2021 decision to terminate or not renew their licences of occupancy. Justice Duchesne noted that this could refer either to the June 26, 2024 date when the amended Response to Civil Claim was filed or to the March 5–6, 2025 dates of the summary trial hearing. In any event, there was no evidence of a continuing intention from July 2021 onward, and the Court held that this factor was not satisfied.

On potential merit, the Moving Parties relied on Justice Veenstra’s statement that it was not plain and obvious that the positions advanced were entirely without merit. In Federal Court, they indicated that they intended to argue that (1) their rights of procedural fairness were breached because the Decision was made by an improper delegate and (2) their right to be heard was breached because they were not given a reasonable opportunity to present their case or appeal the Decision and because the HA failed to reconsider it. They also argued that the HA failed to consider their status as an Indigenous business and relevant policy documents, including the DFO-Coast Guard Reconciliation Strategy.

The Court evaluated these points separately. The “improper delegate” argument was based on section 14 of the Harbour Authority Lease. Justice Duchesne noted that section 14 addresses assignment of rights and obligations under the lease and does not concern delegation of authority between the HA’s board and its officers or staff. In light of Ms. Gusto’s evidence about delegated authority in relation to harbour customer licences, the Court held there was no potential merit in this argument.

By contrast, the arguments concerning the right to be heard and failure to consider the Moving Parties’ status as an Indigenous business and the reconciliation policy were found not to be plainly and obviously without merit on the limited record, though they were described as bald and not meaningfully developed in the materials. On that basis, the Court concluded that the intended judicial review was “not without any potential merit.”

On prejudice, the Moving Parties argued that the HA had not been prejudiced by the delay because necessary evidence had been obtained and retained through the BCSC proceeding. The HA’s evidence focused on potential financial loss and negative impacts on harbour use commitments and space allocations if the Moving Parties were to return. Justice Duchesne accepted that these were not negligible potential losses but held that granting an extension would not itself cause that prejudice. The HA would be required to respond to and engage with the judicial review arguments, and there was no evidence that the delay impaired its ability to do so. The Court found that the Moving Parties had shown that extending time would not prejudice the HA in that sense.

On the explanation for the delay, the Moving Parties said they had been continuously occupied opposing the HA’s conduct since July 2021. The Court held that they had not provided evidence of what they had been occupied with or how this prevented them from pursuing judicial review. The three letters sent between July 2021 and February 2022 did not amount to a reasonable explanation for the delay in that period. While the Court accepted that the Moving Parties were involved in the BCSC civil claim from February 2022, there was no evidence that this litigation prevented them from pursuing judicial review in a timely fashion, nor that it was an all-consuming endeavour between February 2022 and March 6, 2025. Justice Duchesne pointed out that Justice Veenstra’s reasons did not indicate ongoing litigation after March 2025 and that any impediment related to the summary trial would likely have ended once the matter was under reserve. There was no explanation for the Moving Parties’ inaction between March 6, 2025 and the date of the motion. The Court therefore found that there was no reasonable explanation for the delay over the period of more than four years.

Interests of justice and outcome

Justice Duchesne observed that the Moving Parties had satisfied two of the four factors: some potential merit and lack of prejudice to the HA. However, he gave significant weight to the long-standing absence of intent to pursue judicial review and the complete failure to justify inaction over more than four years. He referred to public policy concerns about certainty and finality of administrative decisions and noted that the absence of prejudice did not outweigh the lack of continuing intention and of a reasonable explanation for the delay.

The Court also noted that the Moving Parties’ failure to act in a timely manner had caused the BCSC to expend judicial resources that might otherwise have been saved had they proceeded earlier with judicial review. Justice Duchesne concluded that the interests of justice required that the Moving Parties bear the consequences of their long-standing inaction.

The motion for an extension of time to commence a judicial review of the HA’s exercise of statutory powers under the Fishing and Recreational Harbours Act was therefore dismissed. The Court reserved costs, encouraging the parties to agree on costs by April 7, 2026, and setting deadlines of April 9, 2026 for the HA and April 17, 2026 for the Moving Parties to file brief written submissions if no agreement was reached. If no agreement and no submissions were filed by the specified dates, the Court stated that no costs would be awarded.