The Applicant applied to extend the time to file a Notice of Appeal. The Applicant’s Action had been struck pursuant to Rule 4.33 by a Master. The Applicant appealed that Decision to a Justice of the Court of Queen’s Bench, but that Appeal was struck by the Special Chambers clerk’s office after the Applicant failed to comply with Civil Practice Note 2. The Applicant then applied to a Justice in Chambers to restore the Appeal. That Application was dismissed in written reasons dated May 30, 2019. The Order formalizing the Chambers Justice’s Judgment was served on the Applicant on August 9, 2019. On September 6, 2019, the Applicant sought to Appeal the Chambers Justice’s Order dismissing the Application to restore the Appeal of the 4.33 Application. The Case Management Officer of the Court of Appeal informed the Applicant that the deadline for appealing the Chambers Judge’s order was June 30, 2019.

Justice Antonio confirmed that Applicants seeking an extension of time must establish: i) they had a bona fide intention to appeal while the right existed, and special circumstances which would justify or excuse the failure to appeal in time; ii) an explanation for the delay, and that the Respondent was not seriously prejudiced by the delay such that it would be unjust to disturb the Judgment; iii) the Applicant has not taken the benefits of the Judgment under Appeal; iv) the Appeal would have a reasonable chance of success if allowed to proceed. Justice Antonio also noted that the Court retains the discretion to extend the time to appeal even where these factors have not been met if it is in the interests of justice.

The Respondents did not contest that the Applicant possessed a bona fide intention to Appeal, and that the Applicant did not take the benefits of the Judgment under Appeal (the first and third factors). The Applicant asserted that the reason for the delay was erroneous legal advice that the time to Appeal under Rule 14.8 ran from the date of service of the Order under Appeal (August 9, 2019), not from the date of pronouncement of the reasons (May 30, 2019). Justice Antonio noted that misunderstanding of the Rules or procedure does not constitute special circumstances that reasonably explain a delay, but the Court of Appeal has been prepared to accept failures to understand a technical rule.

Regarding the fourth factor, the reasonable chances of success, Justice Antonio confirmed that the failure to establish this factor “strongly suggests that time to file an [A]ppeal should not be extended”. Justice Antonio noted that the Applicant did not allege any error in the Chambers Justice’s statement of the law or analysis regarding the restoration Application, instead, the Applicant re-argued the merits of the underlying Rule 4.33 Application. Justice Antonio noted that the Applicant had failed to establish an error by the Chambers Justice such that the Appeal had a reasonable chance of success.

Justice Antonio considered the overall circumstances of the case (including the period of inactivity giving rise to the delay Application) and concluded that it would not be in the interests of justice to grant an extension of time to file an Appeal. The Application was dismissed.