CITATION: Kircher v. The Corporation of the Town of Fort Frances et al, 2026 ONSC 4817
DIVISIONAL COURT FILE NO.: DC-24-0008-JR
DATE: 2026-08-20
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.S.J. Newton
BETWEEN:
DAVID KIRCHER
Applicant
– and –
THE CORPORATION OF THE TOWN OF FORT FRANCEES and THE INTEGRITY COMMISSIONER FOR FORT FRANCES
Respondents
M. Powell, for the Applicant
W. McDowell and S. Hargreaves, for the Respondents
HEARD: August 17, 2026, via Zoom
Reasons on Motion
Newton, R.S.J.
Overview
[1] Mr. Kircher moves to set aside the administrative order dismissing his application for judicial review for delay.
[2] For the reasons that follow, the dismissal order is set aside, and I order that Mr. Kircher is to deliver his factum no later than August 31, 2026.
Procedural History to Date
[3] On June 7, 2024, Mr. Kircher filed a Notice of Application for Judicial Review seeking orders quashing the decision of the Integrity Commissioner of the Town of Fort Frances and quashing the decision of the Town Council of Fort Frances adopting the recommendations of the Integrity Commissioner which penalized Mr. Kircher.
[4] By November 26, 2024, the Record of Proceeding was complete. Affidavits were delivered by Mr. Kircher and the Integrity Commissioner, and cross-examinations were completed by July 2025.
[5] Counsel for Mr. Kircher advised the Court that the parties had agreed to a litigation schedule, which provided that Mr. Kircher’s factum would be delivered by July 31, 2025. The parties agreed on two extensions until August 2025, but Mr. Kircher did not deliver a factum. Counsel for the respondents requested a case conference, which eventually proceeded before me on December 18, 2025. I ordered, on consent, that Mr. Kircher was to deliver his factum by December 31, 2025. He did not.
[6] On January 14, 2026, the respondents delivered a motion seeking the dismissal of the application due to Mr. Kircher’s failure to deliver his factum. A case conference was set for March 30, 2026, to schedule that motion.
[7] In the meantime, the Registrar of the Divisional Court delivered a notice on March 16, 2026, advising that the application would be dismissed for delay unless a factum, application record, and certificate of perfection was filed within 10 days.
[8] As no factum was filed within 10 days, I confirmed the administrative dismissal at the conference on March 30, 2026, and directed that if Mr. Kircher wanted to move to set aside the dismissal order he must do so by April 17, 2026. As counsel for Mr. Kircher advised that the solicitor-client relationship had broken down, I also directed that counsel’s motion to be removed as counsel for Mr. Kircher had to be delivered by April 17, 2026.
[9] At a case conference on April 23, 2026, I set the motion for removal of counsel for June 1, 2026, and the motion to set aside the dismissal order for August 17, 2026.
[10] By reasons dated June 4, 2026,[1] I made an order removing Mr. Kircher’ s counsel. As my reasons indicate, there was a disagreement between Mr. Kircher and his then lawyer over the content of the factum and Mr. Kircher refused to “sign off” on the factum because the factum did not contain facts and arguments that Mr. Kircher believed were relevant to his case.
[11] As of the hearing of this motion, August 17, 2026, Mr. Kircher has not delivered a factum:
a. over 2 years after filing his application for judicial review;
b. over one year after the agreed timetable;
c. 8 ½ months after my order; and
d. 4 ½ months after I confirmed the administrative dismissal.
[12] It is clear from material filed on this motion that Mr. Kircher’s former counsel warned him that the application could be dismissed for failing to deliver a factum as required by my order and the registrar’s notice.
[13] Mr. Kircher’s new counsel did not file a draft factum to indicate that the application is ready to proceed if I set aside the dismissal order and could not advise when the factum could be delivered.
[14] It is apparent from Mr. Kircher’s affidavit and factum filed on this motion that the disagreement about the factum stemmed from his insistence that facts needed to be included relating to other activities of the municipal council that his former counsel viewed as irrelevant.
[15] Counsel for both parties agree that the record is complete and that no additional documents need to be added to the record.
The Law
[16] Counsel both agree that the Reid[2] factors are to be considered:
a. have the plaintiffs provided a satisfactory explanation for the litigation delay;
b. have the plaintiffs led satisfactory evidence to explain that they always intended to prosecute the action within the applicable time limits but failed to do so through inadvertence;
c. have the plaintiffs demonstrated that they moved forthwith to set aside the dismissal order as soon as the order came to their attention; and
d. have the plaintiffs convinced the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiffs’ delay or as a result of steps taken following the dismissal of the action?
[17] The respondents also rely upon the following passages from Canadian Pacific Railway Company v. Teamsters Canada Rail Conference:[3]
13Judicial review is an equitable and discretionary remedy that can be denied on the basis of excessive delay, regardless of the merits of the case: Ransom v. Ontario, 2010 ONSC 3156 at para. 4; affirmed 2011 ONSC 5594 (Div. Ct.). An applicant is under an obligation to commence and perfect their judicial review application in a timely manner.
16… This court has held that a delay of 12 months or more in perfecting an application for judicial review could warrant its dismissal: Ransom v. Ontario, 2011 ONSC 5594 (Div. Ct.), at para. 10.
18… case management orders and directions are not suggestions, but are orders to be respected and followed. …
22… Applications for judicial review are intended to proceed in an expeditious manner, as is further evidenced by the Registrar’s ability to dismiss an application for judicial review that has not been perfected within one year: Rule 68.06(2).
Analysis and Disposition
[18] In the circumstances, the court would be justified in not granting the application to set aside the dismissal order as:
a. there is no satisfactory explanation for the delay from July 31, 2025, the agreed deadline for filing the factum;
b. there is no satisfactory explanation for the delay after my order of December 31, 2025;
c. there has been no inadvertence – the conduct of Mr. Kircher in not instructing counsel to file a factum despite warnings from his formal counsel has been deliberate;
d. the failure to abide by my order was not inadvertent but deliberate.
[19] It is not disputed that Mr. Kircher moved forthwith to set aside the dismissal order.
[20] The prejudice alleged by the respondents arise from not knowing when the factum will be delivered and what additional facts and arguments that Mr. Kircher may raise, some of which may be irrelevant.
[21] I can address those concerns so that this matter moves forward expeditiously and is determined on its merits.
[22] Counsel agree the record is complete. I order that no other documents are to be added to the record.
[23] The registrar’s dismissal order is set aside.
[24] Mr. Kircher factum shall be delivered by August 31, 2026, or the application shall be dismissed upon the respondents delivering an affidavit confirming that the factum has not been delivered as ordered. The respondents will then be entitled to their costs.
[25] If Mr. Kircher’s factum contains facts or arguments that the respondents believe to be irrelevant, then the respondents may move to strike those portions of the factum. That motion shall be heard by me.
[26] Although successful, Mr. Kircher is not entitled to costs of this motion.
______________________________
R.S.J. Newton
Released: August 20, 2026
CITATION: Kircher v. The Corporation of the Town of Fort Frances et al, 2026 ONSC 4817
DIVISIONAL COURT FILE NO.: DC-24-0008-JR
DATE: 2026-08-20
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.S.J. Newton
BETWEEN:
DAVID KIRCHER
Applicant
Applicant
– and –
THE CORPORATION FO THE TOWN OF FORT
FRANCES and THE INTEGRITY COMMISSIONER
FOR FORT FRANCES
Respondents
applicant
REASONS ON MOTION
Released: August 20, 2026
1Kircher v. The Corporation of the Town of Fort Frances et al., 2026 ONSC 3297.
2Reid v. Dow Corning Corp., [2001] O.T.C. 459, 11 C.P.C. (5th) 80.
32023 ONSC 1045 (“Teamsters”). Affirmed 2023 ONSC 2928.